Effect Of Failure To Provide Evidence To Substantiate A Claim

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 27th day of May, 2022

Before Their Lordships

Olukayode Ariwoola

Amina Adamu Augie

Uwani Musa Abba Aji

Mohammed Lawal Garba

Adamu Jauro

Justices, Supreme Court

SC.126/2013

Between

TOURIST COMPANY OF NIGERIA LTD APPELLANT

AND

1. NEO-VISTA PROPERTIES LTD

2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

3. MINISTER, FEDERAL CAPITAL TERRITORY RESPONDENT

(Lead Judgement delivered by Honourable Mohammed Lawal Garba, JSC)

Facts

The 1st Respondent instituted an action at the High Court of the Federal Capital Territory (FCT) against the 2nd and 3rd Respondent, in which it sought inter alia, a declaration that the 2nd and 3rd Respondent’s letter dated 20th September, 2001 purporting to revoke the 1st Respondent’s right in a parcel of land known as Plot No. 1053, Zone AO, CBD, Abuja-FCT was null and void.

During the proceedings in the suit, the Appellant applied to join as a Defendant. Upon its joinder, the Appellant filed its Statement of Defence and Counter-claim, wherein it sought a declaration that it is the beneficial owner of a larger parcel of land which comprised of the said Plot No. 1053, by virtue of a Certificate of Occupancy issued in its favour by the 3rd Respondent. The case of the Appellant was that it was granted the said parcel of land since October 1990, after which the land was said to have been revoked by a letter of 20th May, 1997 and it was during the period of the revocation of the Appellant’s grant on the land, that part of the said land was re-allocated to the 1st Respondent. However, the revocation was subsequently withdrawn by the 2nd and 3rd Respondent in the year 2001.

Prior to delivery of judgement, the Appellant filed an application for the dismissal of the suit on the grounds that the cause of action had been overtaken by events and had thus, become academic. The application was heard and in its ruling which was delivered simultaneously with the judgement in the substantive suit, the trial court struck out the said application. The court also dismissed the Appellant’s Counter-claim. Aggrieved, the Appellant appealed to the Court of Appeal, which court dismissed the appeal, and affirmed the decision of the trial court. Still dissatisfied, the Appellant filed the instant appeal before the Supreme Court. The 2nd and 3rd Respondent also cross-appealed.

At the Supreme Court, the 1st Respondent raised Preliminary Objections to the competence of the appeal and the Cross-appeal.

Issues for Determination in the Main Appeal

The Supreme Court determined the main appeal on the following issues:

1. Whether the Court of Appeal was right to have discountenanced and struck out the Appellant’s issue no. (i) before it, on the basis that the Appellant had abandoned the said issue.

2. Whether the Court of Appeal was right in holding that the Appellant abandoned its Counter-claim in the suit and thus, discountenanced same.

3. Whether the State Land Act pursuant to the provision of Section 13 of the FCT Act and the doctrines of priority, nemo dat quod non habet as raised and canvassed by the Appellant before the lower court, ought not to have been considered by the lower court in its determination of the Appellant’s appeal before it.

Arguments

1st Respondent’s Preliminary Objections

The 1st Respondent challenged the competence of the main appeal, on the ground that the Appellant unilaterally altered the constitution of the parties to the suit on the Notice of Appeal by omitting the name of the 4th Defendant at the trial court, without leave of court. He contended that this contravened the provision of Order 6 Rule 2(1) of the Court of Appeal Rules and Order 2 Rule 8 of the Supreme Court Rules and rendered the Notice of Appeal incompetent.

In its Preliminary Objection to the 2nd and 3rd Respondent’s cross-appeal, the 1st Respondent argued that the 2nd and 3rd Respondent cannot be heard to challenge the judgement of the trial court which was affirmed by the court below, since they were deemed to have accepted it, having not filed a Cross-appeal or a Respondent’s Notice against it at the Court of Appeal.

Arguments on the Main Issues

On the first issue, counsel for the Appellant contended that arguments were duly canvassed on the Appellant’s issue (i) in the Appellant’s brief before the Court of Appeal; hence the court was wrong to have struck the issue out on the ground that it was abandoned. Conversely, counsel for the 1st Respondent submitted on the first issue, that the Appellant’s omission to make submissions on its entitlement to be heard by the trial court on the motion, constituted abandonment of the issue as rightly found by the court below.

Arguing the second issue, counsel submitted for the Appellant that it did not abandon its Counter-claim, and that the Court of Appeal misconceived the issues joined by the Appellant and the 1st Respondent and the evidence led, in its evaluation and judgement, when it restricted itself to the 1st Respondent’s claim and overlooked the Appellant’s Counter-claim. Counsel for the 1st Respondent argued contrary to the position of the Appellant, that since the Appellant had sought for a declaratory relief in the counter-claim, it had the duty to adduce evidence to prove same, whether or not the 1st Respondent filed a defence thereto. He submitted further that since the Appellant did not file or adduce any evidence in support of its counter-claim, the success of the 1st Respondent’s claim must necessarily result in the dismissal of the abandoned counter-claim of the Appellant.

In its argument on the third issue, counsel for the Appellant contended that the Court of Appeal failed to pronounce on the issue of the applicability of the State Land Act pursuant to the provision of Section 13 of the FCT Act raised before it, thereby denying the Appellant’s right to a fair trial. On the other hand, counsel argued for the 1st Respondent that the issue on the applicability of the State Land Act canvassed by the Appellant are irrelevant in so far as the Appellant was suggesting that its title was wrongly revoked, since the court is not the proper forum to challenge the revocation.

The 2nd and 3rd Respondent argued the main appeal along with the cross-appeal in their brief, primarily supporting the appeal.

Court’s Judgement and Rationale

Resolution of the 1st Respondent’s Preliminary Objections

On the preliminary objection to the main appeal, the Court held that an Appellant is not bound to retain the same parties in an appeal as obtained in the trial court, and so is at liberty to state or set out on the Notice of Appeal, only parties directly affected by the appeal as required in the applicable provisions in Order 6, Rule 2 of the Court of Appeal Rules and Order 8 Rule 2 (1) of the Supreme Court Rules. BUKOYE v MOGAJI (2017) All FWLR (Pt. 667) 338 at 356, Par. E. The Appellant adopted the provisions above, when it set out in its Notice of Appeal the names of only the parties indicated to be directly affected by the appeal. On the basis of the foregoing, the court dismissed the 1st Respondent’s objection to the Appellant’s appeal.

Regarding the objection to the 2nd and 3rd Respondent’s Cross appeal, the court held that a Respondent’s role in an appeal is to defend the judgement of a lower court, and not to assist the Appellant in attacking such judgement and seeking that it be set aside. LAFIA LG v GOVERNOR, NASARAWA STATE (2012) 17 NWLR (Pt. 1328) 94, 125, 132-133. Having accepted the decision of the trial court by not appealing same at the Court of Appeal, the 2nd and 3rd Respondents cannot be heard to attack the same decision before the Supreme Court. The preliminary objection was upheld, and the Cross-Appeal struck out thereby.

Deciding the first issue in the main appeal, the Supreme Court held that without submissions in support thereto, an issue raised and submitted to a court for decision in a matter or appeal, is practically and in law, deemed abandoned – JOLASUN v BAMGBOYE (2010) 18 NWLR (Pt. 1225) 285 (SC). Further to the authority referenced, the court held that the arguments canvassed by counsel for the Appellant under the said issue (i) were not related to the real complaint in the issue; hence, the issue was left bare without the requisite arguments to support it. Furthermore, contrary to the complaint in the issue that the Appellant was not heard by the trial court on its motion of 24th May, 2010, counsel for the Appellant had conceded that the Appellant was in fact afforded the opportunity to be heard, and was heard on the said motion which was subsequently struck out. The wind had thus, been taken out of the sail of the real complaint raised under the said issue.

In its determination of the second issue, the court held that claims or counter-claims for declaration of title to land must be proved by positive evidence of entitlement thereto to the satisfaction of a court, before they could succeed and be properly granted. Such claims cannot be granted merely on admission on pleadings, absence of a defence by the other party, or even the weakness of the other party’s case – BELLO v IWEKA (1981) 1 SC. 101 and MOGAJI v CADBURY NIG LTD (1981) 2 NWLR (Pt. 7) 393. Failure to produce or adduce evidence in support of her pleadings of facts would leave them dead on arrival, and the claim based thereon, liable to be dismissed; for in such a situation, the law presumes and deems it to have been abandoned. UKAEGBU v UGOJI (1991) 7 SCNJ 224; NIKA FISHING CO LTD v LAVINA CORP (2008) 6-7 SC (Pt. II) 200.

The Appellant had put its title in question in the Counter-claim, and thus, bore the burden to prove its entitlement to the declaration of its ownership of the land and the title it claimed. However, the evidence by the sole witness called by the Appellant did not show the existence of a valid right or interest over the land in question at the time of the grant to other parties, so as to support the Counter-claim and prove the existence of a valid interest of the Appellant in the land at the material time of the allocation to the other parties. The re-allocation of some part of the land in dispute was done during the period of the revocation of the Appellant’s grant in 1997, and before the withdrawal thereof in 2001, at which time the right granted to the Appellant was no longer subsisting. And so, the 2nd and 3rd Respondents could validly grant or allocate interest/right over the land or some portions thereof to other parties. Until the later grant or re-grant or allocation or re-allocation was validly revoked in accordance with the law, there could not have been a subsequent re-instatement of the Appellant’s right which was, in the circumstance, non-existent at the time of the purported withdrawal of the 1997 revocation in 2001. In the premises, the court below was right to have affirmed the finding of the trial court that the Counter-claim was not supported by evidence and so, in law, deemed abandoned.

Regarding the third issue, Their Lordships held that the Court of Appeal lacks the competence to consider and determine an issue raised before and pronounced upon by the trial court, without prior leave of that court. The question of the applicability of the State Land Act to the Appellant’s case was neither raised nor canvassed before the trial court, and so was not pronounced on by that court for it to have been properly and competently raised and canvassed before the court below by the Appellant.

Appeal Dismissed; Cross-Appeal Struck Out.

Representation

I.O. Aniakor Esq. with Pamela Unegbu-Amadi Esq. for the Appellants.

O.I. Olorundare, SAN with others for the 1st Respondent.

Godwin Sunday Ohboji Esq. with others for the 2nd and 3rd Respondents.