ISIYAKU SALEH FAILA v. ADAMU BABAYO USMAN & ORS
(2019)LCN/13661(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of July, 2019
CA/YL/108/2016
RATIO
EVIDENCE: STANDARD OF PROOF IN CIVIL CASES
Civil cases are determined on the balance of probabilities which in itself means preponderance of evidence. The trial Court places the evidence adduced before it by the parties in the imaginary scale to see which side of the scale is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of the witnesses. This is the import of deciding a case on the balance of probabilities. HUSSENI & ANOR V. MOHAMMED & ORS. (2014) LPELR 24216 (SC); (2014) 12 SCM 248; OLONADE & ANOR. V. SOWEMIMO (2014) LPELR 22914 (SC); MOGAJI V. ODOFIN (1978) 4 SC 91; ADEKUNLE V. AREMU (1998) 1 NWLR (PT. 533) 208 – 210. PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ISIYAKU SALEH FAILA – Appellant(s)
AND
1. ADAMU BABAYO USMAN
2. MOH’D BOSE JAMWALI
3. MALLAM SAIDU NONO
4. GOMBE STATE URBAN PLANNING DEVELOPMENT – Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is a challenge of the decision of the High Court of Gombe State delivered by S.Y. Abubakar, J. on 30th March, 2016 in Suit No. GM/269/2015 wherein the Court at pages 217 to 246 entered judgment for the Plaintiffs herein the 1st to 3rd Respondents.
The 1st defendant herein the Appellant dissatisfied with the decision of the trial Court has appealed to this Court via Notice of Appeal dated 20th May, 2016 containing 3 grounds of appeal.
The 1st-3rd Respondents filed Suit No. GM/269/2015 before the trial High Court claiming, inter alia, for declaration that the acts of the Appellant in embarking in the construction of a structure within and around the carnal and water way in and around Idi Quarters, Gombe and vicinity of the 1st to 3rd Respondents houses/properties constitute unlawful interference, nuisance and illegal.
After issues were joined the case eventually proceeded to trial. The 1st-3rd Respondents called one (1) witness as follows:
PW1 Adamu Babayo Usman
The Appellant called four (4) witnesses as follows:
a. DW1 –
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Isyaku Saleh Faila
b. DW2 – Umar Hassan
c. DW3 – Yusuf Abdullahi
d. DW4 – Abdulrahman Ibrahim
The trial High Court subsequently delivered its Judgment on 30th March, 2016 in favour of the 1st-3rd Respondents leading to this appeal. In this Court the parties exchanged their briefs as required by the rules of Court. Appeal was thereafter heard on 3rd May, 2019; wherein N.A. Dashe Esq. held the brief of A.M. INUWA for the Appellant. After the Court was satisfied that the 1st 3rd Respondents were in Court on the last date being 7th March; 2019 as they were represented by S.G. Pam Esq; and the 4th Respondent was served with Hearing Notice via phone call on 15th April, 2019; the appeal was heard.
Mr. Dashe adopted the Appellants brief filed 14th February, 2018 but deemed properly filed and served on 14th February, 2018 in urging the Court to allow the appeal. He also urged the Court to deem the 1st 3rd Respondents brief, and the 4th Respondent?s brief respectively filed on 13th March, 2018, and 27th June, 2018 and deemed properly filed and served 1st November, 2018 as duly argued under
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Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016. This application was granted thereby deeming the Respondents briefs as duly adopted.
In their respective briefs, the parties all had a sole issue for determination. The sole issue distilled by the Appellant which was adopted by the 1st to 3rd Respondent though with additional words, is:
Whether there are sufficient and compelling evidence, supporting the respective pleadings of the Respondents to support the judgment of the trial Court
Though similar in content, the 4th Respondent couched his single issue thus:
Whether the trial Court was right to have declared the act of the appellant constituted nuisance on the Respondents
Since all the issues are the same I shall adopt the issue raised by the Appellant whose grouse the appeal is to determine the appeal.
SUBMISSIONS ON THE SOLE ISSUE
Mr. A. M. Inuwa learned counsel for the Appellant referred to paragraph 3 of the amended statement of claim of the 1st to 3rd Respondents at page 41 of the record to submit that there was no evidence that established the disputed land as buffer zone. He argued that the only
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evidence in this regard was the testimony of DW4 contained at the last paragraph of page 210 where the witness described the area as buffer zone. He argued that buffer zone is not the same as drainage basin. The learned counsel therefore submitted that the evidence on record is at complete variance with the 1st – 3rd Respondents pleadings and claim. He further submitted that where evidence is at variance with the pleadings, the evidence goes to no issue. He relied on: EZE V. ATASIE 2000 79 LRCN PAGE 1998; AJAYI V. TOTAL NIG. PLC.2013 226 LRCN PT. 1 PAGE 65.
The learned counsel contended that the Respondents through their lone witness could not establish the land in dispute that was said to be a buffer zone which is their duty to provide the full identity of the land. He cited: OKONKWO V. OKONKWO 2010 14 NWLR (PT. 1213) 228.
Furthermore, Mr. Inuwa noted that the Appellant and DW2 in their testimonies testified to the effect that the land in dispute is not and never a buffer zone nor was it a drainage canal. These pieces of evidence he argued though not challenged, were ignored by the trial Court. He referred to paragraph 9 of the
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Appellants statement of defence at page 55 of the records. He further relied on Section 133 of the Evidence Act in urging the Court to hold that the 1st to 3rd Respondents failed to lead evidence to support their claim.
He finally prayed the Court to allow the appeal and set aside the decision of the trial Court.
For the 1st to 3rd Respondents, Mr. M. I. Oforma noted their Amended Statement of Claim at pages 40 45; evidence in chief of PW1 at pages 26 28 and 44 46; and his oral evidence at pages 188 192 of the records to submit that the evidence is in line with the pleadings. The learned counsel added that the evidence of the Respondents was not controverted. He cited: CAPPA & DALBERTO LTD. V. AKINTOLA TILO (2003) 9 NWLR (PT. 824) 49
In addition, the learned counsel for the 1st to 3rd Respondents noted the evidence of DW1 at page 199; DW2 at pages 203 204; DW3 at page 206 of the records to submit that the referred evidence is noticeably at variance with the Appellants pleadings and examination in chief at pages 62 63 of the records. He also invited the Court to note that the 4th
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Respondents pleadings at pages 80-83 of the records admitted the entire pleadings of the 1st-3rd Respondents.
Mr. Oforma noted that the evidence of the Appellant and his witnesses was not only vague, shallow, not in tandem with their pleadings; but also contradictory. He submitted that the contradictions and inconsistencies in the evidence led by the Appellant being material, the Court cannot choose and pick. He relied on: UNIVERSITY OF ILORIN V. ADESINA (2009) ALL FWLR (PT. 487) 56; IN TIME CONNECTION LIMITED V. ICHIE (2010) ALL FWLR (PT. 543) 1879; OSADIM V. TAIWO (2010) ALL FWLR (PT. 534) 146.
The learned counsel in conclusion, urged the Court to resolve this issue in favour of the 1st – 3rd Respondents, also to dismiss the appeal and affirm the decision of the trial Court.
For the 4th Respondent, Mr. M. I. Usman, on the Appellants contention that the trial Court failed to make a distinction between buffer zone and drainage basin; submitted that the two words is a matter of semantics chosen by counsel. He referred to paragraph 5 of the 1st 3rd Respondents’ amended claim inviting the Court to note the pleaded words like
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canal/water channel and the entire pleading in the paragraph.
Mr. Usman referred to the argument of the Appellant in their brief of argument particularly paragraph 3.5 at page 7, wherein he contended that the 1st – 3rd Respondents did not proved the identity of the land in dispute with precision. The learned counsel for the 4th Respondent submitted that the issue before the trial Court was not for declaration of title but for nuisance. Therefore the trial Court cannot make any pronouncement except for what is before it.
On the whole he submitted that the appeal lacks merit, he urged the Court to dismiss the appeal and affirm the trial Courts judgment.
RESOLUTION OF ISSUE
Civil cases are determined on the balance of probabilities which in itself means preponderance of evidence. The trial Court places the evidence adduced before it by the parties in the imaginary scale to see which side of the scale is heavier, not by the number of witnesses called by each party but by the quality or probative value of the testimony of the witnesses. This is the import of deciding a case on the balance of probabilities.
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HUSSENI & ANOR V. MOHAMMED & ORS. (2014) LPELR 24216 (SC); (2014) 12 SCM 248; OLONADE & ANOR. V. SOWEMIMO (2014) LPELR 22914 (SC); MOGAJI V. ODOFIN (1978) 4 SC 91; ADEKUNLE V. AREMU (1998) 1 NWLR (PT. 533) 208 – 210.
By paragraphs 3, 4, 5, 6, 7, 8 and 9 of the 1st to 3rd Respondents Amended Statement of Claim, their case at the trial Court for nuisance was that the structure the Appellant constructed obstructed the main water exit channel linking the various water drainages in and around Gombe which now distorted the public water way thereby posing great danger to lives and properties of the 1st to 3rd Respondents in particular. For ease of understanding, let me reproduce the above referred paragraphs:
3. The Plaintiff state that their house lie along the northern border of the praying ground at Idi Quarters, and at the south is a public creek and buffer zone serving as public canal for drainage/water way which channels the water to avoid flooding.
4. The Plaintiff avers that the public canal/waterway within the area the 1st Defendant has carried on construction in defiance of public authority and which actively he is still
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carrying serves as the central exit channel linking all water drainage in and around Gombe.
5. The Plaintiff aver that owing to high currency of torrential rain/flood and the peculiarity of the centralization of the canal/water channel, any construction within 12 meters of the buffer zone is an invitation to human and property disaster in the area.
6. The Plaintiff aver that the 1st Defendant after selling his house encroached into the public canal for the purpose of erecting/constructing a structure and in the process, the public water way became endangered and distorted, posing grave danger to the live and properties of Plaintiff.
7. The Plaintiff aver that the construction being a nuisance and threat to their various properties confronted the 1st Defendant on same where he insisted on going on and called their bluff boasting of his contacts with influential men in government.
8. The Plaintiff state that the 1st Defendants construction is insensible, substantially dangerous to their properties and the public at large and unreasonable.
9. The Plaintiffs state that the flowing from the above, they duly
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complained to the appropriate authority, 2nd Defendant.
In the above reproduced paragraphs, the 1st to 3rd Respondents interchangeably used the following words: buffer zone, public canal for water drainage, water way, public canal, central exit channel, water channel, canal channel, public water way. The Appellants contention is that the 1st to 3rd Respondents did not establish that the disputed land is a buffer zone. He referred to the evidence of DW4 at page 210 of the records and firmed that the evidence of the 1st to 3rd Respondents as Plaintiffs at the trial Court was at variance with their pleadings.
By Section 133 of the Evidence Act 2011, in civil cases, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. In the instant case it is the 1st to 3rd Respondents who alleged that the Appellant caused nuisance and threat to their properties and lives that have the burden to prove that the Appellant constructed a structure on a particular
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land in defiance of public authority. There is avalanche of evidence before the Court from the 1st to 3rd Respondents and the 4th Respondent who was the 2nd Defendant at the trial Court that the Appellant constructed a structure on a drainage way or water way or channel way or buffer zone or on a way, that obstructed and distorted the public water way which could and indeed caused flood in the area which affected the 1st to 3rd Respondents. See the evidence in chief of PW1 the only witness called by the 1st to 3rd Respondents at pages 14 to 16 and 44 to 46; and his oral evidence at pages 188 to 192 of the records which I adjudge to be in tandem with the pleadings of the 1st to 3rd Respondents at pages 40 to 43 of the records. In his oral evidence he maintained that the 4th Respondent who was the 2nd Defendant – Gombe State Urban Planning and Development Board showed them the buffer zone when the government constructed the drainage.
Majorly, the Appellants counsel submission that the evidence of the 1st to 3rd Respondents are at variance with their pleadings, centers on his argument that there is no evidence that established the area he constructed
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the structure as a buffer zone by reason of the evidence of DW4. At page 210 of the records, DW4 said there was heavy rainfall in Gombe in the year in question which resulted to flood that reached the window level in some houses at Dawaki. Under cross examination he said:
the dispute area is very close to the area where the drainage was constructed by Government to prevent erosion. In the event of flooding the water would hit the structure and affect people?s houses but if the place was vacant it would just flow to the last
The disputed area was closed because it was the area complained over to my office
The disputed area is not a buffer zone but a basin for canal water. It is a drainage basin. It was designated as a drainage zone not based on the complaint of the Respondents but because it was designated since the 1990s. The designation was by the Government. I dont know whether there is any gazette to that effect.
DW4 is an official of the Gombe State Urban Planning and Development Board the 4th Respondent. The Appellant?s argument is that since the official of the Board said
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the area in dispute is not a buffer zone but drainage zone then the 1st to 3rd Respondents did not prove their case since both parties joined issue on buffer zone. By the Merriam Webster dictionary, since 1828;
Buffer zone is an area that keeps two things separated, an area designed to separate.
Drainage is the act or process of removing water or liquid from a place or thing, an area or district drained?.
Water way is a way or channel for water
Canal is an artificial waterway for navigation or draining or irrigating land. It is the same thing as channel or watercourse.
Simply from the evidence on records, the buffer zone as in this case is the area separating the Government constructed drainage or canal or channel or watercourse; and the area allowed for building or construction of structures to avoid the obstruction and distortion of the water way when there is flood. It is the same as drainage basin which is a large or small depression on the surface of the land after a canal or watercourse. The DW4 categorically stated that there was a drainage
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basin designated by the Government to ensure that in the event of flooding and the canal is full the water will have a free course to flow without destroying properties or endangering peoples lives. In his evidence as can be gathered from pages 210 and 211 of the records, the DW4 said the structure put up by the Appellant against the 4th Respondents stop Work? order stood at the drainage basin designated to be free to avoid water way being obstructed thereby causing water to hit the structure and flow back to peoples houses for want of thorough fare. This evidence was not in any way challenged. The Appellants grouse seem to rest on the use of the words buffer zone and drainage basin. Having said that the two words represent the same thing which is an area that separates a watercourse from where structures can conveniently be erected without obstructing the water way when there is an over flow of water in the canal. I am of the strong view that the PW4 was confused by the use of the word buffer zone as it is very clear that he meant buffer zone when he talked about drainage basin. I agree with
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the learned counsel for the 4th Respondent that the use of the words was a question of semantics and cannot be the basis for the Court to hold that the 1st to 3rd Respondents did not prove their case upon the preponderance of evidence. I do not therefore agree with the Appellants counsel that the evidence of the Respondents was at variance with their pleadings. I hold that the evidence of the Respondents was supported by their pleadings.
On the identity of the land, the Appellant counsels contention is that the Respondents failed to prove the full identity of the land. In OKONKWO V. OKONKWO (2010) 14 NWLR (PT. 1213) 228; (2010) LPELR -9357 (SC); relied on by the learned counsel for the Appellant, it was held by the Supreme Court that:
In a claim for ownership of land, the plaintiff must prove the identity of a disputed land failing which his claim must collapse. The issue of identity of a disputed land must be ascertained with certainty. DIKE V. OKOLOEDO(1999) 10 NWLR PT. 623 PG. 359 OGUN V. AKINYELU (2004) 18 NWLR PT. 905 PG. 362. ELEH V. ANYADIKE (1999) 5 NWLR PT. 603 PG. 454
The burden can be discharged by oral
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description of the land or by a survey plan showing clearly the area to which the claim relates?
The case of Okonkwo V. Okonkwo (supra) relates to declaration of title to land as against this case which relates to nuisance by erecting structure on a public water way. The decision referred to above is not applicable to this case although the evidence of the Appellants witnesses was in tandem with the land in dispute where the Appellant erected the structure. In which case I hold that, the identity of the land in dispute from the facts on records is not in dispute. This contention also does not help the Appellant.
In all therefore I resolve the sole issue in favour of the Respondents. The appeal lacks merit and is accordingly dismissed. I affirm the judgment of the High Court of Gombe State delivered on 30th July, 2015 in Suit No: GM/269/2015, by Suleiman Y. Abubakar, J.
I award a cost of N100,000.00 in favour of the 1st to 3rd Respondents.
TANI YUSUF HASSAN, J.C.A.: I agree.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned
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brother, UCHECHUKWU ONYEMENAM, JCA just delivered.
I agree entirely with the reasoning therein and conclusion arrived thereat, that the Appeal lacks merit and should be dismissed.
I too will dismiss the Appeal.
Appeal dismissed.
I abide by the consequential orders therein contained including that for cost in favour of the 1st to 3rd Respondents.
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Appearances:
N.A. DASHE, Esq. holding the brief of A.M. INUWA, Esq.For Appellant(s)
Respondents absentFor Respondent(s)
Appearances
N.A. DASHE, Esq. holding the brief of A.M. INUWA, Esq.For Appellant
AND
Respondents absentFor Respondent
