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ALI & ANOR v. BALA & ORS (2020)LCN/14091(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/256/2014

Appearances:

Atteh Esq.           –              For Appellant(s)

Mrs. F. P. Mejowa           –              For Respondent(s)

Whether the failure of one party to counter-arguments confer merit on them

Generally, in law where one party is duly served with the arguments of the other party and he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of that party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518. See also Ahmed V. Ahmed (2013) 41 WRN 1; Dairo V. Aderinoye (2013) 50 WRN 111.

However, I am also aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though unchallenged, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639. See also Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80; Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80; Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450; Elelu – Habeeb V. AG. Fed.(2012) 13 NWLR (Pt. 1318) 423; Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

Pleadings: parties are bound by their pleadings

Now, in law the parties as well as the Court are bound by the pleadings and thus the parties are obligated and must conduct their cases within the confines of their pleadings. So also is the Court obliged to stay within the issues as joined by the parties and therefore, cannot go outside those issues to make findings on facts not in issue. See Olodo V. Josiah (2011) 190 LRCN 34 @ p. 52. See also Aminu & Ors. V. Hassan & Ors (2014) 231 LRCN 84 @ p. 118.; Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769; George V. Dominion Flour Mills Ltd.(1963) NLR 74; Emegokwue V. Okadigbo (1973) 4 SC 113; Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.

Biobele Abraham Georgewill, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: E. F. Ikponmwen J., in Suit No.HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazu Ali & Anor., delivered on 5/2/2014, wherein the claims of the Respondents as Claimants were granted against the Appellants as Defendants.

It was also submitted that assuming, but not conceding that half way evidence of the late DW1 was relevant it did not in any way strengthen the Respondents’ case as erroneously held by the Court below and contended that the evidence of the DW1 did not by any means show that the Respondents’ father solely build the house but rather corroborates the case of the Appellants that the two houses built for Hauwa had to be demolished to pave way for building the house in dispute, which is contrary the case as put forward by the Respondents and urged the Court to hold that the Court below lost impression of the case as presented by the parties and had thereby occasioned a miscarriage of justice and to allow the appeal and set aside the judgment of the Court below.

So, was the Court below right when it held that the evidence of the Late DW1, though called by the Appellant, supported the case of the Respondents? I think not! In my finding, these pieces of evidence did not in any way strengthen the Respondents’ case as erroneously held by the Court below but as to whether the evidence of DW1 rather corroborated the case of the Appellants or not and whether the reliance by the Court below on the evidence of DW1 occasioned a miscarriage of justice or not are part of the issues to be considered and resolved under issues one and three in this appeal. In the light of the above, issue two is hereby resolved in favor of the Appellants against the Respondents.

Appellants’ Counsel Submissions

On issue one learned counsel for the Appellant had submitted that in law he who asserts must prove and that without cogent and credible evidence of the party asserting, he will not succeed in his suit and obtain judgment in his favour and contended that since the claim of the Respondents was for declaration of title to the disputed house, they are under a duty to prove ownership of the house and urged the Court to hold that the Respondents failed to lead any credible evidence to prove title to the house in dispute and to allow the appeal and set aside the perverse judgment of the Court below. Counsel referred to Section 136 of Evidence 2011 and relied on Eyo V. Onuoha & Anor (2011) 195 LRCN 38 @ 64; Bello V. Sanda (2012) All FWLR (Pt. 636) 462 @ p. 478.

On his issue two, learned counsel for the Respondents had submitted that in law it is not every seeming contradictions that will make an appellate Court upturn a judgment and contended that for contradictions to lead to the upturn of a judgment, it must be a material contradiction relied upon by a trial Court in arriving at a decision and urged the Court to hold that there were no such material contradictions in the case of the Respondents and to affirm the decisions of the Court below and dismiss the appeal for lacking in merit. Counsel relied on Administrator General, Delta State V. Ogogo (2006) 14 WRN 178 @ p. 185; Awudu V. Daniel (2005)2 NWLR (Pt. 909) 1; Ajero V. Ugorji (1999) 10 NWLR (Pt. 621) 1 @ p. 6.

Resolution Of Issues One And Three

My lords, a consideration of issues one and three would involve seeking and proffering answers to an amalgam of questions, on whose answers would lie the resolution of issues one and three. These questions are as follows: A. Was the Court below right when it held that title to the land on which the house in dispute was built was not put in issue? B. Who built the house in dispute? C. Who owns the house in dispute? D. Was there any relief of partition of the land on which the house in dispute was built? and E. Is the issue of bad faith in the judgment of the Court below a finding of fact or mere observation and was it fair?

I have taken time to calmly review the averments in the pleadings of the parties, noting particularly the issues as joined by them. The parties are ad idem that the title to the land on which the house in dispute was built belonged to the grandmother of the Respondents and the mother of the Appellants, who was the sole heir to the grandmother of the Respondents’ father as well as being the grandmother of the Appellants. In other words, the land on which the house in dispute was built belonged to the Respondents’ Great Grandmother, who was the Grandmother of the Appellants. There was therefore, in my finding no issue joined between the parties in their pleadings as to the root of title to the land on which the house in dispute was built.The Court below was therefore, right when it held that the root of title to the land on which the house in dispute was built was not in issues.

In law, in civil proceedings the evidential burden of proof, in terms of adducing prima facie evidence, is on the party who alleges a fact and is generally on the Claimant who would fail in his claim if no evidence were adduced at all. However, in civil cases the burden is not static and shifts from one side to the other depending on the issues as joined by the parties in their pleadings. See Section 136 of the Evidence Act 2011. See alsoNigerian Westminster Dredging and Marine Ltd. V. Smooth & Anor. (2011) LPELR-4619 (CA); Cardoso V. Daniel & Ors (1986) LPELR – 830 (SC);Osuji V. Ekeocha (2009) 52 WRN 1; Mini Lodge Ltd. V. Ngei (2010) 10 WRN 58; Bunge V. Gov. Rivers State (2006) 6 SC 81.

In proof of their claims, the Respondents called several witnesses in support of the averments in their pleadings. I have taken time to review the totality of their evidence, including Exhibit A, as in the printed record. PW1 was one Madam Habiba Musa. Her evdience is atpages 73 – 76 of the Record of Appeal. PW2 was one Ketumi Bala. Her evidence is at pages pages 77 – 78 of the Record of Appeal. The 2nd Claimant before the Court below, Aminu Bala also testified. His evidence is at pages 79 – 83 of the Record of Appeal. PW3 was one Alhaji Garba. His evidence is at pages 84 – 85 of the Record of Appeal. PW4 was one Yahaya Ibrahim. His evidence is at pages 86 – 87 of the Record of Appeal.

PW5 was one Alhaji Jibrin Itsagwede. His evidence is at pages 88 – 89 of the Record of Appeal. In their defense, the Appellants called some witnesses in support of the averments in their pleadings. I have taken time to review the totality of their evidence as in the printed record. DW1 was one Alhaji Shaibu Abba. His inchoate evidence before his death is at pages 80 – 86 of the Record of Appeal. DW2 was one Alhaji Baba Azumi. His evidence is at page 92 of the Record of Appeal. The 1st Defendant before the Court below, Mu’azu Jibril Ali, also testified. His evidence is at pages 93 – 96 of the Record of Appeal.

Dispute. The evidence of the Defendants tends to support this evidence. The only difference is that they contributed. The fact that they contributed in any way would not justify the claim to ownership….The only dispute in my respectful view is as to the ownership of the house built on the land….The DW2 and DW3 cannot lay claim to ownership of the land in dispute they supported to build.The evidence of CW3 and independent witness and community leader is very weighty so also that of CW5. I believe them when they said the Claimants’ father built the house and put his mother to live with him….The fact that the mother of the Defendants permitted in her life time the Claimants’ father to erect the house on the land it belongs to him…..I am satisfied that the father of the claimants built on that part of the land with the necessary consent. The land on which the house is built is ordered excised or partitioned by the 1st Defendant for the Claimants…” See pages 97 – 108 of the Record of Appeal.

In the result, the Judgment of the High Court of Edo State, Coram: E. F. Ikponmwen J., in Suit No. HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazu Ali & Anor., delivered on 5/2/2014, wherein the claims of the Respondents as Claimants were granted against the Appellants as Defendants, is hereby set aside.

In its stead, the Respondents’ Suit No No. HAU/9/2009: Mr. Adamu Bala & Ors V. Mallam Mahazi Ali & Anor., is hereby dismissed for lacking in merit.

There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: For all the reasons given in the leading judgment of my learned brother, Biobele Abraham Georgewill, JCA just delivered, I also allow this appeal. I abide by the orders made by my learned brother.

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