IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION (APPELLATE DIVISION) HOLDEN AT APO, ABUJA DATED 21/03/13

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION (APPELLATE DIVISION) HOLDEN AT APO, ABUJA DATED 21/03/13 BEFORE THEIR LORDSHIPS: HON. JUSTICE U.P. KEKEMEKE (PRESIDING JUDGE) HON. JUSTICE V.V.M. VENDA (HON. JUDGE) BETWEEN : ALH. UMARU..APPELLANT AND 1.DANIEL KWELE ) 2. JOSPH NWAFOR ) RESPONDENTS/APPLICANTS JUDGMENT By a Notice of Appeal dated 24/6/11 which was amended by an Order of Court on the 5 th day of November, 2012, the Appellant being dissatisfied with the judgment of His Worship Chief Magistrate Lamido Kabir dated 2 nd day of June, 2011 hereby appealed to this Court upon the following grounds: GROUND 1. a. That the judgment was totally against the weight of evidence adduced by DW1, DW2 and DW3. GROUND 2. The Trial Court erred in law when it failed to properly evaluate the evidence adduced by the Defendant/Appellant and his two witnesses which is before the Court. 1

2 PARTICULARS OF ERROR. (i) The Trial Court did not properly access, appraise, weigh and evaluate the pieces of evidence adduced by the Defendant/appellant and his two witnesses before arriving at the decision. GROUND 3. The Honourable Trial Chief Magistrate erred in law when he assumed jurisdiction over the Suit and proceeded to determine same in his judgment. PARTICULARS OF ERROR. i. The claim filed by the Plaintiffs included a claim for assessment which by its nature was an issue of title and use of land. ii. By the Land Use Act, only the High Court of a State (i.e The FCT High Court) has jurisdiction over title to land. Upon the following grounds, the appellant sought the following reliefs. 1. An Order allowing the appeal, declaring the judgment of the Lower Court dated 02/06/11 a nullity or alternatively setting aside same. Records were compiled, filed and served while parties were ordered to exchange briefs in accordance with Order 43 Rule 10 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, The Appellant s Written Address which Counsel adopted as his brief of argument is dated 15/11/12 but filed on 16/11/12. The Counsel canvassed that the Appellant being a Defendant in the Lower Court was served with a Plaint dated 06/05/10 but filed on 07/05/10, the Respondents being the Plaintiffs. By 2

3 the particulars, the Respondents being Plaintiffs at the Lower Court claimed the following reliefs: a. AN ORDER directing the Defendant to remove his soak away pit from the passage way to the Plaintiff s premises. b. AN ORDER restraining the Defendant from further opening the soakaway pit, a conduct that constitutes a nuisance and health hazard to the Plaintiffs and their entire family members. c. AN ORDER restraining the Defendant from constructing a fence to block the passage way to the Plaintiffs premises. d. A DECLARATION that the Plaintiffs have a right of way (ingress and aggress) to their residence without interruption from the Defendant. That after reviewing evidence and arguments of Counsel, the Court concluded thus: e. That the third issue that by the analysis of point number one for determination can rightly be resolved that the right to construct a fence at the passage way cannot and will not be allowed, that the Honourable Court has hereby entered judgment in favour of the two Plaintiffs against the Defendant as per their claims. Learned Counsel to the appellant further argued that the position of the law is that a party to a claim for declaration of right or title to or over any land or property must prove same with evidence. He refers to VINCENT BELLO V.S MAGNUS EWEKA (1981) 1SC P He argued that an injunctive relief must be anchored on a right declared by the court. That an Order of injunction depends on the success of a burden in this action on the strength of the Plaintiffs case and not on the weakness of the defence. He submits 3

4 therefore that having regard to the evidence recorded by the Lower Court, the judgment is against the weight of evidence led. That looking at the evidence led on both sides, the evidence of the defence has more weight and quality. That the lower court ignored the Appellants Counsel s submission that the Plaintiffs/Respondents did not prove size and dimension of their land. That the burden was on the Plaintiffs/Respondents to show the size and dimension of their land that gave rise to the right of easement. This they had failed to do. He urges the court to resolve this issue in his favour. In his Appellant s brief, he raised two issues for determination: 1. Whether having regard to the reliefs, the Trial Court had jurisdiction. 2. Whether having regard to the totality of the evidence, the court was right to have given judgment in favour of the Plaintiffs. The issues were canvassed in the brief of argument; we shall not therefore reproduce same. He finally urges the court to set aside the judgment of the trial court and uphold the appeal. The Respondents brief of argument is dated 26 th day of November, 2012 but filed on the 27 th day of November, Learned Counsel to the Respondents adopted the said brief as his oral argument in this appeal. In the said written address, the learned Counsel to the Respondents raised two issues for determination: (a) Whether having regard to the reliefs sought from the Trial Court by the Plaintiffs/Appellants, the District Judge had jurisdiction to hear and determine the matter. 4

5 (b) (c) (d) Whether having regard to the totality of evidence led before the Trial Court, the court was right in giving judgment in favour of the Plaintiffs. On issue 1, learned Counsel submits that the Court had jurisdiction to hear and determine the Plaintiffs claims as well as the reliefs. He canvassed that it is the Plaintiffs claim that determines jurisdiction. He refers to OBA J.A. ARREMO 11 (The Alakungba of Akungba) VS. S.F. ADEKANYA & 2 ORS. (2004) 42 WRN 1 at ratios 2 and 6. He argues that the reliefs contained in the Plaint are equitable remedies, that the issue of title or ownership is not in contention, and the Respondent has no such claim. He canvassed that from the evidence of PW2, it is clear that the appellant dug the said soak-away pit right at the centre of the existing road/passage way that was being used by the Plaintiffs and other road users. He further refers to the evidence of PW1 and canvassed that it would be mischievous for any one to refer to the suit as that of title or ownership of land. That PW2 who sold the land to the Defendant/Appellant gave evidence that the Defendant/Appellant encroached upon the existing passage way. That the Plaintiffs complaint is about the health hazard and other inconveniences they are suffering due to the actions of the Appellant. Learned Counsel further argued that the Plaintiffs claim is in a tort of nuisance which is within the requisite jurisdiction of the trial court. That Section 13(1)(a) of the District Court Act gave the Lower Court jurisdiction over all personal suits arising from contract or from tort or from both. That it is a personal suit arising from a tortuous act of the Defendant/ Appellant and the Trial Court has jurisdiction to adjudicate on same. 5

6 He finally urges the Court to hold that the reliefs and claim before the Lower Court were within its competence to adjudicate over. On issue 2, learned Counsel to the Respondents canvasses that ground of appeal which relates to or touches upon the weight of evidence is the omnibus ground. That grounds of appeal couched in the form of an omnibus ground applicable to criminal cases is not permitted to be used in civil cases as it would be disregarded and discountenanced. He refers to ALHAJI MOHAMMED DODI VS. ALFA SAKA SALAMI (2009) 27 WRN 24 Ratio 3 at p. 35. Learned Counsel therefore submits that issue No. 2 is formulated from a defective grounds of appeal. That all arguments canvassed on this point goes to no issue. That it is the primary duty of the Trial Judge to evaluate and ascribe probative value to admissible evidence and an appeal court will not ordinarily interfere with the evaluation or appraisal except same is perverse. Counsel submits that the trial judge did the primary duty of evaluation and ascription of probative value to all the evidence of the parties. He urges the Court to resolve issue 2 in favour of the Respondent. He canvassed that the appeal lacks merit and should be dismissed. The Appellant filed and adopted his reply on point of law dated 03/12/12. We have accordingly read the record of appeal and considered the various briefs of argument including the reply brief on point of law. The issues raised for determination in both briefs are: 1. Whether, having regard to the reliefs sought from the trial court by the Plaintiffs, the District Judge had jurisdiction to hear and determine the matter. 6

7 2. Whether having regard to the totality of evidence led before the trial court, the Trial Judge of the District Court was right in giving judgment in favour of the Plaintiffs. On the first issue on whether having regard to the reliefs sought from the trial court by the Plaintiffs, the District Judge had jurisdiction to hear and determine the matter. The Learned Counsel for the appellant had argued that in relief (a), the Plaintiffs seek to compel the Defendant to remove his soak-away pit from the way over which the Plaintiffs assert a right. That relief (c) seeks to restrain the defendant from the use of the piece of land to build a fence round his house while relief (d) seeks a declaratory Order of the court upholding the right of the Plaintiffs to the right of way i.e, ingress and aggress over the piece of land. Counsel canvasses that the reliefs imputed are touching on a determination of title to land. That any question as to the right over use or ownership of land or landed property is expressly beyond the jurisdiction of a District or Magistrate Court. That a claim of right of way raised the question of ownership. He refers to PRINCE OGUNWUSI AND ORS. VS. MADAM ELUSOJI (2004) AFWLR (PT. 237) P.496 AT 520. He argues that the import of the above authority is that in every claim of a right of way or an easement, title to that piece of land over which the right of way or an assessment is asserted is an issue. Learned Counsel further refers this court to Order 9 Rule (1) of the Federal Capital Territory High Court as conferring jurisdiction on this court in respect of land, mortgage, or other interest or injury or (b) personal property. He also relies on ONA VS. ATENDA (2000) 5 NWLR PT.656 P

8 It is now trite that in considering whether a court has jurisdiction to entertain a matter, the Court is guided by the claim before it by continually looking at the Writ of Summons and the Statement of Claim. See GAFAR VS. GOVT, KWARA STATE (2007) 4 NWLR (PT.1024) 375. ONUORAH VS. KRPC (2005) 6 NWLR (PT. 921) 393. TUKUR VS. GOVT. OF GONGOLA STATE (1989) 4 NWLR (PT.117) 577. NKUME VS. ODILI (2006) 6 NWLR (PT. 522) 642. We shall therefore proceed to examine the record of appeal to see if the Trial Court lacks jurisdiction having regard to the Civil Summons and Statement of Claim before it. The particulars as stated in the plaint are as follows: a. The 1 st and 2 nd Plaintiffs are residents of Kutunku Sabo within the jurisdiction of this Court and other numerous residents of that area. The Defendant had his premises where tenants are in occupation at Kutunku Sabo within the jurisdiction of this court. The 1 st and 2 nd Plaintiffs averred that they have their residential premises directly behind the Defendant s premises. Also there are other residential premises at the back of the Defendant s house. That all the residents of this area, the Defendants inclusive were allocated their various plots of land locally by the elders of Kutunku Sabo Community. The 1 st and 2 nd Plaintiffs aver that the only passage way to their residences and other numerous houses is between the Defendant s house and one other 8

9 person. That the said passage way was created by the elders of Kutunku Sabo Community and has been in use for quite some time now. That when the Defendant was to build his house, the elders were called upon and the said passage way was created for the use of the Plaintiffs and other numerous users. That when the Defendant was about to dig a soak-away pit on the said passage way, the Plaintiffs protested and the elders intervened and the Defendant adhered to dig same for temporary use. And whenever the Defendant opens the soak-away to evaluate faeces, the Plaintiffs and other residents with their family members cannot have access to their houses. That the oozing of bad odour caused nuisance to the Plaintiffs and other residents of the area. That the Defendant has threatened to construct a fence so as to block completely the only passage way used by the Plaintiffs and other numerous residents of the area. The reliefs claimed by the Plaintiffs as contained in the records are: a. AN ORDER directing the Defendant to remove his soak away pit from the passage way to the Plaintiff s premises. b. AN ORDER restraining the Defendant from further opening the soakaway pit, a conduct that constitutes a nuisance and health hazard to the Plaintiffs and their entire family members. c. AN ORDER restraining the Defendant from constructing a fence to block the passage way to the Plaintiffs premises. d. A DECLARATION that the Plaintiffs have a right of way (ingress and aggress) to their residence without interruption from the Defendant. 9

10 From the benefit of insight, we are aware that Section 39 of the Land Use Act give exclusive jurisdiction to the High Court in respect of the following proceedings: a. Proceedings in respect of any land to subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this act and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy. b. Proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this act. Learned Counsel also mentioned the rules of court as having conferred jurisdiction on the High Court over land matters. That the learned District Judge therefore had no jurisdiction. We have gone through the civil summons and the Plaint. The Plaint has nothing to do with land the subject of the statutory right of occupancy granted by the President or the Minister of the Federal Capital Territory. It is not for a declaration of title to a right of occupancy. The proceeding, the subject matter of this appeal is not to determine any question as to the persons entitled to compensation payable for improvement on land under the act. On the second leg, it is our view that courts are creation of statutes. It is the statute that created a Court that confers it with jurisdiction. Specific statutes also confer jurisdictional power on Courts. Jurisdiction therefore cannot be conferred on a court by the rules of Court. The contention that Section 9 of the High Court of the Federal Capital Territory (Civil Procedure) Rules,

11 confers it with jurisdiction on land matters and or mortgage and or personal property is no longer the position of the law. It is our view that from the records, the plaint is not about title to land or a declaration of title to land, the subject matter of a Certificate of Occupancy. We have also examined the reliefs. We agree with the learned Counsel to the Respondents that the reliefs are equitable reliefs. Learned Counsel had cited the case of PRINCE OGUNWUSI & ORS VS. MADAM ELUSOJI (Supra) as a basis that from every claim of a right of way or an easement, title to that piece of land or an easement is an issue. It is our view that from the Plaint, what the Plaintiffs are alleging is not a private nuisance but a public nuisance. The right of way is for the general public and not the Plaintiffs alone. The act of creating a passage way by the elders of Kutunku Sabo Community, the intervention of the elders of the Community when the Defendant was about to build the soak-away, the effect of the faeces when the soak-away is opened, the nauseating odour to the Plaintiffs and other residents together with their families who cannot also gain access to their houses. The bad odour oozing out caused nuisance to the general public. In the circumstance of this case therefore, the above authority is not on all fors with this case, it is therefore inapplicable. It is our view therefore that the trial court was right in assuming jurisdiction over the matter. Issue 1 is resolved in favour of the Respondents against the Appellant. On whether having regard to the totality of the evidence led before the Trial Court, the Trial Court was right in giving judgment in favour of the Plaintiffs. 11

12 Learned Counsel to the Appellant submits on this issue that the burden of proof is that the party who asserts has the burden to prove his claim. That from the evidence led, the Plaintiffs/respondents did not discharge that burden. Learned Counsel canvases that from the evidence on record, the dispute seems to be who owns the land and who owns the right to use same. He refers to the evidence of PW1, PW2 and PW3. That the evidence of the defence has more weight than that of the Plaintiffs/Respondents. We have also read the judgment of the trial court as contained in the supplementary record. We are guided by the claim and reliefs before the trial court. They have nothing to do with ownership of land but a right of way, nuisance and injunction. Evaluation of the relevant and material evidence before the court and the ascription of probative value to such evidence are the primary functions of the Trial Court, which it saw, heard and assessed the witnesses while they testified. Where the Trial Court unquestionably evaluates the evidence and justifiably appraise the facts, it is not the business of the Appellate Court to substitute its own views for the views of the Trial Court. See AGBI VS OGBOH (2006) 1 NWLR (PT.990) P.65. BASHAYA VS. STATE (1998) 5 NWLR (PT. 550) 351 SC. OJOKOLOBO VS. ALAMU (1998) 9 NWLR (PT.565) 226. SHA VS. KWAN (2005) SC 178. STATE VS. AJIE (2000) 7 SC (PT. 1) 24. FAGBENRO VS. AROBADI (2006) 7 NWLR (PT.978) 174. We have gone through the judgment of the lower court contained in the supplementary record of appeal. The Learned District Judge summarized and 12

13 evaluated the evidence of the Plaintiff s witnesses, i.e PW1, PW2 and PW3 and the Defendant s witnesses i.e, DW1,DW2 and DW3 in pages 2 8 and 9-15 respectively while from pages the Trial Chief District Judge started ascribing probative value to the evidence of the respective witnesses. The evaluation of evidence is primarily the function of the Trial Court. It is only where and when it fails to evaluate such evidence properly or at all that an Appellate Court can intervene and re-evaluate such evidence, otherwise the Appellate Court has no business interfering with the findings of the Trial Court on such evidence. See ADEBAYO VS ADUSEI (2004) 4 NWLR (PT.862) 44. It is our view that the trial Chief District Court properly evaluated the evidence before it. We therefore do not have any reason to disturb his findings. The appeal lacks merit and it is hereby dismissed, while the decision of the lower Court is consequently affirmed. Appellant in Court Respondents absent K.B. Asimosu for the Appellant. Etim E.K. for the Respondents. Judgment delivered. Signed (Hon. Judge) Signed (Presiding Judge) 21/03/13 21/03/13 13

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