UMARU BANGARI v. YAKUBU MUSA DANBIYU
(2013)LCN/6578(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of December, 2013
CA/J/206/2006
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
UMARU BANGARI Appellant(s)
AND
YAKUBU MUSA DANBIYU Respondent(s)
RATIO
WHETHER OR NOT A DECLARATION OF TITLE TO LAND CAN BE GRANTED SOLELY ON THE BASIS OF ADMISSIONS IN THE PLEADINGS OR DEFAULT OF PLEADINGS
It is trite law that a declaration of title to a piece of land cannot be granted solely on the basis of admissions in the pleadings or default of pleadings. Thus a plaintiff in a claim for declaration of title must prove his entitlement by evidence and not by the defendant’s admission or default of pleadings. In situations as in the instant case, even where an application for judgment is made in accordance with the appropriate rules of Court, the plaintiff will still not be entitled to a declaration of title to the said land in his favour until he adduces evidence in proof of his case. The pleadings of the plaintiff alone cannot constitute or be regarded as evidence in proof of his claims. See Bello V. Eweka (1981) 1 SC 101, Mortune V. Balonwu (2000) 5 NWLR (Pt. 655) 87, Salu V. Egeibon (1994) 6 NWLR (pt. 348) 23, Okhuarobo V. Aigbe (2002) 9 NWLR (pt. 771) 29 at 54, Ezeokonkwo V. Okeke (2002) 11 NWLR (pt. 777) 1 at 29, Motunwaso V. Sorongbe (1988) 5 NWLR (pt.92) 90, Omotunde V. Omotunde (2001) 9 NWLR (pt. 718) 252 at 276, Babajide V. Adisa (1966) 1 ALL NLR 254, Fatokun V. Somade (2003) 1 NWLR (pt. 802) 431. PER JAURO, J.C.A.
WHETHER OR NOT PLEADINGS NOT DENIED IS DEEMED ADMITTED BY THE DEFENDANT
The damages awarded for the trespass, has no basis as the trespass itself was not established by evidence. The damages had no evidence in support for its assessment. See Oke V. Aiyedun (1986) 2 NWLR (pt. 23) 548 at 565, where the apex Court, per Aniagolu, JSC had this to say:-
“It is a principle of pleading that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer there also he clearly, will be deemed to have admitted the statement of claim, leaving the trial court with the authority to peretomporarily enter judgment for the plaintiff without hearing evidence. An exception that would obviously be in respect of a claim for damages, for, damages is always said to be in issue requiring the plaintiff to prove them.”
See also the case of Vanguard Media Ltd. V. Ajoku (2003) 11 NWLR (pt. 831) 4 32 at 449 – 450. PER JAURO, J.C.A.
THE EFFECT OF FAILURE TO SERVE HEARING NOTICE ON A PARTY
The effect of failure to serve hearing notice on a party is that it deprives a Court of jurisdiction and any judgment given in such circumstance will be one given without jurisdiction and is liable to be set aside on appeal. Where hearing notice is not served on any of the parties, it becomes a violation of the principle of audi alteram partem and any judgment given thereof is a miscarriage of justice and should be declared a nullity. See Credit Alliance Financial Services Ltd. V. Mallah (1998) 10 NWLR (pt. 569) 341 at 350-351, Amuwah Trans (Nig) Ltd V. O.A. Trans (Nig) Ltd (1998) 6 NWLR (pt. 555) 684 at 690, Julius Berger (Nig) Ltd V. Femi (1993) 5 NWLR (pt. 295) 615, Olatunbosun V. NISER (1986) 3 NWLR (pt. 29) 435, Yakubu V. Gov. Kogi State (1995) 8 NWLR (pt. 414) 386, Scott-Emuakpore V. Ukarbe (1975) 12 SC 41, U.B.N. Ltd V. Nwaokolo (1995) 6 NWLR (pt. 400) 127, Kano N. A. Vs. Obiora (1959) SCNLR 577, Okafor V. A. G. Anambra State (1991) 6 NWLR (Pt.200) 659, Otapo v.Sunmonu (1987) 5 SCNJ 59 at 96, Dawodu v. Ologundudu (1986) 4 NWLR (Pt.33) 104. PER JAURO, J.C.A.
ADAMU JAURO J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the Adamawa State High Court of Justice delivered on 16th May, 2006 in suit number ADSY/5/05 by Hon. Justice Ambrose D. Mammadi.
The background facts giving rise to this appeal can be compressed as follows: The respondent herein as plaintiff in the lower Court instituted an action vide a writ of summons dated 9th June, 2005 against the appellant as defendant. The action was for a declaration of title to a piece of land situated at Jiddel Ward in Michika Local Government Area of Adamawa State. Consequent upon the aforementioned suit, the respondent as plaintiff claimed for the following reliefs against the appellant as defendant; namely:-
1. “For declaration of title to a piece of land lying and situated at Jiddel Ward in Michika Local Government Area;
2. The sum of N1,000,000.00 damages for trespass;
3. An order of perpetual injunction restraining the defendant, his agents, relations or anybody claiming from him from further entering into or tempering with or using the land in manner whatsoever.
(ii) Cost of action.”
The appellant filed a memorandum of appearance dated 17th June, 2005 out of time, pursuant to order for enlargement of time granted on 27th July, 2005. The plaintiff filed his statement of claim out of time pursuant to an order of court made on 7th December, 2005 and the defendant was given 30 days to file and serve his statement of defence. The case was thereafter adjourned to 11th January, 2006. The Court could not sit on the 11th January, 2006 hence a further adjournment was made to 22nd February, 2006. The plaintiff’s Counsel and the defendant were not in Court on the 22nd February, 2006 hence a further adjournment to 15th March, 2006. The Court could not sit on the 15th March, 2006 and another adjournment was made to 27th April, 2006.
Both the defendant and his Counsel were not in Court on 27th April, 2006 hence the learned Counsel for the Plaintiff applied orally for judgment in default of defence. The learned Counsel made the application pursuant to Order 14 Rule 3 of the Gongola State High Court (Civil Procedure) Rules 1987, applicable to Adamawa State. The Court adjourned the matter to 16th May, 2006 for ruling, and on the said date gave judgment in favour of the plaintiff in the following terms:
“I am therefore inclined to agree with Mr. M. B. Sawa that this is a proper case to proceed under Order 14, Rule 3 particularly where the plaintiff has filed and served his statement of claim on the defendant. In the absence of any defence, I hold that plaintiff is entitled to the reliefs sought.
Accordingly judgment is entered in his favour in the following terms.
1. A declaration of title to a piece of land lying and situated at Jiddel Ward in Michika Local Government Area.
2. An order of perpetual injunction restraining the defendant his agents, relation or anybody claiming from him from further entering with or tampering with or using the land in dispute or any part thereof in any way or manner whatsoever.
3. The sum of N150, 000.00 (One Hundred and Fifty Thousand Naira Only) as general damages.
4. Cost of the action”
Irked and aggrieved by the aforementioned decision, the defendant challenged same vide a notice of appeal dated 5th June, 2006 and filed on the 13th June, 2006. The said notice of appeal was anchored upon four grounds of appeal. The defendant will hereinafter in this judgment be referred to as the appellant, while the plaintiff as the respondent. In compliance with the Rules of Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument settled by Williams Bello Esq. is dated and filed on 4th October, 2013. The respondent’s brief of argument dated 4th November, 2013 was filed on the same date. On the 5th November, 2013, Mr. S. N. Nzonzo for the appellant adopted the appellant’s brief and urged the Court to allow the appeal. Mr. J. E. Owe for the respondent adopted the respondent’s brief of argument and urged the Court to allow the appeal, having conceded to same.
The appellant nominated two issues for determination on pages 3 and 4 of the appellant’s brief of argument, as follows:
“1. Whether the trial Court was right to have granted the Plaintiff relief for declaration, injunction and damages, without hearing evidence. Grounds 1, 2 and 4.
2. Whether the absence of service of hearing notice and motion for judgment does not render the judgment delivered by the Lower Court null and void. (Ground 3)”
The respondent on page 2 of the Respondent’s brief adopted the issues for determination as formulated by the appellant.
On issue one, the appellant submitted that declaration of title can only be granted on the strength of the plaintiff’s case and upon credible and cogent evidence to the satisfaction of the Court. It was contended that declaration of title is not granted on admission or default of defence by the defendant. In support, reference was made to the following cases. Okhuarobo V. Aigbe (2002) 9 NWLR (pt.771) 29 at 54, Ezeokonkwo V. Eweka (1981) 12 NSCC 48 at 62. It was argued that the respondent did not call any evidence as to the identity of the land in dispute or his root of title and the case was only adjourned for mention, when the oral application for judgment was made. It was further contended that the reason given for the judgment by the learned trial Judge, namely default of filing statement of defence is not appropriate for declaratory reliefs. The appellant further posited, that the declaration of title granted was therefore unmerited.
On the injunction granted, it was submitted that having not called any evidence, there was no description of the land in dispute, hence the respondent has failed to prove the identity of the land. The appellant argued that the learned trial Judge was in error to have granted injunction to an unascertained and unidentified piece of land in his judgment. In support, reference was made to the following cases: Bankole V. Dada (2003) 11 NWLR (Pt. 830) 174 at 229, Adewole V. Dada (2003) 4 NWLR (pt. 810) 369 at 378 – 379. It was further argued that having not called evidence to prove title or better title, the claim of the respondent for trespass and order of perpetual injunction must fail. In support, reference was made to the case of Akanni V. Olaniyan (2006) 8 NWLR (Pt. 983) 531 at 548.
On the damages awarded, the appellant contended that damages for trespass is a specie of unliquidated damages and facts pleaded, seeking its award must be proved by evidence. In support reference was made to the cases of Oke V. Aiyedun (1986) 2 NWLR (pt. 23) 548 at 565 and Vanguard Media Ltd. V. Ajoku (2003) 11 NWLR (pt. 831) 432 at 449 – 450. It was submitted that the award of N150, 000 as damages, was not based on any assessment from evidence, hence not proved and the trial Court was in error to have granted it. The appellant urged the Court to resolve the first issue in favour of the appellant and allow the appeal.
On the second issue, the appellant stated that on 7th December, 2005, he was given time to file his statement of defence and the case adjourned to 11th January, 2006. The appellant further stated that the Court could not sit on 11th January, 2006 but sat on 22nd February, 2006 but no hearing notice was served on him. The appellant posited that on 22nd February, 2006 the Court adjourned to 15th March, 2006, though the Court could not sit on the adjourned date but sat on 27th April, 2006. The appellant contended that he was not served hearing notice against the proceedings of 27th April, 2006 yet in his absence the respondent made an oral application for judgment and ruling adjourned to 16th May, 2006. The appellant submitted that he was also not served hearing notice against the proceedings of 16th May, 2006 when judgment was delivered. The appellant argued that where a Court does not sit on date a party has notice of such sitting, the Court ought to serve hearing notice on that party notifying him of the proceedings. In support, reference was made to the case of Udo V. A. G. Rivers State (2002) 4 NWLR (pt. 756) 66 at 77.
The appellant argued that the service of hearing notice is fundamental to invoking the jurisdiction of the Court. The appellant posited that the failure to serve hearing notice rendered the proceedings and the judgment of the trial Court a nullity. In support, reference was made to the following cases: Obimonure V. Erinosho (1966) 4 NSCC 290 at 291 – 292, Faladu V. Kwoi (2003) 9 NWLR (pt. 826) 643 at 654. Consequent upon the foregoing, it was submitted that lack of serving hearing notice against the proceedings of 22nd February, 2006, 27th April, 2006 and 16th May, 2006 offended the appellant’s right to fair hearing and occasioned a miscarriage of justice. In concluding, the appellant urged the Court to resolve issue two in his favour and allow the appeal.
The respondent having adopted the issues for determination crafted by the appellant, further conceded to the following legal points on page 2 of his brief, namely:-
(i) That in an action for declaration of title, “Courts do not make a declaration of right on either admission or in default of defence without hearing evidence and being satisfied with such evidence”
(ii) That the award of damages of N150, 000 made in favour of the Respondent against the Appellant was wrong in law because “in respect of a claim for damages, damages is always said to be in issue, requiring the Plaintiff to prove them.” The Respondent did not lead evidence on damages.
(iii) That the learned trial Judge “was in error to have granted an injunction on an unascertained and unidentifiable piece of land at Jiddel Ward, Michika.”
The respondent submitted that the declaration of title made in his favour by the trial Court cannot be of any help, as the said declaration cannot be tied to any particular piece of land. In support reference was made to the following cases: Bankole V. Dada (2003) 11 NWLR (pt. 830) 174 at 229, Adewole V. Dada (2003) 4 NWLR (pt. 810) 369 at 378 – 379, Ogedengbe V. Balogun (2007) 3 SCNJ 227, Ezeudu V. Obiagwu (1986) 2 NWLR 208. In concluding, the respondent conceded to the appellant’s prayer, that the judgment be set aside and a retrial ordered since evidence was not led by either side.
The respondent having conceded to the appeal, both parties are at one in their submissions to the effect that the lower Court was wrong. The reliefs claimed by the respondent as plaintiff had earlier been reproduced in this judgment, namely, declaration of title to a piece of land, damages for trespass and an orderof injunction. The lower Court granted all the reliefs claimed, based on default of filing statement of defence and without taking evidence.
It is trite law that a declaration of title to a piece of land cannot be granted solely on the basis of admissions in the pleadings or default of pleadings. Thus a plaintiff in a claim for declaration of title must prove his entitlement by evidence and not by the defendant’s admission or default of pleadings. In situations as in the instant case, even where an application for judgment is made in accordance with the appropriate rules of Court, the plaintiff will still not be entitled to a declaration of title to the said land in his favour until he adduces evidence in proof of his case. The pleadings of the plaintiff alone cannot constitute or be regarded as evidence in proof of his claims. See Bello V. Eweka (1981) 1 SC 101, Mortune V. Balonwu (2000) 5 NWLR (Pt. 655) 87, Salu V. Egeibon (1994) 6 NWLR (pt. 348) 23, Okhuarobo V. Aigbe (2002) 9 NWLR (pt. 771) 29 at 54, Ezeokonkwo V. Okeke (2002) 11 NWLR (pt. 777) 1 at 29, Motunwaso V. Sorongbe (1988) 5 NWLR (pt.92) 90, Omotunde V. Omotunde (2001) 9 NWLR (pt. 718) 252 at 276, Babajide V. Adisa (1966) 1 ALL NLR 254, Fatokun V. Somade (2003) 1 NWLR (pt. 802) 431. The learned trial Judge was clearly in error to have granted the declaratory relief sought without calling on the plaintiff to prove same by evidence.
Flowing from the preceding paragraph and having not taken evidence, the identity of the land in dispute cannot be said to have been established. Hence the injunction granted is of no moment as it cannot be tied to any particular or identifiable piece of land. See Bankole V. Dada (2003) 11 NWLR (pt. 930) 174 at 229, Adewole V. Dada (2003) 4 NWLR (pt. 810) 369 at 378 – 379. The damages awarded for the trespass, has no basis as the trespass itself was not established by evidence. The damages had no evidence in support for its assessment. See Oke V. Aiyedun (1986) 2 NWLR (pt. 23) 548 at 565, where the apex Court, per Aniagolu, JSC had this to say:-
“It is a principle of pleading that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer there also he clearly, will be deemed to have admitted the statement of claim, leaving the trial court with the authority to peretomporarily enter judgment for the plaintiff without hearing evidence. An exception that would obviously be in respect of a claim for damages, for, damages is always said to be in issue requiring the plaintiff to prove them.”
See also the case of Vanguard Media Ltd. V. Ajoku (2003) 11 NWLR (pt. 831) 4 32 at 449 – 450.
Consequent upon the foregoing, the lower court was in error to have awarded damages and granted the declaratory and injunctive reliefs of the respondent based on the appellant’s default in pleadings. Issue one therefore succeeds and is resolved in favour of the appellant.
Issue two complains about failure to serve the appellant hearing notice in respect of proceedings of 22nd February, 2006, 27th April, 2006 and 16th May, 2006. It is not disputed and it is very clear from the record that hearing notices were not issued in respect of the proceedings of the aforementioned dates. Where a party is in Court and a case adjourned to another date the service of hearing notice on such a party becomes unnecessary. See Fatokun V. Somade (2003) 1 NWLR (pt. 802) 431 at 447 F – H. Where however, the Court could not sit or the party was not in Court on the date of adjournment, the service of hearing notice becomes necessary.
In the instant case, the Court could not sit on two occasions resulting in adjournments, yet no hearing notices were served on the appellant.
The effect of failure to serve hearing notice on a party is that it deprives a Court of jurisdiction and any judgment given in such circumstance will be one given without jurisdiction and is liable to be set aside on appeal. Where hearing notice is not served on any of the parties, it becomes a violation of the principle of audi alteram partem and any judgment given thereof is a miscarriage of justice and should be declared a nullity. See Credit Alliance Financial Services Ltd. V. Mallah (1998) 10 NWLR (pt. 569) 341 at 350-351, Amuwah Trans (Nig) Ltd V. O.A. Trans (Nig) Ltd (1998) 6 NWLR (pt. 555) 684 at 690, Julius Berger (Nig) Ltd V. Femi (1993) 5 NWLR (pt. 295) 615, Olatunbosun V. NISER (1986) 3 NWLR (pt. 29) 435, Yakubu V. Gov. Kogi State (1995) 8 NWLR (pt. 414) 386, Scott-Emuakpore V. Ukarbe (1975) 12 SC 41, U.B.N. Ltd V. Nwaokolo (1995) 6 NWLR (pt. 400) 127, Kano N. A. Vs. Obiora (1959) SCNLR 577, Okafor V. A. G. Anambra State (1991) 6 NWLR (Pt.200) 659, Otapo v.Sunmonu (1987) 5 SCNJ 59 at 96, Dawodu v. Ologundudu (1986) 4 NWLR (Pt.33) 104. The failure to serve the appellant hearing notices against the proceedings of 22/2/2006, 27/4/2006 and 16/5/2006, offended his right to fair hearing and occasioned a miscarriage of justice. The trial Court lacked jurisdiction to conduct proceedings without notifying the appellant and the proceedings so conducted and the judgment delivered was a nullity and cannot stand in the eyes of the law. Issue two is also resolved in favour of the appellant.
Consequent upon the foregoing, the appeal is meritorious and is hereby allowed. The judgment of the High Court of Adamawa State delivered on 16th May, 2006 in suit number ADSY/5/05 is hereby set aside. The case is hereby remitted to the Hon. Chief Judge, Adamawa State for re-assignment to another Judge for a trial de novo.
There shall be no order as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I had the opportunity of reading in draft the lead Judgment by my learned brother ADAMU JAURO JCA, just delivered and I agree with my Lord’s reasoning and conclusions.
I am also of the view that there is merit in the appeal and it is allowed.
I abide by the consequential Orders made in the said lead Judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I agree entirely with the Judgment of my learned brother, ADAMU JAURO, J.C.A. just delivered, a preview of which I had before now. I have nothing more to add. I too allow the Appeal and set aside the Judgment of the High Court of Adamawa State delivered in Suit No. ADSY/5/2005 on 16th May, 2006. I abide by the order as to costs.
Appearances
S.N. Nzonzo Esq.For Appellant
AND
J.E. Owe EsqFor Respondent
