SANI DAKUT V. DANLADI DAKUR (2012)

SANI DAKUT V. DANLADI DAKUR

(2012)LCN/5781(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of February, 2012

CA/J/293/2001

RATIO

COURT: ATTITUDES OF COURTS TOWARDS DWELLING ON TECHNICALITIES

It is however trite that court have since moved away from allowing procedural technicalities to becloud the ends of justice. See the case of CHIME Vs. ONYIA (2009) 2 NWLR Pt.1124 1 at 22 where the court held thus:

The attitudes of courts now is that where a strict adherence to the rules of court or practice directions would clash with that of fundamental principles of justice, the courts would lean heavily on the side of doing justice.

Strict adherence or reliance on technicality leads to injustice as justice can only be done if substance of the matter rather than form is examined. See the case NWOBODO Vs. ONOH (1984) 1 SCNLR, OGEBOR Vs. DANJUMA (2003) 15 NWLR (Pt.843) 403. PER PHILOMENA MBUA EKPE, J.C.A.

APPEAL: CIRCUMSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH JUDICIAL DISCRETION EXERCISED BY A TRIAL COURT

See ELENDU vs. EKWOABA (1995) s NWLR (Pt. 386) 704, N.CATEL KABELMETAL (NIG) LTD. Vs. OJUBELE (2003) 2 NWLR (pt 895) 429. PER PHILOMENA MBUA EKPE, J.C.A.

LAND LAW: EFFECT OF SALE OF LAND BY THE HEAD OF A FAMILY WITHOUT THE CONSENT OF THE PRINCIPAL MEMBERS OF THE FAMILY

It is therefore the law that where the head of a family alone sells family land without the consent of the principal members of the family, the sale is not void but prima facie voidable. Such sale can therefore be set aside at the instance of the family.

See the case of:

SALAKO VS. DOSUNMU (1997) 12 NWLR (pt. 531) 56. PER PHILOMENA MBUA EKPE, J.C.A.

Before Their Lordships

CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

Between

SANI DAKUTAppellant(s)

AND

DANLADI DAKURRespondent(s)

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Damulak J. sitting in the High Court in Jos, delivered on the 26th day on May 2000. The Appellant as 1st defendant in the lower court counter claimed for the ownership of the compound, for possession and for rent. The trial court set aside the sale of the premises to the Appellant and entered judgment for the Respondents. The Appellants were dissatisfied with the decision of the lower court, hence this appeal.
A summary of the facts of the case is that the Appellant allegedly bought the premises in dispute from the then 2nd defendant, now deceased at Mangu, in Mangu Local Government Area of Plateau State for the total sum of N29,000.
The sale agreement in Hausa and its translation in English are Exhibits A and A1 at page 133 of the record. The 1st Respondent however declined to recognize the sale claiming that the premises in dispute is joint property of the Dakur Family and that the sale of the property in dispute to the Appellant by Joseph Dakur, his father is null and void.
The Appellant then filed a notice of Appeal containing 4 grounds of appeal.
1. The judgment of the learned trial Judge delivered on the 26th day of May 2000 is against the weight of evidence adduced before the trial.
2. The learned trial judge erred in law in relying on the evidence of Dw4 and on Exhibit JD (O) to declare the respondent as owner of the land in dispute when Dw4 who is a party to the suit did not join or file any pleadings and this error has occasioned a miscarriage of justice.
3. The learned trial Judge erred in law to have relied on Exhibit JD (O) a document not in the language of the court and not translated, to find in favour of the 1st Respondent and this error has occasioned a miscarriage of justice.
4. The learned trial Judge erred in law in holding that the 2nd Defendant/Respondent was the sole founder of the land, and this error has occasioned a miscarriage of justice.
Both parties formulated issues for determination. The Appellant on his part formulated two issues for determination while the Respondent on the other hand had five issues for determination.
I shall however merge all the issues into three main issues to be determined in this appeal.
1. Whether the trial court afforded the Appellant his constitutional right to fair hearing.
2. Whether the Appellant’s counter claim is competent in law.
3. Whether the Respondent had on admissible evidence and the pleadings before the court, proved his case.
The Appellant submitted that the procedure adopted by the Lower Court in taking the addresses of parties in writing deprived the Appellant of his right to fair hearing and that this procedure is contrary to the Appellant’s constitutional right to fair hearing as envisaged by Section 36 (1) of the 1999 constitution and that similarly, this provision is not provided for either in the High court law of Northern Nigeria 1963 (Applicable to Plateau State) or the Plateau State High Court (Civil Procedure Rules 1987).
See AMINU MIKA’IL VS. THE STATE (2001) 8 NWLR (PT. 715) 469 at 640 – 641 AND SECTION 36 (1) OF THE CONSTITUTION.
Learned counsel to the Respondent submitted that counsel’s final addresses as ordered by the trial court were taken in open court by order of the trial Judge. He further submitted that the order directing the parties to submit their final addresses in the suit was made on the 19th day of October 1999 by the trial court in its ruling made on the said date. See page 142 lines 1 – 9 of the record of appeal.
That since the Appellant did not challenge the said ruling by way of an appeal, he cannot be said to now challenge the said ruling in the present appeal as no extension of time has been sought and granted to him to appeal against the said ruling. See the case of ELOM ONWE OKE (2001) 1 SCNJ 157 at 169 where Supreme Court held thus:
“where an Appellant failed to appeal against an interlocutory order or ruling of a trial court, within the time prescribed by Section 25 (2) (a) of the Court of Appeal Act 1976 he must obtain the leave of court for his appeal to be competent …”
He also cited the case of COMMERCE ASSURANCE LTD. VS. ALH. BURAMOH ALLI (1992) 4 SCNJ 145 at 159 where the Supreme court held as follows:
… Interlocutory decision or ruling cannot be appealed against in an appeal against the final decision where the time limit for appeal against the interlocutory decision has lapsed unless leave and extension of time are sought and obtained …”
He then urged the court to hold the issue against the appellant.
On perusing the record of proceedings, the learned trial Judge allowed counsel for both parties to file written addresses. Particularly on page 143 of the record is the ruling of the trial court on extension of time within which learned counsel for the Plaintiff could file his written address. The court however ruled as follows:
“Having gone through the motion papers and listened to learned counsel on both sides and the fact that it is not contested, I hereby grant the application as prayed”
It is hereby also noted from the record that learned counsel did not appeal against that interlocutory decision.
It is however trite that court have since moved away from allowing procedural technicalities to becloud the ends of justice. See the case of CHIME Vs. ONYIA (2009) 2 NWLR Pt.1124 1 at 22 where the court held thus:
The attitudes of courts now is that where a strict adherence to the rules of court or practice directions would clash with that of fundamental principles of justice, the courts would lean heavily on the side of doing justice.
Strict adherence or reliance on technicality leads to injustice as justice can only be done if substance of the matter rather than form is examined. See the case NWOBODO Vs. ONOH (1984) 1 SCNLR, OGEBOR Vs. DANJUMA (2003) 15 NWLR (Pt.843) 403.

Where judicial discretion has been exercised by a trial court uninfluenced by irrelevant consideration and not arbitrary or illegal, and where such exercise of discretion is not likely to result in a miscarriage of justice, an appellate court will not interfere with the exercise simply because it would have exercised the discretion differently.
See ELENDU vs. EKWOABA (1995) s NWLR (Pt. 386) 704, N.CATEL KABELMETAL (NIG) LTD. Vs. OJUBELE (2003) 2 NWLR (pt 895) 429. The learned trial Judge had ordered counsel to file written addresses instead of oral addresses. He had thus used his discretion to order Counsel to file written addresses. Both counsel complied with the order on the application of learned counsel for the plaintiff. I am of the opinion that this discretion as exercised by the trial Judge is proper particularly since counsel did not appeal against it. I also did not find any miscarriage of justice occasioned by the said order as both counsel were properly heard in writing.
In line with the above reasoning issue No.1 is hereby resolved in favour of the Respondent against the Appellant.
ISSUE NO. TWO
Whether the Appellant’s counter claim is competent.
No doubt, a counter claim is a distinct and or separate claim from the substantive claim, which must be supported by pleadings. There is nowhere in the Appellant’s entire brief that it was mentioned or demonstrated that pleadings were filed in support of the said counter claim.
The Respondents could not have filed any defence to the counter claim as there was indeed nothing for the defendant to challenge in the absence of pleadings. The main function of pleadings is to ascertain with as much certainty as possible, the various matters that are in dispute between the parties and those in which there are agreements or which no issues have been joined, as to avoid any surprise by either party.
The question here is did the Appellant have a right to counter claim in the circumstance?
The trial court however had an answer to that question when it held thus;
“2nd Defendant admitted that he sold the said house which he built along with his children namely Danladi Dakur, and George Dakur as well as their mother Nayen Dakur. That his children and their mother did not know anything about the transaction because he did not consult them.” The late Joseph Dakur therefore purported to have sold family property which he had no right in the first place to dispose of. On this premise, the Appellant cannot be said to counter claim when title had not legally passed to him. I therefore resolve Issue No. 2 in favour of the Respondent against the Appellant.
ISSUE NO. THREE
Whether the Respondent had on admissible evidence and the pleadings before the court proved his case.
The Appellant submitted that the said property in dispute was founded by the 2nd Defendant now deceased and that he was the one who acquired it and developed it and that the lower court found as facts that:
“I am aware that he who owns the land owns both what is above and below it on the principles of quic quid plantator, solo solo cedit but the act of the 2nd Defendant in this case was rather reckless and selfish.”
Appellant’s counsel further submitted that the above quoted feeling of the lower court was not guided by law. He then concluded that there is no authority relied upon by the learned trial Judge that where an owner of a landed property, as the 2nd Defendant was in respect of the house in dispute, wishes to dispose of his property that he must consult his sons.
The Respondent on the other hand stated that himself, George Dakur contributed variously in putting up the premises in dispute. He then referred to the evidence of the Respondent as PW1 on pages 123 and 124 of the record of appeal.
He referred particularly to the evidence of PW2 George Dakur his younger brother who testified thus in the lower court:
“…….The house was jointly built by my father Joseph Dakur (2nd Defendant) my elder brother Danladi Dakur and my mother Felicia Dakur. One of the buildings in the compound was erected by my father, when i was small. Later my senior brother and i contributed in expanding the compound by erecting other structures therein…”
PW2 further stated thus:
…. My father knew when we were expanding the compound and he had no money to do so …….
The Respondent’s counsel again submitted that from the above statement it presupposes the fact that he and his brother George have had interest in the said premises being the reason why they allegedly summoned the Appellant and opposed the sale price of the said premises.
Oral evidence of the late Joseph Dakur (DW2) on page 140 of the record of appeal reads thus:
“… I showed Danladi (i.e. Respondent) towards the west where he built a block, it comprised 4 (four) rooms but it was built with mud blocks. Ife gave me the money to build the blocks of 4 rooms for him. I left a space for George Dakur (PW2) where he built a two rooms block. In the middle my wife Nayen, built a block of 3 rooms and also constructed a shed for the brewing of local beer counsel concluded that the Respondent his brother George Dakur and mother would not have opposed the sale if they had no interest in the said premises, and that they neither witnessed the sale nor signed any sale agreement. He further concluded that based on their interest in the said premises, any sale or transfer of the said premises without the prior consent and permission of the Respondent as well as his mother and brother is illegal and wrong and urged the court to so hold. Counsel again submitted that from the entire evidence adduced by the Appellant, he could not establish that the alleged sale of the premises was valid and conclusive so as to confer title on him. He cited the case of FRIDAY EZBNIA VS. PRINCESS CHRISTY A. AKENZUA (2000) 6 SCNJ 226 at 237 where the Supreme Court stated the requirement of a valid sale under Customary Law as follows:
“… All the requirements of a valid sale were present. She paid for the land and the land was handed over to her in the presence of witnesses.”
Counsel again concluded that possession of the said premises was never delivered to the Appellant by the alleged vendor, the 2nd Defendant, until he died.
The court below however held that where a family head is proved to be at fault as in this case, he will be liable to account to the other members. The court further held that:
“In the instant case, the 2nd Defendant when selling the house occupied by himself and his family without any just reason, and is unable to account to the senior members of the family, he could be made to record the sale and return the purchaser’s money.”
In the instant case, the late Joseph Dakur, father of the Respondent sold the property without the consent of his wife and sons who had each contributed to building up and maintaining the premises during his life time.
These facts had been proved in evidence and had been accepted by all the family members.
It is only a member of a family whose land has been alienated without the necessary consent if aggrieved by the sale that can in an appropriate action contest the sale or that can institute an action to protect the interest of the family.
See the cases of:
1. UDENGWU VS. UZUEGBU (2003) 13 NWLR (PT. 836) 136 SC.
2. AYANBOYE VS. BALOGUN (1990) 5 NWLR (PT. 151) 392 SC.
From all of the foregoing, it is established that the premises in question is family property owned by all the family members mentioned in this case.
It is therefore the law that where the head of a family alone sells family land without the consent of the principal members of the family, the sale is not void but prima facie voidable. Such sale can therefore be set aside at the instance of the family.
See the case of:
SALAKO VS. DOSUNMU (1997) 12 NWLR (pt. 531) 56.
In the light of all of the above I find Issue No. 3 in favour of the Respondent.
From the totality of all of the above reasoning and submissions, I find that this appeal lacks merit and I hereby dismiss it accordingly.
I make no order as to cost.

CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead Judgement just delivered by my brother Philomena Mbua Ekpe (JCA).
I agree with the reasoning and conclusion arrived thereat that the appeal is devoid of any merit. I also dismiss same in terms of the lead judgement inclusive of the order made as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.

Appearances

A. A. Sangei Esq, (with S. G. Oyafemi)For Appellant

AND

I. S. Bacshiri Esq.For Respondent