GWANDA v. DANKOLI (2022)

GWANDA v. DANKOLI

(2022)LCN/16768(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 13, 2022

CA/K/223/2018

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

ALHAJI SANI GWANDA APPELANT(S)

And

HAJIYA RAKIYA SAIDU DANKOLI RESPONDENT(S)

RATIO

THE POSITION OF LAW ON EXERCISING ACTS OF POSSESSION IN AN ACTION FOR DECLARATION OF TITLE TO LAND

In RUNSEWE Vs. ODUTOLA (1996) LPELR–2964 (SC), the Supreme Court inter alia held;
“In either case, acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases, once and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he had not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v. Ramotu Manue (1945) 10 WACA 172 and Mosalewa Thomas v. Preston Holder (1946) 12 WAC.A. 78.” PER MUSALE, J.C.A.

WHETHER OR NOT EVERY JUDGMENT OF THE COURT IS CORRECT

Where the nature of the evidence before the Court is such that the case of the parties, before it, can be determined in the absence of others not joined; the Court can proceed to determine the case. See ONEMU Vs. COMM. AGRIC & NATURAL RESOURCES, ASABA (2019) 11 NWLR (Pt. 1682) 1 at 31–32.
In OKIN Vs. OKIN (2019) 11 NWLR (Pt. 1682) 138 The Supreme Court held;
“There is a presumption that the judgment of a Court is correct. Accordingly, the burden of showing the contrary is always on the person appealing against the judgment. In other words, an appellant has the burden of showing or demonstrating to the appellate Court in what respect the decision is wrong in law or on facts or both.” PER MUSALE, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

Having been admitted and established that the Appellant was a tenant of the Respondent and her family, in respect of the property, which Appellant now asserts right over, appellant had the duty to establish how his status of tenant in possession changed to owner in possession; that the respondent had sold or authorized the sale of the property to him (appellant). This appellant failed to do, hence the dismissal of his counter-claim at the lower Court. See the case of Ahmadu Tatu Vs Estate of Late Isah Alh. Adamu & Anor (2014) LPELR – 24160 (CA) where it was held:
“…In an action of title to land, where parties agree that title was previously vested in one of them, the burden is on the other party to prove that the party, in whom title had been vested, had been divested of it and how this was accomplished. See Ufomba V Ahuchaogu (2003) 4 SCNJ 231 per Ogundare, JSC. Once it is shown that the original ownership of property is in a party, the burden of proving that that party has been divested of ownership rests on the other party. See the decisions in Orlu v Gogo-Abite (2010) 1 SCNJ 322; & Famuroti V Agbeke (1991) 6 SCNJ. Thus, where the root of title is admitted, the onus to prove a change in the ownership of the land in dispute shifts to the party who asserts the change. See Odunsi V Bamgbala (1995) 1 SCNJ 275.” Per SANKEY, JCA.
See the Orlu Vs Gogo-Abite (2010) LPELR-2769 (SC), where the Supreme Court also held:
“It is settled law that once it is proved that the original ownership of property is in a party, the burden of proving that the party has been divested of the ownership rests on the other party. See Mosalewu Thomas v. Preston Holder (1946) 12 W.A.C.A, 78. Isiba v. Hanson (1967) 1 All N.L.R. 8.” Per OGUNTADE, JSC.
The law is trite that the person who asserts bears the burden of proof of his assertion. See Section 131, 132 and 133 of the Evidence Act. 2011. PER MBABA, J.C.A.

USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the decision of High Court of Kano State delivered on 27/06/2016 in Suit No. K/215/2011. The respondent was the plaintiff at the trial Court, she claimed against the appellant/defendant the following reliefs:
“1. A declaration that there was no sale transaction between the plaintiff and the 1st Defendant in respect of Shop No. KK 107, Ground Floor No.1 Fagge ta Kudu Kantin Kwari Kano, Kano State.
2. A declaration that the purported sale transaction between the Defendant and one A. Hamza Sa’idu Dankoli in respect of Shop No. KK 107, Ground Floor, No.1 Fagge ta Kudu Kantin Kwari Kano, Kano State is null and void.
3. A declaration that the plaintiff is still entitled to the ownership of Shop No. KK 107, Ground Floor, No.1 Fagge ta Kudu Kantin Kwari Kano, Kano State.
4. A declaration that the plaintiff is entitled to the possession of Shop N. KK 107, Ground Floor, No.1 Fagge ta Kudu Kantin Kwari Kano, Kano State.
5. cost of instituting and prosecuting this action.”

The appellant as 1st defendant at the trial Court denied the respondent’s claims and counter claimed as follows:
“a. A declaration that the Shop No. KK 107 (i.e. Shop No. 8B) situates at Gidan Sa’idu Dankoli, Kantin Kwari Market, Kano belongs to the 1st defendant/counter claimant having purchased same from Alh. Habibu Yalo on 6th of July, 2001.
b. An order that the sale of Shop No. KK 107 (i.e. Shop No. 8B) between Alh. Habibu Yalo and the 1st defendant/counter claimant is valid and subsisting.
c. A declaration that the 1st defendant/counter claimant is the owner and the rightful title holder of Shop No. KK 107 (i.e. Shop No. 8B) situates at Gidan Sa’idu Dankoli Kantin Kwari Market Kano.
d. An Order of perpetual injunction restraining the plaintiff, her privies, agents and successors in title that may be claiming through her from trespassing the Shop No. KK 107 (i.e. Shop No. 8B) situates at Gidan Sa’idu Dankoli Kantin Kwari Market Kano.”

At the end of the trial, P. A. Mahmoud J, (as he then was) now JCA in a judgment delivered on 27/06/2016, dismissed the counter–claim of the appellant and entered judgment for the respondent on her claims.

The appellant approached this Court via his Notice of Appeal dated 28/07/2016. The appeal is predicated on four grounds of appeal contained in the appellant’s Amended Notice of Appeal filed on 27/01/2021. The grounds are;
1. The lower Court erred in law which occasioned a substantial miscarriage of justice by accepting evidence completely at variance with the pleadings.
2. The lower Court erred in law which occasioned substantial miscarriage of justice by rejecting the appellant’s testimonies before it, thereby giving the judgment against weight of evidence.
3. The lower Court erred in law which occasioned substantial miscarriage of justice by making a judgment on a relief not sought for by the party.
4. The lower Court erred in law which occasioned substantial miscarriage of justice by making a judgment against non-party to a case without making him a party to it.
Particulars of error were provided.

The amended appellant’s brief of argument settled by D. S. Usman Esq, was filed on 27/01/2021. The learned counsel formulated four issues for the determination of the appeal; as follows:
“1. Whether evidence has value when it does not support any pleadings? Distilled from Ground One.
2. Whether the judgment of the lower Court is in consideration of the weight of evidence? Distilled from Ground Two.
3. Whether Court can grant relief not sought for by any party in the case? Distilled from Ground Three.
4. Whether the Court has jurisdictional competence to pass a judgment against non-party to the case instead of the party before it, when his own case is not heard? Distilled from Ground Four.”

M. L. Garba Esq. of learned counsel to the respondent filed the respondent’s brief of argument, which was deemed filed on 13/10/2021, wherein he adopted the four issues formulated by the appellant.

Before considering the argument of counsel on both sides with a view to resolving parties’ contentions, I will set out though in brief the facts of the case as competently articulated by the lower Court. The 1st respondent (now the only respondent in this appeal) was one of the heirs of Alh. Sa’idu Dankoli. In that capacity, she inherited, among other properties, shop No. KK 107, Ground Floor, No.1 Fagge ta Kudu, Kantin Kwari Market Kano, the subject matter of this appeal. The respondent was accordingly issued with writ of possession in respect of the shop. At that time the respondent who was/is not literate in English, was married to the 2nd respondent who died during the pendency of this appeal. As a full-time housewife, she entrusted the property to her husband (now deceased), with collection of rents in respect of the said shop. The appellant was already a tenant when ownership of the shop devolved on the respondent. The respondent retained him as a tenant, page 183 of the record. After some time in the relationship, the rent stopped coming. She asked her husband and he explained to her that the appellant was not paying his rent and that he had sued him to Court. Tired of the excuses of her husband, she engaged the services of a lawyer to help her recover possession of the shop from the appellant. In the course of that assignment, they were confronted with a deed of assignment in respect of the property, by the appellant. The respondent did not authorize her husband (2nd respondent now deceased) to sell this or any of her properties. The appellant had never approached her with intention to purchase the subject property. She therefore went before the lower Court via writ of summons seeking the reliefs supra.

In arguing Issue No 1, the learned counsel to the appellant submitted that evidence led that is at variance with the pleadings or pleadings without evidence amount to no issue. He relied on OBULOR Vs. OBORO (2001) 3 MJSC 132 at 135. Counsel referred to the respondent’s statement of claim on page 8 paragraph 2 of the record which indicated the relief sought as;
“A declaration that the purported sale transaction between the defendant and one Alhaji Hamza Dankoli in respect of Shop No. KK107, Ground Floor, No.1 Fagge ta Kudu Kantin Kwari Kano, Kano State is null and void.”

Counsel went further to submit that in her statement on oath, pages 10–11, the respondent testified that her husband sold the property to the appellant against her consent. That in his defence, the appellant denied buying the shop from her husband, pages 105–108 of the record. That he mentioned how he came by the property through the testimonies of witnesses, pages 42–46 of the record. Counsel concluded this issue by submitting that the respondent did not prove her case but the lower Court gave her judgment which is contrary to the claim of the respondent, page 198 of the record. In the words of counsel, “the lower Court wanted to give her judgment by all means. So I submit with respect that this is injustice, which led to setting aside a judgment and I kindly urge this Court to so hold.”

On Issue No. 2, the learned counsel submitted that evaluation of evidence is the primary duty of the trial Court, where the Court failed to do so or did not do it properly, the appellate Court can interfere, MAINAGGE Vs. GWAMMA (2004) 12 MJSC 34 at 39. To determine the weight of evidence, he relied on NWOKIDU Vs. OKANU (2010) 1 MJSC 24 at 31. Counsel submitted that the lower Court did not evaluate the evidence at all. Rather, the lower Court created another relief on its own and made it a judgment in favour of the respondent. That the judgment was against the weight of evidence, which amounts to injustice. He urged the Court to so hold.

On the 3rd Issue, learned counsel submitted that Court does not grant a relief that was not sought by a party, AGBEJE Vs. AJIBOLA (2002) 2 MJSC 50. That the lower Court granted the relief not sought by any of the parties. Counsel re-argued Issue No.1.

On the 4th Issue, counsel submitted that only a party to a case can be affected by the judgment of the Court, that where it affects a non-party, such judgment will not be allowed, N.D.P. Vs. INEC (2013) 8 NWLR (Pt. 1350) 392 at 403 and KOKORO-OWO Vs. LAGOS STATE GOVERNMENT (2001) 11 NWLR (Pt. 723) 237 at 240.
He urged the Court to allow the appeal.

In his response, the learned counsel to the respondent on the first issue submitted that the expectations on the appellant are that he ought to present;
a. The portion of the evidence that was not pleaded, or
b. The portion of evidence and the part that contradicts the pleadings and
c. How it resulted in miscarriage of justice.

Counsel submitted that the argument/submission of the appellant differs from the issue and the ground of appeal raised. He urged the Court to strike out the issue for determination and the ground. He relied on GOV. KOGI STATE & ORS Vs. YAKUBU & ANR (2001) LPELR–3177 (SC), MANAGEMENT ENT Vs. OTUSANYA (1987) 2 NWLR (Pt. 55) 179 and BANKOLE Vs. PELU (1991) 8 NWLR (Pt. 211) 523. He urged the Court to strike out Issue No. 1 for incompetence.

Learned counsel submitted on Issue No. 2 that the appellant did not show how the lower Court wrongly evaluated the evidence. He referred the Court to page 192 of the record, where the lower Court evaluated the evidence and how the respondent as plaintiff traced her root of title and how the appellant as 1st defendant was not able to establish his root of title. On evaluation of evidence, he relied on CHIEF SAMUSIDEEN AFOLABI AYORINDE & 3 ORS Vs. CHIEF HASSAN SOGUNRO & 6 ORS (2012) 5 SCNJ 74 at 94-95. He urged the Court to hold that evidence was properly evaluated.

On Issue No. 3, learned counsel submitted that the argument on this issue will add no value. That it is academic. That even if relief 2 is discountenanced, it will not affect the case of the respondent.

Counsel conceded that a Court cannot make an order against a non-party. However, he disagreed with the appellant on the following issues;
1. That in the absence of identified persons affected by the decision of the lower Court, the appellant has no locus to raise issue on behalf of unknown person. He suggested whoever has interest can challenge the judgment or appeal as an interested party. That a party can only raise issue that affects his interest or right.
2. That is speculative to say a judgment has affected a non-party without demonstrating how it has indeed affected a person.
3. That if the appellant is referring to his predecessors or successors in title, then, they are bound by the decision of the Court, so long as they claim from the same title.

He urged the Court to dismiss the appeal and affirm the decision of the lower Court.

RESOLUTION OF ISSUES.
The contention was that since the respondent testified that her husband sold the property when the appellant testified that he bought the property from a different person, then the respondent did not prove her case. The lower Court found as a fact that the appellant was a tenant on the property when ownership of the shop devolved on the plaintiff/respondent. The plaintiff/respondent retained the appellant as her tenant. See page 183 of the record. The appellant now contends change of ownership, having claimed to have bought the shop from a different source. The burden is now on the appellant having contended that there was change of ownership who ought to establish it. See BELLO ISIBA & ORS Vs. HANSON & ANR (1967) 1 ALL NLR 8

In RUNSEWE Vs. ODUTOLA (1996) LPELR–2964 (SC), the Supreme Court inter alia held;
“In either case, acts of possession may be exercised subsequently and consequentially to the primary root of title relied upon. In such cases, once and where, the primary root of title had been successfully established, the Plaintiff wins and there will be no further need to probe his acts of possession. One does not lose title to land which he bought and which was properly conveyed to him because he had not shown numerous and positive acts of possession in addition. No. That is not the law: Mumuni Abudulai v. Ramotu Manue (1945) 10 WACA 172 and Mosalewa Thomas v. Preston Holder (1946) 12 WAC.A. 78.”

On issue 2, the appellant’s learned counsel argued that the lower Court failed to consider factors, listed in NWOKIDU Vs. OKANU (2010) V. 1 (Pt. 1) MJSC 24 at 31, in determining the weight of evidence. Counsel further argued that the lower Court did not evaluate the evidence before it at all. He referred to pages 42–46 which the lower Court believed in and pages 10–11 of the record. I am satisfied as submitted by the respondent that the lower Court evaluated the evidence before coming to conclusion.

The learned trial Judge found at page 192 of the record as follows:
“I find therefore that the real issue between the parties in this case is as between the plaintiff and the 1st defendant who has proved a better title? The basis of the plaintiff’s claim to the subject property is through inheritance. In proof of this, she tendered Exhibit 1 the writ of possession from the Gyadi Gyadi Upper Are Court which gave the shop NO. 975 to the plaintiff. This evidence is confirmed by DW2 who bought from one Alh. Ali Maitangaran. DW2 sold the property to the 1st defendant. Under cross-examination, DW2 admitted that the true owners of the property are the heirs of late Alh. Saidu Dankoli.”

The lower Court further found, at page 195 of the record that:
“It is not enough that the 1st defendant trace his title to DW2. He must prove how DW2 got his own title and in this case how DW2’s Vendor also got his title. This DW1 as 1st defendant failed to do and this failure I find is fatal to his counter-claim. As between the plaintiff and the 1st defendant there is no doubt from the evidence before the Court that the plaintiff has proved a better title and I so hold.”
I see no reason to disturb the findings of the lower Court.

On the third Issue, the appellant reargued Issue 1, to the effect that the lower Court granted relief not sought. From the record page 80, the amended statement of claim of the plaintiff, paragraphs 3 and 4 and the amended 1st defendant’s statement of defence and counter claim, page 107 paragraphs 10(c) and (d) are in my view the areas parties joined issues. Anything outside these are ancillary. Where the ancillary reliefs are challenged or even struck out, the judgment in my view will not change. I adopt my stand on Issue No. 1 here.

On Issue 4, the appellant’s counsel relying on NDP Vs. INEC (2013) 8 NWLR (Pt. 1350) 392 and KOKORO-OWO Vs. LAGOS STATE GOVERNMENT (2001) 11 NWLR (Pt. 723), submitted that only a party to a case can be affected by the judgment of Court but where the judgment affects non-party to the case, it will not stand. The counsel urged us to so hold and allow the appeal.

In reply, the respondent’s counsel contended that the appellant cannot raise issue on behalf of unknown acclaimed persons. There was no identity of any person so affected by the decision of the Court. The Court cannot be sent on voyage of discovery. Counsel submitted that the judgment of the lower Court did not violate any ‘principle’ and therefore valid. He urged the Court to so hold, dismiss the appeal and affirm the judgment of the lower Court.

Where the nature of the evidence before the Court is such that the case of the parties, before it, can be determined in the absence of others not joined; the Court can proceed to determine the case. See ONEMU Vs. COMM. AGRIC & NATURAL RESOURCES, ASABA (2019) 11 NWLR (Pt. 1682) 1 at 31–32.

In OKIN Vs. OKIN (2019) 11 NWLR (Pt. 1682) 138 The Supreme Court held;
“There is a presumption that the judgment of a Court is correct. Accordingly, the burden of showing the contrary is always on the person appealing against the judgment. In other words, an appellant has the burden of showing or demonstrating to the appellate Court in what respect the decision is wrong in law or on facts or both.”

Based on the above, I found no merit in this appeal. The judgment of the lower Court contained on page 198 of the record of appeal, is affirmed. All the issues are resolved in favour of the respondent and against the appellant.
Appeal dismissed.

Cost of N50,000 in favour of the respondent against the appellant.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother U. A. Musale, JCA, that this appeal is devoid of merit and should be dismissed.

Having been admitted and established that the Appellant was a tenant of the Respondent and her family, in respect of the property, which Appellant now asserts right over, appellant had the duty to establish how his status of tenant in possession changed to owner in possession; that the respondent had sold or authorized the sale of the property to him (appellant). This appellant failed to do, hence the dismissal of his counter-claim at the lower Court. See the case of Ahmadu Tatu Vs Estate of Late Isah Alh. Adamu & Anor (2014) LPELR – 24160 (CA) where it was held:
“…In an action of title to land, where parties agree that title was previously vested in one of them, the burden is on the other party to prove that the party, in whom title had been vested, had been divested of it and how this was accomplished. See Ufomba V Ahuchaogu (2003) 4 SCNJ 231 per Ogundare, JSC. Once it is shown that the original ownership of property is in a party, the burden of proving that that party has been divested of ownership rests on the other party. See the decisions in Orlu v Gogo-Abite (2010) 1 SCNJ 322; & Famuroti V Agbeke (1991) 6 SCNJ. Thus, where the root of title is admitted, the onus to prove a change in the ownership of the land in dispute shifts to the party who asserts the change. See Odunsi V Bamgbala (1995) 1 SCNJ 275.” Per SANKEY, JCA.
See the Orlu Vs Gogo-Abite (2010) LPELR-2769 (SC), where the Supreme Court also held:
“It is settled law that once it is proved that the original ownership of property is in a party, the burden of proving that the party has been divested of the ownership rests on the other party. See Mosalewu Thomas v. Preston Holder (1946) 12 W.A.C.A, 78. Isiba v. Hanson (1967) 1 All N.L.R. 8.” Per OGUNTADE, JSC.
The law is trite that the person who asserts bears the burden of proof of his assertion. See Section 131, 132 and 133 of the Evidence Act. 2011.

I too dismiss the appeal and abide by the consequential orders in the lead judgment.

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