Legalpedia Citation: (2023-06) Legalpedia 41177 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Thu Jun 22, 2023

Suit Number: CA/A/48/2017

CORAM

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU JCA

UGOCHUKWU ANTHONY OGAKWU JCA

MOHAMMED MUSTAPHA JCA

PARTIES

FARIDA TARFA

APPELLANTS

1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. MINISTER, FEDERAL CAPITAL TERRITORY

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, LAND, PRACTICE AND PROCEDURE, PROPERTY

 

SUMMARY OF FACTS

The provenance of this matter is the demolition of the Appellant’s (Claimant’s) shop building at the Cornershop Plot at Zone 4, Wuse, Abuja on 4th October, 2005. She claimed not to have been in breach of any of the conditions of her grant. Consequent upon this demolition, the Appellant instituted proceedings before the High Court of the Federal Capital Territory, Abuja.

The lower Court in its judgment held that the Appellant did not establish her case in order to be entitled to any of the reliefs claimed and dismissed the case in its entirety.

The Appellant, peeved by the decision of the lower Court, appealed against the same.

 

HELD

Appeal dismissed

ISSUES

Whether the lower Court rightly held that the Appellant did not establish her case and was not entitled to the reliefs claimed?

 

RATIONES DECIDENDI

REPLY BRIEF – WHERE A PARTY FAILS TO FILE A REPLY BRIEF – CONDUCT OF COURTS

The law is that where an appellant fails to file a reply brief when it is necessary to do so, he will be deemed to have conceded the points arising from the respondent’s brief.

See OKOYE vs. NIGERIA CONSTRUCTION AND FURNITURE CO. LTD (1991) 6 NWLR (PT 199) 501, OKONGWU vs. NNPC (1989) 4 NWLR (PT. 115) 196 at 309 and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518. It is even more so when a reply brief is not filed where an objection has been taken to the competence of the appeal as in this case: DAIRO vs. UNION BANK (2008) 2 WRN 1 at 8-9, POPOOLA vs. ADEYEMI (1992) 8 NWLR (PT. 257) 1 and AYALOGU vs. AGU (1998) 1 NWLR (PT. 532) 129.

In the light of this settled state of the law, the Appellant having failed to file a Reply Brief is deemed to have conceded the points raised by the Respondents in their application which was argued in the Respondents’ Brief. See ALAYA vs. ISAAC (2012) LPELR (9306) 1 at 67-68, CANAAN ESTATES & HOMES LTD vs. AJOSE (2018) LPELR (46042) 1 at 8-10 and OCHALA vs. JOHN (2019) LPELR (47001) 1 at 19. But this does not mean that the Respondents’ application must succeed. It still behoves the Court to consider the merits of the application. SHELL PETROLEUM CO. vs. PESSU (2014) LPELR (23325) 1 at 32-33, OFULUE II vs. OKOH (2014) LPELR (23218) 1 at 15 and AKINLADE vs. AYINDE (2020) LPELR (49592) 1 at 7-9. – Per U. A. Ogakwu, JCA

ISSUES FOR DETERMINATION – FORMULATION OF ISSUES FOR DETERMINATION

With due deference to the learned senior counsel for the Respondents, he seems to have conflated different points of law pertaining to formulation of issues for determination and rolled them up in his submissions on the application. The first point is on the need to identify the grounds of appeal from which an issue for determination has been nominated. This is quite distinct from the legal requirement that an issue for determination must be rooted in a ground of appeal. It cannot be confuted that an issue for determination can derive from a ground of appeal without the ground from which it has been distilled having been stated. It is therefore wrong for the learned senior counsel to contend that because the ground from which the issue was distilled has not been stated, that the issue does not derive from any ground of appeal. No. That would be ferhoodling the legal position. – Per U. A. Ogakwu, JCA

ISSUES – WHERE ISSUES ARE NOT RELATED TO GROUNDS OF APPEAL

“By all odds, it is desirable to indicate the ground or grounds of appeal from which an issue for determination has been formulated. But where this is not done, it is a mere inelegance which cannot render the issue incompetent or the Appellant’s brief incompetent, and for the same to be struck out. See UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 at 578, DIAMOND BANK vs. OPARA (2018) LPELR (43907) 1 at 8-9 and OGUNKOYA vs. GEORGE (2013) LPELR (20686) 1 at 25-26. Expounding the law in this regard, Adekeye, JSC asseverated as follows in JFS INVESTMENT LIMITED vs. BRAWAL LINE LTD (2010) 18 NWLR (PT. 1225) 495 at 520:

“I have considered the preliminary objection and the submission of counsel. It is apparent that the core issue in the objection is failure of the appellant to relate each of the issues to the grounds of appeal, it was formulated from in the amended notice of appeal and not that the issues were not predicated on the grounds of appeal. The objection is clearly not against the competency of the issues. Though there is no known rule of Court to support this practice, it is put in place and followed religiously by counsel for ease of reference. Where briefs are properly filed and the appeal is ripe for hearing, the issues are not incompetent, in the process of doing substantial justice, the Court shall not hesitate to bend backwards to glean through the grounds of appeal and marry them with issues raised for determination in the briefs. After all, briefs of parties and the issues raised therein are meant to assist the Court in quickly identifying the issues in controversy between the parties. The trend in the Courts nowadays is to do substantial justice and to discourage any short-cuts in advocacy – which is what technicality is all about.” –Per U. A. Ogakwu, JCA”

PRINCIPAL RELIEF – WHERE THE PRINCIPAL RELIEF FAILS

Where the principal relief fails then the said other reliefs would equally fail. The legal principle being sublato principali tollitur adjunctum [co. Litt 389] – (the principal being taken away, its adjunct is also taken away). ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT. 109) 250 at 269, OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 32, SIMEON vs. COLLEGE OF EDUCATION, EKIADOLOR (2014) LPELR (23320) 1 at 39 and JANKADA vs. OLORUNTOBA (2022) LPELR (57058) 1 at 19. – Per U. A. Ogakwu, JCA

BURDEN OF PROOF – WHERE BURDEN OF PROOF RESTS

“…it is hornbook law that the Appellant, as claimant is to succeed on the strength of her case and not on the weakness of the defendant’s case, except where the defendant’s case supports her case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 14, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. So, it was for the Appellant to establish her case.

The Respondents did not counter-claim for any reliefs, so the entire burden of proving the case rested squarely on the Appellant. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160, 163 and 165, OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT. 721) 1458, NIKAGBATSE vs. FRENCH (2014) LPELR (23310) 1 at 25-26 and GARBA vs. MINISTRY OF FCT (2022) LPELR (57619) 1 at 29-30. –Per U. A. Ogakwu, JCA”

TITLE TO LAND – FIVE WAYS OF PROVING TITLE TO LAND

“The parties referred to the five ways of proving title to land as laid down in the locus classicus of IDUNDUN vs. OKUMAGBA (supra) namely:

1. i) By traditional evidence

1. ii) By production of document of title

iii) By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the true owner.

1. iv) Long possession.

1. v) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the owner of the land.

See also the cases of ODUNZE VS. NWOSU (2007) 5 SCNJ 257-258, NWABUOKU vs. ONWORDI (2006) LPELR (2082) 1 at 13-14, ADDAH vs. UBANDAWAKI (2015) LPELR (24266) 1 at 17-19, ABE vs. DAMAWA (2022) LPELR (57829) 1 at 47, and the other cases referred to by learned counsel on both sides of the divide. –Per U. A. Ogakwu, JCA”

DOCUMENT OF TITLE – CONDUCT OF COURTS IN RELATION TO DOCUMENT OF TITLE

“I am quick to add that the mere production of a document of title does not automatically entitle a claimant to judgment. In ROMAINE vs. ROMAINE (1992) LPELR (2953) 1 at 15-16, Nnaemeka, JSC intoned:

“…one of the recognized ways of proving title to land is by production of a valid instrument of grant. See Idundun v. Okumagba (1976) 9-10 S.C. 227, Piaro v. Tenalo (1976) 12 S.C. 31, p.37, Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718. But it does not mean that once a claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. Rather, production and reliance upon such an instrument inevitably carries with it the need for the Court to inquire into some or all of a number of questions, including:

(i) whether the document is genuine and valid;

(ii) whether it has been duly executed, stamped and registered;

(iii) whether the grantor had the authority and capacity to make the grant;

(iv) whether the grantor had in fact what he purported to grant; and

(v) whether it has the effect claimed by the holder of the instrument.”

See also DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 33-35, OYENEYIN vs. AKINKUGBE (2010) LPELR (2875) 1 at 13 and AYANWALE vs. ODUSAMI (2011) LPELR (8143) 1 at 27-28. –Per U. A. Ogakwu, JCA”

EVIDENCE – WHETHER THE SUBMISSIONS OF COUNSEL CAN TAKE THE PLACE OF EVIDENCE

“It is rudimentary law that the dexterous submissions from the sabre-rattling forensic arsenal of learned counsel cannot take the place of evidence which is lacking in a case. ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 93, ARO vs. ARO (2000) 12 WRN 51 at 65 and BFI GROUP CORP vs. BPE (2012) 18 NWLR (1332) 209 at 244.

This is how Tobi, JSC stated the legal position in KAZEEM vs. MOSAKU (2007) 17 NWLR (PT 1064) 523 at 535: “Counsel qua advocate is the owner of the law in the sense of expertise while the facts of the case are owned by the party in the sense of possession, knowledge and intimacy. While the party cannot dabble into the domain of the law, which belongs to counsel, counsel cannot dabble into the domain of the facts, which belong to the party. Such is the clean and clear division of labour, though not in the strict use of the expression in the law of economics. As there are no facts upon which the submission of Counsel can be based, it should be rejected, and I reject it.”-Per U. A. Ogakwu, JCA”

CONTRACT – WHEN A CONDITIONAL CONTRACT IS FORMED

“The law is settled beyond peradventure that an offer must be accepted to crystallise into a contract. Put differently, where there is no acceptance of an offer, there is no contract. See COLLEGE OF MEDICINE OF UNIVERSITY OF LAGOS vs. ADEGBITE (1973) LPELR (881) 1 at 18-19, NNEJI vs. ZAKHEM CON. (NIG) LTD (2006) 12 NWLR (PT 994) 297, BILANTE INT’L LTD vs. NDIC (2011) LPELR (781) 1 at 22 and GARBA vs. MINISTRY OF FCT (supra) at 38.

It is hornbook law that when a contract is made subject to fulfilment of certain specific terms and conditions, the contract is not formed and binding unless and until those terms and conditions are complied with or fulfilled. TSOKWA MARKETING CO. vs. BANK OF THE NORTH LTD (2002) 11 NWLR (PT 777) 163 at 196-197 and 199-200, BEST (NIG) LTD vs. BLACKWOOD HODGE NIG LTD (2011) LPELR (776) 1 at 38 and BPS CONSTRUCTION & ENGINEERING CO. LTD vs. FCDA (2017) LPELR (42516) 1 at 40-41.-Per U. A. Ogakwu, JCA”

COURTS – DUTY OF TRIAL COURTS – CONDUCT OF APPELLATE COURTS IN RELATION TO EVIDENCE AND FINDINGS OF LOWER COURTS

“The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation. GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT. 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27. It is hornbook law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT. 589) 1 or (1999) LPELR (1248) 1 at 47-48.

The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43.– Per U. A. Ogakwu, JCA”

APPEAL – CONDUCT OF APPELLATE COURTS IN DETERMINING AN APPEAL ON ISSUES OF FACT

“For the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47, AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. The evaluation of evidence and the findings made by the lower Court in this matter are not perverse, therefore, an appellate Court will not lightly interfere with the same unless for compelling reasons. See OGBECHIE vs. ONOCHIE (1988) 1 NWLR (PT 47) 370, MAKINDE vs. AKINWALE (2000) 1 SC 89 and AGBOMEJI vs. BAKARE (1998) 9 NWLR (PT 564) 1…

The onus is on an appellant to satisfy the appellate Court that the decision on appeal is wrong. Where this is not done, the decision appealed against will be allowed to stand. MACAULAY vs. TUKURU (1881-1911) 1 NLR 35 at 40, AKINLOYE vs. EYIYOLA (1968) NMLR 92 at 95, OBISANYA vs. NWOKO (1974) 6 SC 69 at 80, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 326-330 and OBODO vs. OGBA (1987) 1 NSCC (VOL. 18) 416 at 421 – Per U. A. Ogakwu, JCA”

CASES CITED

NIL

STATUTES REFERRED TO

1. Evidence Act, 2011
2. Land Use Act
3. Land Use Act (Subsidiary Legislation) 2004, Laws of the Federation (Abuja)
4. Local Government Act

 

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