MOSES DAN ABARSHI & ORS v. SOLOMON YUSUF
(2016)LCN/8401(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/A/491/2013
JUSTICES:
MOORE ASEIMO A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
MOSES DAN ABARSHI
MAIRO DAN ABARSHI
LYDIA DAN ABARSHI – Appellant(s)
AND
SOLOMON YUSUF – Respondent(s)
RATIO
APPEAL: GROUNDS OF APPEAL; WHETHER MORE THAN ONE ISSUES FOR DETERMINATION CAN BE DISTILLED FROM ON GROUND OF APPEAL
Now having established that, it is important to note that there are two issues for determination to the sole ground of appeal; that is not only unusual but improper; because only one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, but two issues for determination cannot be distilled from one ground of appeal; see M. O. SEKONI V. UTC NIG. PLC. (2006) 8 NWLR (pt.982) 283 at P.298, BEREYIN Vs. GBOBO (1989) 1 NWLR (pt.97) 372, 389; KORODE v. ADEDOKUN (2001) 15 NWLR (pt.796) 483 and NWADIKE Vs. IBEKWE (1987) 4 NWLR (pt.67) 718; (1987) 72 S.C. 14.
This position of the law was affirmed by the Supreme Court in ALH. ADEKUNLE TERIBA V. AYODELE TIAMIYU ADEYEMO (2010) 4 SGNJ 59 at 67, when it said that:
“…it is not proper to proliferate issues for determination to outnumber the grounds of appeal. Thus, a ground of appeal is not to be split into a number of issues and that whilst an issue can be distilled from one or more grounds of appeal, the issues for determination must never be more than the grounds of appeal, but if so, the grounds of appeal and the issues for determination become incompetent and liable to be struck out.”
It is possible to formulate an issue from a number of grounds, but it is not permissible, not in the least, to formulate more than one issue from a ground of appeal. PER. MOHAMMED MUSTAPHA, J.C.A.
LAND LAW: TITLE TO LAND: WHETHER ACTS OF LONG ENJOYMENT AND POSSION OF LAND MAY BE PRIMA FACIE BE EVIDENCE OF OWNERSHIP OF LAND
Proof of title to a disputed land that could warrant a declaration can be made if it was shown to the satisfaction of a Court that a claimant has exercised acts of ownership over the land, such as selling, leasing or renting of the disputed land. Acts of long enjoyment and possession of the land in dispute may be prima facie be evidence of ownership of the particular piece of land; See OGUNDIPE V. AWE (1988) 1 SCNJ 84, IDUNDUN & ORS V. OKUMAGBA & ORS (1976) 9-10 SC 227 and also the case of KOJO IIÂ v. BONSIE (1957) 1 WLR 1223. PER. MOHAMMED MUSTAPHA, J.C.A.
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of High Court of Justice Minna, Niger State of the 28th of February, 2012 presided over by Honourable Justice A.A. Wambai, dismissing the plaintiff/appellants claim, who had claimed the following:
“1. A declaration that the plaintiffs are the surviving heirs of late Abarshi who died intestate.
2. A declaration that the plaintiffs are entitled to that piece of land situated inside Kuta town (which is well known to the parties) which the plaintiffs inherited from their late father Mr. Abarshi.
3. A declaration that the construction of structures on the land in dispute by the defendant without the consent and authority of the plaintiffs amounts to trespass and substantial damages for trespass.
Dissatisfied, the appellants have now appealed by a notice of appeal filed on the 20th of March, 2013, on a sole ground of appeal as follows:
“The learned trial judge erred in law when she gave judgment in favour of the defendant who did not prove his counter claim as required by law.”
The appellants formulated two issues for determination by the Court on the sole ground of appeal, and they were adopted by the respondent; the issues are as follows:
“1. Whether from the evidence adduced before the trial Court the appellants have proved their case on the balance of probability and preponderance of evidence.
2. Whether the Respondent has proved his counter claim as required by law.”
Learned counsel to the appellants referred to the notice of appeal filed on the 20th of March 2012, in his brief of argument filed in this Court on the 21st of October, 2013, and deemed as properly filed on the 17th of March, 2015; clearly this same notice and ground of appeal is what this appeal is based on.
Now having established that, it is important to note that there are two issues for determination to the sole ground of appeal; that is not only unusual but improper; because only one issue for determination is permitted to be distilled from one ground of appeal or two or more grounds of appeal, but two issues for determination cannot be distilled from one ground of appeal; see M. O. SEKONI V. UTC NIG. PLC. (2006) 8 NWLR (pt.982) 283 at P.298, BEREYIN Vs. GBOBO (1989) 1 NWLR (pt.97) 372, 389; KORODE v. ADEDOKUN (2001) 15 NWLR (pt.796) 483 and NWADIKE Vs. IBEKWE (1987) 4 NWLR (pt.67) 718; (1987) 72 S.C. 14.
This position of the law was affirmed by the Supreme Court in ALH. ADEKUNLE TERIBA V. AYODELE TIAMIYU ADEYEMO (2010) 4 SGNJ 59 at 67, when it said that:
“…it is not proper to proliferate issues for determination to outnumber the grounds of appeal. Thus, a ground of appeal is not to be split into a number of issues and that whilst an issue can be distilled from one or more grounds of appeal, the issues for determination must never be more than the grounds of appeal, but if so, the grounds of appeal and the issues for determination become incompetent and liable to be struck out.”
It is possible to formulate an issue from a number of grounds, but it is not permissible, not in the least, to formulate more than one issue from a ground of appeal. In this case, the appellants formulated two issues from one ground of appeal, the first issue in the appellant’s brief is liable to be struck out, leaving only the second issue to be considered in determining the appeal; one may ask why the First issue? Well because it is the first issue, and also because it is the one with the least bearing to the sole ground of appeal; I am fortified in this by an earlier decision of this Court in WITT & BUSCH LTD V. GOODWILL & TRUST INVESTMENT LTD (2004) 8 NWLR (pt. 874) 179; accordingly the first issue as well as learned counsel’s submissions relating to same are struck out. This now leaves us with the second issue for determination as the sole issue for determination.
Whether the respondent has proved his counter claim as required by law
It is submitted for the appellant that a counter claim is a separate action from the main claim, and its success is not dependent on the main claim, and so the burden of proof is on the counter claimant as it does on the appellant, and he succeeds on the strength of his case and not the weakness of the defense; learned counsel referred the Court to CHINDO WORLD WIDE LTD V. TOTAL NIG. PLC (2002) FWLR part 115 at 774.
That the respondent had pleaded that his grandfather was the first settler on the land in dispute; and having claimed title by traditional method he is bound to prove his title in the five recognized ways.
Learned counsel further submitted even though the trial Court found the witnesses of the respondent contradictory he went on to resort to examining acts of recent possession by the respondent; he referred the Court to DIMKPA V. CHIROMA (2010) ALL FWLR part 545 at 388.
That possession does not confirm title to the person who is illegally in possession, because possession no matter how long cannot confirm title to the person in illegal possession, he referred the Court to AUDU OTUKPO V. APA JOHN (2013) ALL FWLR part 661 at 1523.
That also Exhibit D2 was wrongly admitted because the document related to a different local government and as at 1984 when it was issued none of the two local governments were in existence and so should be expunged; he referred the Court to MR JAMES OLOWOYO V. JOSEPH ABIOSUN OJO & ORS (2012) ALL FWLR part 628 at 858.
In response it is submitted for the respondent that a party can establish a claim to land other than by traditional evidence, and the trial Court was right to have found that both the appellant and the respondent failed to prove ownership by traditional evidence, and properly resorted to other meansof proving title.
That the trial Court relied on acts of recent possession which included leasing of the disputed land by the respondent; learned counsel referred the Court to ISHIE V. ANSA (2001) FWLR part 80 at 1592.
Proof of title to a disputed land that could warrant a declaration can be made if it was shown to the satisfaction of a Court that a claimant has exercised acts of ownership over the land, such as selling, leasing or renting of the disputed land. Acts of long enjoyment and possession of the land in dispute may be prima facie be evidence of ownership of the particular piece of land; See OGUNDIPE V. AWE (1988) 1 SCNJ 84, IDUNDUN & ORS V. OKUMAGBA & ORS (1976) 9-10 SC 227 and also the case of KOJO IIÂ v. BONSIE (1957) 1 WLR 1223.
The trial Court found at page 180 of the record of appeal that:
“…none of the evidence of both sides, that is, the plaintiffs and defendant, conclusively meets the requirement of proof of title by traditional evidence.?
The Court went further while observing in view of that finding and took the following step:
“At this stage, the Court now has to resort to the last step of referring to recent acts of possession or ownership…”
Justifiably the trial Court a so found at page 199 of the record that:
“…the act of leasing out part of the land by the defendant (sic) father to which the plaintiff can in the circumstances be said to have slumbered and unreasonably delayed action to claim this title, coupled with…the production of the title documents by the defendant which the documents the plaintiff has been unable to successfully prove were fraudulently (or secretly as pleaded) blamed, makes the recent acts of exercised on the land by the defendant more probable, the two completing (sic) and complicating (sic) traditional history of both parties having been inconclusive…
Having found the evidence of traditional history inconclusive on both sides, the trial Court proceeded to the next appropriate course of action in the circumstances, which is acts of recent possession as established in recent times by the defendant; i.e. the act of leasing out part of the land to tenants by the defendant’s father and the production of the title document in respect of the land in dispute, leading the trial Court to finally resolve the dispute in favour of the defendant/counter claimant, whom it found to have proved his counter claim.
The counter claim for the avoidance of doubt is at page 26 of the record of proceeding as follows:
“1. A declaration that the defendant is the owner and entitled to the land in dispute.
2. An order confirming the defendant’s ownership of the land in dispute.
3. An order of perpetual injunction against the plaintiff, his agent and privies or anyone through him from tampering with the right of the defendant in the land in dispute.
4. Substantial cost.”
It is important to note that the trial Court found the testimonies of DWS 1, 2 and 3 contradictory and unreliable, only in relation to the evidence of traditional history, especially with regard to who first founded the land, see pages 177 to 178 of the record of proceedings. This finding did not clearly affect the testimonies of the respondent’s witnesses as it related to acts of recent possession by the defendant, which the trial court ultimately relied on, having found traditional history unacceptable.
In the circumstances, the trial Court cannot therefore be faulted in its findings at page 189 when it found:
“Significantly PW3 testified in cross examination that: these people have been there for long. They do not pay rent to me. We asked them who brought them to the land long time ago, more than 10 years ago and they told me that it was Yusuf. Yusuf then told me that the issue would be solved…
“This part of the evidence of PW3 supports the defendant case that the place was leased out to the mechanics by the defendant (sic) father who was collecting rent from them more than 10 years ago”
Consequently this Court is satisfied with the way and manner the trial Court faultlessly evaluated the evidence before it and arrived at the conclusion it did, that the respondent has established the counter claim, especially by evidence of acts of recent possession; particularly the act of leasing out parts of the land in dispute to tenants by the respondent’s father.
There is no basis for disturbing the findings of the trial Court; accordingly this issue is resolved in favour of the respondent, and against the appellants.
Having resolved the sole issue for determination in favour of the respondent, and against the appellant, this appeal as a result fails for lack of merit, and it is therefore dismissed, with cost of N20,000 in favour of the respondent.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree that this appeal lacks merit and I also dismiss it with N20,000.00 costs in favour of the respondent against the appellants.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading the judgment just delivered by my learned brother, Mohammed Mustapha, JCA.
I agree with the conclusion that the appeal lacks merit and it is also dismissed by me.
I abide by the order as to cost.
Appearances
Miss Rhadiat Temitope Balogun For Appellant
AND
Gimba Mohammed, Esq. For Respondent
