UMAR v. INNAME
(2020)LCN/15725(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/S/21/2018
Before Our Lordships:
Ali Abubakar BabandiGumel Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Between
ALH. ALIYU UMAR APPELANT(S)
And
ALH. ALIYU INNAME RESPONDENT(S)
RATIO:
THE STATMENT OF CLAIM AND THE IDENTIFIED BOUNDARIES OF THE LAND IN DISPUTE MUST BE CLEARLY STATED
It is trite and mandatory principle under Islamic law that for a claimant who is seeking for declaration of title to land or recovery of possession of landed property to succeed, he must be able to clearly state in his statement of claim as well as his evidence, the identified boundaries of the land in dispute. For failure to state and identify boundaries in the Respondent’s claim, the trial Court and the Court below were in error when they failed to advert their minds to this grievous defect in the Respondent’s claim. ABUBAKAR MAHMUD TALBA, J.C.A.
A VALID NOTICE OF APPEAL IS THE FOUNDATION UPON WHICH THE MAIN APPEAL CAN BE SUSTAINED
As a starting point, let me emphasize that a notice of appeal is the foundation upon which an appeal is anchored and rested. It has been described in several judicial authorities as the originating process that sets the ball rolling for a proper and valid commencement of an appeal. See Aderibigbe& Anor Vs Tiamiyu Abidoye (2009) 4-5 SC (Pt 111) 123.
It is settled law that a notice of appeal is a necessary prerequisite for the hearing of appeal. The point I am making is that a proper or valid notice of appeal is the foundation upon which the main appeal and other adjuncts can be sustained. See Uwazurike Vs A.G FEDN (2007) 8 NWLR (Pt 1035) 1.
An appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant Court. It is only a valid and competent notice of appeal that can effectively kick-start the appellate process and jurisdiction. ABUBAKAR MAHMUD TALBA, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Justice Sokoto State in its appellate jurisdiction delivered on the 25th October 2017 in suit SS/USC/10A/2016. Quorum: Hon. Justice Bello Abbas (CJ) presiding and Hon. Justice A. M. Lamido (as he then was).
The appellant is the village head of Dagawa and holder of the traditional title known as “Innamen Dagawa” in Yabo Local Government Area of Sokoto State. He sued Alh. Usman Inname herein referred to as the Respondent, at the lower Sharia Court Yabo, seeking to recover a house belonging to the chieftaincy of Dagawa Village, which is in possession of the Respondent. The Respondent denied the claim that he is in possession of the house belonging to the chieftaincy of Dagawa. He also claimed that the house in question belongs to his father and he inherited the house from his father. After hearing, the trial Court entered judgment in favour of the Plaintiff/Appellant. Being dissatisfied with the decision of the trial Court, the Defendant/Respondent appealed to the Upper Sharia Court Yabo on the 30th August, 2012.
At the Upper Sharia Court Yabo the Respondent as an Appellant was asked to present his witnesses. And after hearing the Upper Sharia Court Yabo dismissed the appeal. Being further dissatisfied with the decision of the Upper Sharia Court Yabo, the Appellant/Respondent appealed to the Sharia Court of Appeal Sokoto. The Sharia Court of Appeal Sokoto set aside both concurrent findings of the lower Sharia Court Yabo and Upper Sharia Court Yabo. The Respondent/Appellant further appealed to the Court of Appeal Sokoto which overturned the decision of the Sharia Court of Appeal Sokoto for want of jurisdiction and transferred the appeal to the High Court herein referred to as the lower Court.
Consequent upon the order of the Court of Appeal Sokoto, the Appellant appealed to the High Court of Justice Sokoto State. After hearing the appeal, the lower Court set aside the decision of the lower Sharia Court Yabo and the Upper Sharia Court Yabo. The Lower Court ordered for re-trial of the suit before the lower Sharia Court Yabo. Being dissatisfied with the decision of the lower Court, the Appellant appealed to this Court with leave on four Grounds of Appeal. The amended notice of appeal was deemed properly filed on 22nd October, 2018. The three Grounds of Appeal are as follows:
Ground 1
The Court below (High Court of Justice Sokoto State) erred in law when it set aside the decisions of the two lower Courts on the ground that the boundaries of the disputed property was not stated therefore the claim before the trial Court was incompetent.
Ground 2
The Court below erred in law when it interfered/overturned/set aside the concurrent decisions of the lower Courts which did not occasioned any miscarriage of justice in them.
Ground 3
The Court below erred in law when it delivered its judgment more than three months from the final addresses of the parties without any reason, in clear contravention of the provisions of the 1999 Constitution of the Federal republic of Nigeria.
Ground 4
The Court below erred in law when it granted the Respondent leave to amend his Notice of Appeal when there was no existing/original Notice of Appeal to be amended.
At the hearing of this appeal on the 11th March, 2020, the Court registrar informed the Court that the respondent counsel Aminu Hassan was in Court on 27th January, 2020 when the matter was adjourned to 11th March, 2020 for hearing. On his part M. A. Sambo of counsel for the Appellant informed the Court that the case is for definite hearing. He adopted the Appellants brief of argument filed on 21st November, 2018. He urged the Court to allow the appeal and set aside the decision of the lower Court.
From the Grounds of Appeal filed three (3) issues were distilled for determination of this appeal thus: –
1. Whether the Court below was right when it set aside the decisions of the two lower Courts on the ground that the boundaries of the disputed property was not stated. (Ground 1)
2. Whether the Court below was right when it interfered/overturned/set aside the concurrent decisions of the lower Courts which did not occasioned any miscarriage of justice in them. (Ground 2).
3. Whether there could be an appeal without a valid Notice of Appeal filed before the Court. (Ground 4).
It is apt to mention that there is no issue distilled from Ground three of the Grounds of Appeal. It is trite law where no issue is distilled from a ground of appeal, it is deemed abandoned and no longer valid.
The third issue is very fundamental. It is a procedural issue as well as a jurisdictional issue. It therefore becomes necessary to consider the third issue first and foremost. The competence of the notice of appeal is fundamental because it raises and touches on the issue of jurisdiction of the Court to entertain the appeal.
The third issue is whether there could be an appeal without a valid Notice of Appeal filed before the Court below.
The Appellant’s counsel submitted that the Respondent herein was the Appellant before the lower Court in an appeal which was transmitted to the lower Court by this Honourable Court due to the lack of jurisdiction of the Sharia Court of Appeal Sokoto State. The Respondent/Appellant instead of filing a fresh Notice of Appeal before the lower Court, only brought an application for the amendment of a purported Notice of Appeal filed by the Respondent/Appellant before the Sharia Court of Appeal Sokoto via a Motion on Notice at page 19 of the Record of Appeal. He submitted further that from the prayers in the Motion on Notice and paragraph 4 of the supporting affidavit, it is clear that what the Respondent/Appellant wanted to amend was not a notice of appeal filed before the lower Court but a proceeding of the Sharia Court of Appeal Sokoto which was annulled by this Court.
The Appellant/Respondent objected to the amendment on point of law and on the fact that there was no notice of appeal to be amended before the lower Court. But the lower Court overruled the Appellant/Respondent and held at page 32 of the Record of Appeal that: –
“it is true that there is no Notice of Appeal to be amended but in the absence of any objection, the application is granted as prayed.”
Learned counsel submitted that a defective or non-existing notice of appeal cannot be amended and he relied on the case of Co-operative & Commerce Bank Plc & Anor Vs Ekperi (2007) LPELR – 876 (SC).
The learned counsel urged the Court to hold that failure to file a fresh Notice of Appeal before the lower Court by the Respondent was fatal to his appeal and render the appeal incompetent. He relied on the following cases; Daniel Vs INEC & Others (2015) LPELR 24566 (SC), SPDC & Others Vs Agbara & Others (2015) LPELR – 25987 (SC);Abubakar Vs Waziri &Ors (2008) LPELR – 54 (SC) and Apeh & Ors Vs P.D.P & Ors (2016) LPELR – 40726 (SC).
As a starting point, let me emphasize that a notice of appeal is the foundation upon which an appeal is anchored and rested. It has been described in several judicial authorities as the originating process that sets the ball rolling for a proper and valid commencement of an appeal. See Aderibigbe & Anor Vs TiamiyuAbidoye (2009) 4-5 SC (Pt 111) 123.
It is settled law that a notice of appeal is a necessary prerequisite for the hearing of appeal. The point I am making is that a proper or valid notice of appeal is the foundation upon which the main appeal and other adjuncts can be sustained. See Uwazurike Vs A.G FEDN (2007) 8 NWLR (Pt 1035) 1.
An appeal can only be initiated by the filing of the appropriate notice of appeal as prescribed by the rules of the relevant Court. It is only a valid and competent notice of appeal that can effectively kick-start the appellate process and jurisdiction.
In its judgment at page 61 of the record of appeal, the lower Court held thus: –
“Before this Court, the Appellant filed an amended Notice of Appeal to bring it in conformity with the provisions of the Rules of this Court format set out by the provision of Order 52 Rule 2 (1) – (4).
The said amended notice of Appeal filed via a Motion No. SS/M/125/2017 contains three grounds of appeal.”
The contention of the Appellants counsel is that the Respondent/Appellant should have filed a fresh Notice of Appeal at the lower Court after the appeal was transferred to the lower Court from the Sharia Court of Appeal Sokoto. And that what the Respondent/Appellant sought to amend before the lower Court is the proceeding of the Sharia Court of Appeal Sokoto and not the Notice of Appeal filed before the lower Court. On this contention, the Appellant’s counsel relied on the prayers in the motion on notice and paragraph 4 of the supporting affidavit.
The Appellant’s counsel further contended that he objected to the amendment on point of law and on the fact that there was no notice of appeal to be amended before the lower Court. But the lower Court overruled him and held that: –
“It is true that there is no Notice of Appeal to be amended but in the absence of any objection, the application is granted as prayed.” See page 32 of the record of appeal.
Let me quickly mention that there is no any appeal against the said Ruling which was delivered by Justice Bello Duwale on the 10th April, 2017. More so, prayers one and two of the Motion on Notice are apt, it reads thus: –
1. AN ORDER granting leave to the Appellant/Applicant to amend his notice of appeal in Suit No. SS/USC/10A/2016, as contained in pages 25-27 of the record of appeal for the purpose of bringing it in conformity with the Rules of this Honourable Court.
2. AN ORDER deeming the amended Notice of Appeal herein annexed and marked as Exhibit A as having been properly filed and duly served.
Equally, paragraphs 4 (d) to (f) of the affidavit in support of the said motion on notice are apt, it reads thus: –
(d) That the appeal to Sharia Court of Appeal, Sokoto, which was transferred to this Honourable Court was not in conformity with the memorandum of appeal envisaged by the Sokoto State High Court Civil Procedure Rules, 2015.
(e) that when A. I. Aliyu, Esq was briefed by the Applicant(as he did not represent him at the lower Courts) and he went through the record of appeal and found the need to amend the notice of appeal in order to bring it in conformity with the Rules of the Court and also incorporate other vital issues in the appeal.
(f) That the record of appeal at the trial Court and Court below, had since been transmitted and the amended notice of appeal is hereby annexed and marked as Exhibit “A”.
Upon a careful consideration of all these processes along with the Ruling delivered by the lower Court, there is the presumption that there was a valid notice of appeal before the lower Court. And without a proper appeal against the Ruling of the lower Court the appellate Court lacks the competence to make any pronouncement on the validity or otherwise of the amended notice of appeal. The Ruling of the lower Court delivered on 10th April, 2017 remains valid and subsisting. Accordingly, the third (3) issue is resolved against the Appellant.
The first issue is whether the Court below was right when it set aside the decisions of the two lower Courts on the ground that the boundaries of the disputed property was not stated.
On this issue, the Appellants counsel submitted that the Respondent/Appellant was not disputing the claim. And at page 56 of the record of appeal the Appellant stated in his written address before the lower Court that: –
“At page 2, both parties appeared to have understood the claim before the trial Court, and there was a consensus ad idem (to the disputed property).”
The learned counsel submitted further that when the claim of the Appellant was read to the Respondent and asked to respond to the statement, the Respondent said: –
“It was not true. I inherited the house from my father Inname Ibrahim who inherited it from his father Inname Abdu and when he turbaned Unname Mamman he gave him the house and lived there as Inname and after he died it was given to Inname Chindo who also live in it but the problem with the family of Inname Mamman and the house was divided into two both sides one portion. Also, it was there where Inname Ibrahim lived and also the new Inname. It was divided some 70 years ago.”
Learned counsel submitted that from the above, it clearly shows that he understood the house in dispute and the claim before the trial Court. Learned counsel also submitted that the trial Court has visited the locus in quo. And during the visit, the disputed house was measured in the presence of both parties. And after the measurement was read in Court both parties were asked whether the measurement was correct and both parties answered yes. The measurement is at page 3 of the record of appeal. Learned counsel submitted further that from the above statements of fact, it lives no one in doubt that both parties particularly the Respondent are not in doubt as to the disputed property, as such stating the boundaries of the house is not necessary. Learned counsel cited the case of Adesanya Vs Aderonmu (2000) LPELR – 145 SC and he submitted that once the parties understood the claim before the Court, there is no need to state the boundaries of the disputed property or house.
Now at page 71 of the Record of Appeal, the lower Court held thus: –
“As rightly contended by the Appellant’s counsel, it is trite and mandatory principle under Islamic law that for a claimant who is seeking for declaration of title to land or recovery ofpossession of landed property to succeed, he must be able to clearly state in his statement of claim as well as his evidence, the identified boundaries of the land in dispute. For failure to state and identify boundaries in the Respondent’s claim, the trial Court and the Court below were in error when they failed to advert their minds to this grievous defect in the Respondent’s claim.”
The lower Court allowed the appeal having found that the initiation of the claim in the first place was based on a defective claim by the Respondent who failed to state and identify the boundaries of the land in dispute.
A critical examination of the Respondent/Appellant’s claim before the trial Court reveals that there is no identification of the boundaries of the house in dispute. And for the sake of clarity the Respondent/Appellant’s claim reads: –
“I Inname Dagawa, Alh. Aliyu, do hereby sue Usman Inname Dagawa in respect of one chieftaincy house of Dagawa. The nature of the house was that it belonged to the chieftaincy of title of Dagawa Village since before every ruler turbaned lived in it and when he died, the newly turbaned will live in it, since from Sanda and Abdu and Mamman and Lele and Chindo and Ibro and Sabo, who passed away recently and I was turbaned.”
It is no doubt a settled principle of Islamic Law that a claimant who is seeking for declaration of title to land or recovery of possession of landed property must clearly state in his statement of claim as well as his evidence a description of the boundaries of the land he is claiming. Where the claimant fails to identify the land he claims in his statement of claim, the claim ought to have failed. See Bahja Vol. 1 Page 53. It is stated thus: – …
Meaning: –
The description of the land should be specific by clearly specifying its boundaries. If, however, this is not clearly stated in his claims, then, his explanation or claim cannot be relied upon.
Secondly, if he fails to present an evidence, his claim will not be considered, except where another person presents the evidence of the boundaries.
And Tabsiratul Hukkam Vol. 1 Page 335 states thus: – …
Meaning: –
If a house or portion of land is verbally pronounced to be given to someone, its position must be stated i.e.(location), its status and its boundaries, by saying: – (with all information and description regarding it) with its boundaries and every other right of possession and usage is under my ownership, and it has now been moved to his (another’s) possession and ownership, in so, so form.
The position under Islamic Law is in all fours with the Common law principle. It is the duty of a plaintiff claiming from the Court a declaration of title to land to show clearly the area of land to which his claim relates and this is so, even where issues have not been joined regarding the identity of the land in dispute as no declaration of title can be made where the land in dispute is not properly defined and easily ascertainable with precise boundaries. See Olosunde Vs Oladele (1991) 4 NWLR (Pt 188) 713 at 731. The point clearly emphasized is that a declaration of title to land can only be granted in respect of land which has definite, precise and accurate boundaries.
The onus can be discharged in any of the following ways: –
(1) By giving such description of the land that any surveyor acting on such description could produce an accurate plan of theland in dispute. Thus, the acid test over the years is whether a surveyor or, taking the record could produce a plan showing accurately the land to which title has been given.
(2) A better and reliable way is by filing an accurate survey plan which reflects all the features on such land and showing clearly the boundaries thereof. See Aiyeola Vs Pedro (2014) 13 NWLR (pt 1424) 409 and Atuchukwu Vs Adindu (2012) 6 NWLR (Pt 1297) 534.
The starting point for the consideration of a claim for declaration of title to land is and must be the identity of the land in dispute. Where a claimant fails to plead and establish the identity of the land to which his claim of ownership or title relates, whatever evidence, whether oral or documentary he produces at the trial and however cogent and credible the evidence might appear, it cannot in law ground a declaration of title in his favour. See Karimu Vs Lagos State Govt (2012) 5 NWLR (Pt 948) 210.
In this instant case, the appellant’s counsel contended that the parties are not in doubt as to the disputed property as such stating the boundaries of the house is not necessary. He also contended that thetrial Court visited the locus in quo and during the visit the disputed house was measured in the presence of both parties. After the visit, the measurement was read in Court and both parties were asked whether the measurement was correct and both parties answered yes.
With due respect to the Appellant’s counsel, his argument or submission does not hold water hence it is neither supported by the Islamic Law or the Common Law. However, the trial Judge would have saved the case of the Appellant pursuant to Section 3 of the Area Court Civil Procedure Rules 1980 (as amended) which provides thus: –
“The judge shall ask the plaintiff to state his claim. The claim must be realistic and plaintiff must mention its boundaries and its location.”
The Appellant`s claim falls short of the requirement of the law, which is applicable to Sharia Courts in Sokoto State. The failure or neglect of the Claimant/Appellant to identify the house he is claiming, renders such claim at large and liable to struck be out. The Appeal lacks merit on this score and issue 2 is reduced to insignificance. The Appeal is dismissed and the judgment of the lower Courtdelivered on 25th October, 2017 in Suit No: SS/USC/10A/2016 is hereby affirmed. No order for cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I had the advantage of a preview of the of the lead judgment of my learned brother, Talba, JCA. I agree with his reasonings and conclusion that this appeal lacks merit. I accordingly hold so and dismiss it too. I abide by the consequential orders of my learned brother, including the order on costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, ABUBAKAR M. TALBA, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as completely lacking in merit. I abide by the consequential orders made thereto.
Appearances:
M. A Sambo, EsqFor Appellant(s)
…For Respondent(s)