KANYA & ORS v. NODANBA
(2020)LCN/14125(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, April 22, 2020
CA/YL/157/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. LANKETO KANYA 2. ANDREWS KANYA 3. BARAU KANYA 4. ALPHA KANYA 5. THOMAS KANYA APPELANT(S)
And
NARU NODANBA RESPONDENT(S)
RATIO
WHEN DECLARATORY RELIEFS WOULD BE GRANTED
Are the Appellants entitled to the declaratory and other reliefs sought? Declaratory reliefs are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. This, he must do without relying on the evidence called by the defendant. A declaratory relief is not granted even on admission by the defendant. See Anyanru V. Mandilas Ltd(2007) 4 SCNJ 288 and Matanmi &Ors V. Dada & Anor (2013) LPELR – 19929. It is common ground between the parties that they have a common boundary, therefore the Appellants who alleged that the Respondent encroached into their own land had a duty to show the extent of the alleged encroachment if any. This, they did not do. Rather as the Court below stated in the judgment at page 134 of the record, the Appellants at the locus in quo said that the Respondent did not go beyond their boundary into their land. As learned counsel for the Respondent pointed out, the Appellants have not appealed against this finding. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 29th June, 2018 in the High Court of Taraba State holden at Jalingo. The Appellants were the plaintiffs in the High Court (the Court below) while the Respondent was the defendant.
The Appellants claimed for a declaration that they are the persons entitled to the land in dispute and that the Defendant trespassed into it. They also claimed for an order of perpetual injunction and general damages.
The cases for the parties are simple and short. According to the Appellants, their land is bounded to the North by the Respondent’s land. In 2012, the Respondent reported the 5th Appellant to the palace of the chief and the chief sent people who came and divided the whole land into two and gave one portion to the Respondent. That the Respondent has encroached into a portion of their land.
In defence, the Respondent said it was the Appellants that were claiming a portion of his land. In 2012, the 5th Appellant started encroaching on his land and he reported him to the chief of Pupule. For the purpose of a peaceful settlement, he
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(Respondent) agreed that part of his land be shared between him and the 5th Appellant. This was done and 5th Appellant agreed with this. The Appellants did not appeal within 30 days against the settlement as both parties were enjoined to do until four years after when they took out the writ in the Court below.
The Court below visited the locus in quo. See page 110 of the record where the visit is recorded.
After considering the evidence led by the parties including the visit at the locus in quo and addresses of learned counsel for both parties, the Court below dismissed the claim of the Appellants.
The Appellants have approached this Court by a notice of appeal dated and filed 21st September, 2018 but deemed duly filed and served 19th February, 2019 time having been extended to that day within which to file and serve the notice of appeal. The notice of appeal contains four grounds of appeal. From the four grounds of appeal, the Appellants presented the following two issues for determination:
1. Whether the decision of the learned trial Judge expunging exhibit “P1” during judgment is erroneous in law?
(Distilled from Ground 3 of the Grounds of Appeal).
2
- Whether the judgment of the trial Court dismissing the claims of the Appellants on the ground of customary arbitration without properly evaluating the evidence is perverse?
(Distilled from Grounds 1, 2 and 4 of the Grounds of Appeal)
The Respondent adopted the two issues presented by the Appellants for determination.
Arguing issue 1, learned counsel for the Appellants submitted that the Court below having admitted exhibit P1 despite objection, the issue could no longer be visited without prompting from the parties. He submitted that Exhibit P1 cannot be rendered inadmissible by Section 3(b) Survey Law of Taraba State. The Court was referred toA-G Federation v. A-G. Lagos State (2013) LPELR 20974 (SC) 121-122, A-G Lagos State V. Eko Hotels Ltd & Anor (2006) LPELR 3161 SC 84 – 85 and Anagbado V. Faruk (2018) LPELR – 44909 SC 31-33. The Court was urged to hold that the Survey Law of Taraba State cannot make the site plan inadmissible and the decision of the Court below expunging Exhibit P1 should be set aside.
On issue 2, learned counsel for the Appellants contended that the Court below
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did not evaluate the evidence below but summarily dismissed the case of the Appellants on the ground that parties are bound by the customary arbitration when elements of a customary arbitration were not established.
He submitted that the Appellants had proved their case and the Court below wrongly dismissed it.
Learned counsel for the Respondent submitted that exhibit P1 was not admissible under any law in Nigeria as it does not qualify as a survey plan. There is no evidence, it was argued, that the maker of Exhibit P1 is a registered surveyor within the contemplation of the provisions of the Surveyors Registration Council of Nigeria Act. It was submitted that even where a Surveyor testifies in Court, he must prove that he is a registered surveyor under the Act. The Court was referred to Kano v. Galeon (2012) All FWLR (Pt. 613) 1968) 1968 at 1971. Apart from not proving that the maker of Exhibit P1 is a registered surveyor, the maker, it was submitted was not called as witnesses to testify as to how he preparedthe document.
It was submitted that even if the Court below had not expunged Exhibit P1, this Court on the above arguments has the power
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to expunge it even if no objection is raised against the document. The Court was referred to Seikegba v. Penawou (1999) 9 NWLR (Pt. 618)354 and Osazuwa V. Edo State Civil Service Commission (1999) 4 NWLR (Pt. 597) 155 at 165.
On issue 2, the Court was referred to the finding of the Court below at page 110 of the record and it was submitted that the Appellant cannot approbate and reprobate at the same time.
Learned counsel for the Respondent also referred the Court to the judgment of the Court below at page 134 – 135 of the record of appeal and submitted that the Appellant did not challenge the finding of the Court below and that it remains a valid decision of the Court below.
The decision of the Court below and arguments of learned counsel for both parties on Exhibit P1 are not borne out of the evidence before the Court. PW1 through whom Exhibit P1 was tendered did not say that he was the maker. There is nothing on the face of Exhibit P1 to show that Abraham Kaffa who prepared it is a surveyor. Therefore the application of the Survey Law of Taraba State did not arise. As the document was not tendered through the maker, the Court below
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could not look at it anyway.
Issue 1 is therefore resolved against the Appellants and in favour of the Respondent.
Are the Appellants entitled to the declaratory and other reliefs sought? Declaratory reliefs are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. This, he must do without relying on the evidence called by the defendant. A declaratory relief is not granted even on admission by the defendant. See Anyanru V. Mandilas Ltd(2007) 4 SCNJ 288 and Matanmi &Ors V. Dada & Anor (2013) LPELR – 19929. It is common ground between the parties that they have a common boundary, therefore the Appellants who alleged that the Respondent encroached into their own land had a duty to show the extent of the alleged encroachment if any. This, they did not do. Rather as the Court below stated in the judgment at page 134 of the record, the Appellants at the locus in quo said that the Respondent did not go beyond their boundary into their land. As learned counsel for the Respondent pointed out, the Appellants have not appealed against this finding.
Rather, they have resorted to unnecessary
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argument about the characteristics of customary arbitration. These arguments are unnecessary and do not show on what evidence the Appellants can be granted the declaratory and other reliefs sought.
Issue 2 is also resolved against the Appellants and in favour of the Respondents.
Both issues having been resolved against the Appellants and in favour of the Respondent, the appeal should be dismissed as it lacks merit.
It is accordingly dismissed and the judgment of the Court below upheld.
Respondent is awarded One Hundred Thousand (N100,000) Naira costs which shall paidby the Appellants.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment of my learned bother, JAMES SHEHU ABIRIYI, JCA. I agree with my learned brother’s decision dismissing the appeal for lacking in merit, I also dismiss it for the same reason given in the leading judgment by my learned brother.
I abide by the order made as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Barnabas Esq. For Appellant(s)
P. Mahanan Esq. Principal Legal Aid Officer, Legal Aid Council of Nigeria, Jalingo Office For Respondent(s)
