THE INCORPORATED TRUSTEES OF UNITED METHODIST CHURCH OF NIGERIA & ORS v. MRS. MARYAM MAIYAKI & ANOR (2019)

THE INCORPORATED TRUSTEES OF UNITED METHODIST CHURCH OF NIGERIA & ORS v. MRS. MARYAM MAIYAKI & ANOR

(2019)LCN/13352(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2019

CA/YL/85/2016

RATIO

APPEAL: GROUNDS OF APPEAL MUST ARISE WITHIN THE NARROW COMPASS OF THE JUDGMENT COMPLAINED OF

An appeal is not a remedy provided to an aggrieved party to rake up matters that did not arise in the judgment or were raised at the trial but not pronounced upon. A ground of appeal must fall within the narrow compass of the judgment complained of or to matters raised at the trial and dealt with in the judgment or matters raised but upon which the trial Court made no pronouncement. See the decision of this Court in Registered Trustee of the Christian World Missionary OutReach International V. Aladejebi (2011) LPELR 5023 CA p.11 and Saraki & Anor V. Kotoye (1992) LPELR 3016 SC.PER JAMES SHEHU ABIRIYI, J.C.A.

RULE OF COURT: HOW THE COURT SHOULD TREAT NON COMPLIANCE WITH A RULE OF COURT

Silence to non-compliance with a rule of Court at the trial Court will be treated as a mere irregularity. It is undesirable to give effect to rules which will merely enable one party to score not a victory on the merits but a technical knockout at the expense of a hearing on the merits. In applying the rules of procedure the paramount consideration of the Court is to do substantial justice between the parties. The Court should not in the process allow strict adherence to the rules becloud its sacred duty to do substantial justice. Courts of justice are more inclined to regard as directory or permissive any provisions of the rules of Court which appear mandatory if it is implicit in the provision. Interest of justice will be more paramount than compliance with a rule which will lead to outright injustice. See Duke v. Akpabuyo Local Government (2005) LPELR 963 SC; Long-Jong & Ors V. Blakk & Ors (1998) LPELR -1791 SC P42; Obi V. INEC & Ors (2008) LPELR-2167 SC and Ajagbe V. Babalola & Ors (2010) LPELR 3668 CA. Order 3 Rule 2 of the Taraba State (Civil Procedure) Rules provides as follows:
Where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirement as to time, place, manner or form the failure shall be treated as an irregularity. The Judge may give direction as he thinks fit to regularise such step.PER JAMES SHEHU ABIRIYI, J.C.A.

DECLARATORY RELIEF: PLAINTIFF MUST PROVE HIS CLAIM FOR DECLARATORY RELIEF WITHOUT RELYING ON THE DEFENDANTS CASE
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. Such 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.PER JAMES SHEHU ABIRIYI, J.C.A.

EVIDENCE: THE EVIDENCE OF A WITNESS CANNOT BE USEFUL IN A LATER PROCEEDING

The general principle of the law is that evidence of a witness taken in an earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in Cross examination and for that purpose only. But the witness must be given an opportunity to make an explanation. See Alakija V. Abdulai (1998) LPELR -4045; Yusuf v Adegoke & Anor (2007) LPELR-3534 and Obawole & Anor V. Coker (1994) LPELR -215751.PER 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

1. THE INCORPORATED TRUSTEES OF UNITED METHODIST CHURCH OF NIGERIA
2. MARY NDULE
3. MAGAJI TIJANI
4. REV. ALEXANDER SABO
5. LYDIA EZRA YUSUF (REPRESENTING THE ESTATE OF LATE EZRA DANLADI) Appellant(s)

AND

1. MRS. MARYAM MAIYAKI
2. MR. BENJAMIN DANLADI Respondent(s)

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 2nd May, 2017 in the High Court of Taraba State holden at Jalingo.

In the High Court (Court below), the Appellants were Defendants while the Respondents were the Plaintiffs.
In their further Amended Statement of claim, the Respondents claimed against the Appellants two declaratory reliefs and several orders. These are:
a. A declaration that they are the owners of the house in dispute.
b. A declaration that they alone validly can execute a deed of conveyance in favour of a third party being Administratrix and Administrator of the estate of late Usman Yusuf Idrisu over the property in dispute
c. A declaration that a sale of the property to the Appellants by late Musa Yusuf is null and void and of no effect whatsoever.
d. An order setting aside the sale of the property in dispute.
e. An order directing the Appellants to pay to the Respondents the sum of Five Hundred Thousand Naira (N500, 000) annually for the use and occupation of the property in dispute.
g. Five Million Naira (N5,000,000)

general and exemplary damages for trespass into the disputed property.
h. An order of perpetual injunction restraining the Appellants whether by themselves, agents, privies representatives or howsoever called from trespassing into the property in dispute.
i. An order of injunction restraining the Appellants from developing, further developing, renovating and or altering the structure of the property in dispute.
j. An order directing the Appellants to vacate the property in dispute forthwith.

The Appellants counterclaimed against the Respondents for the following:
(1) A declaration that the letter of administration issued to Mrs. Maryam Maiyaki and Benjamin Danladi Yusuf over the property in dispute is null and void and of no legal validity.
(2) A declaration that the approval of grant of right of occupancy No. TS/GH/BL&S/LAN/26031/14 issued in the names of Benjamin Danladi Yusuf and Mrs. Maryam Maiyaki and any other documents based thereon is invalid.
(3) An order of perpetual injunction restraining the Respondents from trespassing, interfering and/or doing anything prejudicial to the rights and interest of the

appellants.
(4) An order directing the Respondents to pay to the Appellants the sum of N5,000,000.00 as damages.
(5) Costs of litigation.

The facts of the case from the evidence of the only witness called by the Respondents are as follows: The Respondents and the original 1st Defendant Musa Yusuf whose name was struck out upon his death, were children of the late Usman Yusuf Idris who died intestate in 1995. Upon the death of their father his only surviving brother distributed part of the Estate and allocated the property now in dispute to the Respondents because the property earlier given to them in Jos had been recovered by a Bank in settlement of an unpaid facility their late father took from the Bank. But the original 1st Defendant proceeded to sell the property to the 1st – 4th Appellants without the consent and authority of the Respondents.

In their defence and proof of counterclaim, the Appellants stated that the land was given to Ezra Yusuf brother of the Respondents and husband of 5th Appellant during the distribution of the estate of their late father. When the 5th Appellant got married to Ezra Yusuf brother of the

Respondents, they lived in the property in dispute and had two children before her husband died in 2005. When her husband inherited the property in dispute he completed the bungalows on the property and made them habitable including erecting a fence.

After the death of her husband she lived in the disputed property with her children for a while before relocating. When she left the property in dispute she handed over the house to the original 1st Defendant and told him to secure the property for his brother?s children. She also instructed the original 1st defendant to put tenants in the property in dispute so as to generate money for the upkeep of the children of his late brother. The rent from the disputed property was used to pay the school fees of the children.

In 2011, the 5th Appellant requested the original 1st Defendant to sell the property in dispute so that the money could be invested for the education of the children. She consented to the sale of the house to the 1st Appellant.

After considering the evidence adduced by the parties and addresses of learned counsel for the parties, the Court below entered judgment in favour of the

Respondents and dismissed the counterclaim of the Appellants.

The Appellants approached this Court by an original notice of appeal filed on 16th May, 2016 containing ten (10) grounds of appeal. With the leave of this Court, the Appellants amended notice of appeal filed on 14 October, 2016 was on 13th December, 2016 deemed duly filed and served.

The Amended Notice of Appeal contains twenty three grounds of appeal. From the twenty-three grounds of appeal, the appellants presented the following seven issues for determination:
ISSUE NO. 1
WHETHER the proceedings and resultant judgment of the trial Court including its ruling ordering the joinder of the Estate of Late Ezra Yusuf, are not void in law? (Distilled from Grounds 11,12 and 18 of the Amended Notice of Appeal).
ISSUE NO. 2
WHETHER having reached the unimpeachable conclusions that the suit cannot be effectually determined in the absence of the Estate of the Late Ezra Yusuf as a party and that Sule Danjuma Yusuf is a vital witness in the case, the learned trial Judge was not in error to still proceed to determine the suit to finality without the said estate being joined

as party and Sule Danjuma Yusuf being called by the Respondents as a witness in the case? (Distilled from Grounds 1 and 5 of the Amended Notice of Appeal).
ISSUE NO. 3
WHETHER it was proper for the learned trial Judge to have granted the claims of the Respondents rather than dismissing same, regard being had to exhibit DE1 and the fact that the reliefs are contradictory in facts and in law? (Distilled from grounds 19 and 20 of the Amended Notice of Appeal).
ISSUE NO. 4
WHETHER the Judgment of the trial Court which failed to consider and resolve all the issues raised by the Appellants in their defence but instead misplace the burden of proof on the Appellants is not in breach of the Appellants right to fair hearing (Distilled from grounds 2, 7 and 9 of the Amended Notice of Appeal).
ISSUE NO. 5
WHETHER it was proper for the learned trial Judge to have admitted, considered and relied on exhibits PE1, PE2, PE3 and PE6 to enter judgment in favour of the Respondents? Distilled from Ground 6, 13, 14 and 15 of the Amended Notice of Appeal)
ISSUE NO. 6
WHETHER having regard to the state of the pleadings and evidence

adduced by the parties, the judgment of the trial Court is not perverse and devoid of factual and legal basis? (Distilled from grounds 3, 4, 8, 10, 16 and 17 of the Amended Notice of Appeal)
ISSUE NO. 7
WHETHER it was proper for the learned trial Judge to pronounce as void and further proceed to set aside the sale of the property situate at No. 38 Ibrahim street, Magami, even when no document evidencing that (sale) transaction was tendered in evidence by the Respondents? (Distilled from Ground 21 of the Amended Notice of Appeal)

On their own part, the Respondents presented the following two issues for determination from the rather unweildly twenty-three grounds of appeal:
ISSUE NO. 1
Whether the proceedings and the resultant judgment of the Trial Court is a nullity? (Distilled from grounds 1, 2, 12 and 18 of the amended notice of appeal)
ISSUE NO. 2
Whether having regard to the state of pleadings and the evidence adduced by the parties the Trial Court was right in its findings that the Respondents as against the Appellants have proved their case and entitled to judgment (Distilled from grounds 3, 4, 5, 7, 8, 10, 13, 14, 15,

16, 17, 19, 20, 21, 22 and 23 of the amended notice of appeal).

I will determine the appeal on the two issues formulated by Respondents.

Arguing the appeal, learned counsel for the Appellants submitted that settlement of issues is a fundamental requirement and a condition precedent for a trial of a case. It was submitted that failure of the trial Court in this matter to settle issues led to a miscarriage of justice. It also meant that the Court below lacked the jurisdiction to entertain the matter to finality.

It was further submitted that the Court below suo motu joined the Estate of the late Ezra Yusuf in a ruling delivered on a date fixed for judgment in the suit. It was submitted that the Court below erred in law when it delivered a ruling rather than the final judgment and suo motu re-opened the case of the parties by ordering for the joinder of the Estate of the late Ezra Yusuf which were gifts not sought for by the parties.

It was submitted that by the provisions of Order 13 Rules (2) and (3) of the Taraba State High Court Civil Procedure Rules the Court can suo motu strike out the name of the party wrongly joined as a party in a

suit but the trial Court cannot suo motu join a party to the suit.

It was su