Alhaji Musa Kala V. Alhaji Burau Potiskum & Anor (1998)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
This is a case involving inter-pleader action wherein the 1st respondent, Alhaji Barau Potiskum, by an inter-pleader summons take out in Potiskum High Court of the then Borno State, but now of Yobe State, claimed against the appellant, Alhaji Musa Kala as follows:-
“WHEREAS the claimant has made a claim to the house at Tudun Wada layout behind Coca Cola House Potiskum, taken in execution and under process issuing out of this Court at your instance. You are hereby summoned to appear at the court to be holden at Potiskum on the 20th day of May, 1987 at the hour of 9.00 in the FORE noon when the said claim will be adjudicated upon and such order made thereon as the court thinks fit.”
After service of the summons on the appellant both the claimant (1st respondent], and the appellant filed and exchanged pleadings. The 2nd respondent did not file anything as his whereabout could not be traced to be served with processes. 2nd respondent was absent throughout the trial of this action and was equally not represented.
The penultimate of the paragraphs of the “Grounds of Statement of Claim” and “Particulars of Denial of Claimant’s Claim” which stand as Statement of claim and Statement of Defence respectively, are as follows:-
“GROUNDS OF STATEMENT OF CLAIM
(2) The claimant is engaged in the business of road transportation, building and civil engineering construction. General merchant and supplier and dealer on motor vehicles.
(3) Sometimes in 1978. the claimant employed the judgment debtor in this case as his engineer and representative in charge of his fleet of lorries, tippers, tankers and general maintenance. That as an employee of the claimant. the judgment debtor was lodged in the attached house in this suit when the accommodation promised by the claimant was found to be inconvenient after his employment.
(4) That while inside the house in question the judgment creditor instituted an action against the judgment debtor at the Fika Upper Area Court Potiskum on 17/2/86 in suit No. 30/86. That during the pendency of that case the judgment creditor himself admitted in open court that he knows the house in question was not the property of the judgment debtor but that of the claimant. The claimant will lender and rely on the copy of proceedings in this case during the trial of this claim.
(5) That the claimant has been the person who built the said house in question sometimes before 1995 and have since then been exercising his rights or title and ownership including letting in tenants ever before the year the judgment debtor came to Potiskum and was employed by the claimant without any challenge from anybody. The various people who were let into the said house both as tenants and lodgers over the years will be called upon to testify during the trial of this claim as well as some of the construction labourers that may be available.
(6) That apart from the working relationship of employer and employee the claimant has not given away, sold, pledged or mortgaged the property to the judgment debtor and that this fact is known to and admitted by the judgment debtor.”
“PARTICULARS OF DENIAL OF CLAIMANT’S CLAIM
(3) The judgment creditor admits paragraph 8 of the grounds of claim in so far as it states that ” the judgment creditor instituted an action against the judgment debtor at Fika Upper Area Court Potiskum in suit No, 30/86″, But vehemently deny ever stating in open court in the proceeding: “that he knows the house in question was not the property of the judgment debtor but that of the claimant.”
A. The judgment creditor avers that the judgment debtor told him before and during the pendency of suit No, 30/86 that the house belonged to him as he had bought it from Alhaji Barau for the sum of N28,000,00
B. The judgment creditor further say (sic) that the judgment debtor told him in the presence of witnesses that he (Judgment debtor paid a deposit of N20,000.00 to Alhaji Barau who later wrote off the balance of N8,000,00 as the arrears of unpaid salary, to the judgment debtor therein the employ of Alhaji Barau and Company Ltd,)”.
At the end of the hearing the learned trial Judge, after considering the evidence adduced, concluded as follows;-
“I find no merit in the claim hereby dismissed with N400.00 costs payable by the claimant to the Judgment Creditor, having regard to all the circumstances.”
Aggrieved by the trial court’s decision, the 1st respondent as appellant appealed against it to the Court of Appeal, Jos Division.
In its well considered and unanimous judgment, after considering the written briefs filed, the Court of Appeal arrived at the following conclusion:
“In the sum, the 1st respondents case ought to fail and should have been dismissed, The appeal will be and is hereby allowed, The judgment of Kuyatsemi J. dated the 16th day of December, 1987 together with the order for costs is hereby set aside, The case for the 1st respondent/creditor is dismissed, and this shall be the judgment or the court below. Costs in the court below assessed at N400,00 and costs in this court assessed at N500.00”
Henceforth in this judgment the claimant and the judgment creditor will be referred to as the 1st respondent and the appellant respectively.
The simple facts of this case are as follows:-
The appellant, Alhaji Musa Kala originally sued the 2nd respondent, Alhaji Muslafa Yassine before Fika Upper Area Court, Potiskum claiming the sum of N60,000.00 being cost of four motor vehicles sold by the plaintiff to the defendant which the latter refused to pay. When the parties appeared before the Upper Area Court, the defendant admitted the claim and made several promises at different times to pay the money but failed to do so.
When the plaintiff noticed that the defendant was trying to abscond, he, with the permission of the trial Upper Area Court Judge discontinued with the effort to recover the debt admitted by the defendant before that court so that he could sue the judgment debtor to recover the judgment debt. Hence the inter-pleader summons involving the house in dispute which the appellant claimed that the 1st respondent sold to the judgment debtor Alhaji Mustapha Yessin.
Both parties filed and exchanged briefs of arguments which they adopted at the hearing and made oral submissions by way of elaboration.
In the brief filed by the appellant, the following four issues were formulated for determination:
“(a) Whether from the state of pleadings, the appellant had the onus to prove that the 1st respondent was not the owner of land/house in dispute.
(b) Whether from the totality of evidence adduced by witnesses on both sides, the lower court was right in holding that the 1st respondent proved ownership of the house in dispute.
(c) Whether the lower court was right in holding that the appellant had been settled as per the contents of exhibit “CPIA”.
(d) In the alternative, whether the lower court ought to have ordered a retrial of the matter before another Judge.”
On his part, the respondent also raised the following issues for determination: –
“2.(a) Whether the first respondent established his ownership of the property by some of the five ways of proving ownership of land i.e. (a) Numerous and positive Acts of ownership extending over a sufficient length of time, and or (b) Acts of long possession and undisturbed enjoyment of land and if so whether the Court of Appeal was not justified in interfering with the trial court’s finding that the first respondent had not proved his ownership of the property.
2.(b) Whether the appellant had a burden to prove that the first respondent had been divested of his ownership of the property by a sale transaction between him and the second respondent/Judgment Debtor in favour of the latter.
2.(c) If the answer to 2(b) above is in the affirmative, whether the appellant discharged that burden with legal admissible evidence.”
It is pertinent to mention again at this stage that the 2nd defendant who is the judgment debtor did not participate in the inter-pleader proceedings both during the trial and at the appeal level.
The respondent raised preliminary objection against issues (c) and (d) in the appellant’s brief in that issue (c) is not based on any ground of appeal while there was no leave granted to the appellant either by the Court of Appeal or this court to raise issue (d) for the first time.
It was the submission of learned counsel for the appellant that issue (c) of his brief was covered by the ground of appeal.
As rightly stated by learned counsel for the respondent Issue (e) of the appellant’s brief is not covered by any of the four grounds of appeal filed by the appellant. There was no prior leave sought and granted either by the Court of Appeal or this court, to raise the issue. The appellant’s reply to the submission on the issue is so general to be of any assistance to the court. It is trite that where an issue formulated cannot be related to any grounds of appeal filed, the court will strike it out and all arguments presented in its support will be discountenanced: See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514;Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260 and Ofondu v. Niweigha (1993) 2 NWLR (Pt. 275) 253. The objection against this issue is sustained and same is therefore struck out and any argument related thereto is accordingly discountenanced.
The other issue objected to is NO (D) of the appellant’s brief. It was the contention of learned counsel for the respondent that as the issue is being taken for the first time in this court the appellant ought to have sought for leave of the court before arguing it. In addition, learned counsel contended that the issue does not involve substantial point or law, substantive or procedural, to occasion any miscarriage of justice if it is not taken. The cases of Koya v.UBA (1997) I NWLR (Pt.481) 251 at 266, and Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79)703, were relied on.
Learned counsel raised this issue in alternative to restoring the judgment of the trial High Court. He cited the cases of Umar v. Boyero University, Kano (1988) 4 NWLR (Pt. 86) 85 at 93 and Onyenma v. Amah (1988) 1 NWLR (Pt. 73) 772 at 778. The argument presented is incoherent and of not very much assistance to the court on whether a party on appeal must either raise, in a ground or appeal or in the absence thereof, seek leave of the appellate court before he can ask for an order of re-trial.
The grounds on which an appellate court can order a retrial has been stated and restated in several decisions of appellate courts, both local and foreign, and are now firmly established. See Onifade v. Olayiwola (1990)7 NWLR (Pt. 16) 130; Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703, and Armels Transport Ltd v. Martins (1970) All NLR 27. Having regard to the provision of the Supreme Court Rules, 1985 on the issue of retrial or new trial in Order 8 of the said Rules, I do not think that where an appellant’s main contention is for the restoration of the judgment of the trial court with the prayer in the alternative for an order of a retrial; I do not think the appellant needs leave of this court in the circumstance to raise the alternative prayer more particularly when both parties had the opportunity of commenting on the issue in their respective briefs. This court has power under S. 22 of the Supreme Court Act 1960 and Order 8 rule 13(1) of the Supreme Court Rules, 1985 to make order for a retrial without hearing the parties on the issue if it finds that expedient. It is unlike the order of a non-suit where parties have the option of relitigation. The objection raised in issue (D) accordingly fails.
Issue A. This as rightly pointed out by the appellant is related to Ground 1 of the Grounds of Appeal. The gist of the appellant’s argument in this issue is that the onus is on the 1st respondent to prove that the house in dispute belongs to him and was at no time sold to Alhaji Mustapha Yessin, the judgment debtor. Learned counsel cited sections 135(1) and (2), 136 and 137 (I), (2) and (3) of the Evidence Act, 1990 and the decision in Kate Enterprises Ltd v. Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt. 5) 116 at 127-128.
In inter-pleader summons proceedings, the burden is generally on the claimant, now the 1st respondent to prove his claim. Evidence abounds in abundance in this case that the property in dispute was built by 1st respondent, Alhaji Barau Potiskum. See the evidence of P.W. 1 Alhaji Adamu Usman, P.W. 2 Iliya Sule, P.W. 3 Engineer Rufus Nwokeke and P.W. 4 Alhaji Mohammed Oputa which conclusively proved that the house in dispute is the personal property of 1st respondent and that since he built it, it has been in his possession physically or constructively and has never parted with its ownership in any form.
The evidence of the judgment creditor, now the appellant did not establish sale of the property in dispute to the judgment debtor, Alhaji Mustapha Yessin. He said in his evidence:
“When the judgment debtor was about to run away. I sued him before Fika Upper Area Court Potiskum in respect of the said N60,000.00. That court adjudged the said sum in my favour. Following this, the judgment debtor brought the document relating to the purchase of the said house, asking me to hold it pending the payment. I refused to take the document because my money N60,000.00 was more than the value of the house.”
Under cross examination he further said:-
“Before the Upper Area Court, the issue of the house in question came up and was mentioned. The judgment debtor told that court that he bought the house. Some plots were also mentioned. I did not read the document the judgment debtor brought to me to hold pending his payment.”
D.W. I, testifying for judgment creditor stated in part as follows:-
“In the year 1985, the judgment creditor, Alhaji Musa Kala, asked me to accompany him to the house of the judgment debtor Alhaji Mustapha Yessine. I did so. The judgment debtor welcomed both of us: he entertained us. Later he told us that he bought the house in question from the claimant- Alhaji Barau Potiskum – for N28,000.00 he did not pay because the claimant did not pay him one year’s salary: the claimant himself did not ask about the balance either. The house in question is located at Tudun Wada Ward, behind Coca Cola company, Potiskum. The judgment debtor brought some documents saying that they were in respect of the house.”
When cross examined D.W. I said:-
It was the judgment debtor who told us he had bought the house. Apart from this, I do not know anything about the buying and selling of the house between the judgment debtor and the claimant. When the judgment debtor was telling us what I had said above, the claimant was not present.”
DW. 2 Alhaji Waziri Gaganuwa also said in his evidence:-
“Mustapha Yessine told me that formerly he was an engineer working for Alhaji Barau Potiskum; that he was then on his own; and that he purchased the house.”
The totality of the evidence of the appellant creditor is more or less hearsay as the 2nd respondent judgment debtor was not present at the trial to affirm what the witnesses alleged he told them. The appellant went further to admit that he did not read the purported document of sale of the property in dispute by the 1st respondent to the 2nd respondent – the judgment debtor. In short there is no credible evidence by the appellant that the house in dispute was sold to 2nd respondent Albaji Mustapha Yessine by the Ist respondent Alhaji Barau Potiskum. He had failed to prove his case. See Jinadu v. Babaoye (1966) 2 All NLR 241. In Exhibit CPI and its English
Translation Exhibit CPIA, the 2nd respondent never stated that the house in dispute belonged to him. All he said was:-
“I will look for the money, I will bring it. I have six plots, I will sell it (sic) and bring the remaining money, my wife has traveled home to bring the remaining money,”
Later on and in the course of the proceedings, the appellant as plaintiff was recorded to have said:-
“I have nothing to say, since Alhaji Yessine (Def) has promised to bring the money, he even asked for bail and granted, later the surety sensed that he would run, he came and begged for withdrawal from the court, he has breached the trust, because initially he told me that the house he is occupying belongs to him while it does not belong to him, the house belongs to Alhaji Barau, therefore I have not agree.” (sic.)
The above statement is denied and is being contested. The record of the Upper Area Court is being impeached: the burden is on the plaintiff to prove it. Mere denial by him is not enough.
I entirely agree with the decision of the Court of Appeal in the following excerpts of its judgment.
“The appellant in paragraph 6 of the particulars of claim and evidence established ownership of the house and denied that he sold it. From the state of the pleadings and available evidence the burden is on the respondent to prove that the appellant had been divested of ownership. The respondent contends that if the burden was on him it was discharged and during the course of the case shifted to the appellant. The burden has now shifted it is on the respondent to prove that the house was sold to the 2nd respondent. See Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 84, Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) page 393 at 429: Onoboruchere v. Esegine (1986) 1 NWLR (pt. 19) p. 799 at 807. See section 145 of the Evidence Act. The evidence in which the 1st respondent relied in paragraphs 3(a) (D) and 5 of the reply (pleading) in rebuttal of paragraph 60 of the claim amount to nothing but hearsay evidence which is inadmissible in law. See Armels Transport Ltd v. Madam Tinuke Martins (1970) 1 All N.L.R. 2; Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) p. 806, and Pharmacists Board of Nigeria v. Adegbesole (1986) 5 NWLR (Pt. 44) p. 707.”
“The plaintiff must succeed on the strength of his case and not on the weakness of the defendant’s case does not apply where the defendant’s case itself supports that of the plaintiff and contains on which the plaintiff is entitled to rely. See Mogaji v. Cadbury Nig. Ltd. (1985) 2 NWLR (Pt. 7) 393 at p.429; Ajao v. Alao (1986) 5 NWLR (pt. 45) 802 at 826. The burden to prove the transfer of ownership by sale is on the 1st respondent and this he failed to discharge. Furthermore a trial court must decide a case on legal evidence adduced and where it has failed to follow this course an appeal court will interfere. See Ogbechie v. Onochie (No.2) (1988) 1 NWLR (pt. 70) p. 370 at 387; Shija v. Fari (1986) 2 NWLR (Pt. 21) p. 147.
Issue C is not supported by any ground of appeal. It is therefore incompetent and struck out.
In the final analysis the appeal has no merit and it fails. I affirm the judgment and orders of the Court of Appeal with N10,000.00 costs to 1st respondent in this appeal.
SC.198/1994
