Alhaji Hassan Yar’adua V. Mr. Solomon U. Maduka (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH EYO EKANEM, J.C.A.
At the High Court of the Federal Capital Territory, Abuja Judicial Division, holden at Abuja (“the trial Court” for short) the appellant (qua plaintiff) took out a writ of summons numbered Suit No.FCT/HC/CV/751/99 against the respondent and another person (qua defendants) and subsequently filed a statement of claim claiming the following reliefs:
“1, A Declaration that the Defendant trespassed on the property of the plaintiff lying and known as Plot 43 Lugbe 1 Layout- Abuja.
2. AN Order of perpetual injunction restraining the Defendants, their privies, agents and whoever claims through them from further acts of trespass.
3. The sum of N300,00:00 as special damages for the mischief done by the Defendants.
4. The sum of N10 Million as general damages for trespass.”
In response, the respondent and his co-defendant denied the claim and counter-claimed for;
“1. A declaration that the defendants are in lawful possession of the said land.
2. An order of perpetual injunction restraining the plaintiff, his agents, privies, or those acting
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for him from further trespassing on the said land.
3. N2 Million as general damages for the plaintiffs act of trespass on the said land.”
After hearing of evidence and taking addresses of counsel, the trial Court dismissed the case of the appellant, granted the appellant (as 2nd defendant) reliefs No. 1 and 2 of the counter claim but refused relief No. 3 of the counter-claim. The Court struck out the name of the 1st defendant from the Suit for misjoinder.
Aggrieved by the decision of the trial Court, the appellant has appealed to this Court by way of a notice of appeal containing three grounds of appeal, which was filed on 22/2/2001.
In keeping with the rules of this Court, the parties filed their briefs of argument as follows:
(i) Appellant filed;
(a) Appellant’s brief of argument settled by W. Y. Mamman, Esq, dated 21/4/2004 but filed on 22/4/2004; and ;
(b) A reply brief dated and filed on 16/11/2005 settled by W. Y. Mamman, Esq.
The respondent filed the respondent’s brief of argument dated and filed on 28/10/2004 which was deemed filed on 14/2/2005. It was settled by Chief Karina Tunyan.
When the appeal
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came up for hearing on 21/4/2016, counsel for the appellant was absent inspite of being served with hearing notice. C. I. Okoye, Esq; of counsel drew the Courts attention to the preliminary objection raised in the respondents brief of argument against ground 1 of the appellant’s grounds of appeal. The notice and the arguments thereon are on pages 4 and 5 of the respondent’s brief of argument. He adopted the same and urged the Court to strike out ground 1 of the grounds of appeal along with the issue distilled therefrom. On his application, the appellant’s appeal was deemed as argued. Respondent’s counsel thereafter adopted his brief of argument and urged the Court to dismiss the appeal.
?
In the appellant’s brief of argument, three issues are formulated for the determination of the appeal. The issues are;
“1. Whether the compensation of lands acquired by the Federal Government during the reign of Late General Sani Abacha was done within 12 months as required by the FCT ACT, 1976.
– Distilled from Ground one-
2. Whether TANKO IZOMI whose compensation was illegal ab initio can validly transferred (sic) such interest to the respondent and the
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respondent not having registered/perfected his interest can be said to be in lawful possession of the land in disputes (sic) – Distilled from grounds 2 and 3.
3. Whether the appellant has proof (sic) his case on the balance of probabilities to be entitled to the reliefs to be in possession of the land in disputes (sic).”
In the respondent’s brief of arguments, the following issues are formulated for the determination of the appeal,
“1. Whether the learned trial judge erred in law in holding at page 5 lines 9 – 14 of the judgment that the land in dispute (sic) (i.e.) Plot 43 Lugbe 1 layout was initially allocated to Tanko Izomi as compensation for his demolished building during the reign of General Abacha Ground 1).
2. Whether the learned trial judge was right when he held that the respondent was in lawful possession, even though the power of Attorney Exhibit D3 was not registered (Ground 2).
3. Whether the learned trial Judge was right in dismissing the appellant’s claim for declaration of title, damages for trespass and injunction in view of the evidence adduced at the trial Ground 3).”
I shall first deal with the preliminary
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objection.
Respondent’s counsel urged the Court to strike out ground 1 of the grounds of appeal for being a fresh issue raised for the first time in this Court without leave of Court. He cited and relied on several cases including FATUNBI V. OLANLOYE (2004) 12 NWLR (PT.887) 229.
Counsel for the appellant submitted that ground 1 does not raise a fresh issue as it arose from the judgment of the trial Court and challenges the ratio of the decision. He cited and relied on SAFIAKI V. KOTOYE (1992) 11/12 SCNJ 26 in support.
It is noteworthy that the preliminary objection attacks one out of the three grounds of appeal contained in the notice of appeal. The purpose of a preliminary objection is to terminate the hearing of an appeal usually on grounds of incompetence of the appeal. Where the respondent attacks only one out of other grounds of appeal, the success of the attack will not result in the termination of the appeal. In that circumstance, a preliminary objection should not be filed to attack the ground. Rather a motion on notice should be filed to strike out the incompetent ground. See DANIEL V. INDEPENDENT NATIONAL ELECTORAL COMMISSION
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(2015) 9 NWLR (PT.1463) 113, 139 and ADEJUMO V. OLAWOYE (2014) 12 NWLR (PT.1421) 252,279. I therefore discountenance the preliminary objection.
The above notwithstanding, this Court is empowered to consider any defect apparent on the face of the notice and grounds of appeal, and the issues distilled therefrom and rule on them. See AYOADE V. SPRING BANK PLC (2014) 4 NWLR (PT.1396) 93, 113.
Issue 1 in the appellant’s brief of argument (stated to be distilled from ground 1 of the grounds of appeal) apart from its being wide and academic raises a fresh issue or point. The issue whether the “Compensation of lands acquired by the Federal Government during the reign of Late General Sani Abacha was done within 12 months as required by the FCT ACT, 1976? was not raised by any of the parties at the trial Court. It was also not pronounced upon by the trial Court. In the case of OLALOMI INDUSTRIES LIMITED V. NIGERIA INDUSTRIAL DEVELOPMENT BANK LIMITED (2009) 16 NWLR (PT.1167) 266, 286, it was held that a fresh point of law means an issue which was not canvassed at the Lower Court and pronounced upon by that Court. The same can only be raised with the leave
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of Court except it involves an issue of jurisdiction or fair hearing. See also OGBA V. ONWUZO (2005) 131 LRCN 2448 and DABO V. ABDULLAHI (2005) 125 LRCN 742, 760.
Ground 1 and issue 1 raise a fresh point of law or issue and since it does not involve the jurisdiction of The trial Court or raise an issue of fair hearing, leave to raise and argue it ought to have been applied for and obtained, Since this was not done, ground 1 and issue 1 are incompetent I accordingly strike them out.
Issue 2, is said to be distilled from grounds 1, 2 and 3 of the grounds of appeal. Ground two has already been held to be incompetent. In otherwords, issue 2 is distilled from competent and incompetent grounds of appeal. This renders the issue incompetent. In the case of JEV. V. IYORTYOM (2014) 14 NWLR (PT.1428) 575, 608, OKORO JSC stated as follows:
“…this Court has, in a plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent as the Court cannot delve into the said
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issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue… Again issues distilled from…a combination of competent and incompetent grounds of appeal are in themselves not competent and are liable to be struck out.” See also CPC v. OMBUGADU (2013) 18 NWLR (PT.1385) 66, 120, ASOGWA V. PEOPLES DEMOCRATIC PARTY (2013) 7 NWLR (PT.1353) 267, 274 – 275, AKEREDOLU V. MIMIKO (2014) 1 NWLR (PT.1388) 402, 435.
Consequent upon the above, I hereby strike out issue 2 in the appellant’s brief of argument for being incompetent.
Issue 3 is said to be distilled from grounds 2 and 3. Ordinarily issue 3 should be seen as proliferation of issues since it is said to be distilled from grounds 2 and 3 of the ground of appeal which also formed the basis of issue 2 which is said to be distilled from issues 1, 2, and 3. Two grounds of appeal cannot be the springhead of two issues However, since I have already struck out issue 2, I shall consider issue 3 as valid. I shall however re-formulate the issue for purpose of precision and clarity as follows:
Whether or not the appellant
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proved his claim for damages for trespass.
Appellants counsel submitted that the trial Court erred in declaring that the respondent is in lawful possession of the land inspite of there being no evidence to that effect. He referred to the evidence of the appellant which he said showed that the appellant was in possession and the respondent trespassed on the land. He submitted that a party in possession is presumed to be the owner of the land. He also referred to the evidence of the respondent to the effect that he did not tamper with the appellant’s fence.
Respondent’s counsel submitted that the evidence relied on by the appellant was not pleaded and so it went to no issue. It was his further submission that the evidence of the respondent showed his occupation of the land around 27/6/1996 while the appellant got his letter of allocation of the land on 12/3/1997.
Trespass to land is an unjustified interference with exclusive possession of land. Thus to succeed in a claim for trespass, the plaintiff must prove exclusive possession. See OGUNDIPE V. ATTORNEY-GENERAL OF KWARA STATE (1993) 8 NWLR (PT.313) 558, 567 and TUKURA V. SABI (2013) 10 NWLR
(PT.1363) 444, 461 – 462.
The trial Court, after reviewing and assessing evidence before it, concluded that the respondent could not be a trespasser and that he was lawfully in possession of the land. (See page 43 of the record of appeal).
Evaluation of evidence and ascription of probative value to it are the primary junctions of a trial Court. An appellate Court will not rightly interfere with the trial Court’s discharge of that function unless there are compelling reasons to do so. See BALOGUN V. AGBOOLA (1974) 1 ANLR (2) 66, EBBA V. OGODO (1984) 1 SCNLR 372 and OGHOYONE v. OGHOYONE (2010) 3 NWLR (PT.1182) 564.
Counsel for appellant based his submission on the evidence given by the appellant at page 27 of the record that;
“The Architects started developing the building plan and so I went to put a small fence and ward off trespass so that I can be in effective possession. I then went to the Municipal Council with my building plans for approval. It was there that I met the defendant complaining about the plot.”
As rightly argued by counsel for the respondent, no fact was pleaded as foundation for the evidence. The law is trite that evidence
on facts not pleaded goes to no issue. See OGIAMEN V.OGIAMEN (1967) NMLR 245, GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 and ADU V. ENANG (1981) 11-12 SC 25. The same consideration applies to the evidence of the respondent (as DW1) at page 32 of the record of appeal that,
“… I made some demarcation on the Plot by putting some blocks at each of the 4 ends of the Plot. I also put a sign board on the plot to show I was the owner. I did not tamper with the plaintiffs fence. It is still there and the Court can see it.”
The appellant has not shown any reason, not to talk of any compelling reason, why this Court should interfere with the finding of the trial Court.
Indeed the trial Court found as a fact that the land was initially allocated to one Tanko Izomi vide Exhibit D1 on 27/6/1996. It also found as a fact that Tanko Izomi sold the land (along with another parcel of land) to the respondent and that the respondent erected a building on the land. See pages 42 and 43 of the record of appeal. There is or there are no ground or grounds of appeal or valid grounds of appeal which attack those findings of facts. Findings of facts not
appealed against remain valid, binding and in full force. See UKACHUKWU V. PEOPLES DEMOCRATIC PARTY (2014) 17 NWLR (PT.1435) 134, 191.
The appellant did not plead any act of possession of the land. Even if it had done so, the law ascribes possession to the person with a better title. See OGBU V. WOKOMA (2005) 14 NWLR (PT.944) 118 and TANKO v. ECHENDU (2010) 10 NWLR (PT.1224) 419.
There is therefore no reason to interfere with the trial Court’s conclusion that the respondent is in lawful possession of the land.
I resolve issue 3 in favour of the respondent.
The appeal lacks merit. I accordingly dismiss it and affirm the judgment of the trial Court.
I assess the costs of this appeal at N50,000.00 in favour of the respondent.
Other Citations: (2016)LCN/8606(CA)
