SAIDU MOHAMMED MODIBBO v. CHAVALA B. YARO & ORS
(2019)LCN/13490(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2019
CA/YL/38/2018
RATIO
DECLARATORY RELIEFS SHOULD NOT BE GRANTED AS A MATTER OF COURSE OR ON A PLATTER OF GOLD
It is the practice that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. It is the law that the plaintiff must plead and prove his claim for declaratory relief 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 SC.PER JAMES SHEHU ABIRIYI, J.C.A.
YOU CANNOT GIVE WHAT YOU DO NOT HAVE
It is trite law that no one can validly give what he does not have. See the decisions of this Court inEgbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 and Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt. 281) 259PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
SAIDU MOHAMMED MODIBBO
(For himself and on behalf of Modibbo’s family) Appellant(s)
AND
1. CHAVALA B. YARO
2. ALH. MANU KANO
3. THADAEUS GYANDI
4. ZICO DIGEM Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 28th September, 2017 in the High Court of Adamawa State holding at Yola wherein the 1st Respondent was the plaintiff, 2nd, 3rd and 4th Respondents were the 1st, 2nd and 3rd Defendants. The Appellant was the 4th Defendant and counterclaimant.
The claim of the 1st Respondent against the Appellant and 2nd ? 4th Respondents was for the following:
i. A declaration of title to a piece of land in dispute measuring 100ft x 100ft situated and lying at Ngayewa Wauro, Jabbe, Yola South Local Government Area of Adamawa State.
ii. A declaration that the construction of immovable structures by the 2nd defendant on the plaintiff?s land (land in dispute) without the plaintiff?s consent or authority amount to an act of trespass.
iii. A declaration that entry of the plaintiff?s lawful possession, ownership and control of the land subject of the suit by the defendants are acts of trespass and are illegal, null and void.
iv. AN ORDER of Court directing the 2nd defendant to demolish and remove all
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illegal structures erected on the plaintiff?s land (land in dispute) and to vacate same.
v. AN ORDER of perpetual injection restraining the defendants by themselves, their agents, privies and representatives or anybody claiming under them, or for them from carrying out any further development, construction, entering or using the land in dispute at Ngayewa Wauro Jabbe, Yola South Local Government Area, Adamawa State measuring approximately 100ft x 100ft.
vi. An order of Court directing the 2nd defendant to pay to the plaintiff the sum (N42,000.00) Forty Two Thousand Naira as special damages for the cost of two (2) trips of Sand and (200) Two Hundred 6 Inches cement Blocks.
PARTICULARS OF SPECIAL DAMAGES
a. Two trips of sand at the cost of N11,000 each N22,000.00
b. 200 pieces of 6 inches cement blocks at N100 each N20,00.00.
vii. An order of Court directing the defendants to pay the plaintiff the sum of N1,000,000.00 (One Million Naira) only as general damages for trespass.
viii. Cost of the suit.?
The counterclaim of the Appellant against the Respondents was for the following:
(a) A declaration
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that the 4th Defendant is entitled to that parcel of land plot No. 30 and 32 measuring 100ft x 100ft situate and lying at Ngayewa Wauro Jabbe, Yola South Local Government of Adamawa State.
(b) A Perpetual Injunction restraining the Defendants to the counter claim either in persons, their workmen, privy or howsoever called from entering into and interfering with the counter Claimant?s land.
(c) N500,000.00 (Five Hundred Thousand Naira Only) as general damages for trespass to the land.
(d) Cost of this suit.?
The case of the 1st Respondent as plaintiff was that he purchased the land in dispute and the 2nd Respondent was a witness to the seller by name Kabiru Usman who was authorised by Muhammadu Modibbo?s family to sell the land on its behalf. Immediately after signing the sale agreement dated 22nd September, 2009, he took over possession of the land and opened a block industry on it. He enjoyed quiet and peaceful possession of the land until 2012 when he went to Abuja. Upon his return, he found that the 3rd Respondent had moved in labourers who were building for him on the land. The 3rd Respondent?s construction on
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the disputed land continued despite protest by the 1st Respondent.
The 2nd Respondent did not defend the action.
The 3rd Respondent in his defence said he bought the land from the 4th Respondent who sold it on the behalf of his family.
The 4th Respondent in defence claimed that from documents found after the death of their relation, the relation had bought the land in dispute from the 2nd Respondent. When the family confirmed from the 2nd Respondent that their relation had bought the property in dispute before his death, the family authorised the 4th Respondent to sell the land in order to settle the late relation?s debts. That was why he sold the disputed property to the 3rd Respondent.
In his defence, the Appellant as 4th Defendant and counter-claimant stated that as the eldest son of the family of late Muhammed Modibbo?s family, he (Appellant) did not authorise Kabiru Usman to sell the land on behalf of the family. That when they discovered that Kabiru Usman was illegally selling their family land, he (Appellant) wrote a petition against him to the Yola Emirate Council.
After considering the evidence adduced by the
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parties apart from 2nd Respondent and addresses of learned counsel, the Court below entered judgment in favour of the 1st Respondent and against the Appellant, 2nd ? 4th Respondents.
It is the Appellant who was the 4th Defendant that has approached this Court by a notice of appeal dated and filed 20th December, 2017. The notice of appeal contains four grounds. From the four grounds of appeal, the Appellant presented the following two issues for determination in the Appellant?s Brief of Argument dated 30th April, 2018 and filed 3rd may, 2018:
i. Whether Kabiru Usman who sold the land subject of dispute to the plaintiff/1st Respondent and 2nd Respondent Alh. Manu Kano a witness to the 1st Respondent who also sold same to the 4th Respondent and who also sold same to the 3rd Respondent illegally transacted on the land subject of dispute belonging to Appellant?s family hence Appellant is entitled to the relief in his Counter Claim.” (Distilled from ground 1 and 3).
ii. Whether upon proper evaluation of documentary and oral evidence of the Appellant led before the trial Court possession cannot defeat the overwhelming
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documentary and oral evidence led before the trial Court.? (Distilled from ground 2 and 4).
The 1st Respondent in the 1st Respondent?s Brief of Argument dated 8th November, 2018 but filed on 9th November, 2018 presented two issues for determination although he raised a preliminary objection to the hearing of the appeal. Reproduced immediately hereunder are the two issues submitted for determination by the 1st Respondent:
?1. Whether the trial Court was wrong when it held that the plaintiff/1st Respondent has proved a better title over the disputed land against all the four Defendants.
2. Whether the Appellant is entitle(sic) to the reliefs sought in his counter claim.?
No briefs were filed by the 2nd ? 4th Respondents.
Although they were served hearing notices against the 2nd April, 2019 when this appeal was heard, the 2nd ? 4th Respondents did not attend Court neither did any of the counsel representing them.
1st Respondent?s preliminary objection is on the ground that the notice of appeal is incompetent in that the grounds of appeal are of mixed law and facts for which leave of the Court
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or the trial Court must be sought and obtained before raising them and no leave was sought and obtained.
1st Respondent?s counsel submitted that the grounds of appeal are on facts and mixed law and facts which were filed without first obtaining leave of the trial Court or this Court. Grounds 1 and 2 of the grounds of appeal and their particulars were reproduced in the brief. It was submitted that the entire appeal is rendered incompetent and the Court is without jurisdiction to hear and determine it in view of Section 242(1) of the 1999 Constitution FRN as amended.
In reply, learned counsel for the Appellant submitted that by virtue of Section 241 of the Constitution FRN 1999 (as amended) appeals lie from the decision of the High Court to the Court of Appeal as of right. The Court was referred to Section 241 of the Constitution and Ekwerekwu V. Egboche (2010) 14 NWLR (Pt. 1213) 194 at 204.
The instant appeal, it was pointed out, is from a decision of the High Court of Adamawa State sitting at first instance.
The Court was urged to discountenance the preliminary objection.
On the main appeal, learned counsel for the Appellant
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contended on issue 1 that the 1st ? 4th Respondents could not substantiate how their various vendors acquired the land which they sold to them. That from a cursory look at Exhibits A, B1 and B2, the vendor who sold to the 1st Respondent is Kabiru Usman and there is no power of attorney authorising the said Kabiru Usman to sell the land on behalf of the family members of the Appellant mentioned in Exhibits B1 and B2.
It was submitted that the 1st Respondent acquired his interest from Kabiru Usman while the 3rd and 4th Respondents bought the land from the 2nd Respondent who ran away and abandoned the case and left the 3rd and 4th Respondents to their fate because the 3rd and 4th Respondents acquired the land from the 2nd Respondent through Exhibit D which is a mere receipt of purchase issued by the 2nd Respondent.
The 1st Respondent, it was submitted, did not call the said Kabiru Usman as a witness. Likewise the 3rd and 4th Respondents did not call the 2nd Respondent as a witness.
It is the law, it was submitted, that failure to call a material witness is fatal. The Court was referred to Okolie V. Morinho (2006) 2 WRN 120 at 130.
Exhibits E1 and E2, it was submitted, are documents emanating from the Appellants family hence the counterclaim of the Appellant against the Respondents.
On issue 2, learned counsel for the Appellant submitted that the Court below was in error not to have evaluated both the oral and documentary evidence. It was submitted that the Court is bound to evaluate both the oral and documentary evidence led.
The Court below, it was contended, did not consider Exhibits E1, E2, F and G tendered by the Appellant. The Court below, it was argued further, did not state why it refused to accept Exhibits E1, E2, F and G which were clearly unchallenged and uncontroverted.
It was submitted that the findings of the Court below that the 1st Respondent is in possession has not established his claim on the preponderance of evidence and was borne out of the lower Court?s failure to properly evaluate the oral and documentary evidence of the parties.
The finding of the Court below, it was submitted, is perverse and the Court can interfere. The Court was referred to Chukwu V. Omeaku (2009) All FWLR (Pt. 490) at 734 and Lagga V. Sarhuna (2009) All FWLR
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(Pt. 455) 1617 at 1642.
On issue 1, learned counsel for the 1st Respondent submitted that the land in dispute is subject to customary title. Learned counsel for the 1st Respondent pointed out that the 1st Respondent in proving his claim called Pw1, the ward head of Ngayewa where the land in dispute is situate. That Pw1 witnessed Exhibits B1 and A.
It was submitted that the combined effect of the testimonies of Pw1 – Pw4 and Exhibits A, B1 and B2 established the claim of the 1st Respondent to the land in dispute against all the other Respondents and the Appellant.
Exhibit A, it was pointed out, was signed by the Pw3 and authenticated by the Pw1 and the District Head of Yola in accordance with practice. Exhibits B1 and B2 tendered by the 1st Respondent as plaintiff, it was contended, is exactly the same with Exhibits E1 and E2 tendered by the Appellant as 4th Defendant.
?
It was submitted that the vendor armed with Exhibit B1 surrendered it as evidence of authority immediately after executing Exhibit A. It was submitted that being in possession of Exhibit B1 was evidence that a relationship existed between the vendor Kabiru Usman and
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Appellant?s family as Exhibit B1 is exactly the same with Exhibit E1.
It was submitted that it is common practice to give verbal authority to an agent armed with a copy of a title document of land for sale. The vendor it was pointed out, issued to the 1st Respondent memorandum of understanding between the families of Mohammadu Modibbo and that of Abubakar Gaji (Exhibit B1) written in Hausa Language. Exhibit B1, it was submitted was pleaded and tendered by the 1st Respondent without objection.
The 1st Respondent, it was argued, was not cross examined as to how he came into possession of Exhibit B1 which is the same with Exhibit E1 tendered by the Appellant. It was submitted that Kabiru Usman who had possession of Exhibit B1 was for all intents and purposes an agent of Modibbo?s family. The Court was referred to Section 167 of the Evidence Act.
It was submitted that the 2nd Respondent collected money from the 4th Respondent after he had witnessed the transaction between the 1st Respondent and Kabiru Usman. Therefore the 1st Respondent?s legal interest was first in time. The Court was referred to Aiyeola v. Pedro (2015) EJSC
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(vol. 4) 125.
Appellant, it was submitted, testified that the estate of late Muhammadu Modibbo was distributed among the legal heirs including the land in dispute. The Court was referred to page 240 of the record. Therefore the Appellant, it was submitted, failed to prove that the land in dispute was still family land and/or how it devolved to him to entitle him to judgment.
It was submitted that where family land is partitioned among the persons entitled thereto, the respective plots of individual members cease to be family property.
On issue 2, learned counsel for the 1st Respondent submitted that failure to specifically deny allegation contained in the 1st Respondent?s pleading amounts to admission of the facts therein.
It was submitted that Exhibit F has no link with the disputed property because the disputed property is at Ngayewa Wauro Jabbe whereas Exhibit F is in respect of land situate and lying at Numan Road opposite FGGC Yola. Exhibit G, it was submitted, is not a judgment of a Court but a CTC of an inconclusive case between one Saidu M. Gambo V. Kabiru Usman Toungo which did not in any way establish the counterclaim of the
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Appellant to the land in dispute.
It was submitted that the 1st Respondent?s defence to the counterclaim of the Appellant particularly paragraphs 2 and 3 were not rebutted by the Appellant. Instead the Appellant admitted knowing Kabiru Usman personally.
It was submitted that evidence of long possession by the 1st Respondent was not challenged.
It was submitted that evidence of building block industry on the disputed land was not challenged. That nobody from the Appellant?s family was called to support the counterclaim of the appellant.
It was submitted that the Court below properly evaluated the evidence before it.
In a reply to the 1st Respondent?s brief, learned counsel for the Appellant submitted thatSection 167 of the Evidence Actis not applicable in this matter.
Section 241 (1) (a) of the 1999 Constitution FRN (as amended) provides thus:
?1. An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following:
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first
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instance.?
The instant appeal is from the decision of the High Court of Adamawa State sitting at first instance. There was no need therefore for the Appellant to seek and obtain the leave of either the Court below or this Court to appeal against the judgment.
In the circumstances, the preliminary objection of the 1st Respondent is hereby overruled.
I now proceed to consider the appeal by considering the two issues presented by the Appellant together as that would best meet the justice of the matter before us.
From the claim of the 1st Respondent and the counterclaim of the Appellant reproduced earlier in this judgment, it is clear that the main reliefs sought by both are declaratory in nature. It is the practice that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. It is the law that the plaintiff must plead and prove his claim for declaratory relief 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 ?
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(2007) 4 SCNJ 288 and Matanmi & Ors V. Dada & Anor (2013) LPELR ? 19929 SC.
The Court below found as follows:
?Pw2 the Ward Head evidence is apt in this case.
He was present when the disputed land was shared between the two heirs. See Exhibit B1. He was equally present when the plaintiff bought the land from Kabiru Usman.
The most fonest (sic) aspect of it all was that the said Alhaji Manu Kano is a signatory to Exhibit A. That is to show that the 1st defendant, Alhaji Manu Kano was present when the plots No. 30 and 32 was sold to plaintiff, on 22/9/2009.
The same Alhaji Manu Kano twenty three days later through Exhibit D sold the same plots No. 30 and 32 to the late brother of the 3rd defendant on 13/10/2009 before the 3rd defendant sold same to the 2nd defendant.
From Exhibit A, Alhaji Manu Kano the 1st defendant was conscious of the fact that the two plots No. 30 and 32 had been sold to plaintiff in his presence before he purportedly sold same to the brother of the 3rd defendant.
More over the 2nd defendant who claimed to have bought the land from 3rd defendant and started to develop same,
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despite the complaint by the plaintiff has nothing to show he bought anything from the 3rd defendant.
The late brother of 3rd defendant who was claimed to have bought the two plots from Alhaji Manu Kano through Exhibit D could not have done that, because the same Alhaji Manu was a signatory to the sale of the same plots No. 30 and 32 to the plaintiff. See Exhibit A tendered by the plaintiff.
In whole therefore the plaintiff has proved a better title over the disputed land against all the four defendants.?
The above finding in my view is correct. The 1st Respondent called Pw1 the ward Head of Ngayewa where the land is situate who confirmed that he was present when the two families of Alhaji Muhammadu Modibbo and Abdullahi Gaji shared the vast land of late Mallam Abba Ngayewa the original owner of the vast land. He witnessed the division in his capacity as ward head and signed the memorandum of understanding Exhibits B1 and B2 tendered by the 1st Respondent and the Appellant in evidence. That Kabiru Usman who sold the land in dispute was a member of the Alhaji Muhammadu Modibbo family. That Kabiru Usman was authorised by the family to sell
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the plot on its behalf. That the 1st Respondent bought the land in dispute from Kabiru Usman. That he, the Pw1 (the ward head of Ngayewa) and the District Head of Yola confirmed the sale transaction between the 1st Respondent and Kabiru Usman. The evidence of this witness was not discredited under cross examination. I will say it was not even challenged.
It should be noted that the witness under cross examination said Kabiru Umar is not a member of the family. Kabiru Umar is different from Kabiru Usman who Pw1 and the 1st Respondent said sold the land to the 1st Respondent.
The 1st Respondent called Pw3 who witnessed the sale and signed the sale agreement Exhibit A as a witness. His evidence was not challenged.
It is clear from the above evidence that Exhibit B1 and B2 which the 1st Respondent tendered in evidence was given to his vendor Kabiru Usman as evidence of authority to sell the land. It is not indicated by the Appellant anywhere that the said document was irregularly obtained. Exhibit B1 and B2, it should be noted was signed by the pw1 who also signed the sale agreement Exhibit A.
?
The 3rd and 4th Respondents did not establish title
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of the 3rd Respondent to the land in dispute. It is trite law that no one can validly give what he does not have. See the decisions of this Court inEgbuta v. Onuna (2007) 10 NWLR (Pt. 1042) 298 and Owena Bank Plc. V. Olatunji (2002) 12 NWLR (Pt. 281) 259. No evidence has been led to show that the person who issued Exhibit D a receipt dated 13th October, 2009 had title to the land he purportedly sold to the late brother of the 4th Respondent. The land which was purportedly sold to the late brother of the 4th Respondent had been sold to 1st Respondent on the 22nd September, 2009 before it was purportedly sold to 4th Respondent?s brother. Under cross examination, the 4th Respondent from whom the 3rd Respondent purportedly bought the land said that he did not ask the person who issued his late brother Exhibit D how he got the land in dispute. That he did not go to the ward head of Ngayewa to enquire about the land before he purportedly sold it to the 3rd Respondent. If he had, he would certainly have discovered that the land did not belong to the person who purportedly sold it to his late brother.
?The 3rd Respondent who purportedly bought the land from
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the 4th Respondent said under cross examination that the 4th Respondent who purportedly sold the land to him did not give him any document when he bought the land from him. He said he did not know if the 4th Respondent was the rightful owner of the land.
It is clear from the foregoing that the 3rd and 4th Respondents had no defence to the 1st Respondent?s action. The 2nd Respondent did not even attempt to defend the action.
The Appellant as shown earlier in the judgment, had a counterclaim. He therefore had as much a burden as the 1st Respondent to establish his claim for a declaration that he is entitled to the land in dispute. He pleaded that Kabiru Usman who sold the land to the 1st Respondent is not a member of his family. But he did not call evidence in support of this assertion. 1st Respondent called the ward head of the area who ascertained that the Kabiru Usman is a member of the Appellant?s family. His assertion was not challenged under cross examination. Under cross examination, the Appellant admitted that the Pw1 was the ward head of Ngayewa and was present when the land was shared between the two families. Pw1 signed the
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memorandum of understanding as ward head.
Appellant admitted under cross examination that he knew Kabiru Usman without saying how he knew him.
On the evidence of the pw1, the said Kabiru Usman is a member of the Appellant?s family. That explains why he was given a copy of the memorandum of understanding to facilitate the selling of the land. That is why 1st Respondent was not cross examined as to how he came about a copy of the memorandum of understanding which he tendered as Exhibit B1 and B2. As learned counsel for the 1st Respondent rightly pointed out, Exhibit F tendered by the Appellant has no link with the property in dispute which is at Ngayewa Wauro Jabbe while Exhibit F is in respect of land at Numan Road opposite FGGC Yola. Exhibit G also tendered by the Appellant being proceedings of an Area Court is irrelevant to the counterclaim of the Appellant. Exhibit E1 and E2 tendered by the Appellant supports the claim of the 1st Respondent as it was given by the Appellant?s family to Kabiru Usman to facilitate the sale of the land.
?
It is clear from the foregoing that no evidence was led in proof of the counterclaim of the
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Appellant.
Issues 1 and 2 are therefore resolved against the Appellant and in favour of the 1st Respondent. Both issues having been resolved against the Appellant and in favour of the 1st Respondent, the appeal is hereby dismissed and the judgment of the Court below affirmed.
1st Respondent is awarded N50,000 costs which shall be paid by the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I read in advance the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. My learned brother has comprehensively resolved the issues that arose in the appeal. I adopt his reasoning and conclusion arrived at as mine in dismissing the appeal. I dismiss same and abide by the order made as to cost in the leading judgment
?ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Evaristus Paul, Esq.
For Appellant(s)
K.S.Y. Hamid, Esq.For Respondent(s)
Appearances
Evaristus Paul, Esq.For Appellant
AND
K.S.Y. Hamid, Esq.For Respondent
