ADAMU & ORS v. KNUPDA & ANOR (2022)

ADAMU & ORS v. KNUPDA & ANOR

(2022)LCN/15986(CA)

In the Court of Appeal

(KANO JUDICIAL DIVISION)

On Monday, April 04, 2022

CA/K/125/2012

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

1. ALH. ABUBAKAR ADAMU 2. MAL. YAHAYA YUSUF 3. ALH. GARBA IDRIS APPELANT(S)

And

1. KANO STATE URBAN PLANNING & DEVELOPMENT AUTHORITY, (KNUPDA) 2. CHAIRMAN, TASK FORCE ON DEMOLITION OF ILLEGAL STRUCTURES, KANO STATE RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPELLANT CAN SPLIT A GROUND OF APPEAL TO GENERATE MORE THAN ONE ISSUE FOR DETERMINATION OF APPEAL

The law is trite, that whereas Appellant can collapse two or more grounds of appeal to generate an issue for determination of appeal, he cannot split a ground of appeal to generate more than one issue for determination of appeal. See the case of Agodi Vs Anyanwu & Ors (2014) LPELR – 2374 CA:
“…the law is trite that Appellant cannot distill more than one issue from a single ground of appeal, though a single issue can derive from two or more grounds of appeal. See Ossai vs FRN (2012) LPELR – 19669 (CA) (2013) 13 WRN 87; Osadare & Ors vs Liquidator NPM ltd (2011) LPELR – 9269 (CA); Afribank Plc vs Yelwa (2011) ALL FWLR (pt. 585) 299; Ketu Nto & Anor. Vs G.S.D.I. ltd (2012) LPELR – 7997 CA.”
See also Nweze Vs State (2017) LPELR – 42344 (SC) and Ukwuyok & Ors Vs Ogbulu & Ors (2019) LPELR – 48741 (SC), where it was held:
“It is now well settled that issues for determination must be formulated from competent grounds of appeal. No issue can be formulated outside the grounds of appeal filed. Put differently, every issue for determination must be formulated from and related to or distilled from any ground or grounds of appeal. A party may formulate an issue from one or more grounds of appeal but one ground of appeal cannot produce more than one issue. The law is trite that an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced and/or struck out together with the arguments made in respect of the said issue. See Okpala & Anor v Ibeme & Ors (1989) 2 NWLR (pt 102), 208, Din v African Newspapers of Nigeria Ltd (1990) 3 NWLR (pt 139) 392, Odeh v FRN (2008) 13 NWLR (pt 1103) 1, James Afolabi v The State (2016) LPELR – 40300 (SC), Ibator & Ors vs Barakuro & Ors (2007) 9 NWLR (pt 1040) 475, Capt. Amadi v NNPC (2000) 10 NWLR (pt 674) 76 and others too numerous to cite here. The consequence of all I have said above is that issue 3 in the appellants’ brief is incompetent, not having been distilled from any of the two grounds of appeal donated in the Notice of appeal. Accordingly, issue three in appellants’ brief is hereby struck out.” Per OKORO, JSC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this appeal against the judgment of the High Court of Kano State in Suit No. K/217/2009, delivered on 19th November, 2018 by Hon. Justice Usman Mallam Na’abba, wherein the learned trial Judge dismissed the claims of the Plaintiffs (now Appellants) for failure, saying that the Defendants were right to modify the statutory rights of the Plaintiffs to move them to a safer place; that Plaintiffs cannot maintain action for trespass against the defendants.

At the trial Court, Appellants, as Plaintiffs, had sought the following reliefs:
(a) A declaration that the Plaintiffs’ title to the plots covered by Right of Occupancy No. COM/2002/112 is valid and subsisting as against the Defendants or any other person, whosoever.
(b) An order declaring the directive of the Defendants that the Plaintiffs shall move out of their premises as illegal null and void.
(c) An order of perpetual injunction restraining the Defendants by their agents or privies from trespassing on the (Plaintiffs’) premises or, in any way, disturbing the Plaintiffs’ peaceful enjoyment of the said premises.
(d) Cost of this action.

Appellants said that after several years of trial, in which the Respondents (as Defendants) presented no concrete defence to the claim, the trial Judge entered judgment against Appellants and dismissed their claim.

In the Notice of Appeal, Appellants raised Four (4) Grounds of Appeal, as follows (without their particulars):
(1) The learned trial Judge erred in law when he held that the Respondents had the right to tamper with and disturb the unrevoked title of the Appellants over the plots in question.
(2) The learned trial Judge erred in law when he held that the Appellants/Plaintiffs’ occupancy, backed by statutory allocation, is a mere occupancy, not title.
(3) The learned trial Judge erred in law when he implied that for validity of the Plaintiffs/Appellants title, the Kano State Government must have sought the recommendation of the 1st Respondent before allocation of the plot.
(4) The entire judgment and findings of the learned trial Judge were unwarranted unreasonable and against the weight of evidence.
(See Pages 124 – 125 of the Records of Appeal, transmitted to this Court on 10/5/2012 and deemed duly done on 3/11/2021)

Appellants filed their brief of arguments on 20/12/2021 and distilled three (3) issues for the determination of the Appeal, as follows:
(1) Whether the decision and findings of the trial Court are not liable to be set aside for being factually perverse and legally, per incuriam.
(2) Whether there is anything in the provisions of the Land Use Act, limiting the power of the Governor to grant statutory allocation or subject the said granting power to any agency.
(3) Whether the Respondents have defended the Appellants’ claim at the lower Court.

Appellants did not relate the Issues to the Grounds of Appeal, formally, but a close study of the Issues and Grounds of Appeal would indicate that the Issues one to three derived or flowed from the grounds one to three, serially. But Appellants should always remember to relate their issues for determination of appeal to the grounds of appeal, formally, as failure to do so can sometimes be fatal to the hearing of the appeal, where the appellate Court lacks the patience to do the work of the Appellant’s Counsel. See the case of Diamond Bank Vs Opara & Ors (2018) LPELR – 43907 (SC). See also Dakwak Vs Jos South Local Government Council (2021) LPELR – 55143 (CA), where we held:
The failure of the Appellant to relate his grounds of appeal to the issues distilled for determination of the appeal is dangerous, as it can be fatal to the appeal, where the Appellate Court is not deposed (sic) (disposed) to forage through the bundles of documents – Judgment, notice of appeal, records and briefs filed to identify which issue for determination flows from which grounds of appeal, (thereby doing the works of the Appellant’s counsel for him). In the case of DIAMOND BANK VS OPARA & ORS (2018) LPELR-43907 (SC), it was held: “… It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. ABE VS UNIVERSITY OF ILORIN (2013) 6 NWLR (Pt. 1319) 183 …See also AGODI VS ANYANWU (2014) LPELR-23746, FAJEBE & ANOR VS OPANUGA (2019) LPELR 46348 SC.” However, not tying the issues for determination of the appeal to the grounds of appeal is redeemable, where the appellate Court, as earlier stated, undertakes to find the necessary link(s) between the ground(s) of appeal, and the issue(s) for determination, (despite the Appellant’s default) to proceed with the hearing of the appeal. See MBALIAN & ORS VS UDENDE & ORS (2015) LPELR-24789(A), UKWUOMA VS OKAFOR (2016) LPELR-41505 (A), ABDULLAHI & ANOR VS LEAD AUTOMOBILE CO. LTD (2020) LPELR -51940 (A).”

The Respondent did not file any brief in this appeal, and so the appeal shall be considered on the Appellants’ brief, alone. Appellants’ ground 4 (Omnibus ground) is hereby struck out as no Issue was distilled on/from it.

Arguing the appeal, Learned Counsel for the Appellants, Dr. Nuraddeen A. Ayagi, said that the decision and findings of the trial Court are liable to be set aside, for being factually perverse and legally, per incuriam. He said that the judgment went against the facts and evidence placed before the Court, that the factual findings made by the trial Court did not have any foundation or origin from what was pleaded. Counsel referred us to page 120 of the Records of Appeal, where the trial Court made the following finding: “That the plots of the Plaintiffs were not revoked but rather moved back in order not to constitute nuisance to the other road users.”

Counsel said that that finding, which formed one of the basis for the judgment, was partly perverse, as it did not wholly emanate from the evidence, placed before the Court, and was contrary to the principle in the case of Onuoha Vs State (2002) 1 NWLR (Pt.748) 406, to the effect that:
“A trial Court must not base its decision on speculation and extraneous matter not supported by evidence before the Court…”

Counsel said that the only finding therein which agreed with the case presented was that Appellants’ title was never revoked by the government and he said that that entitled the Appellants to the declaration sought. Counsel said the other limb of the finding was perverse, which supposed that Appellants were only asked to move from the roadside, thereby only reducing the size of their plots. He said that what was in evidence was that Appellants were asked to vacate their unrevoked land by the Respondents. He referred us to the evidence of PW3 on Page 91 of the Records and that of PW1 and PW2, and said that that evidence was not challenged or shaken by the Respondents. Counsel relied on the case of PTF Vs IFMS Ltd (2002) 16 NWLR (Pt.794) 586, on effect of unchallenged evidence.

Counsel also referred us to what the trial Court said on Page 120 of the Records, where the trial Court said:
“That the 1st Defendant have, upon recommendation of the State Ministry of Lands and Physical Planning, was given approval to move the Plaintiffs and create corner shops.”

Counsel said the above finding was also perverse and contradictory, as there was no evidence led to establish, with certainty, such recommendation; he said that there was no document from the government concerning that, and same was not even pleaded. Counsel further argued that, even if there was any such recommendation, the same cannot override legal provision and cannot apply to take the place of a valid revocation notice, which was never served on Appellants. Counsel said that there was no document to support the alleged recommendation, adding that government always works with documents. Counsel relied on the case of Agbomeji Vs Bakare (1998) 9 NWLR (Pt.564) 1 SC and Steve Vs Ajie (2000) 7 SC (Pt.1) 24 and Ige Vs Adegbola (1998) (Pt.571) 662, on the meaning of perverse judgment and when a judgment is said to be perverse.

On issue 2, Counsel argued:
“Whether the provisions of Sections 18 and 19 of the Kano State Environmental Planning and Protection Agency Edict can purport to and have effect of superseding and taking over the powers of the Governor as conferred on him by Section 28 of the Land Use Act.”

The above issue appears strange and not in tandem with the issue 2 distilled by Appellant from ground 2 of the appeal. Appellants’ original issue 2 was:
“Whether there is anything in the provisions of the Land Use Act, limiting the power of the Governor to grant statutory allocation or subject the said granting power to any agency.”
The ground 2 whereof the said issue was derived was:
“The learned trial Judge erred in law when he held that the Appellants/Plaintiffs’ occupancy backed by statutory allocation is a mere occupancy, not title.”

I cannot see anything in that ground 2 and the original issue 2, that suggests the application of the provisions of Sections 18 and 19 of the Kano Environmental Planning and Protection Agency Edict as purporting to have the effect of superseding, and/or taking over the powers of the Governor as conferred on him by Section 28 of the Land Use Act!

On page 121 of the records, the trial Court had merely referred to the Sections 18 and 19 of the Kano State Environmental Planning and Protection Agency Edict as the legislation that empowers the Government through the 1st Respondent to move back the Appellants from where they were to another place, for the purpose of urban planning, and safety. The trial Court never inferred that the above law superseded or had the effect of making the Governor circumvent the Section 28 of the Land Use Act.

I do not therefore think the arguments of the Appellants on the issue 2 is competent, in view of the inconsistencies highlighted above, as it apparent Appellants have distilled two separate issues from the same ground 2 of the Appeal.

The law is trite, that whereas Appellant can collapse two or more grounds of appeal to generate an issue for determination of appeal, he cannot split a ground of appeal to generate more than one issue for determination of appeal. See the case of Agodi Vs Anyanwu & Ors (2014) LPELR – 2374 CA:
“…the law is trite that Appellant cannot distill more than one issue from a single ground of appeal, though a single issue can derive from two or more grounds of appeal. See Ossai vs FRN (2012) LPELR – 19669 (CA) (2013) 13 WRN 87; Osadare & Ors vs Liquidator NPM ltd (2011) LPELR – 9269 (CA); Afribank Plc vs Yelwa (2011) ALL FWLR (pt. 585) 299; Ketu Nto & Anor. Vs G.S.D.I. ltd (2012) LPELR – 7997 CA.”
See also Nweze Vs State (2017) LPELR – 42344 (SC) and Ukwuyok & Ors Vs Ogbulu & Ors (2019) LPELR – 48741 (SC), where it was held:
“It is now well settled that issues for determination must be formulated from competent grounds of appeal. No issue can be formulated outside the grounds of appeal filed. Put differently, every issue for determination must be formulated from and related to or distilled from any ground or grounds of appeal. A party may formulate an issue from one or more grounds of appeal but one ground of appeal cannot produce more than one issue. The law is trite that an issue not distilled from any of the grounds of appeal, is incompetent and must be discountenanced and/or struck out together with the arguments made in respect of the said issue. See Okpala & Anor v Ibeme & Ors (1989) 2 NWLR (pt 102), 208, Din v African Newspapers of Nigeria Ltd (1990) 3 NWLR (pt 139) 392, Odeh v FRN (2008) 13 NWLR (pt 1103) 1, James Afolabi v The State (2016) LPELR – 40300 (SC), Ibator & Ors vs Barakuro & Ors (2007) 9 NWLR (pt 1040) 475, Capt. Amadi v NNPC (2000) 10 NWLR (pt 674) 76 and others too numerous to cite here. The consequence of all I have said above is that issue 3 in the appellants’ brief is incompetent, not having been distilled from any of the two grounds of appeal donated in the Notice of appeal. Accordingly, issue three in appellants’ brief is hereby struck out.” Per OKORO, JSC.

Issue 2 is accordingly struck out for incompetence.

On the issue 3, whether the Respondents had defended the case of Appellants at the lower Court, Counsel answered in the negative. He said that Respondents made no attempt to defend the suit, either by evidence or pleadings, that they virtually and clearly admitted the major claim of the Appellants i.e. the ownership of the piece of land and the fact that it was never revoked by government, the grantor; he said further that the Respondents also admitted the fact of having attempted to usurp and disturb the possession of the Appellants, which action they, albeit, justified on a flimsy ground and non-existing law. Counsel therefore wondered why the trial Judge decided the way he did!

Counsel relied on the case of Okoebor Vs Police Council (2003) 12 NWLR (Pt.834) 446, where the Supreme Court said:
“The general rule is that where a Plaintiff’s case is not challenged, he succeeds. This is because the trial Court has no case to deal with other than the case stated by the Plaintiff in the statement of claim and in oral evidence.”

On the admission of the title of the Appellants and other assertions of Appellants, Counsel said that the law is trite, that what is admitted needs no further proof by evidence. He relied on the case of Olagunyi Vs Oyeniran (1996) 6 NWLR (Pt.453) 127 SC; Agbanelo Vs Union Bank (2000) 4 SC (Pt.1) 233; Akpan Vs Umoh (1999) 11 NWLR (Pt.627) 349.

Counsel urged us to resolve the issues for the Appellants and to allow the appeal.

RESOLUTION OF THE ISSUES
I shall consider this appeal on the Appellants’ remaining issues 1 and 3, having struck out the issue 2 for incompetence. I shall however take the said two issues, together.

Was the decision/findings of trial Court supported by evidence before the Court, and was there any defence to the claims or case of the Appellants at the trial Court?

The facts of this case at the Court below show that Appellants were granted rights of occupancy by the government over the plots of land in controversy as per Exhibits A, B1, B2, B3 and B4, and they were carrying on their business on their respective plots for over 10 years, their said right of occupancy was as per letter dated the 23rd March, 2002 issued to their association. Sometime in 2009, the 1st Respondent came to discover that the Plots interfered with public facilities – high tension line and water channels or pipelines and so warned the Appellants to move their things from the said area and threatened to move them, forcefully, if they (Appellants) failed to comply, by 25th May, 2009. They filed this action to stop the Respondents.

DW1, an official of the 1st Respondent, gave evidence on behalf of the Respondents, and said that the government set up a Committee on Public Land Encroachment with a view to clear major roads in the state and that the Plaintiffs got their plots as a result of the re-designing of the area in question, that the Committee discovered that some plots were sitting on the electric lines, some on water pipes, some blocking the properties of others and that the plaintiffs plots happened to be blocking other people properties, that the Committee revoked the affected plots, through a white paper, but the 1st Defendant decided to reduce the sizes of the Plots of the Plaintiffs, instead of asking them to vacate. DW1 further said that the 1st Defendant decided to cut the plots into corner shops, such that each allottee would be given two corner shops and that the Plaintiffs were given option to choose from the area they wanted, but they refused, he said that the defendants were still waiting for the Plaintiffs to come and claim their own corner shops.

Under cross-examination, DW1 said the Committee that revoked the allocation was set up by Kano State Government and 1st Defendant (1st Respondent) produced the Secretary of the Committee, he was, however not aware whether the Appellants were served with the revocation order, he said that the main reason Appellants’ plots were revoked was that the plots were under High Tension Wires, secondly, they were reservation of water line and were designed in front of another property, he said that the layout (of Appellants plots) was re-designed without recommendation of the 1st Respondent, which made them invalid. He said that the new arrangement was to give the allottees (each of them) two shops, of 3 metres by 4 or 5 metres, he said that all allottees who had the letters of grant of the plots, accepted the new arrangement, except the Appellants. See Pages 116 – 118 of the Records (the summary of evidence of the parties by the trial Court)

From the above findings, it is clear that the Respondents, in fact, defended the suit, and had filed their statement of defence and statement on oath (as per Pages 70 to 75 of the Records of Appeal). Appellants were therefore wrong and not honest, when they asserted in their brief, under issue 3, as follows: “… the Respondents as Defendants… had not made even a flimsy attempt at defending the case of the Appellants. Neither by evidence nor pleadings. In fact, the Respondents virtually and clearly admitted the major claim of Appellants i.e. of the ownership of the piece of land and the fact that it was never revoked by government, the grantor….” (See Page 10 of the Appellants’ Brief).
In his findings, the trial Court had said:
“Now having made this important finding of facts, it is my view that the Government through the 1st Defendant, have the right to revoke the rights of occupancy or put in another word, to move back the Plaintiffs from where they are now to another place, for the purpose of urban planning, as provided for under the provisions of Sections 18 and 19 of Kano State Environmental Planning and Protection Agency Edict, 1989.
Marrying these facts with the law, in proof or dis-proof of the issue of revocation, learned Counsel for the Plaintiffs hammered on the Section 28 of the Land Use Act, which provides… “It shall be lawful for a government to revoke Right of Occupancy” and submit that Section 28 of the Land Use Act vested power to (sic) the Governor and not committee as contended by the defendants. It is true that only the government by virtue of Section 28 of the Land Use Act that can revoked (sic) a statutory right, but in the instance case what is tendered before the Court as proof of ownership of the Plaintiff is only occupancy permit and not certificate of occupancy. Therefore, I am of the firm view that the 1st defendant has the right to recommend to the governor to revoke the statutory right given to the Plaintiffs and I so hold. I therefore resolved this issue in favour of the defendant.
On the 2nd issue of whether the Plaintiffs can maintain an action for trespass, since I have held the view that the statutory right of the Plaintiffs, to move them to a safer place, it goes with (sic) saying therefore that they cannot maintain an action for trespass. I am not satisfied that the defendants’ act amounted to trespass.” (See Pages 121 to 122 of the Records)

The above findings of the trial Court appeared not challenged by the Appellants in this Appeal, as Appellants’ notice and grounds of Appeal and their Issues, rather complained that “the trial Court had no right to tamper with and disturb the unrevoked statutory title of Appellants over the plots in question; or that “the trial Court erred when it implied, that for validity of the Appellants’ title, the Kano State Government must have sought the recommendation of the 1st Respondent before allocation of the plot; or that “the trial Judge erred when he held that Appellants’ occupancy backed by statutory allocation is a mere “occupancy”, not title.” (See grounds 1, 2, 3 of the Appeal).

I had already stated the issues derived from the said grounds. None challenged or refuted the findings that the Government, through the 1st Respondent, had the right to revoke the rights of occupancy or to move back the Appellants from the plots and locate them on a safer place, for the purpose of urban planning, as the plots they occupied were found to be under high tension lines (Wires) and had affected water lines and or blocked other properties and so the area needed re-design as per the advice of the Committee set up by Government for the purpose. There was evidence, which was not refuted, that the Appellants were not denied their allocations, but were even given the option of first choice of the two shops allocated to each of the allottees, affected by the re-designs of the area. There was also evidence that all those affected had accepted the arrangement, except the Appellants.

I think where it has to do with policy of government, in respect of proper urban and town planning arrangement to re-design an area and take the allottees from the high tension lines or water/drainage lines and/or correction of easement to remove blocking of access to other peoples property, the law would permit the government to intervene and interfere, provided the overall interest of Claimants, vis-à-vis, the general public, is protected.

Appellants did not deny the findings that they were offered two shops after the re-design/arrangement, and they were allowed to make their choice as to which shops to take. It appears Appellants were only interested in holding the government to ransom, in the circumstances, trying to be unduly legalistic, and seeking formal service of the revocation order of the allocation earlier given to them, on them, before the government could go ahead with the arrangement to re-design the area and correct the mischief! Having admitted the power of the Government, which granted the allocation in the first place, I think Appellant should also concede to the government, the right to act in the interest of the overall urban planning law, to correct the errors and move them or relocate them, to safer places, in their overall interest and that of the society.

Appellants have argued that there was no revocation order issued to Appellants in compliance with the Section 28 of the Land Use Act, 1978. I have not, however, seen where the Appellants established that the allocation of the said plots by Government to them was made, pursuant to the provisions of the Land Use Act, which Law also says: “it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.” (See Section 28(1) thereof). The trial Court had also made findings that Appellants allocations of the plots, was not pursuant to the Land Use Act, but mere occupancy permits. That has not been appealed against too. From the accounts given by the DW1 (and not denied by the Appellants), there is no doubt that the Respondents tampered with holdings/interest of the Appellants in the plot in their interest, and in the public interest, to relocate Appellants from high tension lines and water channels, etc, to safer locations and they were even given the preference to choose the plots (shops) in the re-designed area or location!

I therefore cannot see any merit in this appeal as I resolve the issues against the Appellants and dismiss the appeal.

Parties shall however bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother, ITA GEORGE MBABA, J.C.A. I agree with it. I have nothing useful to add.

I also dismiss the appeal. I order that parties bear their costs.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA GEORGE MBABA, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.