ALHAJI MANSUR SALISU & ORS v. ALHAJI ISMAILA ABUBAKAR & ORS
(2014)LCN/6790(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of January, 2014
CA/K/254/2009
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI MANSUR SALISU
2. ALHAJI LAWAN SULEIMAN
3. ALHAJI HASHIM SHEHU
4. ALHAJI TIJJANI YUNUSA
5. ALHAJI UBA ABDULLAHI
6. ALHAJI UMAR YUNUSA
7. ALHAJI MUSA UMAR
8. ALHAJI BABANGIDA SARIKIN SHANU
9. ALHAJI ISA SAIDU
10. ALHAJI YAHAYA USMAN ABDULAZIZ Appellant(s)
AND
1. ALHAJI ISMAILA ABUBAKAR
2. KABIRU ISMAILA
3. UMAR ISMAILA
4. SAGIR ISMAILA
5. HASSAN ISMAILA
6. ABDULRASHID ISMAILA
7. ABUBAKAR ISMAILA
8. ASHIR ISMAILA
9. USAINI ISMAILA
10. ABDULAZIZ ISMAILA
11. MUHAMMADU ABUBAKAR RIMI MARKET CO. LTD Respondent(s)
RATIO
THE PURPOSE OF AN APPEAL
Now, an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. Therefore, to be useful in an appeal, a ground of appeal must be against what was decided by the lower Court and not against what the lower Court did not decide. Grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio decidendiof the said decision – Christaben Group Ltd Vs Oni (2010) All FWLR (Pt 504) 1439, Okponipere Vs State (2013) 10 NWLR (Pt 1362) 209 and Abe Vs University of Ilorin (2013) 16 NWLR (Pt 1379) 183. The ratio decidendi in a case represents the legal reasoning or principle or ground upon which a case is decided – Ibrahim Vs Fulani (2010) 17 NWLR (Pt 1222) 241., Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404. Where a ground of appeal challenges what was not decided by the lower Court, it is incompetent and will be struck out. Similarly, an issue for determination to be resolved in an appeal must arise from the decision appealed against and where the converse is the case, the courts are enjoined to discountenance and strike out such issues – Contract Resources (Nig) Ltd Vs Standard Trust Bank Ltd (2013) 6 NWLR (Pt 1350) 260, Asogwa Vs Peoples Democratic Party (2013) 7 NWLR (Pt 1353) 207, Eyigebe Vs Iyaji (2013) 11 NWLR (Pt 1365) 407. PER ABIRU, J.C.A.
THE PURPOSE OF THE REQUIREMENT OF STATING PARTICULARS OF A GROUND OF APPEAL
It is trite that the purpose of the requirement of stating particulars of a ground of appeal is to inform the respondent and the court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the court to be aware of the nature of the error or misdirection complained of – Munguno Vs Bluewhales & Co (2011) 2 NWLR (Pt 1231) 275. Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant – Osasona Vs Ajayi (2004) 14 NWLR (Pt 894) 527, Diamond Bank Ltd Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67. Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal – Federal Medical Center, Ido-Ekiti Vs Olajide (2011) 11 NWLR (Pt 1258) 256. PER ABIRU, J.C.A.
THE CONSEQUENCES OF A GROUND OF APPEAL NOT SUPPORTED WITH ANY PARTICULARS
This ground of appeal was not supported with any particulars. In Central Bank of Nigeria Vs Okojie (2002) 8 NWLR (Pt 768) 48, Uwaifo, JSC stated that:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant”
These words were re-echoed by the Courts in Governor, Ekiti State Vs Osayomi (2005) 2 NWLR (Pt 909) 67, Imam Vs Sheriff (2005) 4 NWLR (Pt 914) 80, Nwabueze Vs Nwora (2005) 8 NWLR (Pt.926) 1 and Unity Bank Plc Vs Olatunji (2013) 15 NWLR (Pt 1378) 503. Reading the third ground of appeal as couched, it is in the nature of a parable that even the ‘ten wise men’ will have a difficulty in decoding. The complaint therein is not susceptible to being understood and gives room for a lot of speculation. The third ground of appeal of the Appellants is the epitome of vagueness. It is trite law that a vague ground of appeal is of no use in an appeal. It is not permissible. It is incompetent and is liable to be struck out – Ogbodu Vs Senior Staff Association of Universities, Teaching Hospitals, Research Institutes and Associated Institutions (2013) 3 NWLR (Pt 1341) 261. The third ground of appeal of the Appellants is incompetent and it is liable to be struck out. PER ABIRU, J.C.A.
THE PURPOSE OF A GROUND OF APPEAL
It is correct that the ground of appeal is not supported by a separate list of particulars. It is not a requirement of the law that particulars of a ground of appeal must be set out separately. It is sufficient if the particulars are embodied in the ground of appeal in such a way that leaves no doubt of the error or misdirection complained of. The purpose of a ground of appeal is to give notice to the other side of the case it has to meet in the appellate Court, so where the complaint in a ground of appeal is clear, its purpose would have been served – Koya Vs United Bank of Africa Plc (1997) 1 N\WLR (Pt 481) 251,, Minister of Works and Housing Vs Tomas (Nig) Ltd (2002) 2 NWLR (Pt 752) 740, Ila Enterprises Ltd Vs Umar Ali and Company (Nig) Ltd (2013) 15 NWLR (Pt 1376) 191. In fact, in Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt 1239) 95, the Supreme Court held that where the complaint on a ground of law in a ground of appeal is clear and succinct, particulars of the error in law are unnecessary. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is a consolidated appeal. The facts of the cases leading up to the consolidated appeals are pretty straight forward and, from the contents of the several documents tendered as exhibits and from the uncontested facts between the parties, the controversies centered around a building block, referred to as Block C, in the Muhammadu Abubakar Rimi Market in Sabon Gari, Kano. By a letter, the date of which is unclear from the photocopy in the records of appeal, the Kano Municipal Local Government Council, the then Managers of the Sabon Gari Market, rented the said Block C to the first Respondent for use as a restaurant from the 1st of July, 1985 at a yearly rent of N1,666.67k. The first Respondent took possession of the block and paid his due rents and he subsequently converted the block of building into ten shops which he sublet to the ten Appellants. There was evidence that the first Respondent paid his yearly rents for the block of building consisting of the ten shops to the Kano Municipal Local Government Council up and until 1994.
It was the case of the Appellants that the holding of the first Respondent over the block of building consisting of the ten shops was revoked by the Local Government Council and that the Local Government Council thereafter let the shops to the Appellants directly from December 1994 at a yearly rent of N3,000.00 and the Appellants thereafter stopped dealing with the first Respondents and they paid their rents to the Local Government Council. The first Respondent challenged the action of the Local Government Council in dealing directly with the Appellants as its tenants by commencing an action in the Chief Magistrate Court, Kano in Suit No KA/402/95. At a point in time the Kano State Government handed over the management of the Sabon Gari Market to the eleventh Respondent and it inherited the Appellants as its tenants in respect of the ten shops in the Block C building as well as the case commenced by the first Respondent against the Local Government Council and the Appellants thereafter paid their rents to the eleventh Respondent. However, by letters dated the 16th of February, 1998, the eleventh Respondent allocated the said ten shops to the first to tenth Respondents at yearly rent of N7,000.00 subject to review and there is evidence that each of the first to the tenth Respondents paid the rents for the allocated shops to the eleventh Respondent up to and until 2006. Upon the allocation of the shops to them, the first to the tenth Respondents issued the Appellants with seven days notice to quit the shops.
In apparent reaction to the development, each of the Appellants commenced an action in the High Court of Kano State against each of the first to tenth Respondents to whom the particular shop occupied by that Appellant was allocated, along with the eleventh Respondent, and the suits were numbered as Suits Nos. K/12/99 to K/21/99. In the ten suits, the Appellants challenged the allocations of the shops made to the first to the tenth Respondents by the eleventh Respondent and sought for declarations that they are the allotees of the shops and for orders of injunction against the Respondents. The first to the tenth Respondents commenced an action of their own in Suit No K/233/99 against the Appellants in the High Court of Kano State praying for declarations that they are the rightful allotees of the shops and that the continued occupation of the shops by the Appellants was unlawful, wrongful, unconstitutional, null and void and for possession of the shops forthwith as well as for payment of arrears of rent.
The Chief Judge of Kano State consolidated the hearing of the eleven suits and it was assigned to Honorable Justice Muhammadu Haliru Abdullahi. The matters went to trial and at the conclusion of which the lower Court delivered judgment in the suits on the 16th of January, 2008 dismissing the claims of each Appellant and it directed the eleventh Respondent to relocate the Appellants from the said shops and to hand over vacant possession of the shops to the first to tenth Respondents within ninety days of the judgment. The lower Court deliberated on and resolved the respective cases of the parties thus:
“In deciding this case, it is pertinent to start by accepting the 3 issues formulated by the learned plaintiff’s Counsel as quiet apt. The case of the plaintiffs is that the allocation of their stalls was validly made after the allocation of the 1st defendant Abubakar Isma’ila was revoked. The defendants countered by asserting that the allocation was restored.
In the testimony of PW1 Alhaji Saidu Dattijo Adhama he stated that the allocation of the 1st defendant was revoked but restored in circumstances that could be described as order from above. He said that was done before the allocation of the plaintiffs was revoked. DW11 Aminu Isa Hashim also reechoed the testimony of PW1. He also said that his company continued to receive payments from all the parties pending the outcome of the court case, at which point the 11th defendant will refund all payments to the losing party.
I decided to take the evidence of PW1 and DW11 together because that is what will serve as the fulcrum of where the scale of justice should tilt in resolving the issues for determination. This is so since both parties cases are evidently hinged on the superiority of one’s allocation over the other and it is the testimony of the above 2 officials that should serve in the assessment of the evidence adduced by either party.
On issue 1, I am of the view that since the PW1 stated positively that he was the sole allocating authority and was directly responsible to the Military Administrator on whose instructions he reallocated the shops to the 1st to 10th defendants, I hereby resolve the issue against the plaintiffs and in favour of the 1st to 10th defendants. This is so since the powers of PW1 on matters concerning allocation of stalls in pursuit of which he reallocated the Block C stalls to Isma’ila Abubakar and his sons being the 10 defendants has neither been impeached nor could the non-revocation of the stalls of the plaintiffs be visited on the 10th defendants since it was the fault of the 11th defendant. I therefore hold that the reallocation in the circumstances stated by PW1 and DW11 remains superior to that of the plaintiffs.” (see pages 750 to 751 of the records)
The lower Court thereafter proceeded to order as follows:
“All the 10 shops are hereby declared to be the shops of the 1st to 10th defendants Alhaji Isma’ila Abubakar and his children. In consequence of the conduct of the 11th defendant of collecting the rent payments of all parties to the dispute including the plaintiffs instead of directing them to pay to court in accordance with the law in such situations thus holding themselves out liable to the plaintiffs and assuring them of some kind of support, the appropriate order to make is to order the 11th defendant to relocate the 1st to 10th plaintiffs to other shops within 90 days of today. In consequence the 11th defendant is hereby ordered to deliver vacant possession of shops CR1 to CR10 within 900 days of today. In consequence all claim on arrears of rent and damages by the 1st to 10th defendants are hereby refused.” (See pages 752 of the records)
The Appellants were dissatisfied with the judgment and each of them caused his Counsel to file a notice of appeal against the judgment. Ten notices of appeal, all dated the 8th of April, 2008, were filed and each notice of appeal contained five grounds of appeal.
In arguing the ten appeals before this Court, the Appellants filed one brief of arguments dated the 9th of November, 2010 and it consisted of thirty-two pages and it was deemed properly filed on the 25th of November, 2010. The first to the tenth Respondents filed a brief of arguments dated the 13th of October, 2011 in response and this was pursuant to an order for extension of time granted in their favour by this Court on the 11th of October, 2011, 2nd the brief of arguments consisted of twenty-four pages. The Appellants filed a reply brief consisting of twenty pages and dated the 23rd of March, 2012 and it was deemed properly filed on the 23rd of January 2013.The eleventh Respondent did not file a brief of arguments in the appeal and on the 13th of May, 2013, this Court set down the hearing of the appeal on the briefs of arguments of the Appellants and the first to tenth Respondents. At the hearing of the appeal, Counsel to the first to tenth Respondents referred to a notice of preliminary objection dated the 18th of March, 2011, and the arguments proffered thereon in their brief of arguments and he moved the application and Counsel to the Appellants responded thereto. Counsel to the parties thereafter adopted the arguments on the substantive appeal in their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellants formulated three issues for determination in this appeal. These were:
i. Whether the lower Court was right to hold that the first to tenth Appellants’ allocations to stalls/shops Nos. CR1 to CR10 at Muhammed Abubakar Rimi Market, Sabon Gari, Kano were no longer valid and subsisting on the ground that PW1 Alhaji Saidu Dattijo Adhama was the sole allocating authority and directly responsible to the Military Administrator of Kano State on whose instructions he reallocated the said stalls/shops to the first to tenth Respondents therein.
ii. Whether the subsequent allocations of stalls/shops Nos. CR1 to CR10 Muhammed Abubakar Rimi Market, Sabon Gari, Kano to the first to the 10th Respondents herein by PW1 Alhaji Saidu Dattijo Adhama acting on the directives received by him from the then Military Administrator of Kano State (the then Col. Dominic O Oneya) were not illegal, null and void ab initio and thus liable to be set aside.
iii. Whether the Appellants had not proved their respective cases before the lower Court upon a preponderance of evidence so as to entitle them to the judgment of the lower Court by way of granting the reliefs sought from the lower Court in their respective amended statements of claims.
In his brief of arguments, Counsel to the first to the tenth Respondents stated that there was only one issue for determination in this appeal and this was:
Whether the trial Judge fully and dispassionately considered and resolved all the various issues raised by the Appellants including the issue of allocation of the shops in issue to the parties in this matter when His Lordship held that “the allocation in the circumstances stated by PW1 and DW11 remain superior to that of the Plaintiffs.”
This Court will commence a consideration of this appeal from the resolution of the notice of preliminary objection of the first to the tenth Respondents and arguments thereon are contained on pages 2 to 5 of their brief of arguments. The first ground of objection attacked the first ground of appeal of the Appellants which complained against the finding of the lower Court that “the 1st to 10th Appellants’ allocation to the stall/shops Nos. CR1 to CR10 at Muhanmed Abubukar Rimi Market Sabon Gari Kano are no longer valid and subsisting” and it also attacked t he first issue for determination formulated from the first ground of appeal by the Appellants. Counsel to the first to tenth Respondents stated that the lower Court did not hold or insinuate in its judgment that “the 1st to 10th Appellants’ allocation to the stalls/shop Nos. CR1 to CR10 at Muhammed Abubukar Rimi Market Sabon Gari Kano are no longer valid and subsisting” but rather what the lower Court held was that the allocation made to the first to tenth Respondents was superior to that of the Appellants and that the lower Court thereafter directed the eleventh Respondent to relocate the Appellants to other shops within ninety days. Counsel stated that the complaint in the first ground of appeal and the first issue for determination formulated therefrom did not arise from nor were they related to the judgment appealed against and were thetefore incompetent and he referred to Ogbe Vs Asade (2009) 12 SC (Pt 111) 37.
The second ground of the preliminary objection was that the second issue for determination formulated by the Appellants, whether the allocations made to the first to tenth Respondents “by PW1 Alhaji Saidu Dattijo Adhama acting on the directives received by him from the then Military Administrator of Kano State (the then Col. Dominic O Oneya) were not illegal, null and void ab initio and thus liable to be set aside”, did not arise from any of the grounds of appeal. Counsel submitted that it was a fresh issue that was not canvassed by any of the parties in the court below and it was thus incompetent and he referred to the case of Omo Vs Judicial Service Commission, Delta State (2000) 7 SC (Pt II) 1.
The third ground of the preliminary objection complained against the third ground of appeal as being vague, argumentative and lacking in particulars and Counsel submitted that it was as such incompetent and liable to be struck out and he referred to Umana Vs Attah (2004) 7 NWLR (Pt 871) 63 amongst other cases. Counsel stated that since this incompetent ground three of the notice of appeal was argued along with the second ground of appeal, it tainted the second ground of appeal which ordinarily was proper and rendered it incompetent. The fourth ground of the preliminary objection attacked grounds four and five of the notice of appeal and Counsel stated that ground four of the notice of appeal complained about the character of the judgment in that the lower Court did not consider all the evidence adduced and/or ascribe probative value to them, but that the particulars of the evidence that was not considered or given probative value were not supplied nor were they embedded in the ground of appeal. Counsel submitted that the ground of appeal was thus incompetent. Counsel stated that the fourth ground of appeal was argued along with the fifth ground of appeal and its incompetence also tainted the fifth ground of appeal.
Counsel urged this Court to uphold the notice of preliminary objection and to strike out the appeal.
The response of the Appellants to the preliminary objection of the first to the tenth Respondents is on pages 2 to 13 of the reply brief of the Appellants. On the first ground of the objection, Counsel to the Appellants referred to the writs of summons, amended statements of claim and the statements of defence filed by the parties before the lower Court which, Counsel stated, defined the issues before the lower Court. Counsel said that the first issue for determination formulated by the Appellants before the lower Court was “whether the 1st – 10th Plaintiffs’ allocation to stalls/shops Nos. CR1-CR10 are still valid and subsisting” and that the lower Court accepted the issue and that by resolving the issue against the Appellants in judgment, the lower Court in effect held that the allocation of the stalls/shops were no longer valid and subsisting. Counsel stated that the first ground of appeal thus contains a reasonable complaint against the ratio decidendiof the decision of the lower Court and was thus a valid ground of appeal and he referred to Olufeagba Vs AbdulRaheem (2010) All FWLR (Pt 512) 1033.
With regards to the second ground of the objection, Counsel stated that it was incorrect that the second issue for determination formulated in their brief was a fresh issue, not arising from the grounds of appeal and unrelated to the judgment appealed against, and that the issue of whether the allocation made to the first to the tenth Respondents was illegal, null and void ab initio and liable to be set aside was the central complaint that ran through all the cases of the Appellants before the lower Court. Counsel stated that the issue clearly flows from and it is related to the second ground of appeal and that the particulars to the second ground of appeal highlighted and specified the error in law complained against and they made it clear how the complaint would be canvassed. Counsel submitted that the issue was thus in order.
On the third ground of objection, Counsel stated that there was nothing vague about the third ground of appeal and the ground of appeal does not come within the definition of what amounts to a vague ground of appeal as defined by the Supreme Court in Lagga Vs Sarhuna (2009) All FWLR (Pt 455) 617. Counsel stated that the ground of appeal set out the error complained against in lucid and simple English language and that the Respondents have not stated or shown that they do not understand or appreciate the complaint therein. Counsel stated that the ground of appeal is also not argumentative or lacking in particulars as the particulars are embedded in the ground in the manner it was couched and there was thus no need to set out separate particulars and he referred to Diamond Bank Ltd Vs P.I.C. Ltd (2009) 18 NWLR (Pt.1172) 67.
With regards to the fourth ground of objection, Counsel stated that there was nothing vague or argumentative about the fourth ground of appeal and that what was requited of the Appellants was to state their grounds of appeal clearly, precisely and succinctly, together with particulars where appropriate, as to make the basis of their complaint clear to the appellate Court and the Respondents and that the fourth ground of appeal met these requirements. Counsel stated that fourth ground of appeal as couched was already embedded with the requisite material particulars and there was no need for separate particulars.
Counsel urged this Court to dismiss the notice of preliminary objection as lacking in merit and for being unfounded.
The complaint in the first ground of the preliminary objection is that the first ground of appeal and the first issue for determination distilled therefrom did not arise from the decision of the lower Court. Now, an appeal is an invitation to a higher court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. Therefore, to be useful in an appeal, a ground of appeal must be against what was decided by the lower Court and not against what the lower Court did not decide. Grounds of appeal against a decision must relate to the decision and should be a challenge to the validity of the ratio decidendiof the said decision – Christaben Group Ltd Vs Oni (2010) All FWLR (Pt 504) 1439, Okponipere Vs State (2013) 10 NWLR (Pt 1362) 209 and Abe Vs University of Ilorin (2013) 16 NWLR (Pt 1379) 183. The ratio decidendi in a case represents the legal reasoning or principle or ground upon which a case is decided – Ibrahim Vs Fulani (2010) 17 NWLR (Pt 1222) 241., Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404. Where a ground of appeal challenges what was not decided by the lower Court, it is incompetent and will be struck out. Similarly, an issue for determination to be resolved in an appeal must arise from the decision appealed against and where the converse is the case, the courts are enjoined to discountenance and strike out such issues – Contract Resources (Nig) Ltd Vs Standard Trust Bank Ltd (2013) 6 NWLR (Pt 1350) 260, Asogwa Vs Peoples Democratic Party (2013) 7 NWLR (Pt 1353) 207, Eyigebe Vs Iyaji (2013) 11 NWLR (Pt 1365) 407.
The first ground of appeal of the Appellants in all the notices of appeal read thus:
“The Kano State High Court of Justice (hereinafter called ‘The Lower Court’) erred in law when it held that PW1 (Alhaji Saidu Dattijo Adhama) was the sole allocating authority and was directly responsible to the Military Administrator on whose instructions he reallocated the shops to the 1st to 10th Defendants at the Lower Court (i.e. the 1st to 10th Respondents herein) and thereby used that as a basis to hold that 1st to 10th Appellants’ allocations to stalls/shops Nos. CR1 to CR10 at Muhammed Abubakar Rimi Market, Sabon Gari, Kano are no longer valid and subsisting.”
From this ground of appeal, the Appellants distilled the first issue for determination that they argued in their brief of argument and the issue read thus:
Whether the lower Court was right to hold that the first to tenth Appellants’ allocations to stalls/shops Nos. CR1 to CR10 at Muhammed Abubakar Rimi Market, Sabon Gari, Kano were no longer valid and subsisting on the ground that PW1 Alhaji Saidu Dattijo Adhama was the sole allocating authority and directly responsible to the Military Administrator of Kano State on whose instructions he reallocated the said stalls/shops to the first to tenth Respondents therein.
t is clear that the error of law complained about in above ground of appeal, and which was constituted for argument in the issue for determination, was that alleged to have been made by the lower Court in holding “that the 1st to 10th Appellants’ allocations to stalls/shops Nos. CR1 to CR10 at Muhammed Abubakar Rimi Market, Sabon Gari, Kano are no longer valid and subsisting”. The entire deliberations and the decision of the lower Court on the claims of the Appellant and the counterclaim of the first to the tenth Respondents has been reproduced above. Reading through the reproduced passage of the judgment, nowhere therein did the lower Court state or make a finding or reach a decision that the interests held by the Appellants in the stalls/shops in question were no longer valid and subsisting. What the lower Court decided was that the interests held by the first to the tenth Respondents in the shops were superior to the interests held by the Appellants. The lower Court in fact recognized and treated the interests held by the Appellants as still subsisting when in directed, in its final orders, that the eleventh Respondent should relocate the Appellants to other shops, outside the shops in dispute.
The argument of Counsel to the Appellant that since the first issue for determination formulated by the Appellants before the lower Court at the trial was “whether the 1st – 10th Plaintiffs’ allocation to stalls/shops Nos. CR1-CR10 are still valid and subsisting” and the lower Court accepted the issue and resolved the issue against the Appellants in the judgment, the lower Court in effect held that the allocation of the stalls/shops were no longer valid and subsisting, is a self serving assumption. This is because in deciphering what a Court decided in a judgment, it is the contents of the judgment that will be looked at in its literal form, and not what the parties assumed the Court to be saying. It is clear that the lower Court never decided that the interests held by the Appellants in the stalls/shops in question were no longer valid and subsisting. The first ground of appeal in the notices of appeal of the Appellants as well as the first issue for determination formulated by them in their brief of argument did not thus emanate from the decision of the lower Court. They are incompetent and are liable to be struck out.
The second ground of the preliminary objection complained that the second issue for determination formulated by the Appellants did not arise from the grounds of appeal. The second issue for determination read thus:
Whether the subsequent allocations of stalls/shops Nos. CR1 to CR10 Muhammed Abubakar Rimi Market, Sabon Gari, Kano to the first to the 10th Respondents herein by PW1 Alhaji Saidu Dattijo Adhama acting on the directives received by him from the then Military Administrator of Kano State (the then Col. Dominic O Oneya) were not illegal, null and void ab initio and thus liable to be set aside.
The Appellants stated that the issue was distilled from the second and third grounds of appeal. The second ground of appeal read thus:
The Lower Court erred in law when it held that the reallocation of stalls/shops Nos. CR1 to CR10 in the circumstances stated by PW1 and DW11 remains superior to that of the Plaintiffs (i.e. the 1st to 10th Appellants herein).
The second ground of appeal contained very lengthy particulars stating the basis upon which the Appellants would contend that the allocations made to the first to the tenth Respondents were not superior to that of the Appellants. It is trite that the purpose of the requirement of stating particulars of a ground of appeal is to inform the respondent and the court of the errors or misdirection alleged in a ground of appeal so as to enable the respondent meet the case of the appellant and for the court to be aware of the nature of the error or misdirection complained of – Munguno Vs Bluewhales & Co (2011) 2 NWLR (Pt 1231) 275. Particulars of error are intended to highlight the complaint against the judgment on appeal and they show how the complaint against the judgment is going to be canvassed by the appellant – Osasona Vs Ajayi (2004) 14 NWLR (Pt 894) 527, Diamond Bank Ltd Vs Partnership Investment Co Ltd (2009) 18 NWLR (Pt 1172) 67. Particulars of a ground of appeal are there to support and explain further the complaint raised in the ground of appeal – Federal Medical Center, Ido-Ekiti Vs Olajide (2011) 11 NWLR (Pt 1258) 256.
Reading the particulars on the second ground of appeal, they show that the Appellants would canvass the complaint against the finding of the lower Court that the allocations of the stalls/shops to the first to the tenth Respondents were superior to the interests of the Appellants from the perspective that the allocations made to the first to the tenth Respondents were illegal, null and void ab initio and could thus not constitute a superior tide. Therefore, looking at the second ground of appeal, along with its lengthy particulars, it can be safely stated that the second issue for determination formulated by the Appellant arose from and is connected with the complaint adumbrated therein.
The third ground of the preliminary objection attacked the third ground of appeal as being vague and argumentative. The third ground of appeal of the Appellants went thus:
The Lower Court erred in law in resolving Issues Nos. 2 and 3 against the Appellants, the said error flowing from the wrongful resolution of Issue No. 1 by the Lower Court.
This ground of appeal was not supported with any particulars. In Central Bank of Nigeria Vs Okojie (2002) 8 NWLR (Pt 768) 48, Uwaifo, JSC stated that:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood or when what is stated is so uncertain that it is not susceptible of being understood. It may also be considered vague when the complaint is not defined in relation to the subject or it is not particularized or the particulars are clearly irrelevant”
These words were re-echoed by the Courts in Governor, Ekiti State Vs Osayomi (2005) 2 NWLR (Pt 909) 67, Imam Vs Sheriff (2005) 4 NWLR (Pt 914) 80, Nwabueze Vs Nwora (2005) 8 NWLR (Pt.926) 1 and Unity Bank Plc Vs Olatunji (2013) 15 NWLR (Pt 1378) 503. Reading the third ground of appeal as couched, it is in the nature of a parable that even the ‘ten wise men’ will have a difficulty in decoding. The complaint therein is not susceptible to being understood and gives room for a lot of speculation. The third ground of appeal of the Appellants is the epitome of vagueness. It is trite law that a vague ground of appeal is of no use in an appeal. It is not permissible. It is incompetent and is liable to be struck out – Ogbodu Vs Senior Staff Association of Universities, Teaching Hospitals, Research Institutes and Associated Institutions (2013) 3 NWLR (Pt 1341) 261. The third ground of appeal of the Appellants is incompetent and it is liable to be struck out.
Now, the incompetence of the third ground of appeal has a profound effect on the second issue for determination formulated by the Appellants; the issue was stated in the brief of arguments to have been distilled from the second and third grounds of appeal. The Courts have serially held that where an issue for determination is distilled from more than one ground of appeal and it turns out that one of the grounds of appeal is incompetent while the other(s) are competent, the incompetent ground of appeal will choke up the competent grounds of appeal with which it was mixed to generate the issue for determination and render the issue for determination and the arguments thereon incompetent – Honika Sawmill (Nig) Ltd Vs Hoff (1994) 2 NWLR (Pt 326) 252, Ayalogu Vs Agu (1998) 1 NWLR (Pt 532) 129, Korede Vs Adedokun (2001) 16 NWLR (Pt 736) 483, Sehindemi Vs Governor, Lagos State (2006) 10 NWLR (Pt 987) 1, Adelakun Vs Oruku (2006) 11 NWLR (Pt.992) 625, Welle Vs Bogunjoko (2007) 6 NWLR (Pt 1029) 125, Federal Housing Authority Vs Odusanwo (2007) 9 NWLR (Pt 1039) 360. The second issue for determination having been distilled from the second ground of appeal, a competent ground of appeal, and the third ground of appeal, an incompetent ground of appeal, it is incompetent and liable to be struck out.
The fourth ground of the preliminary objection attacked the fourth ground of appeal of the Appellants on the ground that it is vague, argumentative and lacking in particulars. The fourth ground of appeal reads thus:
The judgment of the Lower Court failed to demonstrate a full and dispassionate consideration of all the evidence adduced before it by the parties and ascription of probative value thereto and the corresponding resolution of all the issues raised thereby, thus denying it the character of a valid judgment.
The complaint in this ground of appeal is clear and understandable and it is thus not vague and neither is it argumentative. It is correct that the ground of appeal is not supported by a separate list of particulars. It is not a requirement of the law that particulars of a ground of appeal must be set out separately. It is sufficient if the particulars are embodied in the ground of appeal in such a way that leaves no doubt of the error or misdirection complained of. The purpose of a ground of appeal is to give notice to the other side of the case it has to meet in the appellate Court, so where the complaint in a ground of appeal is clear, its purpose would have been served – Koya Vs United Bank of Africa Plc (1997) 1 N\WLR (Pt 481) 251,, Minister of Works and Housing Vs Tomas (Nig) Ltd (2002) 2 NWLR (Pt 752) 740, Ila Enterprises Ltd Vs Umar Ali and Company (Nig) Ltd (2013) 15 NWLR (Pt 1376) 191. In fact, in Best (Nig) Ltd Vs Blackwood Hodge (Nig) Ltd (2011) 5 NWLR (Pt 1239) 95, the Supreme Court held that where the complaint on a ground of law in a ground of appeal is clear and succinct, particulars of the error in law are unnecessary. Reading through the fourth ground of appeal, it sets out the complaint against the judgment of the lower Court and the bases for the complaint are embodied in the ground of appeal. The ground of appeal is proper.
In conclusion the notice of preliminary objection succeeds in part. The first and third grounds of appeal in each of notices of appeal of the Appellants as well as the first and second issues for determination formulated by the Appellants in their brief of arguments are hereby struck out. This leaves the second, fourth and fifth grounds of appeal as well as the third issue for determination formulated by the Appellants. It is trite that a single competent ground of appeal is sufficient to sustain an appeal – Ekunola Vs Central Bank of Nigeria (2013) 15 NWLR (Pt 1377) 224 and Abe Vs University of Ilorin (2013) 16 NWLR (Pt 1379) 183. The preliminary objection did not thus terminate this appeal.
The above said, this Court will still proceed to consider the substantive appeals of the Appellants on the basis of the entire arguments in their brief of arguments just in case it turns out on further appeal that its conclusions on the notice of preliminary objection of the first to tenth Respondents were wrong. This is the course that has been advised to be taken by a Court that is not the final court in the judicial hierarchy – Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
Reading through the judgment of the lower Court and the briefs of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal and it is:
Whether, in the circumstances of this case, the lower Court was right in its holding that the interests of the first to the tenth Respondents in the stalls/shops situate at and known as Nos. CR1 to CR10 Muhammed Abubakar Rimi Market, Sabon-Gari, Kano superseded the interests of the Appellants in the said shops.
The arguments of the Counsel to the parties will be considered under this single issue for determination.
Counsel to the Appellants commenced his arguments by setting out the pleadings and the facts which the appellants considered to be germane to the resolution of the appeal and he emphasized the fact that the initial allocation of the Block C building to the first Respondent, who thereafter demarcated it into ten shops and let it to the Appellants, was revoked by the Management of the Muhammed Abubakar Rimi Market sometime in 1994 before the Appellants were allocated the shops directly, and the fact that the allocations to the Appellants were not revoked before the eleventh Respondent re-allocated the shops to the first to the tenth Respondents in 1998. Counsel stated that the Appellants tendered as Exhibit 48 a counter affidavit deposed to on the authority of the first Respondent in Suit No. K/M291/98 in proof of the assertion that the earlier allocation made in favour of the first Respondent was revoked and that the first Respondent admitted the revocation in several paragraphs of the said counter affidavit. Counsel stated that the eleventh Respondent was a limited liability company vested with the powers of management and control of the market including the power of allocation and revocation of stalls/shops and that it exercises its powers through its Board of Directors and that the first plaintiff witness was the Chairman of the eleventh Respondent. Counsel stated that the first plaintiff witness stated under cross-examination that the decision to re-allocate the shops to the first to the tenth Respondents was not tabled before the Board of Directors of the eleventh Respondent and that the Military Administrator of Kano State, under whose instructions he re-allocated the shops, was not a member of the Board of the eleventh Respondent. Counsel stated that the first plaintiff witness was answerable to the Board of Directors of the eleventh Respondent and not to the Military Administrator and that as such the acts of the first plaintiff witness in re-allocating the shops cannot qualify as the acts of the eleventh Respondent and that the first plaintiff witness acted ultra vires his powers.
Counsel stated further that the effect of the non revocation of the allocations of the Appellants in the shops before their re-allocation to the first to the tenth Respondents was that it rendered the re-allocation invalid, null and void ab initio as the interests of the Appellants in the shops were valid and subsisting and that as such the re-allocation did not confer any interest in the shops to the first to the tenth Respondents. Counsel stated that there was in existence a suit commenced by the first Respondent against the eleventh Respondent – Suit No KA/402/95 – Alhaji Ismaila Abubakar Vs Sabon – Gari Market Board at the time the re-allocations were made and that as such the letters of allocation issued to first to the tenth Respondents in respect of shops were legally inadmissible as they were made by a person interested at a time that proceedings were pending before Chief Magistrate 16, Kano State. Counsel stated that the fact that the letters were admitted without objection was of no moment as the letters were legally inadmissible and that the lower Court was empowered to expunge them in the judgment and was in error in not having done so. Counsel implored this Court to exercise its power under section 15 of the Court of Appeal Act to expunge all the documents pertaining to the reallocation of the shops to the first to the tenth Respondents; he referred to the cases of Ita Vs Ekpeyong (2001) 1 NWLR (Pt 695) 587 and Egesie Vs Elele (2001) 8 NWLR (Pt 716) 552.
It was the further argument of Counsel that under the doctrine of lis pendens the eleventh Respondent could not have validly re-allocated the shops to the first to the tenth Respondents while the said Suit No KA/402/95 – Alhaji Ismaila Abubaker Vs Sabon-Gari Market Board was still pending as the eleventh Respondent had nothing to re-allot and he referred to the cases of Osagie Vs Oyeyinka (1987) 3 NWLR (Pt.59) 144, Ogundiani Vs Araba & Anor (1978) 6-7 SC 55 and Barclays Bank Nig Ltd Vs Ashiru (1978) 6-7 SC 99. Counsel further stated that there was uncontradicted evidence from the first plaintiff witness that he issued the letters of re-allocation to the first to the tenth Respondent under duress as he was pressurized by the then Military Administrator of Kano State, Colonel Dominic Oneya, to do something about the complaint that the first Respondent made to the then Head of State, General Sanni Abacha. Counsel stated that these show that the re-allocations of the shops made to the first to the tenth Respondents were wrongfully and illegally procured through acts of intimidation, blackmail and deployment of state might which are, no doubt, acts of illegalities and oppression sufficient enough to warrant the setting aside of the re-allocations.
Counsel submitted that what the totality of the above reflects is that the re-allocations of the shops made in favour of the first to the tenth Respondents were null and void ab initio.
Counsel went further to say that, even assuming that the re-allocations were proper, what it meant was that there were two sets of allocations made in respect of the shops, one in favour of the Appellants and the other in favour of the first to the tenth Respondents and both emanated from a common grantor, the eleventh Respondent. Counsel stated that the law is that where there are competing interests and the equities are equal, the first in time prevails and that since the allocations of the Appellants was done in 1995 while those of the first to tenth Respondents were made in 1998, the allocations of the Appellants should prevail; he referred to the cases of Omoyinmi Vs Olaniyan (2000) 4 NWLR (Pt 651) 38, Adelaja Vs Fanoiki (1990) 2 NWLR (Pt 131) 137 and Auta Vs Ibeh (2003) 13 NWLR (Pt 837) 247, amongst others.
Counsel urged this Court to uphold their contention and allow the appeal and to also grant the reliefs sought by the Appellants individually before the lower Court.
In response, Counsel to the first to the tenth Respondents submitted that claims of the Appellants before the lower Court was akin to a claim for declaration of tide to the shops in question and that as such the onus was on the Appellants to prove their entitlement by a preponderance of evidence and that Appellants must rely and succeed on the strength of their case and not on the weakness of the case of the Respondents and that where the Appellants fail to discharge the onus on them the proper judgment would be for the Respondents; he referred to the cases of Gankon Vs Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt.297) 55 and Ganbe Vs Turdam (1993) 6 NWLR (Pt 300) 500. Counsel stated that the Appellants hinged their case on the alleged revocation of the original allocation of the Block C building made to the first Respondent by the predecessors of the eleventh Respondent because of the conversion of use to shops and that the first Respondent denied any said revocation both in the pleadings and in his oral testimony and that it was the case of the first respondent that he had approval for the change of use and the conversion. Counsel stated that the Appellants had the onus of proving the revocation of the allocation and that apart from mere statements of the twelve plaintiff witness thereon, the Appellant tendered no document in proof the revocation and that mere oral evidence cannot be used to prove the revocation of the original allocation made to the first Respondent; he referred to the case of N.E.W. Ltd Vs Denap Ltd (1997) 10 NWLR (Pt 526) 481, the provisions of section 132 of the Evidence Act and of sections 28(6) and (7) and 44 of the Land Use Act as well as the case of NITEL Vs Ogunbiyi (1992) 7 NWLR (Pt 255) 543. Counsel stated that the Appellants failed to prove the revocation of the original grant and that as such the re-allocation of the stalls to the first Respondent cannot be questioned.
Counsel referred to the documents of allocation relied upon and tendered by the Appellants and stated that the fourth Appellant did not tender any document of allocation and that the documents tendered by the other Appellants were public documents and they were not certified and were thus inadmissible in any event. Counsel proceeded that, assuming that there were conflicting claims to possession of the shops by the Appellants and by the first to the tenth Respondents, the Court would ascribe possession to the party with a better title and he referred to the cases of Ogbu Vs Ani (1994) 7 NWLR (Pt 355) 128, Ojelade Vs Sotoye (1998) 5 NWLR (Pt 549) 284 and Adeagbo Vs Williams (1998) 2 NWLR (Pt 536) 120. Counsel stated that a look at the documents relied upon by the Appellants shows that they were notices of “Stall Rental” and that the Appellants confirmed in their oral evidence that they were only tenants of the eleventh Respondent in the stalls, while the documents of the first to the tenth Respondents were letters of allocation of the stalls. Counsel stated that on the face of the documents of the parties, it was obvious that the Respondents had a better title and this was not a case of conflicting or competing interests in the stalls in which case the principle of priority of interests will be applicable, but a case of only one valid title and that the principle of priority of interest did not thus arise; he referred to the case of Gankon Vs Ugochukwu Chemical Industries Ltd (1993) 6 NWLR (Pt.297) 55.
Counsel stated that the hullabaloo raised by the Counsel to the Appellants on an alleged directive of the Military Administrator on the instruction of the late Head of State was much ado about nothing as the allocations to the first to the tenth Respondents were made officially and were duly executed by the eleventh Respondent. Counsel stated that the interests of the Appellants in the stalls being only one of rental, there was nothing to revoke and that a due and proper allocation was made as the two interests did not conflict and that all that happened by the allocation was that the first to the tenth Respondents became the landlords of the Appellants in place of the eleventh Respondent. Counsel said that the submission of the Counsel to the Appellants that the letters of allocation of the first to the tenth Respondents were inadmissible as they made when proceedings were pending was incorrect as the proceedings leading to the appeals commenced on the 6th of January, 1999 while the letters were issued on the 16th of February, 1998.
Counsel urged this Court to dismiss the appeal.
It is settled that in a civil suit, the general onus is on the claimant to prove to the satisfaction of the court the assertions made in the pleadings of the contentions upon which he meets his case. Where a claimant fails to discharge the onus of proof upon him at the close of pleadings, a defendant is not obliged to adduce any evidence in rebuttal-Woluchem Vs Gudi (1981) 5 SC 291, Olowu Vs Olowu (1985) 3 NWLR (Pt 13) 372, NITEL Plc Vs Rockonoh Property Co. Ltd (1995) 2 NWLR (Pt 378) 473, Eyo Vs Onuoha (2011) 11 NWLR (Pt.1257) 1, Agboola Vs United Bank for Africa Plc (2011) 11 NWLR (Pt 1258) 375. In other words, in a civil suit, the person who asserts has the primary burden of proving the assertion. The failure of the defendant to prove or his refusal to testify cannot alleviate the primary burden on the claimant – Oguntade Vs Osunkeye (2007) 15 NWLR (Pt 1057) 218, Dim Vs Enemuo (2009) 10 NWLR (Pt 1149) 353, Iroagbara Vs Ufomadu (2009) 11 NWLR (Pt 1153) 587, Oyeneyin vs Akinkugbe (2010) 4 NWLR (Pt 1184) 265. This is explained by the maxim “ei qui affirmat non ei qui negat incumbit probation” which means the burden of proof lies on one who alleges, and not on him who denies – Arum Vs Nwobodo (2004) 9 NWLR (Pt 878) 411, Olaleye Vs Trustees of ECWA (2011) 2 NWLR (Pt 1230) 1. The onus in the instant case was thus on the Appellants to prove the assertions made by them in support of their claims.
The parties were agreed on the pleadings that the controversy between them centered on a building block, referred to as Block C, in the Muhammadu Abubakar Rimi Market in Sabon Gari, Kano and that this block of building was originally allocated to the first Respondent by the Kano Municipal Local Government Council, the then Managers of the Sabon Gari Market, for use as a restaurant. The parties were agreed that the first Respondent took possession of the block and paid his due rents and subsequently converted the block of building into ten shops and he sublet the shops to the ten Appellants and that the first Respondent paid his yearly rents to the Kano Municipal Local Government Council up and until 1994.
It was the case of the Appellants that by reason of the conversion of use, the original allocation of the first Respondent was revoked sometime in 1994/95 by then Managers of the market, the Kano, Dala and Nassanwa Local. Government Councils and the shops were then allocated to them. The first to the tenth Respondents contended this assertion and stated that the original allocation was never revoked and that the first Respondent obtained approval for the conversion of use and paid necessary fees to the Local Government Councils. This assertion was the foundation of the claims of the Appellants and the onus was on them to prove it. Each of the Appellants testified at the trial and also the Chairman of the eleventh Respondent, the latter Managers of the market, and apart from a general statement to the effect that the original allocation to the first Respondent was revoked, and though the Appellants claimed to have seen the letter of revocation issued by the Kano, Dala and Nassarawa Local Government Councils to that effect, none of them tendered any document in proof thereof and/or stated that he was a staff of any of the three Local Government Councils at the time and/or was present when the decision was taken by the Local Government Councils to revoke the allocation. The first Respondent testified in response that the original allocation was never revoked and that he obtained approval for the conversion of use and paid the sum of N14,000.00 as necessary fees to the Local Government Councils for the change of use and he tendered the receipts of payment as exhibits without any objection from the Counsel to the Appellants.
It is correct as pointed out by Counsel to the Appellants that the Appellants tendered as Exhibit 48 a counter affidavit deposed to on the authority of the first Respondent in Suit No K/M271/98, an earlier action commenced by the Appellants against the first and eleventh Respondents in respect of the same shops. Counsel stated that there were averments in the counter affidavit wherein the first Respondent admitted that the original allocation to him was revoked and that this amounted to an admission against interest and it supported the case of the Appellants on the issue. With respect to Counsel, the law on the use to be made of such document is not as simple as he made out. It is evident that the counter affidavit constitutes evidence given in a previous proceeding and it is settled law that such evidence cannot be produced in a subsequent proceeding to prove the truth of its contents – Alade Vs Aborishade (1960) SCNLR 398, Ariku Vs Ajiwogbo (1962) 2 SCNLR 369, Sanyaolu Vs Coker (1983) 1 SCNLR 168, Obawole Vs Coker (1994) 5 NWLR (Pt 345) 416, Durosaro Vs Ayorinde (2005) 8 NWLR (Pt 927) 407.
Such evidence can only be used for the purposes of cross-examination to contradict the oral evidence of the same witness in a subsequent proceeding and the procedure to be followed in so doing is as laid down in section 199 of the Evidence Act.
Section 199 reads:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but if it is intended to contradict him by writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
This section was interpreted by the Supreme Court in Madumere Vs Okafor (1996) 4 NWLR (Pt 445) 637, wherein it was stated that the essential requirements of the section is that where a party intends to impeach the credit of a witness by showing that what that witness has said in the present proceedings contradicts his previous written statement:- (a) his attention must specifically be drawn to those parts of his evidence which are to be used for the purpose of contradicting him; (b) he must be reminded of what he said on that previous occasion; and (c) he must also be given an opportunity of making an explanation. Where this procedure is not followed, the previous written statement cannot be used to contradict the oral testimony of the party before the Court – Amodu Vs State (2010) 2 NWLR (Pt 1177) 47. This procedure was not followed by the Appellants in the present case and as such the contents of the counter affidavit, Exhibit 48, cannot be used to support the case of the Appellants, and it cannot even be used to impeach the oral testimony of the first Respondent.
Thus, the useful evidence on the allegation of revocation of the original allocation of the Block C building to the first Respondent before the lower Court were the oral testimonies of the Appellants and the oral testimony of the first Respondent. Looking at the two pieces of evidence, there is nothing to separate them. Now, in civil suits, cases are won upon a preponderance of evidence. It follows therefore that a claimant in such a case has the burden of establishing his claim upon relevant and credible evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand – Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Egwa Vs Egwa (2007) 1 NWLR (Pt 1014) 71,. A case is decided on the totality of evidence adduced. Therefore, if on any given issue, the evidence of the claimant be as good as that of the defendant so that there is an equilibrium, it is the party on whom rests the burden of proof that fails. This is because the evidence does not preponderate in such party’s favour – Ezukwu Vs Ukachukwu (2000) 1 NWLR (Pt 642) 657, Ukaegbu Vs Nwololo (2009) 3 NWLR (Pt 1127) 194. In other words, if two possibilities are equally compatible with an evidence, neither one can be said to have been proved. This is because evidence which leads as reasonably to one hypothesis as to another tends to prove neither and such evidence will not support a judgment in favour of the party having the burden of proof. This was explained by Omosun, JCA in Igwe Vs Alozieuwa (1990) 3 NWLR (Pt 141) 735 at page 751 thus:
“It is not enough for a party to a case who has the onus of establishing a particular fact to say that his own evidence is just as good as that of his opponent. What the law says he must do to discharge the onus of proof on him is to prove by evidence which convinces the court or tribunal of the probability of his case rather than that of the opponent on the point in issue …”
The Appellants did not thus lead credible evidence to prove the assertion that the original allocation of the shops to the first Respondent was at any time revoked by the Kano, Dala and Nassarawa Local Government Councils, the Management of the Sabon Gari Market at the time.
It was an agreed fact between the parties that by letters dated 20th December, 1994, the Kano, Dala and Nassarawa Local Government Councils, by-passed the first Respondent, and dealt directly with the Appellants in respect of the shops and that the first Respondent was dissatisfied with the action of the Local Government Councils and he commenced an action in the Chief Magistrate Court, Kano in Suit No KA/402/95 to challenge it. It was an agreed fact that while this suit was pending, the first Respondent brought political pressure to bear on the eleventh Respondent, who had since taken over the management of the market, and by letters dated the 16th of February, 1998, the eleventh Respondent allocated the ten shops back to the first Respondent and that the letters were written in the name of the first Respondent and of his stooges, the second to the tenth Respondents.
Counsel to the Appellants has urged this Court not to countenance the allocation of the shops made by the eleventh Respondent to the first to the tenth Respondents on the grounds (i) that the allocations were made by the first plaintiff witness, Alhaji Saidu Dattijo Adhama, the Chairman of the eleventh Respondent without recourse to the Board of Directors of the Company; (ii) that the allocations were made by the eleventh Respondent under intimidation, duress, blackmail and deployment of state power; (iii) that they were issued in defiance of the doctrine of lis pendens, (iv) that they were issued while proceedings were pending; and (v) that they were issued without the interests of the Appellants in the shops having been first revoked.
The first and second grounds raised by Counsel were issues that concerned the management of and actions done against the eleventh Respondent, a limited liability company, by the first plaintiff witness, the Chairman of the company, and by the then Military Administrator of Kano State. One of the most firmly established principles in the concept of corporate personality that a company of an association of persons acquires upon incorporation is that when a wrong is alleged to have been done to a company or an association of persons, the proper person to complain is prima facie the company or the association of persons itself. Where the alleged wrong is a transaction which might be made binding on the company or association and on all its members by a simple majority of members, no individual member, not to talk of a non-member of the company, is allowed to complain in respect of that matter for the simple reason that, if a mere majority of the members of the company or association is in favour of what has been done, then no wrong has been done to the company or association and there is nothing in respect of which anyone can complain. This principle is codified in section 299 of the Companies and Allied Matters Act which states that “where an irregularity has been committed in course of a company’s affairs or any wrong has been done to the company, only the company can sue to remedy that wrong and only the company can ratify the irregular conduct” – Gombe Vs P.W. (Nig) Ltd (1995) 6 NWLR (Pt.402) 402, Tanimola Vs S. & Mapping Geodata Ltd (1995) 6 NWLR (Pt 403) 617, Ejikeme vs Amaechi (1998) 3 NWLR (Pt 542) 456, Williams vs Edu (2002) 3 NWLR (Pt 754) 400. The classes of persons who may complain about the wrongs done to or about the management of a limited company are very restricted and a non-member of the company is definitely not one of such persons – Dipcharima Vs Bornu Holding Co Ltd (1969) NNLR 104.The Appellants are not shareholders and/or members of the eleventh Respondent and they cannot thus complain about or challenge the alleged wrongs done to the eleventh Respondent by either the first plaintiff witness or by the Military Administrator of Kano State.
Additionally, Counsel to the Appellants beclouded his thought process with the alleged acts of intimidation, duress, blackmail and deployment of state power that he said that the Military Administrator of Kano State brought to bear on the eleventh Respondent to make the allocations to the first Respondent and his stooges and he failed to focus on what was important in this matter; which is whether the eleventh Respondent had the power to make the allocations to the first to the tenth Respondents. The Counsel admitted in his arguments that the eleventh Respondent had the power to do so. Thus, while the alleged act of intimidation, duress, blackmail and deployment of state power may be morally reprehensible, the eleventh Respondent did not act in excess of its powers because of the alleged acts. In its decision in Suit No CA/K/331/2011 – Igbokwe Vs Nigeria National Petroleum Corp delivered on the 8th of November, 2013, this Court stated thus:
“There is a saying in jurisprudence that law and morality are not synonymous. Hence, an act that is morally reprehensible may not be legally punishable – Attorney General, Federation Vs Abubakar (2007) 10 NWLR (Pt 1041) 1. The Supreme Court has stated over and over that the Court is for espousing the law and not a place for sentiments and that sentiments command no place in judicial adjudication – Ezeugo Vs Ohanyere (1978) 5-7 SC 171, Onjah Vs Onyia (1989) 1 NWLR (Pt 99) 514, Mbachu Vs Anambra-Imo River Basin Development Authority, Owerri (2006) 14 NWLR (Pt 1000) 691 and Udosen vs State (2007) 4 NWLR (Pt 1023) 125.
Thus, it is settled law that if there is a right to do an act, the fact that the motive for doing the act is bad or self-serving will not affect its validity or legality. Similarly, where there is no right or the thing done is illegal, the purity of the motive or magnanimity of the act done will not alter the legal consequence – Chukwumah Vs Shell Petroleum Development Corporation (1993) 4 NWLR (Pt 289) 512, Anosike Building & Commercial Co Vs Federal Capital Development Authority (1994) 8 NWLR (363) 421, Ebongo Vs Uwemedimo (1995) 8 NWLR (Pt.411) 22 and Nwajagu Vs British American Insurance Co. (Nig) Ltd (2000) 14 NWLR (Pt.687) 356.”
Thus, the alleged acts of acts of intimidation, duress, blackmail and deployment of state power are of no moment in this matter.
On the issue of lis pendens, the doctrine which is expressed in the Latin maxim lis pendente lite nihil innoveteur meaning that nothing should change during the pendency of an action, means that parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. The court does not allow parties in a pending litigation to foist on it a fait accompli and thus render its decision utterly nugatory – Obi Vs Independent National Electoral Commission (2007) 11 NWLR (Pt 1046) 560, Agbakoba vs Independent National Electoral Commission (2008) 18 NWLR (Pt 1119) 489, Kerewi Vs Abraham (2010) 1 NWLR (Pt 1176) 443. The doctrine forbids the effective transfer of property in the subject matter of litigation during the pendency of the litigation. The law does not allow to litigant parties or give them, during the currency of litigation involving any property, rights in such property so as to prejudice any of the litigating parties – Ezomo Vs New Nigerian Bank Plc (2006) 14 NWLR (Pt 1000) 624, Enekwe Vs International Merchant Bank (Nig) Ltd (2006) 19 NWLR (Pt 1013) 146, Enyibros Food Processing Co. Ltd Vs Nigerian Deposit Insurance Corp. (2007) 9 NWLR (Pt 1039) 216.
It is clear from the explanation of this doctrine that it is a party to the pending litigation that can raise the issue of lis pendens.The case of the Appellants on the issue was that the allocations to the first to tenth Respondents were made during the pendency of the case instituted by the first Respondent in the Chief Magistrate Court in Suit No KA/402/95 against the Sabon Gari Marketing Board, the predecessor of the eleventh Respondent. The Appellants pleaded that they applied to be joined in the suit as parties but did not aver that they were so joined as parties and there is nothing in the records of appeal, either by way of an order of Court or a court process, showing that the Appellants were made parties to that suit and they cannot thus contest the allocations on the ground of lis pendens. Further, the records of the Court show that the doctrine was neither pleaded nor was the judgment of the trial court based thereon and the law is that it is too late to raise it in the appellate court. In Clay Industries (Nig) Ltd Vs Aina (1997) 8 NWLR (Pt 516) 208, Iguh, JSC, made this point at page 233 B-C thus:
“Lis pendens was neither pleaded as a ground for the defeat of the respondents’ case before the trial Court nor was the judgment based thereon. In my view, it is now too late in the day for the appellant to raise this new defence which did not form the basis of his case before the trial court.”
With the regards to the allegation that the letters of allocation to the first to the tenth Respondents were made during the pendency of proceedings and were thus legally inadmissible, the law as stated in section 93 of the Evidence Act is that the principle will be applicable where a document was made in the course of a pending proceeding by a person interested in the outcome of the proceeding and where it is put forward for use in the said pending proceeding. The proceeding said to have been pending when the letters of allocations were issued was the case instituted by the first Respondent in the Chief Magistrate Court in Suit No KA/402/95 against the Sabon Gari Marketing Board. The letters of allocations were not used or tendered in those proceedings. The proceedings in which they were tendered were those commenced by the Appellants on the 6th of January, 1999 as Suits Nos. K/12/99 to K/21/99 and which culminated in this appeal. The letters of allocation were dated the 16th of February, 1998 and were not made during the pendency of the proceedings in which they were used. They cannot thus be caught or be affected by the principle in section 93 of the Evidence Act.
The proved facts in this case are that the block of building consisting the ten shops in issue in this matter were initially allocated to the first Respondent by the Management of the Sabon Gari Market, represented by the eleventh Respondent in this appeal, sometime in 1985 and that the first Respondent took possession of the block building, carved out the ten shops there from and he sublet the shops to the Appellants as his tenants. The first Respondent paid his rents to the Management of the Sabon Gari Market for the use of the block building without fail and the Appellants paid their rents to the first Respondent for the shops. In late 1994/1995, the Management of the Sabon Gari Market, by-passed the first Respondent, and started dealing directly with the Appellants as their landlords in respect of the ten shops and it issued the Appellants letters allocating the shops to them, without first terminating or revoking the allocation made to the first Respondent. The first Respondent challenged this action of the Management of the Sabon Gari Market in Court and in 1998, in the course of the matter the Management of the Sabon Gari Market re-allocated the shops to the first Respondent, without also first terminating or revoking the allocations made to the Appellants. The Appellants then approached the lower Court to set aside the re-allocation made to the first Respondent in 1998 as illegal as it was done without their own allocations having been first revoked and to uphold their own allocation to the shops.
Now, the task before any Court in all disputes brought before it for adjudication is to ensure the doing of substantial justice to all the parties involved in the disputes. The theory of justice enjoins a Court of law to hold an even balance between the parties as one sided justice will amount to injustice. It postulates that justice is a three-way traffic – (i) justice for the plaintiff who is crying for redress of the alleged wrong to him; (ii) justice for the defendant who is pleading that he should be heard and his defence considered before any order is made against him; and (iii) justice for the society at large whose social norms and psyche are certainly going to be adversely affected if it cannot be seen by the common but reasonable man that upon the facts as laid down, justice in the real and true sense of the word has been seen to have been done by the Court – Okomu Oil Palm Ltd Vs Okpame (2007) 3 NWLR (Pt 1020) 71.
Approaching the facts proved by credible evidence in the instant case with the mindset of the concept of justice as stated above, it will amount to one-sided justice to grant the reliefs sought by the Appellants because the glitch which they hold on to as affecting the re-allocation of the shops made to the first Respondent and his stooges, the second to the tenth Respondents i.e. the prior non-revocation of their holdings in the shops, also affects their own allocations which they desired the lower Court to uphold, as there was no credible evidence that the initial allocation of the block building to the first Respondent was revoked. It will amount to a case of ‘what is good for the goose is not good for the gander”. The fair decision to reach in the circumstances of this case is to uphold the interests of the first to the tenth Respondents as superseding the interests of the Appellants in the ten shops in issue. This is exactly what the lower Court did in its judgment. The proved facts in this matter do provide this Court with any reason to tamper with the decision reached by the lower Court.
In conclusion therefore, this Court finds and holds that there is no merit in the appeals filed by each Appellant and the appeals are hereby dismissed. The judgments of the High Court of Kano State in Suits Nos. K/12/99 through to K/21/99 delivered by Honorable Justice Muhammadu Haliru Abdullahi on the 16th of January, 2008 are hereby affirmed. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree with the decision of my learned brother, Abiru, J.C.A., that both the main appeal and cross appeal are devoid of merits and they are liable to being dismissed. I abide by all the orders made in the leading judgment.
ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother ABIRU JCA, and I agree, completely, with his reasoning and conclusions.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances
K.B. Olawoyin with G.O. UzuFor Appellant
AND
Nureini Jimoh with M.M. Alabelewe for the 1st – 10th RespondentsFor Respondent
