CORAM

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CHIDI NWAOMA UWA, JUSTICE COURT OF APPEAL

BITRUS G. SANGA, JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL

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PARTIES

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SIMAN AUDU

APPELLANTS 

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GAMBO TUKURA

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, LAND LAW, EVIDENCE, COURT, PRACTICE AND PROCEDURE, JURISDICTION

 

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SUMMARY OF FACTS

This is an appeal against the judgment of the Taraba State High Court, delivered on 12/1/2016 wherein the claims of the Appellants as Plaintiffs at the Court below was dismissed for lacking in merit. The Appellants, vide a Writ of Summons claimed title to a large expanse of land lying and situate at Gidan Mallam Village by the right hand side of the Baissa – Mararaba road from Didan, amongst other declaratory and injunctive reliefs against the Respondents. After appraisal of the pleadings and evidence of parties, the Court below in its judgment, dismissed the Appellant’s suit. dissatisfied with the said judgment of the Court below, the Appellant has appealed to this Court. In the cross-appeal, the Cross Appellants were the Defendants at the Court below, while the Cross Respondents were the Plaintiffs. At the close of the trial the Cross Appellants raised the issue of the identity of the land as claimed by the Cross Respondents.  In its judgment, the Court below held that the identity of the land was not in issue since the land was known to the parties and thereafter resolved the issue against the Cross Appellants. The Cross Respondents were unhappy with the decision of the trial Court hence the Cross Appeal with a sole ground of appeal.

 

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HELD

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Appeal dismissed; Cross Appeal dismissed

 

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ISSUES

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1. Whether the trial court was right to have raised and determined the question of the bindingness of the judgment of the Area Court Baissa on the Appellants, without first inviting the parties to address it on same?

2. Whether the judgment of the trial court is not liable to be set aside, regard being had to the fact that the trial court dismissed the case of the Appellants without fully considering and evaluating the totality of the legally admissible evidence that was before it?

3. Whether the trial court was right to hold that the Appellants had admitted that the Area Court Baissa gave the land in dispute to Madda on whose instructions the land was sold to the 1st Respondent?

4. Whether the trial court was right to hold that the Appellants were bound by the outcome of the case at the Area Court Baissa, regard being had to the fact that the Appellants were never parties to that case?

5. Whether the learned trial Judge was right to have assumed that the land in dispute was known to the parties and therefore not in issue.

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – WHETHER MUST BE TAKEN FIRST WHEN RAISED

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“It is trite that where a preliminary objection has been raised challenging some of the grounds and issues on appeal, same has to be resolved first before going into the rest of the issues for determination.  See, my earlier decision in OLAGBENRO & ORS VS, PRINCE OLAYIWOLA AND ORS (2014) LPELR – 22597 (CA) P. 59, PARAS. B – C, OKOROCHA VS. UBA BANK & ORS (2018) LPELR – 45122 (SC) P. 13, PARAS. E – F, ALL STATES TRUST BANK LTD VS. KING DAVIDSON ENTERPRISES (NIG) LTD (2000) LPELR P. 5, PARAS. B – C. ONYEMEH & ORS VS. EGBUCHULAM & ORS (1996) 4 SCNJ 235, (1996) 5 NWLR (PT. 448) 255 and L.M. ERICSSON NIG. LTD VS. AQUA OIL NIG. LTD (2011) LPELR – 8807 (CA) P. 15, PARAS. B – F.”

 

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GROUNDS OF APPEAL – WHETHER TWO OR MORE ISSUES CAN BE FORMULATED FROM ONE GROUND OF APPEAL – EFFECT THEREOF

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“While grounds two and five are identical, two issues were formulated from the same ground, making issues two and five incompetent.  No doubt, two grounds can be utilized to make up an issue but, two issues cannot be formulated from one ground of appeal.  In this case, one issue was duplicated and numbered as issues two (2) and five (5).

… It is clear that issues two and five of the grounds of appeal were utilized in formulating one issue, which renders the same issue incompetent even though duplicated as issues two and five.   Ground one was also utilized in formulating issue two, thus contaminating ground one and issue two. As a whole issues two and five are incompetent. The Appellants’ issue two having been raised from the same grounds contained in grounds two and five, as well as ground one is incompetent, same as issue five raised from the contents of ground two are proliferated, issues two and five are liable to be struck out.  The two proliferated issues raised from the same ground of appeal are incompetent, the grounds and the two issues with the argument in their support are also liable to be struck out.  See, NWANKWO & ORS. VS. YAR’ADUA & ORS (2010) LPELR – 2109 (SC) P. 75, PARAS. C – F, MODERN OIL NIGERIA LIMITED & ANOR VS. GEORGE (2013) LPELR – 20480 (CA) P. 11, PARAS. B – F, ANAEZE VS. ANYASO (1993) 5 NWLR (PT. 291) 1 and SHAFA & ANOR VS. SULEIMAN & ORS (2020) LPELR – 52424 (CA) PP. 11 – 13, PARAS. B – A. Issues flow from the grounds of appeal, an appellant is not permitted to raise issues in excess of his grounds of appeal, issues two and five are the same formulated from one ground of appeal rendering issues two and five incompetent.  The effect is that issues two and five with grounds 1, 2 and 5 from which the issues were formulated are incompetent and are hereby struck out along with the argument in their support.” – Per UWA, JCA

 

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APPEAL – ESSENCE OF PARTICULARS OF GROUNDS OF APPEAL

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“It is immaterial that their particulars are differently couched.  The particulars are to elaborate or to make clear or explain the grounds.  The particulars are not the grounds and cannot be utilized in place of the grounds which make up the issues for determination.  See, ANIE & ORS. VS. UZORKA & ORS (1993) LPELR – 490 (SC) PP. 15 – 16, PARAS. C – E, NWEZE VS. STATE (2017) LPELR – 42344 (SC) PP. 4 – 5, PARAS. F – B and EFCC VS. YUGUDA & ANOR (2020) LPELR – 51970 (CA) PP. 5 – 7, PARAS. B – A.” – Per UWA, JCA

 

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RECORDS OF COURT – WHETHER THE COURT IS ENTITLED TO LOOK AT ITS RECORD AND MAKE USE OF THE CONTENTS TO REACH A DECISION

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“The Appellants alleged that the trial court raised the issue of the decision of the Baissa Area Court Judgment and relied on same without calling the parties to address the Court on it. …

The judgment of the Baissa Area Court was pleaded, tendered and admitted in evidence as Exhibit “B” thus, formed part of the evidence before the trial court and cannot be rightly termed a new issue raised suo motu by the trial court which would have required the invitation of the parties by the trial court to address it on it.  The trial court was not bound to specially invite the parties to address it on the issue of the judgment of the Baissa Area Court.  The trial court was right to have drawn inferences from pleaded and stated facts existent in the case in arriving at its decision.  See, IKENTA BEST (NIGERIA) LTD VS. ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (PT. 1084) 642, PARAGRAPHS A – C and EROMOSELE VS. FRN (2018) LPELR – 43851 (SC) where the Apex Court, per Galinje, JSC held as follows:

“The lower court was entitled to look into any document in its record and make use of it in order to arrive at a just decision.  When a document is in the record of the court, it cannot be a new issue on which a judge is precluded from looking at.  This court has in a number of decided cases held that a court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it.  See, FUMODOH VS. ABORO (1991) 9 NWLR (PT. 214) 2010 at 229; AGBAREH & ANOR VS. MINNA & 2 ORS (2008) 2 NWLR (PT. 1011) 378 at 411 – 412; BADEJO VS. MINISTER OF EDUCATION (1996) 9 – 10 SCNJ 51.”

See, AKOSHILE VS. NIMC & ANOR (2020) LPELR – 51362 (CA), AKEREDOLU VS. ABRAHAM & ORS (2018) (supra) and FINNIH VS. IMADE (1992) 1 NWLR (PT. 219) PAGE 511 at 357.  Once the issues on which the judgment of the trial court is based on the findings of fact arising from the pleadings and evidence before the court, where the principles of law applied by the court were not cited by learned counsel, it would not affect the decision of the court as long as the decision was borne out of the pleadings and evidence as could be seen from the records of court, the decision would stand.  I hold that the judgment of the Area Court Baissa was not raised suo motu by the trial court requiring the parties to be invited to address the court on same. I resolve issue one against the Appellants.” – Per UWA, JCA

 

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EVIDENCE – EFFECT OF UNCHALLENGED/UNCONTROVERTED EVIDENCE

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“The proceedings of the Area Court Baissa was tendered and admitted in evidence as Exhibit “B”, it was neither opposed nor rejected, the writ of possession issued by the Area Court Baissa was tendered as Exhibit “E”.  As rightly argued by the learned counsel to the Respondents, the Appellants did not respond to the pleadings of the Respondents in respect of the judgment of the Area Court Baissa and did not counter the evidence adduced in that respect by the Respondents’ witnesses.  The Appellants therefore would be taken to have admitted the existence of these facts. ……

The Appellants did not make out that they responded to the pleadings of facts in respect of the judgment of the Baissa Area Court, in which the proceedings were tendered without any objection, the trial court rightly held that the Appellants must be deemed to have admitted the existence of these facts. The Appellants cannot rightly argue that they were not aware of the judgment of the Area Court Baissa.” – Per UWA, JCA

 

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EVIDENCE – EFFECT OF EVIDENCE LED ON FACTS WITHOUT PLEADING

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“The Appellants did not file a reply to deny the averments but, made out that they led evidence through PW1 – PW4.  It is trite that evidence without pleading goes to no issue. … The content of the statement of a witness on oath constitutes the evidence of that witness; it must be related to facts as averred in the party’s pleadings.  It cannot stand on its own, evidence which is not founded on pleaded facts goes to no issue, it lacks foundation to stand on.  See, OLANIYI VS. ELERO (2008) ALL FWLR (PT. 411) 975, OKHUAROBO & ORS VS. AIGBE (2002) 9 NWLR (PT. 771) 29.  The court cannot rightly make its findings and arrive at its judgment on evidence of material facts (if at all) not pleaded; such evidence as I said above, goes to no issue.  See, also SHELL DP LTD. VS. ABEDI (1974) 1 ALL NLR (PT. 1) PAGE 1, NIPC LTD VS. THOMPSON ORGANISATIONS LTD & ORS. (1969) 1 ALL NLR 134, ANYAFULU & ORS VS. MEKA & ORS.  A party’s case is founded on pleadings, it gives the other side notice of the case they are to meet at the trial and the parties are bound by their pleadings.  Therefore, evidence cannot be rightly led on facts not pleaded, in the same vein, pleadings in which no evidence is led is deemed abandoned. The court is only bound to adjudicate on only issues arising from the pleadings with evidence in support.  See, AWARA & ORS VS. ALALIBO & ORS (2002) LPELR – 646 SC, PP. 77 – 78, PARAS. E – B and EMUKE MICHAEL ADUGBO VS. MR. FESTUS IBE (2018) LPELR – 46138 (CA) PP. 21 – 24, PARAS. A – F.” – Per UWA, JCA

 

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IDENTITY OF LAND IN DISPUTE – ON WHETHER DESCRIPTION IS NECESSARY WHERE PARTIES KNOW THE LAND IN DISPUTE

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“The Cross Appellants made out that from all of the above pleadings and evidence of the PW1 in support of the Cross Respondents’ pleadings, the description of the Cross Respondents of the land in dispute is at variance with the land of the Cross Appellants.

Further, that the evidence adduced by the Cross Respondents’ witnesses in respect of the land in issue varied.  In my humble view, the description in paragraph 10 of the Amended Statement of Claim and the description of the land in dispute as given by the PW1 are more or less the same.  No two or more persons can describe a known portion of land in exactly the same way, moreso it depends on which direction one approaches the disputed land from.  The same land could be differently called or described, depending on the features each individual decides to utilize.  The important thing is that the parties know the land in dispute, in terms of the location and extent.  The description of East, West, North and South depends on the approach one uses to the land in dispute.” – Per UWA, JCA

 

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DISCREPANCY IN EVIDENCE OF WITNESSES – EFFECT OF MINOR DISCREPANCIES IN EVIDENCE OF WITNESSES

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“The Cross Appellants had alleged that the evidence of the PW1 was at variance with the description of the land in dispute as described in paragraph 28(a) and that the evidence of the PW2, PW3 and PW4 each named only one boundary neighbour in one direction, not on all the sides, alleging that the land in dispute was not known by the Cross Respondents.  It is common that a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what another evidence says or contains minor differences in details.  The evidence of the PW1 may have been detailed while that of the PW2 – PW4 was not.  Minor discrepancies or differences in the evidence of various witnesses, do not destroy the credibility of the witnesses.  On the other hand, where the witnesses give identical evidence on an issue, the suspicion would be that they have been tutored to give evidence in a particular way, in this case evidence that would tally with the pleadings on the identity of the land, word to word.  See, HASSAN VS. STATE (2016) LPELR – 42554 (SC) PP. 28 – 29, PARAS. F – B; 5 NWLR (PT. 1557) P.1; (2016) 12 S.C. (PT. IV) P. 41, ATTAH VS. STATE (2010) LPELR – 577 (SC) P. 18, PARAS. C – D ABOKOKUYANRO VS. STATE (2016) LPELR – 40107 (SC) PP. 25 – 26, PARAS. D – A, OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP. 39 – 41, PARAS. E – A.  In MBODAN VS. DABAI (2019) LPELR – 46739 (SC) PP. 17 – 18, PARAS. E – A, his lordship, Abiriyi, JCA summarized the effect of minor discrepancies in the evidence of witnesses thus:

“The courts have held that discrepancies are to be expected in the evidence of witnesses and that their absence is the usual accompaniment of a concocted story.  “Imperfection in human recollection is quite normal.  Moreover, among primitive people it is often more important to consider the whole story than the detailed account.”  See OPOSI VS. STATE (1971) 1 NMLR 315.”

 

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IDENTITY OF LAND IN DISPUTE – WHETHER PROOF OF IDENTITY TO LAND IS NECESSARY WHERE THE LAND IS KNOWN TO PARTIES

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“The parties know the location and extent of the land in dispute. The law is that where the parties know exactly the identity of the land subject matter of the dispute between them, the requirement that the plaintiff and/or parties prove(s) the identity of the land would not be necessary.  No doubt, the plaintiff has to prove the identity of the land he is claiming but, where both parties are not in doubt as to the identity of the land in issue, as in the present appeal, further proof of the identity of the land will not be required.  The description given of the land in dispute is immaterial where the identity is known, there would be no need to prove boundaries and boundary neighbours.  On the effect of ascribing different names to land, in AIYEOLA VS. PEDRO (2014) LPELR – 22915 (SC) PP. 67 – 68, PARAS. G – B his lordship Kekere – Ekun, JSC held thus:

“The law is well settled that where the parties, by the evidence adduced both oral and documentary are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case of the party claiming.  See: DAMINI & ANOR VS. ABRAHAM & ORS (2001) 16 NWLR (PT. 738) 20; (2001) 6 SC 154; AROMIRE & ORS. VS. AWOYEMI (1972) 1 ALL NLR (PT. 1) 101 at 113.”

See, also MAKANJUOLA & ANOR VS. BALOGUN (1989) LPELR – 1827 (SC) PP. 15 – 16, PARAS. F – B, ASUNMO & ANOR VS. AKINLUYI (2019) LPELR – 47450 (CA) PP. 37 – 39, PARAS. F – B and in OJO VS. AZAMA (2001) LPELR – 2382 (SC) PP. 11 – 12, PARAS. F – A. At pages 273 – 274 of the printed records of appeal in respect of the identity of the land the trial court held as follows:

“In paragraph 8 of the joint statement of defence.  The defendant averred that, “at the time the plaintiff arrived at Gidan Mallam the land in dispute was already in use by Maisaje” furthermore the defendant averred in paragraph 37 of the statement of defence that, “That there was a dispute between the family of Maisaje Maikanu in respect of the land in dispute which took them to Grate (sic) 1 Area Court Baissa.  Both parties kept on referring to the land in dispute.  It is therefore correct to assume that both parties know the land in dispute.” (Underlined mine for emphasis)

I share in the above view of the trial court that both parties knew the identity of the land in dispute, therefore it was not necessary for the Cross Respondents to have further proved same. I cannot fault the finding of the trial court on the identity of the land in dispute, I affirm same.  I resolve the sole issue against the Cross Appellant.  The Cross Appeal is hereby dismissed.” – Per UWA, JCA

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Not Available

 

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