ALHAJI MUSA UMAR v. ALHAJI TIJANI SALEH GEIDAM
(2015)LCN/7761(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of February, 2015
CA/J/94/2012
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN A CLAIM FOR DECALRATION OF OWNERSHIP BASED ON LONG POSSESSION
In Thomas vs. Holder (1946) 12 WACA 78 the West African Court of Appeal held at page 80 as follows: “Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the Court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the of the original owner. In the present case we are satisfied from the evidence that the appellant has established original ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the certificate of purchase by Samuel in 1943 and the series of conveyances by which the appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the Court would not on equitable grounds make a declaration or disturb the respondent’s possession. This in our view the respondent failed to do.” Again in Okebola & Ors. vs. Alhaji Molake (1975) 5 UILR (Pt.2) 204 the Supreme Court held at pages 207 to 208 as follows: “In Rahimil Sanni, etc, vs. Oki & Oki this Court held: “In a claim for title, as in the present case, when one of the parties had established a root of title emanating from agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain.” See also Omoni vs. Biriya (1976) 6 SC 49 at 54. Therefore upon exchange of pleadings the onus was cast on the appellant to show at the hearing by oral and if possible documentary evidence how the respondent was divested of his property in favour of the appellant. At trial the appellant mentioned the brothers of the respondent who sold the land to him to be Alhaji Kashim, Alhaji Kyari, Alhaji Brem and Alhaji Zarami. Pw2 stated that “there is one called Mallam Kyari and Mallam Kashim who are junior brothers to Alhaji Saleh Geidam. They came to me and one person whom I have forgotten his name in respect of a house that the defendant and his brothers had sold a house to the plaintiff. They came to give me an information so they want me to produce the document in respect of the house from the village head. I gave them the document given by the village head called Kundili who signed and stamped same. I gave the document to Alhaji Musa the plaintiff. At the time of this transaction there was no witness on the plot of land. Alhaji Musa built some structures on the disputed land. The transaction took place about 20 years ago. Since the time of the transaction nobody ever came to me with a complaint over the land.” See page 17 lines 11 to 21 of the printed record. Pw2 is Bulama Ali Fatanmi the Ward Head of Bulumkutu Area. Capt. Bukar Alhaji Mustapha (Rtd.) who testified as Pw3 did not know Alhaji Tijani Saleh Geidam. Alhaji Bashir Abdullahi (Pw4) testified at page 19 lines 18-28 as follows: “The land is situate at Bulumkutu Ward. The land, Alhaji Musa Umar bought the land from Alhaji Tijani Saleh Geidam, the defendant. The transaction of the sale took place around 1986. After finishing of the buying process, Alh. Musa Umar was invited by Alh. Tijani Saleh Geidam to his place I accompanied Alh. Musa Umar to Geidam place. Alh. Tijani S. Geidam passed a question to the plaintiff thus “If the land is your own, will you sell it at this price?” Alhaji Musa told him that there was no money flowing by then that was why he priced it at that price. We told Alh. Geidam if he did not want the price, let him refund our money and we would leave the house for him. He kept quiet so we left him in his house. per. JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUSA UMAR – Appellant(s)
AND
ALHAJI TIJANI SALEH GEIDAM – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): Alhaji Musa Umar (hereinafter known as the plaintiff/appellant) had a dispute with Alhaji Tijani Saleh Geidam (hereinafter called “the defendant/respondent”) relating to a piece of land measuring “about 500×250 meters” lying and situate at Bulumkutu Tsallake, Maiduguri, Borno State consisting of 15 rooms, and a bakery which the appellant/plaintiff alleged he had purchased from the defendant/respondent and is entitled to a Right of Occupancy over the plot of land. The dispute went before the High Court of Justice, Maiduguri, Borno State. The writ of summons was filed by the appellant on 3rd March, 2002. Paragraph 25 of the statement of claim sought the following reliefs against the respondent:
“25. WHEREFORE the plaintiff claims from the defendant:
(a) A declaration that the sale of the piece of land measuring about 500 by 250 meters to the plaintiff by the defendant’s brothers, agents, servant, and/or privies is valid, subsisting and binding on the defendant.
(b) A declaration that the plaintiff has by virtue of the sale to him by the defendant’s brothers, agents, servants, and/or privies acquired right, interest and is entitled to the Right of Occupancy over the plot lying and situate at Bulumkutu Tsallake, Maiduguri measuring about 500 by 250 meters and consisting of 15 rooms, and a bakery.
(c) A declaration that the attempts by the defendant at various times between 1996-2002 to re-negotiate or review upwards a valid, binding and subsisting agreement to sale using the police is unconstitutional and invalid.
(d) A further declaration that the harassment or continued harassment, intimidation of the plaintiff by the police at the instance of the defendant, for the purposes of re-negotiating the price of the piece of land already developed by the plaintiff is unconstitutional, illegal, null and void.
(e) An injunction restraining the defendant whether by himself, agents, servants, or privies from interfering in whatever way with the plaintiff’s rights in and over the land in dispute.
(f) General damages of the sum of N500,000.00 (Five Hundred Thousand Naira).
(g) Cost of this suit.”
The respondent filed a statement of defence denying liability followed by a Counter-claim as follows:
“7. The defendant repeats paragraphs 1 to 16 both inclusive of the defence and counterclaims for:
(1) A declaration that the defendant is entitled to the right, interest and title in the land in dispute measuring 1,454 sq. meters situate at Bulumkutu which right has been recognized by the Ministry of Land and Survey, Borno State in a plan of the area contained in part of BOTP/16 Bulumkutu Layout under Right of Occupancy No.BO/13241.
(2) A perpetual injunction restraining the plaintiff by himself, his agents or privies claiming from him from trespassing or remaining on the said piece of land.
(3) Damages of N2,000,000.00 for trespass.
(4) Further or other reliefs.
(5) Cost of this action.”
The appellant filed a defence to the Counter-claim. The matter proceeded to trial wherein the parties testified and tendered documentary exhibits. The learned trial Judge relied on the oral and documentary exhibits coupled with the written addresses of learned Counsel before delivering judgment on 17th December, 2009 that the appellant/plaintiff had not proved his claims. The claims of the appellant were dismissed. The land in dispute was declared to be the property of the respondent. N2,000.00 cost was awarded to the respondent against the appellant hence this appeal. The appeal was filed on 18th April, 2012. The appellant filed a brief of argument on 15th May, 2012 from which the following issues were formulated for determination to wit:
“1. Whether the delivery of judgment well outside the period allowed by law did not occasion substantial miscarriage of justice on the appellant.
2. Whether the case put forward by the parties was properly appreciated, appraised and or evaluated by the trial Court.
3. Whether the failure to join the vendors as parties to the case or call them as witnesses was fatal to the plaintiff’s case and therefore liable to be dismissed.
4. Whether the declaration by the trial Court that the land belongs to the defendant is a valid one.”
The respondent distilled the following issues for determination:
“1. Whether by the findings of the learned trial Judge; the delivery of the judgment outside the statutory period has occasioned a substantial miscarriage of justice on the appellant.
2. Whether the learned trial Judge failed to properly consider the case of the parties before arriving at a decision thereby rendering the judgment bad and perverse.
3. Whether the learned trial Judge was wrong to have held that the failure to either join the purported vendors or call them as witnesses was fatal to the plaintiff’s case and therefore liable to be dismissed having failed to produce evidence of authority.
4. Whether by the preponderance of evidence and balance of probabilities, the respondent is not entitled to the declaration having counter-claimed at the lower Court.”
Order 18 rule 3(1) of the Court of Appeal Rules, 2011 enjoins an appellant to file a brief of argument which “shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.” Rule 4(2) of the same Order 18 provides that a respondent shall file a brief of argument which “shall answer all material points of substance contained in the appellant brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed…” and no more.
A respondent who did not cross-appeal nor file a Respondent’s Notice has no business in formulating issues for determination apart from that distilled by the appellant. It is the appellant who was aggrieved with the judgment of the Court below and has appealed who ought to formulate issues for determination. The duty of the respondent is to answer all the material points of substance in the formulated issues and show reasons why the appeal should be dismissed or concede to issues raised by the appellant in the brief of argument. The appeal will be allowed or dismissed, based on the issues formulated by the appellant in his brief of argument. I shall therefore ignore the issues formulated by the respondent but determine this appeal based on the issues distilled by the appellant in the brief of argument.
I shall in determining this appeal, bear in mind that the parties are to assume that I read their briefs of argument. I shall consider the appeal based on the oral and documentary exhibits tendered at the trial, as supported by the decided authorities the parties intend I should rely upon. See Order 18 rule 3(2) and (3) of the Court of Appeal Rules, 2011.
Issues are usually joined on the pleadings. See Ehimare vs. Emhonyon (1985) 2 SC 49 at 65-66. The pleaded facts can discharge the onus and burden of proof at the trial. Akintola vs. Salano (1986) 2 NWLR (Pt.24) 598. No one sets out to prove on the pleadings what a party had admitted. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at page 102 lines 17 and Ishola vs. UBN Ltd. (2005) All FWLR (Pt.256) 1202 at 1211 paragraph “D” where the Supreme Court held as follows:
“The 2nd issue deals with the validity or illegality of the mortgage deed in Exhibit “1”. The question was whether the Court of Appeal was right in setting aside the decision of the trial Court on the ground that it was not properly raised by the trial Court as an issue at the trial. The answer to this issue must in my respectful view, depend entirely on the pleadings of the parties and the supporting evidence on the same. Let met now examine the parties’ pleadings before the trial Court.”
The statement of claim reads as follows:
“1. The plaintiff is a business man and resides in Mafoni Ward of the Maiduguri Metropolitan Council within the jurisdiction of this Court.
2. The defendant is a public servant and resides at No.7 Cemetery Road, New GRA, Maiduguri.
3. The plaintiff avers that sometime in 1985, the defendant’s brothers, agents, servant and/or privies in company of some people came and advertised to him a piece of land lying and situate at Bulumkutu Tsallake, Maiduguri measuring about 500 by 250 meters.
4. The plaintiff avers that he went and inspected the land and made inquiries from relevant persons and authority before agreeing to buy the said land.
5. The plaintiff avers that one Adamu Mu’azu was the original allottee of the land comprising 5 plots (five) in number (the plaintiff hereby pleads the documents of title/allocation of the plots to the said Adamu Mu’azu).
6. The plaintiff avers that after satisfying himself of the facts in paragraphs 4 and 5 above, he further inquired and confirmed that the vendors had the authority of the defendants to sale some of his properties including the one in dispute so as to enable the defendant settle his obligations to the Special Investigation Panel that looked into the activities of political detainees after the fall of the second republic of which the defendant was one.
7. The plaintiff avers that the sum of N12,000.00 (Twelve thousand Naira) was agreed upon as the purpose price which the plaintiff duly paid (The document evidencing the payment is hereby pleaded).
8. The plaintiff further avers that copies of the documents of title relating to the land in dispute were then handed over to him. (The plaintiff hereby pleads the documents).
9. The plaintiff avers that he immediately commenced construction of 15 rooms on the piece of land and completed same in 1987.
10. The plaintiff avers that he applies to the Metropolitan Council for the issue of a customary certificate of occupancy in or about 1987 and was issued with one. (The Customary Certificate of Occupancy is hereby pleaded).
11. The plaintiff further avers that after completing the building in 1978, he put in tenants who have since then been paying rents to him.
12. The plaintiff avers that after completing the building on the land, the defendant approached him and requested that the purchase price be reviewed upwards as the price agreed upon by the defendant’s brothers, agents, servants and/ or privies was not commensurate with the value of the land as plaintiff was getting more than the value of the land as monthly as rent.
13. The plaintiff avers that he turned down the defendant’s request as the agreement was long concluded and binding on the defendant and his successors in title.
14. The plaintiff avers that the defendant having failed in his bid to get the purchase price reviewed as avered hereinbefore went to the Ministry of Land and Survey, Maiduguri misrepresented to them that he has a developed land at Bulumkutu Tsallake and obtained a grant of a Right of Occupancy over the plot in dispute.
15. The plaintiff further avers that when the defendant realized that the plaintiff was not ready for any re-negotiation, he filed a suit No.M/22/1995 claiming among other things that the defendant’s brother(s), agents, servants and or privies had no authority to sale the land.
16. The plaintiff avers that the suit was struck out on the 7th March, 1996 with an order that if the defendant desired to prosecute the case again, he should file a fresh suit which was never done.
17. The plaintiff avers that the defendant instead of following the constitutional part of seeking redress, resorted to reporting the plaintiff to the police and has done so over 4 times now, the last one being in January, 2002.
18. The plaintiff avers that on all these occasions, the police never for once prosecuted him for any offence against the defendant’s person or property.
19. The plaintiff avers that the police on at least two of these occasions including the last one advised the plaintiff to give the defendant something as that was what the defendant wanted by reporting him to the police.
20. The plaintiff further avers that in January, 2002 when the plaintiff was invited to the “Crack Squad” unit of the Nigerian Police Force along the Airport Road, Maiduguri, he like in the previous invitations made statement to the police.
21. The plaintiff avers that subsequent to paragraph 20 above, he was invited to a meeting with the police and the defendant through his agent demanded for one third of the land in dispute or the value thereof.
22. The plaintiff avers that he rejected the plaintiff’s demand but at the insistance of the mediator, the plaintiff agreed to on humanitarian grounds give the defendant N20,000.00 (Twenty thousand Naira).
23. The plaintiff further avers that on another occasion when the plaintiff entered a caveat over the processing of the defendant’s Certificate of Occupancy of the plot in dispute, the defendant requested the then special adviser on land matters to mediate over his demand for price review.
24. The defendant avers that he again rejected the issue of review as the defendant demanded for the sum of N100,000.00 (One Hundred Thousand Naira).”
The respondent joined issues with the appellant in the statement of defencee as follows:
“1. SAVE as hereinafter expressly admitted, the defendant denies each and every allegation contained in the statement of claim as though the same were herein set out and traversed seriatim.
2. The defendant does not know the work of the defendant or where he resides and is unable to admit the averment in paragraph 1 of the statement of claim.
3. With reference to paragraph 2 of the statement of claim, the defendant is a Traditional Ruler in Geidam, Yobe State where he is resident.
4. With reference to paragraphs 3 to 8 of the statement of claim the defendant avers as follows:
(i) That the land which is in dispute belongs to the defendant having acquired a customary right of occupancy over a large part of the land in 1974 through the Bulama of the area and later on purchased an adjacent small piece of land from one Adamu Mu’azu which he joined with the original piece of land and fenced the entire piece of land sometimes between 1980 and 1981, with a gate at a total cost of N160,000.00 at the time.
(ii) That at no time at all did the defendant give any authority to anyone to alienate the piece of land by sale or otherwise to the plaintiff or to anyone or at all.
(iii) The allegations contained in paragraphs 6 and 7 of the statement of claim are also untrue as at no time did any Special Investigation Panel or anybody required of the defendant any payment of money or any refund that could have necessitated his selling any of his properties as alleged or at all.
(iv) The defendant does not know the document referred to in paragraph 8 of the statement of claim.
5. With reference to paragraphs 9 to 24 of the statement of claim the defendant avers as follows:
(i) When the defendant discovered that the plaintiff had commenced some constructions on the land in dispute, he stopped the same and reported the matter to the police who arrested the plaintiff but later released him on bail.
(ii) While the plaintiff was on bail, he sought for and obtained the intervention of a number of influential personalities in Borno State who mediated between the plaintiff and the defendant but no settlement of the matter was reached.
(iii) The bid to reach a settlement broke down after the defendant discovered that the plaintiff was secretly and in a clandestine way attempting to obtain title documents over the land from the Lands Registry, Maiduguri and was continuing with the constructions of buildings on the land.
(iv) The defendant will contend at the trial of this action that if, which is not admitted, the Maiduguri Metropolitan Council issued the plaintiff with a customary certificate of occupancy in or about 1987 as alleged in paragraph 10 of the statement of claim, the certificate of occupancy is invalid because the Maiduguri Metropolitan Council has no jurisdiction to do so, the land being an Urban land as declared by the Land Use Act (Declaration of Urban Areas) Order 1980 of Borno State and also on the legal principle that it can not give what does not belong to it.
(v) The defendant did, in exercise of his right over the said land in dispute which is situate in Bulumkutu Tsallake, measuring 1,454 sq. meters apply in February, 1986 for the conversion of his customary right of occupancy to a statutory Right of Occupancy and the Ministry of Land and Survey, Borno State conveyed the approval of the grant of the statutory right of occupancy No.BO/13241 to the defendant in a letter of grant dated 22nd March, 1989.
(vi) That the defendant has continuously referred his complaints against the plaintiff to the police because the plaintiff has continued trespassing on the defendant’s piece of land and the defendant does not want in the circumstance to use self help or take the law into his hands.
(vii) That contrary to the plaintiff’s averment in the statement of claim, it was the plaintiff who kept on making offers of ridiculous sums of money which the defendant considered unreasonable having regard to the size and location of the piece of land which is now in dispute. The police on their own part have given the plaintiff several opportunities to seek settlement with the defendant but he refused to do so.
(viii) The suit No.M/22/1995 referred to in paragraph 15 of the statement of claim was filed against the plaintiff by the defendant but was struck out at the instance of the plaintiff in this case after he had again gat a number of respectable citizens in the State to intervene in the matter but it was later discovered that he was acting in bad faith and was only playing tactics, when he offered to pay one million Naira as compensation to the defendant for the land but did nothing thereafter.
(ix) The defendant avers that the police once took the plaintiff to a Magistrate Court in Maiduguri on an information of trespass to the land in this matter but when the plaintiff alleged that he bought the land, the Magistrate declined jurisdiction on the ground that he had raised the issue of title to the land but further investigation revealed to the police that the plaintiff did not raise the issue of title to the land in good faith.
6. Further to paragraph 4 of this defence and with further reference to paragraphs 19 to 24 of the statement of claim the defendant avers that he has never had any transaction with the plaintiff relating to the land in question either directly or through any agent or at all and he has not demanded or received any consideration whatsoever from the plaintiff or any one else relating to the land in dispute.
Wherefore the defendant contends that the plaintiff’s claim are frivolous and without merit and ought to be dismissed with cost.”
An examination of the pleadings will show that the appellant admitted that the original owner of the land in dispute belonged to the respondent. But the appellant derived whatever title or possession of the land through “the defendant’s brothers, agents, servants and/or privies in company of some people” who “came and advertised to him a piece of land lying and situate at Bulumkutu Tsallake, Maiduguri measuring about 500×250 meters.” See paragraph 3 and 6 of the statement of claim. The appellant did not plead in paragraph 8 of the statement of claim that it was the respondent that handed to him the documents of title he relied upon to lay claim to the land in dispute. Therefore, when a dispute arose as to the ownership of the plot in question the onus of proving that the respondent authorized the defendant’s brothers, agents, servants and/or privies in company with some people to advertise the property, sell it and hand over the title documents to the appellant did what they did with the authority of the respondent.
In Thomas vs. Holder (1946) 12 WACA 78 the West African Court of Appeal held at page 80 as follows:
“Where the plaintiff is claiming a declaration of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title directly to one whose title to ownership has been established it is not necessary that he should prove such acts of ownership. If title has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner and in such case the Court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the of the original owner. In the present case we are satisfied from the evidence that the appellant has established original ownership in the Chief Oloto and his own acquisition of the right title and interest of the Chief Oloto by virtue of the certificate of purchase by Samuel in 1943 and the series of conveyances by which the appellant finally acquired that interest in September, 1944. This being established the onus lay on the respondent to show that notwithstanding the appellant’s title the Court would not on equitable grounds make a declaration or disturb the respondent’s possession. This in our view the respondent failed to do.”
Again in Okebola & Ors. vs. Alhaji Molake (1975) 5 UILR (Pt.2) 204 the Supreme Court held at pages 207 to 208 as follows:
“In Rahimil Sanni, etc, vs. Oki & Oki this Court held:
“In a claim for title, as in the present case, when one of the parties had established a root of title emanating from agreed original owner, the burden cast upon the other party is substantial and it is difficult if possible at all to find any instances in which that other party can ever obtain.”
See also Omoni vs. Biriya (1976) 6 SC 49 at 54. Therefore upon exchange of pleadings the onus was cast on the appellant to show at the hearing by oral and if possible documentary evidence how the respondent was divested of his property in favour of the appellant. At trial the appellant mentioned the brothers of the respondent who sold the land to him to be Alhaji Kashim, Alhaji Kyari, Alhaji Brem and Alhaji Zarami. Pw2 stated that “there is one called Mallam Kyari and Mallam Kashim who are junior brothers to Alhaji Saleh Geidam. They came to me and one person whom I have forgotten his name in respect of a house that the defendant and his brothers had sold a house to the plaintiff. They came to give me an information so they want me to produce the document in respect of the house from the village head. I gave them the document given by the village head called Kundili who signed and stamped same. I gave the document to Alhaji Musa the plaintiff. At the time of this transaction there was no witness on the plot of land. Alhaji Musa built some structures on the disputed land. The transaction took place about 20 years ago. Since the time of the transaction nobody ever came to me with a complaint over the land.” See page 17 lines 11 to 21 of the printed record. Pw2 is Bulama Ali Fatanmi the Ward Head of Bulumkutu Area. Capt. Bukar Alhaji Mustapha (Rtd.) who testified as Pw3 did not know Alhaji Tijani Saleh Geidam. Alhaji Bashir Abdullahi (Pw4) testified at page 19 lines 18-28 as follows:
“The land is situate at Bulumkutu Ward. The land, Alhaji Musa Umar bought the land from Alhaji Tijani Saleh Geidam, the defendant. The transaction of the sale took place around 1986. After finishing of the buying process, Alh. Musa Umar was invited by Alh. Tijani Saleh Geidam to his place I accompanied Alh. Musa Umar to Geidam place. Alh. Tijani S. Geidam passed a question to the plaintiff thus “If the land is your own, will you sell it at this price?” Alhaji Musa told him that there was no money flowing by then that was why he priced it at that price. We told Alh. Geidam if he did not want the price, let him refund our money and we would leave the house for him. He kept quiet so we left him in his house.
XXX by the defence Counsel -I do not witness the transaction.”
The appellant testified as Pw5 at page 20 lines 20 to page 21 lines 1-7 of the printed record as follows:
“I am the plaintiff in this case. I know the defendant called Alhaji Tijani Saleh Geidam. I sued the defendant on a plot of land I bought from his junior brothers (about four of them). I bought the land in 1985. There was one Arabic Mallam who came to inform me that this plot in question was offered for sale. The said Arabic Mallam was living together with the defendant brothers. The name of Arabic Mallam Teacher is Mallam Bukar. The Mallam was the one who testified in this Court as Pw1. After Mallam Bukar advertised the plot to me, he asked me to follow him to Bulumkutu Tsallake to see the plots. I saw the plot. I called the Bulama of the area and showed him the plot. I inquired of the owner of the plot and the Bulama told me it belonged to Tijani Saleh Geidam. I came together with Mallam Bukar to Tijani Saleh Geidam’s brothers. I priced it at N9,000.00 but it was rejected. The negotiation of the sale took place at Bulumkutu before the defendant’s brothers. The defendant’s brothers are Brem Lawan, Kashim, Zarami, Kyari Kura. We settled at N12,000.00 I paid them the money. I paid the N12,000.00 in the house of Alhaji Tijani S. Geidam at GRA, Maiduguri. I was issued a sales agreement (handwritten). The sales agreement is with my Counsel. I can identify it through my own signature. This is the sales agreement.
Mr. Bukar -seek to tender the sales agreement.”
Ibrahim Miyimico (Pw6), a Principal Registrar with the Borno State Judiciary translates proceedings in the High Court. The purpose of coming to testify was to admit documents he had translated relating to the land in dispute. Thereafter the learned Counsel closed the appellant’s case without calling any of the respondent’s brothers/servants/privies/agents who sold and transferred the documents of title to him.
I have read the issues and the arguments proffered thereon. If there was any need to join the Vendors in the suit, that was the responsibility of the appellant and not the respondent. Contrary to the submissions of learned Counsel to the appellant, Order 11 rule 3 of the Borno State High Court (Civil Procedure) Rules, 1987 provides as follows:
“11(3) All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.”
The duty of joining the purported Vendors as defendants in the suit was on the appellant. The right to any relief resided in the appellant hence the failure to join the vendors cannot be the subject of a complaint on appeal. The learned trial Judge appreciated the case put forward by the parties and rightly came to the conclusion to dismiss the appellant’s claim and to enter judgment for the respondent’s counter-claim. The judgment is supported by the weight of the evidence in favour of the respondent.
The judgment delivered by the learned trial Judge on 17th December, 2009 is saved by the provision to Section 294(5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The section and subsection reads as follows:
“294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The appellant has not shown how he suffered any miscarriage of justice. See Ojokolobo vs. Alamu (1995) 7 SCNJ 98; Gafari vs. Johnson (1986) 5 NWLR (Pt.39) 66; Agbabiaka vs. Saibu (1998) 10 NWLR (Pt.571) 534 and Afolabi vs. Ogunlowo (2008) All FWLR (Pt.429) 527 at 556.
The important thing in the judgment of the learned trial Judge is that the appellant did not prove the authority of his vendors to sell and transfer the respondent’s land to him. The appellant called no witness among the so-called Vendors to support his claim. His possession of the land was of doubtful origin. The appellant’s case supported that of the respondent. See Oduaran vs. Asarah (1972) All NLR (Pt.2) 137 at 144; Mogaji vs. Cadbury (1985) 2 NWLR (Pt.7) 393 at 429 and Enang vs. Adu (1981) 11-12 SC 25 at 41 and Bamgbose vs. Oshoko (1988) 2 SCNJ 116. The nature and origin of the appellant’s purported occupation of the land in dispute was not proved at the trial. See Udeze vs. Chidebe (1990) 1 SCNJ 104; Piaro vs. Tenalo (1976) 12 SC 31; Ogunleye vs. Oni (1990) 4 SCNJ 65 at 92; Odi vs. Osafile (1987) 2 NWLR (Pt.57) 510 and Okonkwo vs. Okolo (1988) 5 SCNJ 128 at 148.
The judgment of the learned trial Judge is upheld. There is no merit in this appeal which is dismissed with N50,000.00 cost to the respondent.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in draft the judgment of my learned brother, TUR, J.C.A. just delivered. I am in total agreement with his reasonings and decisions reached therein, that the appeal has no merit. I have the following comments in furtherance of concurring with the lead judgment. It is noteworthy that the provisions of Section 294 (1) and (5) of the 1999 Constitution (altered) are, impari materia with Section 258 (1) and (4) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Amendment Act No. 17 of 1985. Section 294 (1) and (5) of the 1999 Constitution (altered) provides as follows:
“(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a court shall not be set aside or treated nullity solely on the ground of noncompliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The intendment of the law makers in providing for the provisions of Section 294 (1) and (5) of the 1999 Constitution (altered) can easily be comprehended and understood in the interpretation and application of the said provisions in the pronouncements/decisions of the superior Courts in several cases. For instance in the case of Gagaru v. Pashiri (2006) 1 NWLR Pt. 962 P. 531 @ 535 -536 -537, it has been enunciated that the provisions of Section 258 (1) of the Constitution of the Federal Republic of Nigeria, 1979 was to curb the excesses of inordinately long adjournments before delivery of judgments by courts. In other words, it was intended to curb the excesses of long adjournments after the conclusion of evidence and final addresses by counsel. Any judgment of a Court established under the Constitution which is delivered outside the mandatory period of 90 days after the conclusion of evidence and final addresses is delivered in contravention of the provisions of the Constitution.
A delay or long interval between the receptions of evidence of witnesses and the delivery of judgment of a trial court raises a strong presumption that the trial court may not have made use of its advantage of seeing and observing the demeanour of the witnesses who testified before it. In appropriate cases, however, the presumption may be rebutted where the delay complained of did not occasion a miscarriage of justice. In such a case, the delay is regarded as inconsequential. On the other hand, the law is that if an inordinate delay between the end of the trial and the delivery of the judgment apparently and obviously affected the trial court’s perception, appreciation and evaluation of the evidence so that it can be seen easily that it lost the impression made on it by the witnesses, then, in such a case, there might be some fear of a possible miscarriage of justice, and only then will an appellate court interfere. Thus, the emphasis is not on the length of time but on the effect it produces in the mind of the trial court. In the instant case, although the trial court did not deliver its judgment in compliance with Section 294(1) of the 1999 Constitution, the appellants failed to show that the delay occasioned a miscarriage of justice. Dibiamaka v. Osakwe (1989) 3 NWLR (Pt.107) 101; Emenimaya v. OKORJI (1987) 3 NWLR (Pt.59) 6.
By the provisions of the Constitution (Suspension and Modification) Amendment Act No. 17 of 1985, an amendment was made by introducing subsection (4) to the original Section 258 of the Constitution of the Federal Republic of Nigeria, 1979. The amendment was to the effect that a judgment delivered in contravention of the provision of Section 258(1) would not be set aside or treated as a nullity unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice. Before the amendment, a judgment delivered in contravention of the original Section 258(1) of the 1979 Constitution was set aside or declared a nullity. However, the amendment is to be construed in a manner that would not defeat the object of fair and speedy trial which Section 258(1) was intended to achieve. Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662; Sodipo v Lemuninkainen O.Y. (1985) 2 NWLR (Pt. 8) 547.
In the instant appeal, the appellant has not shown or established that he suffered any miscarriage of justice by the delivery of the judgment by the lower Court after the expiration of the 90 days which is the period provided for the delivery of judgment by the Courts created or established by the 1999 Constitution (altered). For this reason, and the more detailed reasons adumbrated in the lead judgment, I, too, do hereby dismiss the appeal, and affirm the judgment of the lower Court. I abide with the order as to cost in the lead judgment.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I read in draft the lead judgment of my learned brother, JOSEPH TINE TUR, JCA. Having so carefully done, I have nothing else to add as I agree entirely with the reasoning and conclusion drawn therein.
In the result, I also dismiss this appeal.
I abide by the order of cost.
Appearances
B. A. Bukar, Esq.For Appellant
AND
M. Umaru, Esq. (Holds brief for A.R. Abdulsalam, Esq.)For Respondent
