TYONGI v. AGBER & ANOR
(2022)LCN/16522(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/MK/20/2014
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
JOSEPHINE KPENYILAN TYONGI APPELANT(S)
And
1. JOHN AGBER 2. REBECCA MBAKURAN AGBER RESPONDENT(S)
RATIO
THE PRIMARY DUTY OF A RESPONDENT’S BRIEF
The primary duty of a Respondent’s brief is to support the judgment appealed against by showing that the contentions of the Appellant as to the grounds of error are without merits. The Respondent’s brief must comply with the requirements of the Rules on brief writing and format. Order 19 Rule 4 (2) hereof states the essence of the Respondent’s brief. The Respondents must comply with the Rules with regard to time to file the Respondents’ brief for failure to file the brief within time is non-compliance and the Respondents’ brief will be declared a nullity. He will be deemed not to have filed any brief and the Court will also discountenance any oral argument by Counsel to the Respondents. See Xtodeus Trading Co. v. Vincent Standard Trading Co. (1995) 8 NWLR (Pt. 412) 244 at 252. PER HASSAN, J.C.A.
THE POSITION OF LAW WHERE A RESPONDENT FAILS TO FILE HIS BRIEF OF ARGUMENT
In the same vein, where the Respondent fails completely to file his brief of argument, he will be deemed to have admitted the truth of everything stated in the Appellant’s brief so far as is borne out by the records. See Lagricom Co. Ltd v. UBN Ltd (1996) 4 NWLR (Pt. 441) 185 CA. The findings of the lower Court in such circumstances are in law presume correct until they are proved wrong. See BEPCO Ltd. v. NASCO Management Services Ltd. (1993) 7 NWLR (Pt. 305) 369 at 382 CA. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice E. N. Kpojime in Suit No. MHC/194/2005, on the 15th day of October, 2010, wherein the trial Court dismissed the Plaintiff’s claims for title to Right of occupancy No. BNC 984, and awarded same to the 2nd Respondent.
The Appellant was the Plaintiff, while the Respondents were the Defendants at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide his Notice of Appeal dated 10th day of January, 2011 and filed on the 11th of January, 2011. The Notice of Appeal which challenged the decision of the trial Court on four grounds is found at pages 389-391 of the Record.
The Record of Appeal was compiled and transmitted to this Court on the 7th of February, 2014, but deemed proper before this Court on the 7th of February, 2022. The Appellant’s brief was filed on the 8th of May, 2017, but same was deemed proper before this Court on the 7th of February, 2022. The Respondents in this appeal did not file any brief.
At the hearing of the appeal, counsel to the Appellant adopted the Appellant’s brief and urged this Court to allow this appeal and set aside the judgment of the lower Court. Upon which this Court reserved the appeal for judgment.
The present appeal as constituted by the Appellant was initiated by one Kwaghtse Tyongi who was Plaintiff at the trial Court. Kwaghtse Tyongi commenced this suit by a writ of summons dated 8th of November, 2005, which was issued to the 1st Respondent who was tagged as defendant at the trial Court. The Plaintiff at the trial Court amended her statement of claim, and by Paragraph 21 of the amended statement of claim she claimed the following reliefs:
a. An order of declaration of title in favor of the plaintiff over plot BNC 984 lying and situate at Nyiman, Makurdi Urban Area on TPS 006 demarcated by beacon Nos. MKD 1903, MKD 1884, MKD 1902 and MKD 1885.
b. An order of perpetual injunction restraining the defendants by themselves, agents, privies, servants or any other person howsoever described acting for and on his behalf from committing any or further acts of trespass on plaintiff’s plot No. BNC 984.
c. An order setting aside the purported agreement between Mrs. Anogohor Anum and the second defendant dated 5/2/2003.
d. N2,000,000.00 (Two Million Naira) for trespass jointly and severally.
e. N4,000,000.00 (Four Million Naira) for general damages jointly and severally. See page 95 of the Record.
The Respondents upon being served with the writ and accompanying documents, filed a joint statement of defence and counter-claimed against the Appellant as Defendant to counter-claim in paragraph 51 of the counter-claim as follows:
i. A declaration that she is the rightful owner of the land measuring 100ft x 100ft lying and situate at Nyiman in Makurdi, fully developed and under application No. BND 644.
ii. A declaration that the R of O No. BNC 984 granted to the Plaintiff with beacon numbers which do not tally with what is on ground and over an existing title is null and void and of no effect. See pages 108–109 of the record.
BRIEF STATEMENT OF FACTS
The case of the Appellant against the Respondents was that sometimes in 1998 she purchased a set of land forms and applied to the Benue State Government for a plot of land at Nyiman on TPS 006 in the Greater Makurdi settlement area which was granted and Right of Occupancy No. BNC 984 was issued to her after all necessary payments were done. That she fenced the land and covered beacons Nos. MKD 1903, MKD 1884, MKD 1902 and MKD 1885.
The Appellant’s case is that sometimes in 2003, she observed that the Defendants had commenced acts of trespass on the said plot by demolishing the fence she built and erecting their own, a situation which the Plaintiff reported to the Ministry of Lands and Survey and Urban Development Board, to which the Defendants were issued a stop notice. That despite the stop notice issued the Defendants, they continued with their act of trespass by intensified construction work and building activities.
The Appellant’s case is that the 1st Respondent came to her several times and also her daughter Mrs. Ugbor to admit that he was the one that trespassed on the land and made offer of alternative land, but the Plaintiff turned it down and warned him to desist from further acts of trespass on the land. That the Respondents claimed to have purchased the land from one Mrs. Angohol Annum from whence they commenced that act of physical trespass.
It is the Appellant’s case that the plot of land being claimed by the 2nd Respondent through Angohol Annum is a government layout subject to customary ownership which the government has settled and compensated occupants of the area for before allocating the said plot of land to the Appellant.
The Respondents on the other hand by their joint statement of defence stated that the Appellant does not own the land at Nyiman and did not apply for a specific plot at Nyiman as the Land Use Allocation Committee did not approve her application. That the 2nd Respondent’s land is delineated by beacon Nos. PMKD 1802, PMKD 1803, PMKD 1884 and PMKD 1885 which is a completely different plot from that of Appellant and that by the time Appellant got her Right of Occupancy on the 20/08/2003, the 2nd Respondent was already vested with title in the land.
The Respondents’ case was that the 2nd Defendant got her title from Mrs. Angohol through a sale on 05/02/2003 after due consultation with elders of the Nyiman community. That Mrs. Angohol Anum got her title from Kwaghza Tsomber who settled in the area in the late 1920s who in turn acquired his title from an indigene of the area, late Adeke Ikpam. That Mrs. Angohol Anum built a round hut on the land and continued to farm the land until the government of Benue State in 1996 demolished people’s compound including that of Angohol Anum, for which the Nyiman Community sued the government in Suit No. MHC/25/96 which is pending at High Court Makurdi.
The Respondents’ case is that the Benue State High in Suit No. MHC/25/96 which the predecessor of 2nd Respondent is a party made an order restraining Bureau for Lands and Survey from allocating any party outside the community the land in dispute which is the subject matter of the suit, and the Appellant is not a member of the community, therefore her R of O which was issued during the pendency of Suit No. MHC/25/96 cannot stand. That when the government built quarters on the land, the land of Angohol was not tempered with and Angohol Anum rebuilt her round hut on the land.
That when the 2nd Respondent purchased the land from Angohol Anum, there were some economic trees on the land and the 2nd Respondent paid compensation for them. That before the 2nd Respondent purchased the land from Angohol, a search was conducted at the Ministry of Lands and Survey Makurdi, which revealed that the land belonged to the said Angohol. That it was after the 2nd Respondent finished the building on the land that Appellant surfaced in August, 2008, making this bogus claims. See pages 101–109 of the record.
The trial Court in her considered judgment delivered on the 15th day of October, 2010, found at pages 371–388 of the Records of Appeal entered judgment in favor of the Defendants who are now Respondents before this Court and dismissed the Plaintiff’s claim, hence, this appeal.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument distilled three issues for determination by this Court as follows:
Whether the declaration made by the Court below is sustainable in law having not been based on evidence or proof by the Respondents: Ground 1.
Whether the 2nd Respondent proved her case on the balance of probability as to entitle her to judgment: Ground 2.
Whether the learned trial Judge properly evaluated the evidence before her in entering judgment for the respondent: Grounds 3 and 4.
The Respondents did not file any brief of argument and neither did they participate in this appeal.
I have considered the facts and circumstances of this appeal, the judgment of the Benue State High Court, and the submissions of Appellant’s Counsel in her brief, and even though, the Respondents did not file any brief of argument in this appeal, I shall adopt the issues for determination formulated by the Appellant in this appeal. On that note, I shall proceed to consider and resolve the issues for determination on the merit, commencing with issue one.
ISSUE ONE
Whether the declaration made by the Court below is sustainable in law having not been based on evidence or proof by the Respondents: Ground 1.
APPELLANT’S COUNSEL SUBMISSION
The Appellant’s submitted under this issue that while the trial Court entered judgment in favor of the Respondent declaring the title of Appellant null and void, it is clear that the trial Judge did not avert his mind to the fact that Suit No. MHC/25/96 in which Angohol the predecessor in title of the 2nd Respondent was party did not seek to set aside the compulsory acquisition of land by Government. That there is nowhere in both this suit under Appeal and Suit No, MHC/25/96 where Angohol denied that she was not compensated by Government, and the Respondent’s ought to have specifically pleaded the issue of compensation in their counter-claim. Counsel referred to the authority of Shell v. Ambah (1999) SCNJ 152 at 164 paras 30–32.
Counsel submitted that the declaration of the Court was not supported by pleadings as same is based on logic and personal deductions of the learned trial Judge. Counsel referred to the case of Bamgboye v. University of Ilorin (1999) 6 SCNJ 295 at 324 paras 31–33 where the Supreme Court held that evidence which is at variance with pleadings goes to no issue and same is rejected and if admitted, it should be expunged from the record.
Counsel submitted further that Appellant in her evidence proved that Angohol was given another alternative land as the summary of Members of Nyiman Community Resettled by the Bureau for Lands and Survey showed that Angohol was resettled. Counsel referred to S. 33 of the Land Use Act. However the Court found that Appellant did not prove that Angohol was resettled because no beacon number was found against her name.
Counsel urged this Court to set aside the declaration of the trial Court and allow this appeal on the basis that issues were not joint by parties at the trial Court on compensation in their pleadings, and more so, Angohol who gave evidence as DW6 gave evidence in the matter was not a party at the instant suit.
Counsel submitted that assuming but not conceding that compensation was pleaded at the trial Court, it is Angohol Anum, DW6 and not the 2nd Respondent that has the capacity to sue the Appellant. And even at that, the Appellant is not also the right person to sue on the issue of compensation for land compulsorily acquired by government, but the Benue State Government. See the case of Obala v. Adesina (1999) 2 SCNJ 1 at 18 paras 39–42; S. Oragbaide v. Chief S. J. M Onitiju (1962) All NLR p. 32. On that note, Counsel urge this Court to hold that the Appellant cannot be the proper opposing party to the counter-claim in a suit of compensation and the proper thing to do is to strike out the counter-claim.
ISSUE TWO
Whether the 2nd Respondent proved her case on the balance of probability as to entitle her to judgment: Ground 2.
APPELLANT’S COUNSEL SUBMISSION
Counsel on this issue submitted that the Respondents did not prove their case on the balance of probability as to entitle them to judgment. That by the settled pleadings before the trial Court, the evidential burden was on the 2nd Respondents who never discharged same throughout the trial by evidence or the witnesses called at trial.
That from the pleadings, the title of the Angohol which she purports to sell to 2nd Respondent depended on the success of Suit No. MHC/25/96 which was still pending before another Court. That Angohol was compensated for the plot of land which the government took over at Nyiman from the evidence of Suit No. MHC/25/96.
That the trial Court’s long awaited judgment in Suit No. MHC/25/96 dismissed the suit of Angohol but the trial Court in the instant appeal dramatically set aside its order of 25/09/2009, and held that the outcome of the suit would therefore affect only the transaction between the defendants and their vendor and not between the defendants and the plaintiffs. That since the judgment in Suit No. MHC/25/96 dismissed the suit of Angohol, she has no title to pass to the 2nd Respondent in this appeal since her right was extinguished by government compulsory acquisition. Thus the foundation of the case of Angohol DW6 collapsed by virtue of the decision in the case No. MHC/25/96.
The Appellant submitted that the compulsory acquisition of the land by the government created new root of title and the sale of the land later by original owner while the land is under acquisition is invalid, the compulsory acquisition having extinguished their title. See the case of Suara Yusuf v. Oladepo Oyetunde & Ors (1998) 10 SCNJ 1.
That the sale by DW6 to the Respondents which happened after the government had acquired the land is invalid and DW6 has no title to transfer to the 2nd Respondent. Therefore, the 2nd Respondent failed to prove her case on the balance of probability and as such not entitled to judgment by the trial Court.
ISSUE THREE
Whether the learned trial Judge properly evaluated the evidence before her in entering judgment for the respondent: Grounds 3 and 4.
APPELLANT’S
COUNSEL SUBMISSION
Counsel submitted under this issue that the learned trial Judge did not properly evaluate the evidence before her in coming to the conclusion that the 2nd Respondent is entitled to judgment. That the procedure laid down for evaluation of judgment in Mogaji v. Odofin (1987) 4 SC 91 at 94 to 95 by putting the totality of evidence adduced before stating which evidence is believed or not was not followed. Counsel also referred to the case of Woluchem v. Gudi (1981) 5 SC 291 at 306 where the Court enumerated the criteria for determining which piece of evidence is heavier in judgment.
Counsel submitted that the trial Court abdicated his role at page 384 of the judgment when she held that she believed and gave credit to the evidence of the respondent even when there was ample evidence that DW6 was resettled upon the compulsory acquisition by government. That the trial Court having given credit to the case of the Respondents without considering the totality of the case before her and weighing same on an imaginary scale of justice could not have in the circumstance seen anything convincing or useful in the case of the Appellant.
That rather than considering the Appellant’s case in full, the trial judge made restrictive consideration of the claims. Counsel submitted that it is trite law that a Court must consider the case of parties the way it is presented and cannot make a different case for them. See Omoniyi v. Alabi (2004) 6 NWLR (Pt. 870) 559 at 573. Therefore, the non-consideration of the case of the Appellant according to counsel has occasioned Appellant miscarriage of justice as the trial Court cannot engage in speculation and go ahead and make findings on issues not contained in the pleadings as done at page 384 of the record as there was nothing in DW6’s evidence to suggest that he was not resettled by the government.
RESOLUTION OF ISSUES ONE, TWO AND THREE:
I had earlier stated that the Respondent who was the defendant in the lower Court, has not filed any brief of argument to challenge the arguments of the learned counsel for the Appellant on the issues distilled for determination. By virtue of Order 19 Rule 4 (1) of the Court of Appeal Rules 2021, the Respondent has thirty (30) days from service of the Appellant’s brief on him to file his Respondent’s brief of argument. The primary duty of a Respondent’s brief is to support the judgment appealed against by showing that the contentions of the Appellant as to the grounds of error are without merits. The Respondent’s brief must comply with the requirements of the Rules on brief writing and format. Order 19 Rule 4 (2) hereof states the essence of the Respondent’s brief. The Respondents must comply with the Rules with regard to time to file the Respondents’ brief for failure to file the brief within time is non-compliance and the Respondents’ brief will be declared a nullity. He will be deemed not to have filed any brief and the Court will also discountenance any oral argument by Counsel to the Respondents. See Xtodeus Trading Co. v. Vincent Standard Trading Co. (1995) 8 NWLR (Pt. 412) 244 at 252.
In the same vein, where the Respondent fails completely to file his brief of argument, he will be deemed to have admitted the truth of everything stated in the Appellant’s brief so far as is borne out by the records. See Lagricom Co. Ltd v. UBN Ltd (1996) 4 NWLR (Pt. 441) 185 CA. The findings of the lower Court in such circumstances are in law presume correct until they are proved wrong. See BEPCO Ltd. v. NASCO Management Services Ltd. (1993) 7 NWLR (Pt. 305) 369 at 382 CA.
In the instant appeal, the Appellant’s application filed on 15th day of May, 2015 was granted on 6th day of April 2017 to substitute the deceased Appellant with one JOSEPHINE KPENYILAN TYONGI the present Appellant, the Respondents as stated earlier did not participate in this appeal and he did not file any processes, he was served with hearing notice on the 9th day of May 2022 yet failed to appear, in the circumstances he is deemed to have conceded to the appeal and judgment is hereby entered in favour of the Appellant.
In conclusion, I have no option than to set aside the judgment of the lower Court delivered by Hon. Justice E.N. KPOJIME J of the Benue State High Court sitting at Makurdi delivered on the 15th day of October 2010, and grant the Appellant’s claim and reliefs before the lower Court.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, I have nothing to add to the well researched judgment which I adopt as mine.
The resultant effect is that the appeal is imbued with merit and therefore succeeds.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft, the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA. I agree entirely with the reasoning and conclusion reached therein.
In the circumstance, I also set aside the judgment of the lower Court delivered by Hon. Justice E. N. Kpojime J. on the 15th day of October 2010 and in its stead, I grant the Appellant’s claim and reliefs before the lower Court.
Appearances:
T.T. AHUA, Esq, For Appellant(s)
…For Respondent(s)
