Rabiatu Adebayo & Ors V. Rasheed Shogo (2005)
LAWGLOBAL HUB Lead Judgment Report
PATS-ACHOLONU, J.S.C.
The dispute over a land or incidences of land ownership in the history of Nigerian jurisprudence and literature in land law, has been largely the cause of anxieties and stress and many have gone to the grave prematurely in battling over land matters, some no more than inanities.
The appellants had instituted an action in the High Court at Offa in Kwara State and claimed a declaration that they are part owners of shops/stores situate at Adeleke Road Owode Market, Offa per the stripes system of inheritance, and also an order of accounts. Their case is that the land was the property of their father, one Pa Williams and that they the appellants, the respondent’s mother and his grand mother all contributed money for the erection of the structure therein. They averred that they delegated the respondent to supervise the building and thereafter collect rents from the shops but the respondent was collecting the rent for himself only.
The respondent replicando said that the land on which the shop/store was built was bought by his mother one Alhaja Salimato Shogo with a financial assistance of her husband, Mr. Bello Shogo. In order to induce one Pa Salami, the appellants’ father to return home to Offa, a portion of that land was given to him by Alhaja Shogo, but when Salami could not complete the house due to impecuniosity and later abandoned it, the structure was given to Madam Shogo’s brother then living in Kano. He said that since the completion of that shop, the said Alhaja had continued to collect rents for that building.
In the High Court, judgment was given to the appellants but on appeal to the Court of Appeal, the judgment of the High Court was reversed and set aside. Not happy with the judgment of the Court of Appeal, the appellants appealed to this court and framed three issues. In the court, they decided to abandon issue No.1 and relied on two issues left.
The two issues are:
- Whether the learned Justices of the Court of Appeal could validly substitute their own views as to the findings of facts made by the learned trial Judge.
- Whether the statement of claim filed by the plaintiffs was adequate for their case.
The main issue of the respondent in the case is:
Whether the Court of Appeal was right to have allowed respondent’s appeal and dismissed appellants’ claims before the trial court.
I believe that in doing justice to this case, I shall discuss the two issues made out by the appellants together. For a case involving a declaration of ownership or title to land whether whole and entire or part ownership, it is essential that a ground work of how the land came into the ownership or possession of the predecessors of the claimants be clearly stated. When there is no pleading or averment on that, it is generally difficult to see how the burden of proof can be satisfactorily explained. The pleading of the appellants is the shortest I have ever seen and the facts to prove the case are very scanty to say the least. It is important to know that facts are the bedrock – nay the fountain head of law. The court does not apply law in a nebulous clime. In other words, it has to scrupulously subject all the facts pleaded and elicited in the evidence to merciless scrutiny to determine which party’s case preponderates over the other. The facts are the tools in the hands of a great advocate.
In its judgment, the Court of Appeal per Onnoghen, JCA held thus;
“The learned trial Judge only evaluated the evidence of the respondents and did not even consider the challenge to the root of title of Pa Salami in his judgment. That apart, it is the law that parties and the court are bound by the pleadings and evidence not pleaded go to no issue. It is strange when the court found at page 107 of the record as follows:
The above three witnesses for the plaintiff that is PW1, PW2 and PW4 and especially PW1 and PW4 are very close relations of late Pa Salami who were presumed to have lived with Pa Salami during his life time. One can reasonably believe that by this close relationship, the deceased would have talked or indicated to them what belonged to him and what did not belong to him among his properties before he died.”
It is so difficult for me to take the appellants seriously when they could not satisfactorily explain how their father got the land in the first place. I fail to understand how the terse and sparsely worded pleadings could be a foundation for sufficient facts that would ground or gravitate their case when they are seeking for declaratory reliefs and account of the monies realized from the claim of delegation to collect rentals. On the contrary, the respondent in this case comparatively speaking fairly profuse in his pleadings and naturally the evidence elicited or adduced ought generally to shore up considerably the material facts pleaded. The weight or substantiality of evidence is what is considered by the court in its adjudication process.
The nature of the appellant’s case as presented in the court of first instance with the dearth of facts might invite a temptation to improvise the appellant’s case at the hearing by giving evidence of material facts not pleaded. Consider for example, the evidence of PW1, the mother of the appellants and the grand mother of the respondent she said:
“My husband bought the land and people knew of it. It is not true that the father of the defendant bought the land and invited my husband to come and build on it.”
From whom or from which family the land was bought by the husband, she did not say. Who then should fill the gap. Certainly not the respondent. PW2 Alhaji Aliyu Adebayo in his evidence said –
… The land at Owode with shops on it is owned by Pa Salami and his children jointly”.
… Further down in his evidence he said,
“The original owner of the land on the block of shops is the plaintiffs and the mother of the defendant”.
I am afraid I do not understand the expression the “original owners” in the con it was used in this case. It is woolly and invites varied interpretations. Let me examine the evidence of Madam Rabiatu Adebayo PW3 who said,
“I was at Offa when my father bought the land … My father bought the land through one Baba Saka Balogun”.
Further down in her evidence, she said;
“It is the defendants mother who was collecting rent our sheets (whatever that expression means) and we also told her to be in-charge of the proceeds from our father’s farm.”
If this is so, why was an action for accounts being taken against the respondent and not against the mother. The evidence that the land was bought through Baba Saka Balogun, being a material fact was not pleaded and so it goes to no issue. This has long been settled. See N. Nwawuba & Ors. v. J. Enemuo & Ors. (1988) 2 NWLR (Pt. 78) 581; (1988) 5 SCNJ 154 at 156; Oversea Construction Co. Ltd. v. Creek Enterprises Ltd. (1985) 3 NWLR (Pt. 13) 407; A. Emegokwue v. J. Okadigbo (1973) 4 SC 113 at 117; George v. Dominion Flour Mills (1963) 1 SCNLR 117 at 123 – 124.
The law frowns at one of the parties trying to over reach the other by springing a surprise. The other party should be informed in time to make a response or state his or her reaction to the facts pleaded. Although I must quickly add that this fact elicited in evidence like the one earlier made, were not averred in the appellants’ and therefore, would go to no issue.
The appellants are arguing that the Court of Appeal was substituting its own views on the issues. It cannot be denied that the High Court did not at anytime consider the case put forward by the respondent. Such barefaced injustice masqueraded as adjudication in a democratic society where the rule of law reigns, is galling and utterly invidious. Where lies the justice where the cases made up by the contending parties are not put in an imaginary scale. Such a judgment is an affront to reason and intelligence and bespeaks of inordinate desire to see nothing good in the respondent’s case. The appellants complained that the Court of Appeal should not talk of belief or non-belief not having been the trial court. The words ‘believed’ and ‘unbelieved’ may be inappropriate terminology in the con, but there is no gainsaying that the testimony of the respondent is awash with detailed facts and particulars which the court below found to have completely overwhelmed the evidence of the appellants. I agree with the decision of the Court of Appeal that from the of the judgment of the High Court, it is perverse as the High Court seemed to have traduced all norms and elementary precepts associated with or innate with good, decent and civilized administration of justice. That is no substitution of the appellate court’s own views. This brings me to the general powers of the Court of Appeal in its adjudication processes.Section 16 of the Court of Appeal Act states as follows:
“The Court of Appeal may from time to time make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance.”
See Akibu v. Opaleye & Ors. (1974) 11 SC 189. In E. Nneji and Ors. v. Chief N. Chukwu (1996) 12 SCNJ 395 at 396, (1996) 10 NWLR (Pt. 478) 265 at 278 this court held as follows:
“In the instant case, the findings of fact made by the learned trial Judge are not supported by the credible evidence given. In the circumstance, the court below is in as much as a good position to deal with the facts and findings as the trial court. The findings of the learned trial Judge are not supported by the weight of evidence. With respect to the learned trial Judge, the use of expressions: “I have no reason to doubt the evidence”, “I note and accept as true his evidence”, “I reject as false”, “I do not believe” without really evaluating the evidence of vital witnesses does not preclude an appeal court from itself evaluating the evidence and seeing whether there is any justification for the use of such expressions.”
The beauty, the elegance and romance of our adjudicatory system is that the court should hear all the sides, carefully compare the weight of the evidence given, make a proper appraisal before determining preponderance after such painstaking considerations of all the issues addressed upon it. The method adopted by the High Court is redolent with high handedness which in the con I can describe as judicial rashness, and a stint of machiavellianism – the end justifies the means.
It is my view that what the Court of Appeal did in the case is unassailable. Therefore, I dismiss the appeal as being unmeritorious and I affirm the judgment of the Court of Appeal dismissing the action. I award N10,000.00 costs against the appellants.
SC.279/2000
