ADIE & ORS v. YASHEN & ORS (2020)

ADIE & ORS v. YASHEN & ORS

(2020)LCN/14521(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, July 23, 2020

CA/K/602/2016

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ONAH ADIE 2. SAMUEL ADAMU 3. MOSES BULUS 4. ALEXANDER ATOM 5. CLEMENT PATRICK 6. CHRISTOPHER JOHN 7. JOSIAH KANWAI 8. MANASEH JOHN APPELANT(S)

And

1. ZAKARI YASHEN 2. AMOS BAGUDU 3. AYUBA YOHANNA RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS THE DUTY OF A PLAINTIFF WHO CLAIMS DECLARATION OF TITLE TO LAND TO ESTABLISH THE AREA AND BOUNDARIES OF THE LAND IN DISPUTE

It is trite law that where there is no difficulty in identifying the extent of land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even where the parties refer to that land by different names, a declaration of title to land can be made without any plan of the land. See IBULUYA V DIKIBO (1976) 6 SC 97; EMIRI V. IMIEYEH (1999) 4 KLR (Pt. 80) p. 673 at 695. In this case however, it is evident that identifying the extent of the land in dispute is a problem. In land matters the first duty of a Plaintiff who is claiming a declaration of title to land, trespass and injunction is to show quite clearly and establish the area and the boundaries of the land in dispute to which his claim relates as no Court will grant a decree of declaration of title in respect of an undefined area. See NWOGO V. NJOKU (1990) 3 NWLR (Pt. 140) at p.573. PER DANIEL- KALIO J.C.A.

WHETHER OR NOT THE COURTS HAVE A DUTY TO CONSIDER ALL ISSUES BEFORE THEM

It is the law that Courts have a duty to consider all issues before them. I find the following passage in the judgment of the Supreme Court in the case of OKONJI & ORS V. NJOKANMA & ORS (1991) LPELR-2476 (SC) very instructive:-
“…It is the duty of a court, whether of first instance or appellate to consider all issues that have been joined by parties and raised before it for determination. If the Court failed to do so without valid reason, then it has certainly failed in its duty, for in our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve such questions.” PER DANIEL- KALIO J.C.A.

OBIETONBARA O. DANIEL- KALIO J.C.A. (Delivering the Leading Judgment): The appeal here is in respect of a land matter decided by the High Court of Kaduna State (the lower Court). The Appellants as the plaintiffs took out an action by way of an Originating Summons dated 20/11/2015. By the Originating Summons, they wanted the lower Court to determine the following questions:
1. Whether in view of the agreement dated the 4th of May, 2012, between the 1st Plaintiff and the 1st Defendant [in respect of] over twenty plots situate at Rimi Village, Kamazou District, Chikun Local Government Area of Kaduna State, the 1st Plaintiff had acquired valid title over the plots of land contained therein.
2. Whether having sold the plots of land in dispute by the 1st Defendant to the 1st Plaintiff, collected the complete purchase price, executed sales agreement dated the 4th May, 2012 in favor of the 1st Plaintiff and handed over possession of the plots of land in dispute to the 1st Plaintiff, the 1st Defendant or anybody through him can validly transfer title of the same plots of land to another person.
3. Whether it was not illegal, null and void ab initio

for the 1st Defendant and/ or the 2nd Defendant acting through the 1st Defendant to purportedly sell and transfer title of the same plots of land to the 3rd Defendant and/or any other person.
4. Whether the 1st Defendant having collected the purchase price in respect of 20 (twenty) plots of land and only handed over 17 (Seventeen) complete plots to the 1st Plaintiff can refund to the 1st Plaintiff the sum of N960,000.00 (Nine Hundred and Sixty Thousand Naira) only, being the value of three plots of land paid to the 1st Defendant by the 1st Plaintiff and also indemnify the 1st Plaintiff.
5. Whether the sale of land in dispute by the 1st Plaintiff to the 2nd to 8th Plaintiffs is valid and whether the 2nd to 8th Plaintiffs had acquired valid title over the plots of land in dispute.
6. Whether entering the land by the Defendants and destroying the Plaintiffs’ beacons without the consent of the Plaintiffs constitute trespass.

Should the answers to the 1st, 3rd, 4th and 6th questions above be in the affirmative and the answer to the 2nd question be in the negative, the Appellants wanted from the lower Court, the following reliefs-

A declaration of title to all that 17 (Seventeen) plots of land situate at Rimi Village, Kamazou District of Chikun Local Government Area, Kaduna State.
b. A declaration that the purported sale of any of the plots of land in question by the 1st Defendant and/or the 2nd Defendant acting through the 1st Defendant to the 3rd Defendant or any other persons is illegal, null and void ab initio.
c. An injunction restraining the 1st and 2nd Defendants from selling or purporting to sell any of the plots of land in dispute.
d. The sum of N1,000,000.00 (One Million Naira) only as general damages for acts of trespass and mischief committed by the Defendants on the Plaintiffs’ plots of land.
e. A perpetual injunction restraining the Defendants by themselves, their agents, assigns, privies, legal representatives, servants and successors in title from further entering and trespassing on the Plaintiffs’ plots of land.
f. An order compelling the 1st Defendant to refund to the 1st Plaintiff the sum of N960,000.00 (Nine Hundred and Sixty Thousand Naira) only, being the value of three plots of land paid to the 1st Defendant by the 1st Plaintiff without

consideration.
g. An order compelling the 1st Defendant to refund to the 1st Plaintiff the sum of N96,000.00 (Ninety-Six Thousand Naira) only being 10% of the monies paid to an agent in respect of the uncompleted three plots of land.
h. 10% interest annually from the date of judgment until the judgment sum is fully liquidated.
i. The cost of instituting the present suit.

The affidavit in support of the originating summons had attached to it as Exhibit P1, the agreement the Appellants wanted the lower Court to interpret. The affidavit averred that the 2nd to the 8th Appellants purchased plots of land from the 1st Appellant who himself purchased 20 plots of land from the 1st Respondent at a total sum of N6,400,000.00 excluding N640,000 agent’s fee paid to the 1st Appellant; that after the parties had entered into the agreement evidenced by Exhibit P1, the 1st Respondent handed over only 17 complete plots to the 1st Appellant and also handed over 3 incomplete plots. Each plot was meant to measure 100 feet by 50 feet; that in February 2013, the 3rd Respondent trespassed into the plot of land that the 1st Appellant sold to the 2nd

Appellant; that the 3rd Respondent claimed to have bought the plot of land from the 2nd Respondent; that the 2nd Respondent affirmed that he sold the land to the 3rd respondent with the approval and consent of the 1st Respondent; that the 1st Respondent on 7/7/2013 purportedly again sold to others, the portions of plots of land he had earlier sold to the 1st Appellant and which now belonged to the 3rd and 4th Appellants; that the 1st appellant demanded a refund of N960,000 from the 1st Respondent being the value of three incomplete plots of land but despite promises to make a refund, the 1st Respondent failed to do so; that the 1st Respondent did not keep his promise to give a replacement plot to the 3rd Respondent.

The 2nd Respondent filed a counter-affidavit in which he averred that he sold his farmland at Rimi Village to the 1st Respondent at an agreed sum of N10,000,000.00 out of which the 1st Respondent paid an initial sum of N1,500,000.00 leaving a balance of N8,500,000.00 which was to be paid in installments; that when the 1st Respondent could not cope with the payment of the balance due as agreed, he decided to surrender some of the plots to cover

the outstanding balance owed; that out of the land surrendered, he sold a plot of land to the 3rd Respondent; that he was not a party to the transaction between the 1st Appellant, the 1st Respondent and the 2nd Appellant.

The 3rd Respondent also filed a counter-affidavit. In it he averred that he is the bona fide owner of a plot of land the particulars of which he gave, located at Rimi Village which he purchased from the 2nd Respondent on 22/5/2013 and in respect of which purchase, there is an agreement endorsed by both the Ward Head and the Village Head of Rimi. A copy of the Agreement was attached to the counter-affidavit.

In the judgment of the lower Court delivered by Esther Y. B. Lolo J. on 12/7/16, the learned Judge held that the Appellants failed in their fundamental duty of establishing the identity of the land in dispute. The learned Judge held that the identity of the disputed land is the bedrock of the Appellants case, and that since the identity of the land in dispute was not established, the Appellants’ case was not proved. Further, the learned trial Judge held that the agreement exhibited to the Originating Summons is between the

1st Appellant and the 1st Respondent and therefore had nothing to do with the 2nd Appellant. The learned Judge held that the said agreement did not add any value to the case of the 2nd Appellant, and indeed, the case of the 3rd-8th Appellants. The learned Judge also held that the case of the Appellants had no chance of succeeding as a matter commenced under the Originating Summons procedure and that the case would not have succeeded even if it was commenced by a Writ of Summons. The learned Judge therefore dismissed the case for lacking in merit.

Dissatisfied, the Appellants in their Notice of Appeal filed on 21/09/2016 appealed against the judgment on five grounds. The Appellants, the 1st Respondent and the 3rd Respondent filed Briefs of Argument. The Appellants also filed Reply Briefs of Argument in response to the Brief of the 1st Respondent and that of the 3rd Respondent.

In the Appellant’s Brief settled by K.B. Yakunat, Esq. filed on 27/2/17 and deemed filed on 7/11/17, the following three issues for determination were formulated:-
1. Whether the identity of the plots of land in question was in issue and whether the Appellants have

not established the identity of the plots of land in dispute;
2. Whether the trial Court was right to have refused or neglected to determine any or all the issues placed before it for determination and whether the judgment of the lower Court was right in view of the evidence before the Court.
3. Whether the trial Court was right to have accepted and used the counter-affidavit of the 2nd Respondent which was filed out of the time provided by the rules of court without obtaining the leave of the Court.

The 1st Respondent’s Brief of Argument was settled by Oliver T. Daniel, Esq. It was filed on 25/6/18 but deemed filed on 15/6/2020. In the Brief, a sole issue for determination was formulated. It reads:-
“Whether the Appellants jointly and severally by way of Originating Summons made out a case against the 1st Respondent at the trial Court and enforceable in law.”

The 3rd Respondent’s Brief of Argument was settled by Kabir Momoh, Esq. In it, the 3rd Respondent’s learned Counsel formulated the following issues:
1. Whether the Appellants, particularly the 2nd Appellant clearly and properly ascertained or identified the land being

claimed against the 3rd Respondent in the instant case as required by law.
2. Whether the learned trial judge was not right in considering other ancillary issues to the principal claim of the Appellants for a declaration of title to land having determined that the identity of the land in dispute has not been established.

I will consider the issues formulated by the Appellants. The issues raised by the 1st and 3rd Respondents will be considered under the Appellants’ issues.

On issue 1 which is whether the identity of the plots of land in question was in issue and whether the Appellants have not established the identity of the plots of land in dispute, the Appellants learned Counsel agreed that the identity of land in dispute is important if a declaration of title is to be made by a Court. However, he contended that the identity of land only becomes an issue when a defendant has made it an issue in his statement of defence. He cited the case of ATANDA V ILIASU (2013) ALL FWLR (Pt. 681) p. 1469 at 1481-1482; AIYEOLA V PEDRO (2014) ALL FWLR (Pt. 744) p. 17 at 37. It was contended that the Respondents never put the identity of the land in

dispute in issue as to warrant the Appellants to prove same before the lower Court. It was submitted that Exhibit P1 i.e. the Sale Agreement attached as an exhibit to the Originating Summons, clearly defined the area and number of plots and that the 1st Respondent who executed Exhibit P1 did not file a counter-affidavit to challenge the defined area. It was contended that the 2nd Respondent also did not join issues on the identity of the land. Furthermore, the 3rd respondent it was submitted, also did not join issues on the identity of the land. It was therefore submitted that the decision of the lower Court that the land in dispute was not defined, is perverse as the identity of the land was never in issue.

The Counsel to the 1st Respondent did not respond to the arguments of the Appellants’ learned Counsel with regard to the identity of the land in dispute.

On his part, learned Counsel to the 3rd Respondent submitted that there was nothing before the trial Court that showed a proper description of the land in dispute between the 2nd Appellant and the 3rd Respondent. It was contended that in paragraph 5 of the affidavit in support of the Originating

Summons, the Appellants referred to land situate at Rimi Village, Kamazou District in Chikun Local Government Area of Kaduna State and nothing more definite or specific. It was submitted that the 3rd Respondent in paragraphs 13, 16 and 20, of his Counter-affidavit averred that the plot of land being claimed by the 2nd Appellant is unknown and is not the same as the land described by the 3rd Respondent as his. It was submitted that the 3rd Respondent not only joined issues on the ownership of the land claimed by the 2nd Appellant, but also joined issues on its identity. It was further submitted that where parties are not ad-idem on the identity of land in dispute, the Plaintiff must prove the identity of the land otherwise, his claim will fail. He cited ONU V. AGU (1996) 5 NWLR (Pt. 451) p. 652 at 662; OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR (Pt. 430) 253 at 264; NWABUOKU V. ONWORDI (2006) ALL FWLR (Pt. 331) 1236 at 1255. It was submitted that the lower Court was right when it held that the identity of the land was the bedrock of the Appellants case and that the Appellants did not identify the land in dispute.

In his argument in reply to the 3rd

Respondent, the Appellants’ learned Counsel submitted that the 3rd Respondent did not join issues on 17 plots of land claimed by the Appellants. He contended that there is a wide difference between 17 plots of land and one plot of land. He reiterated that neither the 2nd Respondent nor the 1st Respondent who sold the plots of land to the 1st Appellant, denied the location, size, dimension and description of the land.

Now, the Appellants filed the suit against the Respondents as earlier noted in this judgment, by way of an Originating Summons. After asking the lower court to give answers to some questions that arose from the sale Agreement dated 4/5/2012 between the 1st Appellant and the 1st Respondent, the Appellants sought the reliefs in the Originating Summons. I have earlier in this judgment reproduced those reliefs. The said reliefs include two declaratory reliefs. I will reproduce those two declaratory reliefs for ease of reference. They read:-
“a. A declaration of title to all that 17 (Seventeen) plots of land situate at Rimi Village, Kamazou District of Chikun Local Government Area, Kaduna State.
b. A declaration that the purported

sale of any of the plots of land in question by the 1st Defendant and/or the 2nd Defendant acting through the 1st Defendant to the 3rd Defendant or any other person is illegal, null and void”.

The Appellants’ learned Counsel correctly stated the position of the law when he submitted that the identity of a disputed land only becomes an issue when a defendant has made it an issue. His submission that the Respondents did not make the identity of the land an issue is however a sticking point. It is not correct that the Respondents did not make the identity of the land in dispute an issue. The identity of the land was directly in issue as the 2nd respondent who the Appellants in paragraph 7 of their affidavit in support of the Originating Summon said confirmed to them that the land belonged to him and that he had sold the land to the 1st Respondent, flatly denied the averment. The 2nd Respondent in paragraph 16 of his counter-affidavit categorically averred that he was the owner of the land he sold to the 3rd Respondent and never divested himself of the ownership of that land before he sold it. The denial by the 2nd Respondent means that the

disputed land required ascertainment by the Appellants. In other words, the identity of the land was disputed. Furthermore, the 3rd Respondent in paragraphs 8 and 9 of his counter-affidavit gave a clear description of his land as opposed to a vague description by the Appellants in paragraphs 5 and 8 of the affidavit in support of the Originating Summons. The said paragraphs 5 and 8 read:-
5. That sometime in April 2012, the 1st defendant approached me that he has a layout which he was selling and that the lay out is situate at Rimi Village, Kamazou District of Chikun Local Government Area, Kaduna State, which he acquired from the 2nd Defendant amounting to hundreds of plots of land measuring 100 by 50 feet each.
8. That the 1st plaintiff indicated interest in buying 20 plots of the land measuring 100 feet by 50 feet’
It is trite law that where there is no difficulty in identifying the extent of land in dispute or the parties have agreed that an identifiable piece of land is in dispute between them, even where the parties refer to that land by different names, a declaration of title to land can be made without any plan of the land. See IBULUYA V DIKIBO

(1976) 6 SC 97; EMIRI V. IMIEYEH (1999) 4 KLR (Pt. 80) p. 673 at 695. In this case however, it is evident that identifying the extent of the land in dispute is a problem. In land matters the first duty of a Plaintiff who is claiming a declaration of title to land, trespass and injunction is to show quite clearly and establish the area and the boundaries of the land in dispute to which his claim relates as no Court will grant a decree of declaration of title in respect of an undefined area. See NWOGO V. NJOKU (1990) 3 NWLR (Pt. 140) at p.573. I can neither fault the lower Court for holding that the identity of any land in dispute is fundamental nor fault it for holding that the Appellants case cannot succeed since the Appellants failed to identify the land in dispute. Issue 1 is resolved against the Appellants.

On issue 2 which is whether the trial Court was right to have refused or neglected to determine any or all the issues placed before it for determination and whether the judgment of the lower Court was right in view of the evidence before that Court, the Appellants’ learned Counsel submitted that it is the duty of a Court whether of first

instance or appellate, to consider all the issues that have been joined by the parties and raised before the Court for determination. He cited the case of OKONJI V. NJOKANMA (1991) 7 NWLR (Pt. 202) 131. The lower Court it was contended, was wrong not to have determined all the issues raised before it. It was submitted that the lower Court’s refusal to consider and determine all the issues resulted in a miscarriage of justice against the Appellants. It was further submitted that had the lower Court carefully considered the case before it, it would have found that the main dispute in the matter before it was between the 1st Appellant and the 1st Respondent. We were urged to exercise the powers of this Court under Section 15 of the Court of Appeal Act and evaluate the evidence in the matter since the lower Court failed to do so, and enter judgment in the Appellants’ favor. The case of IWUOHA V. MOBIL PRODUCING (NIG) UNLTD (2013) ALL FWLR ( Pt. 664) 144 at 155 was cited in support.

In his submission in response, the 1st Respondent’s learned Counsel submitted that where a matter filed in Court has a principal relief and other ancillary reliefs, the

ancillary reliefs are at the mercy of the principal relief and that in such a case, the Court has no business to look into the ancillary reliefs as they are inconsequential. MOHAMMED V. OLAWUNMI (1990) 2 NWLR (Pt. 133) 458 at 484 was cited in support. It was submitted that non-consideration of the ancillary reliefs did not occasion any miscarriage of justice to the appellants.

On issue 2, the 3rd Respondent’s learned Counsel conceded that a trial Court and even this Court is enjoined to consider and pronounce on all issues submitted by the parties to it for determination. It was submitted that this position of the law is not without exceptions. It was contended that the issue of identity of land in dispute is fundamental in a claim for a declaration of title to land and that once a Court comes to the conclusion that the identity of land in dispute is not established, there will be no need to consider any ancillary issues for determination. Learned counsel referred to the case of F.M.C V C.S.A. (2009) 9 NWLR (Pt. 1145) 193 at 222 and submitted that the Supreme Court in that case held that a denial of fair hearing or a miscarriage of justice cannot arise

merely because a trial Court or an appellate Court did not consider a particular issue for determination. It was submitted that the lower Court having held that the identity of the land in dispute between the 2nd Appellant and the 3rd Appellant was not proved, that Court was right not to have proceeded to consider and determine other issues for determination in the case. Learned Counsel urged that there was no need for this Court to proceed under Section 15 of the Court of Appeal Act to re- hear the matter as the outcome of any such re- hearing will not be different from the outcome of the case now on appeal.

principle of administration of justice that every Court has a duty to hear, determine and resolve such questions.”
Did the lower Court fail to decide all the issues before it without valid reason? I think not. This is because the issue of the identity of the land in dispute is the pillar on which the entire case of the Appellants rests. Remove that pillar, and the case collapses. The Appellants failed to establish the identity of the land in dispute. Having failed to establish it, the case had become like an empty shell that no longer has anything living in it. In that situation, to go further and consider other issues would only have amounted to a mere academic exercise. Issue 2 is also resolved against the Appellants.

The third and final issue is whether the trial Court was right to have accepted and used the counter-affidavit of the 2nd Respondent which was filed out of the time provided by the rules of Court without obtaining the leave of the Court.

On this issue, the Appellants’ learned Counsel referred to Order 3 Rule 8 (4) of the Kaduna State High Court (Civil Procedure) Rules, 2007 which requires that a counter-affidavit together with

all the Exhibits that a defendant intends to rely on in response to an Originating Summons be filed within 21 days of the Originating Summons. This Rule it was contended was not complied with by the 2nd Respondent and that Rules of Court are meant to be obeyed. Learned Counsel argued that the 2nd Respondent’s counter-affidavit is incompetent.

Now even ifOrder 3 Rule 8 (4) of the Kaduna State High Court (Civil Procedure) Rules, 2007was not complied with by the 2nd Respondent when he filed his counter-affidavit to the Originating Summons, that would not make the counter-affidavit incompetent. This is because of the provisions of Order 5 Rule 1 (2) of the same Kaduna State High Court (Civil Procedure) Ruleswhich provides that where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone, been a failure to comply with the rules, it will be treated as an irregularity and may not nullify such step taken in the proceedings. Therefore, the failure to file the counter-affidavit within time is a mere irregularity and does not make it incompetent. Issue three is also resolved against the Appellants.

The result is that the appeal has no merit. I dismiss it. The judgment of the lower Court is affirmed. The parties shall bear their respective costs.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in draft, the judgment just rendered by my learned brother, Obietonbara O. Daniel-Kalio, JCA. I agree with the reasons therein and the conclusion that the appeal lacks substance and deserves an outright dismissal. I therefore dismiss it and subscribe to the consequential orders made therein.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the Judgment of my learned brother O.O. DANIEL-KALIO J.C.A, where the facts and issues in contention have been set out and determined.

I agree with my learned brother’s reasoning and conclusions and also dismiss this appeal. I affirm the judgment of the lower Court.

Appearances:

B. YAKUNAT, Esq. For Appellant(s)

OLIVER T. DANIEL, Esq. for the 1st Respondent

KABIR MOMOH, Esq. for the 3rd Respondent For Respondent(s)