MALKA v. AMALANKE
(2020)LCN/14428(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/S/06/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
ADAMU DAN MALKA (For Himself And Other Legal Heirs Of Dan Kama) APPELANT(S)
And
ABDU MAI AMALANKE RESPONDENT(S)
RATIO
WHETHER OR NOT WHERE THE IDENTITY OF THE PARCEL OF LAND CLAIMED IS NOT IN DISPUTE AND DOUBT, THE REQUIREMENTS FOR ITS PROOF WOULD NOT ARISE
The settled position of the law is that where the identity of the parcel of land claimed is not in dispute and doubt, the requirements for its proof would not arise and therefore becomes unnecessary. See the decision of this Court in case of ALHAJI BELLO MAIGARI & ORS vs. ALHAJI SANI MAILAFIYA (2010) LPELR-3704 CA. See also the cases of FALOMO vs. ONAKANI (2005) 11 NWLR (PT. 935) 126; MANI vs. SHANONO (2006) 4 NWLR (PT. 969) 132. PER OHO, J.C.A.
WHETHER OR NOT THE PRIMARY DUTY OF A JUDGE IN THE ADJUDICATION OF CASES IS TO DO JUSTICE TO THE PARTIES WITHOUT FEAR OR FAVOUR
See the case of NEWSWATCH COMM. LTD vs. ATTA (2006) LPELR-1986 SC where the apex Court per KALGO, JSC had this to say on the subject:
“It is trite law that the primary duty of a judge in the adjudication of cases is to do justice to the parties without fear or favour. See SHA (JNR) vs. KWAN (2000) 8 NWLR (PT. 670) 685. He or She should not be carried away by sentiment or undue adherence to legal technicality. He or she must be impartial, fair and just to both parties and because of the double-sided nature of justice, the Judge must be even handed. In our adversarial system, it is incumbent upon the parties in a case to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire will adjudicate on the issues in controversy. That is the epitome of fair trial.”PER OHO, J.C.A.
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This judgment is in respect of an Appeal against the judgment of the High Court of Kebbi State sitting at Birnin-Kebbi, delivered on the 13th day of October, 2016 Coram: E. A. KARATU, J; ABBAS AHMAN, Jand FARUKU H. BUNZA, J., in appeal No. KB/HC/53A/2015 when the Court sat on its Appellate jurisdiction over the judgment delivered by the Principal District Court of Kangiwa (hereinafter referred to as the trial District Court) in Suit No. KG/10CV /2013.
The claim of the Appellant before the trial District Court was for title and possession of a farmland which was being cultivated by the Respondent. The said farmland according to the statement of claim filed by the Appellant was located at Lugude Area of Chibiki, Arewa Local Government of Kebbi State and had been in possession and under cultivation by the Respondent for several years on the strength of a loan of same to him by the Appellant’s late father. Page 1 lines 15 – 23 of the record of appeal refers.
The reaction of the Respondent to the Appellant’s claim was one of denial and he stated, inter alia, that the farmland in his
1
possession situate at Lugude area of Chibiki Arewa Local Government of Kebbi State does not belong to the Appellant’s grandfather, but to his own grandfather; that he (Respondent) did not know that the Appellant’s father ever used the farm and that it was only about week before the action that the Appellant contacted him about the farm. Page 7 lines 3 -19 of the record of appeal refers.
Now before adjourning the matter for proof of ownership by both parties who asserted conflicting radical titles to the farm in dispute, the trial District Court suomotu directed the Registrar/Clerk of the Court to proceed with the parties to the said farm to ascertain its boundaries and identity and report back to Court. Page 9 line 7 – 8 of the records of appeal refers. Both parties having asserted radical titles to the farmland all called witnesses in attempt to prove their respective claims to title.
The Appellant called three (3) witnesses, while the Respondent called a witness in defense of the claim and proof of his title after which the trial District Court adjourned the matter for consideration of judgment. Pages 12 – 18 of the records of appeal refers.
2
On the 11-3-2013, the trial District Court delivered a well-considered judgment and in the course of reading the judgment of the Court, the learned trial judge was informed by the Appellant that the parties had embraced an amicable resolution/settlement of the matter to the effect that the Respondent shall admit that the farm belonged to the Appellant, while the Appellant has agreed to allow the Respondent to continue to cultivate the farm.
This position was confirmed by the Respondent who was present in Court, whereupon the trial District Court proceeded to enter judgment on the terms settled and confirmed by parties before it. See page 26 lines 8 – 20 and page 27 lines 1 – 6 of the records of appeal. It should be noted that at the trial District Court both parties presented their respective cases to the Court personally as they were both unrepresented by Counsel.
Shortly after this judgment was given, the Respondent engaged the services of Counsel who filed an Appeal against the consent judgment to the High Court of Kebbi State. This appeal was heard as Appeal No; KB/HC/53A/2015 in its Appellate Jurisdiction.
As it relates to the Appeal at the
3
Court below, one of the grounds of Appeal canvassed complained against the Appellant’s claim before the trial District Court, which the Appellant claimed was incompetent in that the trial District Court did not condescend to providing particulars of the boundaries and location of the farm in dispute hence, that the trial District Court lacked jurisdiction to adjudicate the claim before it regard being had to the provisions of Order 1 Rule 3 of the Kebbi State District Courts (Civil Procedure) Rules 2007. Pages 28 – 29 of the records of appeal refers.
After the Court’s hearing, learned Counsel for both parties in the appeal before it, the Court below delivered its judgment on 12-10-2016. Out of the several grounds/issues canvassed before it, the Court singled out for determination the issue of the competence or otherwise of the claim at the trial District Court arising from the ground complaining that the claim did not state the boundaries and location of the farm in dispute. The Court below resolved the issue in favour of the Respondent and held that the Appellant’s claim was incompetent for failure to comply with the mandatory requirements of
4
Order 1 Rule 3 of the District Courts (Civil Procedure) Rules (Supra) and that the trial Court consequently lacked jurisdiction to adjudicate. Consequentially, the Court below set aside the consent judgment of the trial District Court. Pages 34-41 of the records of appeal refers.
Dissatisfied with this decision, the Appellant with the leave of the Court of Appeal filed this appeal challenging the decision of the Court below on two grounds. See the notice and grounds of appeal appearing at pages 43 – 46 of the records of appeal. The Appellant intends to abandon ground two and argue only ground one. The Notice of Appeal dated 19-10-2017 was filed on 23-10-2017 with the leave of the Court of Appeal. The Appellant now before this Court was the Plaintiff before the trial District Court, while the Respondent before this Court was the Defendant at the trial District Court.
ISSUE FOR DETERMINATION:
The Appellant herein, nominated only an issue for the determination of this Appeal thus;
Whether in all circumstances of this case, the Court below was right in holding that the Appellant’s claim in the trial District Court is incompetent and
5
proceeding therefore to set aside the consent judgment of the trial District Court.
On the part of the Respondent, it is clear that the Respondent was served with all the processes leading to this Appeal and yet no briefs of arguments were filed in response to the issues raised in the Appellant’s brief of arguments and the settled position of the law is that although the Respondents are deemed to have conceded to the issues raised and argued in the Appellant’s brief, this being an Appeal, the failure of the Respondents to file their briefs does not translate into an automatic victory for the Appellant who is expected to succeed on the strength of his own case. See JOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT. 470) 10; ECHERE vs. EZIRIKE (2006) ALL FWLR (PT. 323) 1597 AT 1608; CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR-827 (SC).
SUBMISSIONS OF APPELLANT’S COUNSEL:
SOLE ISSUE:
Whether in all circumstances of this case, the Court below was right in holding that the Appellant’s claim in the trial District Court is incompetent and proceeding therefore to set aside the consent judgment of the trial District Court.
6
In arguing this Appeal and in connection with the issue of the incompetence of the Appellant’s claim on grounds of non-compliance with Order 1 Rule 3 of the Rules of the trial District Court, (Supra) which the Court below used in setting aside the judgment of the trial District Court, Learned Counsel reproduced the record of Appeal at page 38 lines 18 – 21 where the Court below observed thus;
“We observed at page 5, the trial Court directed the farm land to be measured so as to determine its boundary and identity (sic) be determined, page 5 refers. While in page 6, the record of the trial Court indicates it was the Court (sic) Clark who was described as (W1 who took (sic) it measurement, location and boundary.”
Counsel further reproduced the Court’s observations at page 39 lines 1 – 14 of the record of appeal thus;
“Though our trial Court have in all cases of this nature to describe the subject matter in a Suit with clarity so that its identity would not be mistaken, though as stated by the trial Court, parties are not in doubt as to the identity of farm in dispute, by provisions of Order 1 Rule 3 (supra) it is (sic) mandating for the
7
plaintiff is a claim for land to mention it’s boundary and its location. Thus, where a law specifically provides for doing a thing, it is mandatory for the act to be done in compliance with the law which expressly used the word SHALL. It’s not the duty upon a trial Court in case of this nature to assign an officer or any person to conduct duty specifically meant to be carried out by a party in a suit. A trial Court may if it so desires confirm the identity, location and other surrounding boundaries in the (sic)cause of its visit to the locus where it feels such a visit is necessary for a just determination of dispute before it, i.e. a Court should not go on a voyage of discovery so as to do what a claimant was expected to do by law.”
Arising from the foregoing, learned Appellant’s Counsel took the opportunity of arguing this Appeal in amplifying the decision of the Court below who held that the Appellant as Claimant did not comply with the mandatory provisions of Order 1 Rule 3 (Supra) and that it was improper or incompetent for the trial Court to have caused its Clerk to take measurement of and ascertain the boundaries of the farm in dispute
8
instead of the Appellant; hence the claim before the said Court was incompetent and thus, robbed the Court of its jurisdiction to adjudicate same. Learned Appellant’s Counsel also reproduced the conclusion of the Court below on the issue, where the Court remarked thus;
“It is settled law that a mandatory rules (sic) of Court must be observed. Having declared the action of the trial Court as incompetent for none compliance with a mandatory provision of Rules cited, i.e. Order 1, Rule 3 (Supra), any other step taken in determining the suit is incompetent and a nullity, therefore any other issue raised for determination in this appeal will be mere academic exercise and will not in any way affect this appeal as the trial Court is incompetent which rob it of jurisdiction to determine the cause of action before it. In conclusion, we hold that this appeal is meritorious the decision of the trial Court is hereby set aside.”
Against the backdrop of the foregoing, Counsel drew attention to a number of excerpts from the Appellant’s Statement of Claim contained at pages…. at the trial District Court thus;
1. That the Plaintiff resides at
9
Kangiwa while the defendants reside at Chibiki all in Arewa Local Govt of Kebbi State.
2. That the Plaintiff’s grandfather called Dan Kama owned a piece of land at Luqude area of Chibiki, Arewa Local Government which he has been using until he died, and it devolved to the Plaintiff’s father called Maje and his father’s brother.
3. That the father of the Plaintiff called Maje loaned the said piece of land to the Defendant to be used as agricultural, land until the (sic) till they (the Children) wish to take it back.
4. That about 2 weeks ago the Plaintiff contacted the Defendant showing the desire to take the land back; but the Defendant refused saying title to the land belongs to him because he developed it when it was forest, which is not true.
5. The value of the said land is N400,000.00.”
Based on the foregoing, Counsel drew attention of this Court to the fact that the claim, which the Court below found to have offended or have not complied with the mandatory provisions of Order 1 Rule 3 of the Kebbi State District Court Rules, 2007 is the one reproduced here above. Counsel at this point also drew attention to the fact that at
10
this point in time both parties were not represented by Counsel at the trial District Court and that for this reason the parties could not be expected to present their respective cases with the same degree of diligence, precision and attention to details as would Counsel.
The contention of learned Counsel is that in such a situation requirements of the Rules of Court may not be strictly construed so as to shut out parties from the corridors of the Court. Counsel therefore submitted that the statement of the claim of the Appellant reproduced here above is in substantial compliance with the provisions of Order 1 Rule 3 (supra). He argued that the rational for Order 1 Rule 3 (supra) is to ensure that the land in dispute is properly identified between the parties and the Court adjudicating the disputation over same.
As far as Counsel is concerned the Appellant’s claim reproduced above clearly identified the farm in dispute by the following description in paragraph 2 of the statement of the claim – “a piece of land at Lugude area of Chibiki, Arewa Local Government”. Counsel further argued that when the Respondent appeared before
11
the trial District Court to plead to the claim, that the Respondent did not raise any query or objection on the ground that the land in dispute is not known to him. Indeed, Counsel said that the Respondent expressed perfect understanding of the identity of the farm land being claimed by the Appellants when he said –
“(1) It is true that the Plaintiff resides at kangiwa, while the Defendant resides at Chibiki, of Arewa Local Government, Kebbi State.”
Learned Counsel further argued that both the trial District Court and Court below appreciated this point and accepted that in the instant case there was no dispute as to the identity of the land, which the Appellant was claiming against the Respondent. Page 39 lines 1 – 4 of the record of appeal refers. This being the case, Counsel submitted, that it does not lie in the mouth of the Respondent subsequently to complain that the provision of Order 1 Rule 3 (supra) was not complied with and the Court below was wrong to have upheld the complaint and held that the claim before the trial District Court is incompetent for not stating the boundaries of the farm in dispute.
On the disagreement of the
12
judges of the Court below who found it offensive for the trial District Court to have sent or directed its clerk to measure the farm and ascertain its boundaries, who in their views considered it not the duty of the Court to do so, Counsel submitted that the view of the Court below is not entirely correct. He argued that the Court below dwelt more on technicalities to the detriment of substantial justice in shutting its eyes to the fact that the object of Order 1 Rule 3 (supra) had been achieved by the Appellant’s statement of claim and the fact that the Respondent expressed understanding of the identity of the farm in dispute even before the trial District Court directed that its clerk should take measurement and identify the boundaries of the farm in dispute.
Secondly, learned Counsel argued that the Rules of the trial District Court allow the Court to proceed in the manner it did. Counsel drew attention to Order 1 Rule 4 and Order 5 Rule 6 of the District Court (Civil Procedure) Rules 2007. According to Counsel, these rules contemplate/envisage and empower the trial Court to take every necessary step to understand the substance of the claim before it,
13
including calling witnesses to ascertain the boundaries of a land in dispute. Against the backdrop of the foregoing, Counsel submitted that their Lordships in the Court below were wrong in setting aside the consent judgment of the trial District Court. Consequently Counsel urged the Court to resolve this issue in favour of the Appellant, allow this appeal, set aside the judgment of the Court below and restore the judgment of the trial District Court.
RESOLUTION OF APPEAL
The observations of the apex Court in the case of PDP vs. INEC (2012) LPELR-9724 SC per FABIYI, JSC (as he then was) is perhaps, the appropriate way to describe the attitude of the Court below sitting on its Appellate jurisdiction when it set aside the judgment of the lower trial Court given in accordance with the justice of the case before it. On the position of Courts with respect to strict adherence to rules of Court, the apex Court had this to say:
“A Court will, prefer to do justice rather than injustice on account of slavish adherence to rules of Court. Rules of Court which include Practice Directions are not intended to be ridiculously applied to a slavish point
14
particularly if such an application will do injustice in the case.”
A close perusal of the clear record of this Appeal shows that the reason for setting aside the judgment of the lower trial Court, by the Court below, had to do with the Court’s decision, which nullified the lower trial Court’s judgment for failure of the Appellant’s Claims to have strictly complied with Order 1 Rule 3 of the District Court (Civil Procedure) Rules, 2007. At page 39 lines 1 – 14 of the record of Appeal, the Court below observed thus;
“Though our trial Court have in all cases of this nature to describe the subject matter in a Suit with clarity so that its identity would not be mistaken, though as stated by the trial Court, parties are not in doubt as to the identity of farm in dispute, by provisions of Order 1 Rule 3 (supra) it is (sic) mandating for the plaintiff in a claim for land to mention it’s boundary and its location. Thus, where a law specifically provides for doing a thing, it is mandatory for the act to be done in compliance with the law which expressly used the word SHALL. It’s not the duty upon a trial Court in case of this
15
nature to assign an officer or any person to conduct duty specifically meant to be carried out by a party in a suit. A trial Court may if it so desires confirm the identity, location and other surrounding boundaries in the (sic) cause of its visit to the locus where it feels such a visit is necessary for a just determination of dispute before it, i.e. a Court should not go on a voyage of discovery so as to do what a claimant was expected to do by law…
… It is settled law that a mandatory rules (sic) of Court must be observed. Having declared the action of the trial Court as incompetent for none compliance with a mandatory provision of Rules cited, i.e. Order 1, Rule 3 (Supra), any other step taken in determining the suit is incompetent and a nullity, therefore any other issue raised for determination in this appeal will be mere academic exercise and will not in any way affect this appeal as the trial Court is incompetent which robs it of jurisdiction to determine the cause of action before it. In conclusion, we hold that this appeal is meritorious the decision of the trial Court is hereby set aside.”
The question to perhaps, address at
16
this point is whether it can be said in the real sense of the word, after a calm and careful perusal of the claims of the Appellant, who was the Claimant at the lower trial Court that its claims did not comply with the provisions of Order 1 Rule 3 of the District Court (Civil Procedure) Rules, 2007? The said Order 1 Rule 3 of the District Court (Civil Procedure) Rules, 2007 is hereby reproduced for the avoidance of doubt:
“ORDER 1 RULE 3:
If the subject matter of the claim is land, the Plaintiff shall mention its boundaries and its location…”
Against the backdrop of the foregoing, it is rather clear from the Statement of Claim of the Appellant as Claimant at the lower trial Court that although the Appellant did not comply strictly with the provision of the Rule reproduced here above when it described the parcel of land in dispute simply as: “a piece of land at Lugude area of Chibiki, Arewa Local Government”, it will be self-defeating arguments on the part of the Court below, who is charged with the objective of doing justice between the parties especially at a time when the parties were not represented by Counsel
17
on either side, to have insisted that a layman in the person of the Appellant would have been in a proper position to appreciate the fine points of the law, nay, the provisions of the Rules of Court in preparing their claims at that level. This Court is of course in agreement with learned Appellant’s Counsel that the parties could not be expected to present their respective cases with the same degree of diligence, precision and attention to details as would Counsel.
As far as this Court is concerned, the lower Court’s insistence on the strict adherence to the Rules, no doubt succeeded in shutting out the parties from the corridors of justice as a careful construction of the Statement of the claim of the Appellant already reproduced in this judgment is clearly in substantial compliance and conformity with the provisions of Order 1 Rule 3 (supra). The rational for Order 1 Rule 3 (supra), which is in tandem with all such other Rules dealing with the need to describe the parcel of land in dispute, is to ensure that the land in dispute is properly identified between the parties and the Court adjudicating the disputation over same.
18
What is even more and rather strange in the position taken by the judges of the Court below, is that this is not a case in which the issue between the parties and before the Court below was one dealing with the question of the identity of the parcel of land in dispute. The record is clear as to the fact that when the Respondent appeared before the trial lower Court to plead to the claim, the Respondent did not raise any queries or objections on the ground that the land in dispute is not known to him. Here is a situation in which the Respondent expressed a perfect understanding of the identity of the farm land being claimed by the Appellants. The settled position of the law is that where the identity of the parcel of land claimed is not in dispute and doubt, the requirements for its proof would not arise and therefore becomes unnecessary. See the decision of this Court in case of ALHAJI BELLO MAIGARI & ORS vs. ALHAJI SANI MAILAFIYA (2010) LPELR-3704 CA. See also the cases of FALOMO vs. ONAKANI (2005) 11 NWLR (PT. 935) 126; MANI vs. SHANONO (2006) 4 NWLR (PT. 969) 132.
It would be recalled that the Court below took an unnecessary and undeserved swipe at the
19
lower trial Court for having sent or directed its clerk to take measurements of the farm land in dispute and ascertain its boundaries, a step which in their conjecture was not the duty of the lower trial Court to do, but that of the Claimant. This Court is nevertheless in agreement with learned Appellant’s Counsel that the view of the Court below is not entirely correct as the Court below had dwelt more on technicalities to the detriment of substantial justice, when it shut its eyes to the fact that the object of Order 1 Rule 3 (supra) had after all, been achieved by the Appellant’s statement of claim and the Respondent’s expressed agreement with the identity of the farm in dispute even before the trial District Court directed its clerk to take measurements and identify the boundaries of the farm in dispute. See the case of NEWSWATCH COMM. LTD vs. ATTA (2006) LPELR-1986 SC where the apex Court per KALGO, JSC had this to say on the subject:
“It is trite law that the primary duty of a judge in the adjudication of cases is to do justice to the parties without fear or favour. See SHA (JNR) vs. KWAN (2000) 8 NWLR (PT. 670) 685. He or She
20
should not be carried away by sentiment or undue adherence to legal technicality. He or she must be impartial, fair and just to both parties and because of the double-sided nature of justice, the Judge must be even handed. In our adversarial system, it is incumbent upon the parties in a case to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire will adjudicate on the issues in controversy. That is the epitome of fair trial.”
The foregoing notwithstanding, this is even a case where the Rules of the trial District Court clearly allows the lower trial Court to proceed in the manner it did, where the Rules have also clearly enjoined the Court to take every necessary steps to understand the substance of the claim before it, including calling witnesses to ascertain the boundaries of a land in dispute. To this end, see the provisions of Order 1 Rule 4 and Order 5 Rule 6 of the District Court (Civil Procedure) Rules 2007, which contemplates/envisages and empowers the trial Court accordingly. For the avoidance of doubt, Counsel reproduced the said Rules thus;
21
Order 1 Rule 4 provides thus-
“If the claim is not realistic in nature and if it is without substance, the judge shall dismiss the case. If the claim however, is not explanatory, the judge shall require the defendant to state what he knows about it. If afterwards it becomes clear that there is no definite claim to answer, the judge shall dismiss the Plaintiff’s claim.”
Order 5 Rule 6(1)(2){3) provides thus-
“(1) Two witnesses shall be produced to discredit the testimony of a witness.
(2) The testimony of a witness called to discredit the evidence of another witness shall not be cross examined.
(3) Witnesses summoned by a judge to witness the confession made by the parties in open Court shall not be cross examined.
Examples: The witness sent by a judge to witness the actual oath taking and the witness sent by a judge to ascertain the boundaries of a piece of land on which evidence has been given by some other witness and the like shall not be cross examined.”
Against the backdrop of the foregoing, this Court finds itself unable to disagree that the Court below did not err in law in setting aside the consent judgment of the trial District Court
22
delivered on the 25-3-2013 between the parties. This Appeal therefore succeeds perforce, and it is accordingly allowed. Consequently, the Judgment of the Court below sitting in its Appellate Jurisdiction and delivered on the 12-10-2016 in Suit No: KB/HC/53A/2015 is hereby set aside, while the Judgment of the lower trial Court delivered as a Court of first instance on the 25-3-2013 in Suit No: KB/CAS/51/2017 is hereby restored. There shall be cost of N50,000.00 awarded in favour of the Appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now, the lead judgment just delivered by my learned brother Oho JCA. I fully agree with his reasonings and conclusion that this appeal is meritorious. I have nothing more to add.
I abide by the consequential orders of my learned brother, including the order for costs.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have read the draft of the Judgment just delivered by my learned brother, FREDERICK. O. OHO JCA, and I agree with his reasoning and conclusions. I have nothing to add to a well written judgment.
I must say with the greatest respect to the learned lower Judges, I am not
23
in the same camp with them. It is not within the competence of a judge to make a case for the parties. The appeal is meritorious and it is allowed by me.
I abide by the consequential orders in the lead Judgment including the order as to cost.
24
Appearances:
C. SHAKA, Esq. For Appellant(s)
Respondent not represented in Court. For Respondent(s)
