KAYERI v. KWALLA (2021)

KAYERI v. KWALLA

(2021)LCN/15092(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/G/69/2018

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALHAJI GARBA KAYERI APPELANT(S)

And

ALHAJI UMARU KWALLA RESPONDENT(S)

RATIO

WHETHER A COURT PROCESS MUST BE SIGNED BY A LEGAL PRACTITIONER

Sections 2 and 24 of the Legal Practitioners Act provide as follows: “2. (1) Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if and only if his name is on the roll.” “24. In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say – “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular proceedings.” By these provisions, all processes filed by a Legal Practitioner in Court must be signed in total compliance with these provisions. Any non-compliance will prove fatal to any proceedings arising therefrom. The provisions have been the cynosure of many judicial decisions in the past such that it has become settled in law that processes filed in Court must be signed by a Legal Practitioner, especially where it relates to an originating process such as a Further Amended Statement of claim in this case, which by the reason of amendment, dates back to the initial statement of claim. Reference to a few of these decisions will suffice to make the point. In the case of SLB Consortium Ltd V NNPC (2011) 9 NWLR (Pt. 1252) 317, 337-338, Rhodes-Vivour, JSC stated thus – “All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represents. Fourthly, name and address of legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override a law (i.e. the Legal Practitioners Act).” Again, in R.A. Oliyide & Sons Ltd V OAU, Ile-Ife (2018) LPELR-43711(SC) 16, A- Ogunbiyi, JSC held – “It is a matter of law to stress emphatically that the issue of non signing of the appellant’s Brief by a Legal Practitioner is jurisdictional. The law is trite and elementary that an issue of jurisdiction cannot be waived. As stated earlier, it is not an irregularity and can be raised at any time, even for the first time in this Court as held severally… In other words, the lower Court acted without jurisdiction when it allowed the appeal of the Respondent based on an incompetent Brief of argument. In the eyes of the law, the Respondent herein abandoned its appeal at the lower Court because it (the appellant at the lower Court) did not have a competent Brief of argument before the Court; the lower Court in the result acted without jurisdiction when it allowed the appeal of the respondent based on an incompetent Brief of argument. The Respondent’s Brief (Appellant at the lower Court) was signed by a proxy unknown to law… As a consequence, I hereby set aside the decision of the Court of Appeal for want of jurisdiction having relied on an incompetent appellant’s brief in arriving at its decision.” At pages 30-31, D-F of the Report, Sanusi, JSC also held as follows – “It seems to me that the issue at hand relates to non-signing of a process by a Legal practitioner which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a breach of the rules of Court which can be regarded as a mere irregularity. I do not share that view of his. It is beyond violation of rules of Court. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named Legal Practitioner as opposed to an unknown proxy who is obviously not a Legal Practitioner known to law. In the case at hand, it has been confirmed that neither any known legal practitioner nor Chief Olujinmi SAN, the learned Silk who purportedly authored the brief of argument in question on behalf of the appellant at the Court below, (now respondent herein) had signed the Brief… In that regard I am inclined to agree with the appellant’s contention that the respondent’s brief (filed at the lower Court on behalf of the Appellant thereat) is invalid and incompetent. The non-signing of the Brief of argument of the appellant thereat, had therefore vitiated the Jurisdiction of the Court below to rely and act on it and determine the appeal before it, because in actual fact, there was no brief of the appellant and as such no competent Brief for it to rely on, hear and determine the appeal since its jurisdiction is eroded for non-availability of a competent brief of argument filed by an appellant before it.” See also Okafor V Nweke (2007) 10 NWLR (Pt. 1043) 521. By the same token and following the decision of the apex Court above, the trial Court’s reliance on an incompetent Further Amended Statement of Claim, which was signed by a proxy unknown to law, to wit: Ba’aba & Co., which is a Law Firm and not a Legal Practitioner whose name can be found on the Roll of the Supreme Court, vitiated the jurisdiction of the trial Court to rely and act on it in the hearing and determination of the case. This is because in actual fact, there was no competent Further Amended Statement of Claim for it to have relied on when it purported to hear and determine the case. The trial Court’s jurisdiction was eroded due to the non-availability of a competent Statement of Claim filed by the Plaintiff (now Respondent) before it. It has rendered the proceedings, as well as the decision of the trial Court arising therefrom, a nullity. Thus, the Judgment now appealed against, having been based on an incompetent process, that is, the Further Amended Statement of Claim, cannot stand as it was given without jurisdiction. PER JUMMAI HANNATU SANKEY, J.C.A.

ATTITUDE OF THE APPELLATE COURT REGARDING INTERFERENCE WITH THE FINDINGS OF FACTS OF THE TRIAL COURT

Traditionally and as a matter of law therefore, an appellate Court should not interfere with findings of facts of a trial Court, except where the findings do not correspond with the evidence before it. In such a circumstance, the findings are described as perverse. It is in this vein that the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus: “Unless the Appellant is able to show that the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.” See Unity Bank Plc V Abba (2013) LPELR–22890(CA); Dasuki (Rtd) V FRN ELC (2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58; Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1. PER JUMMAI HANNATU SANKEY, J.C.A.

POSITION OF THE LAW REGARDING WHAT CONSTITUTES A PERVERSE DECISION

The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus: “In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006, this Court defined what a perverse decision is and how same is treated on appeal thus: “[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a miscarriage of justice.” See Atolagbe V Shorun (1985) LPELR-SC.14/1984.” PER JUMMAI HANNATU SANKEY, J.C.A.

WHETHER THE IDENTITY OF THE LAND IS IN ISSUE, WHERE THE PARTIES THEMSELVES KNOW THE LAND IN DISPUTE

The law is settled that where the parties themselves know the land in dispute, the identity of the land is not is not in issue. The principle of law which is well established since the decision in Baruwa V Ogunshola (1938) 4 WACA 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates. Where however, the parties themselves know the land in dispute, this principle does not strictly apply. To buttress this sound principle of law, the Supreme Court in the case of Atanda V Iliasu (2012) LPELR-19662(SC) 42-43, D-A, per Muhammad, JSC held as follows: “Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to [a] claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not in issue in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the plaintiff and or parties prove(s) the identity of the land ceases to be a necessity.” PER JUMMAI HANNATU SANKEY, J.C.A.

CONDITION FOR THE INTERFERENCE OF AN APPELLATE COURT WITH THE FINDINGS OF THE LOWER COURT

As afore stated, it is the duty of a trial Court to evaluate and ascribe probative value to the evidence adduced by the parties before it. This indeed is the primary duty of the trial Court – Akinbade V Babatunde (2017) LPELR-43463(SC) 19, C-F, per Muhammad, JSC. Therefore, unless the Appellant establishes that its findings were perverse or based on the wrong application of some principle(s) of law, this Court will not interfere. For the sake of emphasis in respect of the part this Court should play in an Appeal such as this. See Nguma V AG. Imo State (2014) LPELR-22252(SC) 18-19, C-A, where Muhammad, JSC held: “It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate the evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its jurisdiction is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice.” This settled position of the law was further emphasized by the apex Court in Faleye V Dada (2016) 40297(SC) 33-34, E-C, per Muhammad, JSC thus: “Firstly, the task of evaluating evidence and ascribing probative value to same is primarily that of the trial Court that saw and observed the witnesses in the course of their testimony. The appellate Court interferes only if the trial Court had failed to positively use the advantage it had of seeing and observing the witnesses by drawing the wrong conclusions from the proffered evidence. This Court had stated it times without number that it is none of its function or indeed that of an appellate Court to substitute its own views of the evidence for those of the trial Court that is better placed to deal with those matters. The appellate Court could only have interfered with the findings of fact of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice.” See also ABC (Transport Co.) Ltd V Omotoye (2019) LPELR-47829(SC) 18, A-D, per Abba-Aji, JSC; Alo V State (2015) LPELR-24404(SC) 47, D-F, per Ogunbiyi, JSC; Abiodun V State (2013) LPELR-20343(SC) 10-11, D-A, where Onnoghen, JSC; PTN Ltd V Jubril (2012) LPELR-9727(SC) 50, E-F, Mukhtar, JSC; Otukpo V John (2012) LPELR-25053(SC) 20, E-F, per Onnoghen, JSC. PER JUMMAI HANNATU SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the judgment of the High Court of Justice, Yobe State delivered on November, 16, 2017, Coram: G.M. Nabaruma, J.

The brief facts leading to the Appeal are that the Plaintiff (now Respondent) filed an action against the Defendant (now Appellant and by his Further Amended Statement of Claim, claimed the following:
a. “A declaration that the plaintiff is entitled to the grant of statutory right of occupancy in respect of plots 1101, 1102, 1120 and 1121 at Sabon Gari Annex Layout, Potiskum.
b. N200, 000= (Two Hundred Thousand Naira) as damages for trespass.
c. Perpetual injunction restraining the defendant, agents, assigns and successors-in-title from trespassing into plots 1101, 1102, 1120 and 1121 at Sabon Gari Layout, Potiskum.
d. Cost of this suit.”

The Defendant filed his Statement of Defence wherein he denied the claim. Pleadings having been exchanged and issues joined, both parties called witnesses and tendered exhibits to establish their respective cases. After adopting their respective final Written Addresses, the lower Court

entered Judgment in favour of the Plaintiff (now Respondent). Dissatisfied, the Defendant, now Appellant, filed an Appeal vide a Notice and Grounds of Appeal on January 11, 2018. This was subsequently amended by an Amended Notice of Appeal filed on September, 2018 which was deemed filed on January 24, 2019. Therein, he complained on seven (7) Grounds and sought the following relief from this Court:
“An order of the Honourable Court allowing the Appeal and set aside the decision of the Honourable Justice G.M. Nabaruma of the High Court of Yobe State in suit No. YBS/HC/10CV/2012 of 16th November, 2017.”

At the hearing of the Appeal on March 3, 2021, learned Counsel for the Appellant, N. Abdulsalam Esq., adopted the submissions in the Appellant’s Brief of argument filed on 24-01-19, deemed duly filed on 24-01-19, as well as the Appellant’s Reply Brief of argument filed in response to the Respondent’s Brief of argument on 25-01-21, both Briefs settled by S.A. Yelwa Esq., in urging the Court to allow the Appeal and set aside the decision of the lower Court.

On his part, learned Counsel for the Respondent, M.M. Maidoki,

Esq., adopted the Respondent’s Brief of argument filed on 24-09-20, deemed filed on 14-01-21 and settled by the same Counsel in urging the Court to affirm the decision of the trial Court and dismiss the Appeal with costs.

The Appellant in his Brief of argument, distilled four issues for determination as follows:
1. “Whether from the facts and circumstances of this case, the learned trial Judge was not wrong in entering Judgment for the Respondent over plots of land which identity and boundaries were not ascertained. (Grounds 2, 3 and 5)
2. Whether the learned trial lower Court Judge was right to have held that the Plaintiff was able to establish his case without resistance from the defendant in view of the entire case presented before him. (Ground 4)
3. Whether the delay in the delivery of the Judgment by the learned trial Judge of the lower Court outside the 90 days constitutionally prescribed in relation to this case has caused the Judge losing (sic) grasp of the case thereby occasioning a failure of justice. (Ground 6)
4. Whether the trial lower Court is competent to hear and determine the case in view of the statement

of claim being not signed by a competent person in law.” (Ground 7)

The Respondent in his Brief, formulated three (3) issues for determination as follows:
1) “Whether having regards to the facts, pleadings, evidence, circumstances and the relevant laws in relation to this matter, the trial Court was right when it entered Judgment for the Plaintiff/Respondent on the strength of the Respondent’s case. (Grounds 2, 3, 4, 5 and 6)
2) Whether having regards to the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), facts, circumstances and the relevant laws in relation to this matter, the Judgment of the trial Court could be regarded as a nullity. (Ground 7)
3) Whether having regards to the facts, circumstances and the relevant laws in relation to this matter, the Judgment of the trial Court can stand despite the irregularity of signature in the amended statement of claim. (Distilled from no Ground of Appeal)”

From a close scrutiny of the two sets of issues for determination vis-a-vis the grounds of appeal in the Amended Notice of Appeal, I am satisfied that the

Appellant’s issues adequately cover all the complaints in Grounds 2 to 6 thereof. Ground 1 abandoned, is struck out. Consequently, the Appeal will be considered based on the issues crafted by the Appellant with slight modifications to syntax and grammar.

Issues 1 and 2 will be considered together, while issues 3 and 4 will be considered separately. However, since issue 4 raises an issue touching on the competence of the suit before the trial Court and thus the jurisdiction of the lower Court to entertain it, it will be addressed first.

ARGUMENTS
Issue four – Whether the trial lower Court is competent to hear and determine the case in view of the statement of claim which was not signed by a competent person in law.

Under this issue, learned Counsel for the Appellant submits that, whereas the Respondent adduced evidence in proof of his claim based on the Further Amended Statement of Claim, the trial Court considered the case based on the Amended Statement of Claim at pages 20-23 of the Record. He however submits that the Writ of Summons at pages 1-2 of the Record cannot supersede the Further Amended Statement of Claim at pages 14-17 of the Record.

Counsel submits that the Further Amended Statement of Claim was signed by “Ba’aba & Co”, and that this is in contravention of Sections 2(1) and 24 of the Legal Practitioners Act, 2004, Laws of the Federation. He relies on the decision in Okarika V Samuel (2013) All FWLR (Pt. 706) 484-499, F-C. Thus that the trial Court was not vested with jurisdiction to entertain the suit and so same should be struck out on the ground of incompetence.

In response, learned Counsel for the Respondent submits that an irregularity that renders a process void or merely voidable depends on the type of irregularity. He argues that an irregularity affecting an originating process is a fundamental irregularity that goes to the root of the action. He however submits that in this case, the Statement of Claim is not such an originating process. Reliance is placed on Heritage Bank Ltd V Bentworth Fin. Ltd (2018) 9 NWLR (Pt. 1625) 420, 434, B-C; Braithwaite V Skye Bank (2013) 14 NWLR (Pt. 1346) 1, among others. In addition, Counsel submits that the Defendant had an opportunity to object to the irregularity in the signing of the Further Amended

Statement of Claim which was ex facie, but he did not.

Furthermore, Counsel submits that this issue was not distilled from any of the Grounds of Appeal in the Appellant’s Notice of Appeal. He relies on Bagobiri V State (2017) 18 NWLR (Pt. 1597) 247, 261-262, H-C to submit that since issue four and the arguments canvassed thereunder are incompetent, they should be struck out.

In a brief Reply on point of law, the Appellant’s Counsel submits that the decisions relied on by the Respondent are not applicable to this case having regard to the nature and content of the words used in framing issue four for determination vis-a-vis Ground 7 of the Notice and Grounds of Appeal.

Counsel further submits that even where an Appellant raises issues that are poorly, illogically and clumsily framed, Courts are clothed with the power and competence to re-frame or re-formulate such issues. Relying onMusaconi Ltd V Aspinal (2014) All FWLR (Pt. 1276) 1286, C-E, per Onnoghen, JSC, Counsel therefore urged the Court to disregard the submission of the Respondent herein.

RESOLUTION OF ISSUE FOUR
Sections 2 and 24 of the Legal Practitioners Act provide as follows:

“2. (1) Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if and only if his name is on the roll.”
“24. In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say –
“Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purpose of any particular proceedings.”
By these provisions, all processes filed by a Legal Practitioner in Court must be signed in total compliance with these provisions. Any non-compliance will prove fatal to any proceedings arising therefrom.
The provisions have been the cynosure of many judicial decisions in the past such that it has become settled in law that processes filed in Court must be signed by a Legal Practitioner, especially where it relates to an originating process such as a Further Amended Statement of claim in this case, which by the reason of amendment, dates back to the initial

statement of claim. Reference to a few of these decisions will suffice to make the point.
In the case of SLB Consortium Ltd V NNPC (2011) 9 NWLR (Pt. 1252) 317, 337-338, Rhodes-Vivour, JSC stated thus –
“All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represents. Fourthly, name and address of legal firm. Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override a law (i.e. the Legal Practitioners Act).”
Again, in R.A. Oliyide & Sons Ltd V OAU, Ile-Ife (2018) LPELR-43711(SC) 16, A- Ogunbiyi, JSC held –
“It is a matter of law to stress emphatically that the issue of non signing of the appellant’s Brief by a Legal Practitioner is jurisdictional. The law is trite and elementary that an issue of jurisdiction cannot be waived. As stated earlier, it is not an irregularity and can be raised at any time, even for the first time in this Court as held severally…
In other words,

the lower Court acted without jurisdiction when it allowed the appeal of the Respondent based on an incompetent Brief of argument. In the eyes of the law, the Respondent herein abandoned its appeal at the lower Court because it (the appellant at the lower Court) did not have a competent Brief of argument before the Court; the lower Court in the result acted without jurisdiction when it allowed the appeal of the respondent based on an incompetent Brief of argument. The Respondent’s Brief (Appellant at the lower Court) was signed by a proxy unknown to law…
As a consequence, I hereby set aside the decision of the Court of Appeal for want of jurisdiction having relied on an incompetent appellant’s brief in arriving at its decision.”
At pages 30-31, D-F of the Report, Sanusi, JSC also held as follows –
“It seems to me that the issue at hand relates to non-signing of a process by a Legal practitioner which is purely a jurisdictional issue, because no appeal can properly be placed on an invalid or incompetent process. The respondent’s learned counsel’s stance is that the non-signing of the brief is merely a

breach of the rules of Court which can be regarded as a mere irregularity. I do not share that view of his. It is beyond violation of rules of Court. This is because the Legal Practitioners Act provides that all processes filed in Court must be signed by a known and named Legal Practitioner as opposed to an unknown proxy who is obviously not a Legal Practitioner known to law. In the case at hand, it has been confirmed that neither any known legal practitioner nor Chief Olujinmi SAN, the learned Silk who purportedly authored the brief of argument in question on behalf of the appellant at the Court below, (now respondent herein) had signed the Brief…
In that regard I am inclined to agree with the appellant’s contention that the respondent’s brief (filed at the lower Court on behalf of the Appellant thereat) is invalid and incompetent. The non-signing of the Brief of argument of the appellant thereat, had therefore vitiated the Jurisdiction of the Court below to rely and act on it and determine the appeal before it, because in actual fact, there was no brief of the appellant and as such no competent Brief for it to rely on, hear and

determine the appeal since its jurisdiction is eroded for non-availability of a competent brief of argument filed by an appellant before it.”
See also Okafor V Nweke (2007) 10 NWLR (Pt. 1043) 521.
By the same token and following the decision of the apex Court above, the trial Court’s reliance on an incompetent Further Amended Statement of Claim, which was signed by a proxy unknown to law, to wit: Ba’aba & Co., which is a Law Firm and not a Legal Practitioner whose name can be found on the Roll of the Supreme Court, vitiated the jurisdiction of the trial Court to rely and act on it in the hearing and determination of the case. This is because in actual fact, there was no competent Further Amended Statement of Claim for it to have relied on when it purported to hear and determine the case. The trial Court’s jurisdiction was eroded due to the non-availability of a competent Statement of Claim filed by the Plaintiff (now Respondent) before it. It has rendered the proceedings, as well as the decision of the trial Court arising therefrom, a nullity. Thus, the Judgment now appealed against, having been based on an incompetent

process, that is, the Further Amended Statement of Claim, cannot stand as it was given without jurisdiction. Issue four is resolved in favour of the Appellant.

Issue one – Whether from the facts and circumstances of this case, the learned trial Judge was not wrong in entering Judgment for the Respondent over plots of land which identity and boundaries were not ascertained.
Issue two – Whether the learned trial lower Court Judge was right to have held that the Plaintiff was able to establish his case without resistance from the defendant in view of the entire case presented before him.

In arguing these two issues, learned Counsel for the Appellant submits that the main relief of the Respondent in his Further Amended Statement of Claim is for a declaration of title over named plots of land in “Sabon Gari Annex Layout, Potiskum”; while by relief 2, the perpetual injunction sought is in respect of the said plots of land in “Sabon Gari Layout, Postiskum”. He contends that there is no evidence on Record to show that the two Layouts are one and the same.

Counsel therefore submits that the Respondent failed to identify the

particular plots of land he claims by their boundaries, measurement, sizes or other crucial features to which the certificate of occupancy, Exhibit F, relates. He submits that the acid test in respect of the sufficiency of proof is whether a surveyor using the Record of proceedings, can produce a plan showing accurately the land to which title has been given. Therefore, the burden of proof has not shifted from the Respondent. Reliance is placed on a host of decisions including Emiri V Imieye (1994-2000) 3 SCJIL 715, 731, E; Idehen V Osemwenkhae (1997) 10 NWLR (Pt. 525) 358; Epi V Aigbedion (1972) 1 All NLR (Pt. 2) 370.

Counsel therefore submits that in view of the above, the learned trial Judge ought to have visited the locus in quo to ascertain and satisfy himself of the identity of the plots and the Layout. He relies on Section 127 of the Evidence Act, 2011; Iornenge V Ugondo (2016) All FWLR (Pt. 859) 914, 922; and Ajao V Adigun (1993) 3 NWLR (Pt. 282) 397, F-G.

Counsel submits that from the pleadings of the parties also, that is, paragraph 3 of the Statement of defence and paragraph 6 of the Further Amended Statement of Claim, the identity of the

plots of land are reasonably in dispute. The Appellant maintained that the land upon which he built his house is not the same as the Layout claimed by the Respondent. Thus, in order to determine whether or not there was an admission by the Appellant on the pleadings, the entire pleadings ought to have been considered, and not just a part of it – Sterling Bank Plc V Falola (2015) All FWLR (Pt. 744) 1, 21-22, H-B; Ajao V Alao (1986) 12 SC 193.

Counsel further submits that declarations are not made on admissions in pleadings, default of defence or weakness of the Defendant’s case – Aiyeola V Pedro (2014) 22 JMLR 85, 122, C-D. Nonetheless, he maintains that there was no admission in those paragraphs and so the evaluation of the case by the trial Court in this regard was in error.

Counsel also submits that by the parties pleadings, the claim of the Respondent had no relation to his parcel of land. Reference is made to the evidence of PW1, PW2, PW3, PW5 and PW6 and the evidence of DW2 and DW5. He contends that even though the PW3 and DW2 are both officers from the Ministry of Lands and Survey, their evidence in respect of the land is not the same.

In response, learned Counsel for the Respondent submits that that the Plaintiff has the burden of proving his title in a claim for declaration of title to land; while the duty of appraising the evidence led at the trial is pre-eminently that of the trial Court that had the opportunity to see and hear the witnesses. He submits that the learned trial Judge took time to painstakingly go though the parties’ pleadings and evaluate the evidence led by the parties in the course of his Judgment.

Counsel submits that the trial Court reviewed the evidence of the parties at pages 84-97 of the Record of Appeal before it arrived at its conclusion at pages 97-98 thereof. The lower Court was therefore right when it held that the Plaintiff had discharged his burden of establishing his title, having regard to the preponderance of evidence as evaluated by it.

Counsel further submits that the Plaintiff pleaded all relevant facts and led credible evidence to be entitled to the reliefs sought in his claim. He contends that the parties were fully aware of the identity of the land in dispute, and that the claim of the Plaintiff was definite and specific.

In respect of the names of the Layout, they both refer to the same Layout and so nothing was ambiguous. Counsel submits that the Appellant at the trial only tried to technically evade the claim by saying that the property which he trespassed upon was not numbered. He however contends that the Plaintiff proved the existence of the numbering of the plots by pleading same and leading credible evidence thereon.

In respect of the visit to the locus in quo, Counsel submits that it is only desirable in extreme circumstances where the Court is in some confusion with regard to the direction of the case and where the parties themselves do not know the subject matter in dispute. He relies on Danjuma V SSC Nig. Ltd (2017) 6 NWLR (Pt. 1561) 175, 219, B-C; Atanda V Iliasu (2012) LPELR-19662(SC).

Counsel submits that the parties at the trial and their Counsel were convinced that the trial Court clearly understood the respective cases of the parties, and also the identity of the property in dispute was well known to the parties. This is why the parties did not apply for a visit to the locus in quo. He submits that the Appellant cannot now turn around to complain

that the trial Court failed to suo motu order for a visit to see the land.

Counsel further submits that the trial Court meticulously evaluated the cases presented by the parties before it made its findings, which findings are justified by the pleadings and evidence placed before it. The manner of arriving at these findings were spelt out in the Judgment of the trial Court. Counsel therefore urged the Court not to interfere with the trial Court’s findings.

RESOLUTION OF ISSUES ONE AND TWO
From the pleadings and evidence, the dispute between the parties is in respect of four (4) plots of land situate at Sabon Layi Annex Layout, Potiskum. Whereas the Respondent laid claim to it by reason of purchase and certificates of occupancy, the Appellant contended that he also bought the land covering the four (4) plots of land in question. At the close of trial, the trial Court reviewed and evaluated the evidence adduced in support of the parties’ pleadings, and made his findings. He found that the Respondent had proved his claim and so awarded him title to the said plots of land in line with his claim.

In the consideration of an Appeal from

the decision of a trial Court, the duty of this Court is to review the findings of the said Court and decide whether it came to a right decision. Thus, my responsibility is not to re-evaluate the evidence of the parties adduced at the trial Court and to make my own findings thereon. Rather, it is to decide whether the lower Court was right in its decision in the light of its own review of the findings of the trial Court. Traditionally and as a matter of law therefore, an appellate Court should not interfere with findings of facts of a trial Court, except where the findings do not correspond with the evidence before it. In such a circumstance, the findings are described as perverse. It is in this vein that the Supreme Court in Adamu V State (2017) 7 NWLR (Pt. 1565) 459, admonished thus:
“Unless the Appellant is able to show that the said findings are perverse, this Court will not interfere with the concurrent findings of fact by the two lower Courts. The Appellant has failed to advance any special or compelling reasons to warrant such interference by this Court.”
See Unity Bank Plc V Abba (2013) LPELR–22890(CA); Dasuki (Rtd) V FRN ELC

(2018) 3047(SC) 1; Egbufor V State (2013) LPELR-20688(CA); Unity Bank Plc V Abba (2013) LPELR-22890(CA); Nteogwuile V Otuo (2001) 16 NWLR (Pt. 738) 58; Iroagbara V Ufomadu (2009) 5-6 SC (Pt. 1) 83; Ojo V Gov. Oyo State (1989) 1 NWLR (Pt. 956) 1.

On what constitutes a perverse decision, the law has also not left it to conjecture. The apex Court in Abegunde V Ondo State House of Assembly (2015) 4-5 SC (Pt. 1) 1, defined it thus:
“In UBN Plc V Chimaeze (2014) LPELR-SC 204/2006, this Court defined what a perverse decision is and how same is treated on appeal thus:
“[A] decision of a Court is perverse when it ignores the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such as decision… In the case at hand therefore, the appellant succeeds only if [he] establishes that in its findings in respect of the special and general damages the lower Court has ignored the evidence on record and/or wrongly applied a principle to the evidence. The appellant/cross respondent must establish too that the lapse has occasioned a

miscarriage of justice.”
See Atolagbe V Shorun (1985) LPELR-SC.14/1984.”

The first point of challenge in this Appeal is that the identity of the land in dispute was not proved and yet the trial Court gave Judgment to the Respondent, awarding title of the plots of land in dispute to him. Therefore, reference to the pleadings of the parties is the initial point of call to determine whether the parties are not ad idem on the identity of the land in dispute.

By paragraph 3 of the Further Amended Statement of Claim, the Respondent as Plaintiff pleaded thus:
“3. The Plaintiff avers that the plots of land in dispute in this suit are plots number 1101, 1102, 1120 and 1121 at Sabo Gari Annex Layout Potiskum, which are within the jurisdiction of this Court.”

In answer to this pleading, the Appellant (as Defendant) in his Amended Statement of Defence stated thus:
“3. In further reply to paragraph 3 of the statement of claim, the defendant states as follows:-
i. That the piece of land in dispute is a parcel of land which initially consisted of four (4) plots.
ii. That the said plots are not numbered.

iii. That he had been in possession of the plots for well over 18 years and had sold off some portion long before the inception of the plaintiff’s case against him.
iv. The defendant further states categorically that the parcel of land which is the subject of contention before this Honourable Court was demarcated into four plots by the traditional method of using a standard length of rope as a measure 10 years before the surrounding area was further demarcated into an official layout by the government.
v. The defendant states that the land in question does not form part of any government layout and is NOT numbered plots 1101,1102, 1120 and 1122.”

Thus, while there is no doubting the fact that the Appellant contested the claim of the Respondent to the plots of land in question, he knew exactly and with certainty the extent of the plots of land in dispute. This was also evident in the evidence of the parties as PW5 and DW6 at the trial Court.

The law is settled that where the parties themselves know the land in dispute, the identity of the land is not is not in issue. The principle of law which is well established

since the decision in Baruwa V Ogunshola (1938) 4 WACA 159, is that the onus is on the Plaintiff who seeks a declaration of title to land to show clearly the area of land to which his claim relates. Where however, the parties themselves know the land in dispute, this principle does not strictly apply. To buttress this sound principle of law, the Supreme Court in the case of Atanda V Iliasu (2012) LPELR-19662(SC) 42-43, D-A, per Muhammad, JSC held as follows:
“Generally, a Plaintiff’s claim for declaration of title to land and/or injunction pursuant to [a] claim for damages consequent upon trespass by the Defendant succeeds only where the identity of the land in respect of which the reliefs are sought is certain. However, where the identity of the land is not in issue in the sense that parties know exactly the identity of the land, the subject-matter of the dispute between them, the requirement that the plaintiff and or parties prove(s) the identity of the land ceases to be a necessity.”
This is clearly the position in this case. No wonder the learned trial Judge, acutely aware of his duty in this regard, rightly held as follows at

page 96 of the Record of Appeal:
“The parties clearly know and can determine the land in dispute from their respective pleadings and the evidence led. We refer particularly to paragraphs 6 of the statement of claim wherein the plaintiff claims that he made inquiries at Fika Local Government where it was confirmed to him that plots in contention were held by Bomoi Accama, Isa Jaji, Dan Garba and Musa Mohammed from whom he claims to have derived his title and paragraph 3 of the statement of defence in which the defendant states that the land in dispute consist of four plots, the same number of plots the plaintiff is claiming. It is not in dispute that the land in contention is situate in Potiskum Local Government but formerly within Fika Local Government.”
Consequently, the heavy weather made by the Appellant in respect of the identity of the land and the need for the trial Court to have visited the land in dispute to ascertain same, is completely without basis. Since the parties knew the four (4) plots of land being contested, the need for further proof of same was eradicated. By the same token, there was no call on the trial Court to move

to the plots of land to ascertain whether the parties were on the same page in respect of the identity of the land.

In respect of the nomenclature of the land which has variously been referred to as “Sabon Gari Annex Layout” and “Sabon Gari Layout”, it is obvious that they have also been interchangeably referred to in the pleadings of both parties. See paragraphs 3, 4, and reliefs (a) and (c) in paragraph 23 of the Plaintiff’s claim; as well as paragraphs 4, 5 and 7(i) (ii) (iii) of the Amended Statement of Defence. It is obvious that reference to the Layout as named is in respect of the area where the four (4) disputed plots of land are situated, and the parties were not misled thereby. I have also addressed this under issue four of this Judgment, and so I adopt my findings thereon.

On the question of whether the lower Court was right when it granted the claim of the Respondent, it is trite law that the burden of proving a claim of declaration of title to land is squarely on the Plaintiff, and the standard is on a preponderance of evidence. He must also succeed on the strength of his case and generally not rely on any

weakness in the defence – Kolo V Lawan (2018) 13 NWLR (Pt. 1637) 495, 511-512, F-B; Dim V Enemuo (2017) 13 NWLR (Pt. 1149) 353, 377.

In the light of the competing claims of the parties to the four (4) plots of land in dispute, the trial Court considered the evidence of both parties and evaluated same before it made its findings. These findings were justified by the pleadings and evidence adduced in respect of same. As rightly stated by the trial Court, the identity of the land was not in issue. The evidence was thereafter properly sifted by the trial Court, and the Judgment reflects a proper evaluation and ascription of probative value to the evidence of the witnesses and exhibits placed before it. The relevant laws and legal authorities relied on by the parties were also given due consideration before the trial Court arrived at its decision. This is evident from the Judgment (at pages 84-97 of the Record of Appeal). The learned trial Judge concluded by stating as follows at pages 97-98 of the Record:
“On the preponderance of evidence, the plaintiff has presented more lucid and more believable case than the Defendant. We therefore declare that:

The Plaintiff is entitled to the grant of statutory right of occupancy in respect of plots numbered 1101, 1102, 1120 and 1121 being situate at Sabon Gari Annex Layout, Potiskum…”I see no reason to disturb these sound findings of the learned trial Judge.
As afore stated, it is the duty of a trial Court to evaluate and ascribe probative value to the evidence adduced by the parties before it. This indeed is the primary duty of the trial Court – Akinbade V Babatunde (2017) LPELR-43463(SC) 19, C-F, per Muhammad, JSC. Therefore, unless the Appellant establishes that its findings were perverse or based on the wrong application of some principle(s) of law, this Court will not interfere. For the sake of emphasis in respect of the part this Court should play in an Appeal such as this. See Nguma V AG. Imo State (2014) LPELR-22252(SC) 18-19, C-A, where Muhammad, JSC held:
“It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate the evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its jurisdiction is borne out from the

evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice.”
This settled position of the law was further emphasized by the apex Court in Faleye V Dada (2016) 40297(SC) 33-34, E-C, per Muhammad, JSC thus:
“Firstly, the task of evaluating evidence and ascribing probative value to same is primarily that of the trial Court that saw and observed the witnesses in the course of their testimony. The appellate Court interferes only if the trial Court had failed to positively use the advantage it had of seeing and observing the witnesses by drawing the wrong conclusions from the proffered evidence. This Court had stated it times without number that it is none of its function or indeed that of an appellate Court to substitute its own views of the evidence for those of

the trial Court that is better placed to deal with those matters. The appellate Court could only have interfered with the findings of fact of the trial Customary Court when the findings are perverse and/or consequent upon improper exercise of judicial discretion further resulting in miscarriage of justice.”
See also ABC (Transport Co.) Ltd V Omotoye (2019) LPELR-47829(SC) 18, A-D, per Abba-Aji, JSC; Alo V State (2015) LPELR-24404(SC) 47, D-F, per Ogunbiyi, JSC; Abiodun V State (2013) LPELR-20343(SC) 10-11, D-A, where Onnoghen, JSC; PTN Ltd V Jubril (2012) LPELR-9727(SC) 50, E-F, Mukhtar, JSC; Otukpo V John (2012) LPELR-25053(SC) 20, E-F, per Onnoghen, JSC.
Thus, this Court will not embark on a re-evaluation of the evidence of the parties simply because the Appellant made an allegation of improper evaluation of evidence in its issues one and two for determination. This is because he has not visibly demonstrated the perversity of the findings made by the learned trial Judge showing that the lower Court made improper use of the opportunity it had of seeing and hearing the witnesses, or that it did not appraise the evidence and ascribe value to

it, or that it drew wrong conclusions from proved or accepted facts leading to miscarriage of justice. Based on this, I resolve issues 1 and 2 against the Appellant.

Issue three – Whether the delay in the delivery of the Judgment by the learned trial Judge of the lower Court outside the 90 days constitutionally prescribed in relation to this case, has caused the Judge to lose his grasp of the case thereby occasioning a failure of justice.

Under this issue, learned Counsel for the Appellant submits that the trial Court delivered its Judgment eighteen (18) months after the conclusion of the addresses of Counsel, which is outside the ninety (90) days constitutionally prescribed for the delivery of Judgment by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He submits that the Judgment cannot be saved by Section 294(5) of the Constitution (supra) because a miscarriage of justice has been occasioned by the delay in that the learned trial Judge’s perception and evaluation of the evidence was flawed as a result of the long delay. In particular, Counsel refers to the evidence adduced by the Respondent through

his witnesses who said they sold land to him (Respondent), and submits that documents referred to were not produced in Court. On the other hand, the Appellant denied the claim and stated that his plots were not numbered and also did not form a part of the Respondent’s Layout. He refers to the evidence of DW2, DW3 and DW5.

It is Counsel’s contention that the Judge lost grasp of the evidence and so did not comprehend which Layout was acquired in 1979. He contends that the perception and evaluation of the evidence by the learned trial Judge is contrary to the evidence of PW3 who had testified that “we took the perimeter before it was sub-divided into plots”. However, that the learned trial Judge held that “the PW3 and others took the perimeter of the land before it was sub-divided”, and not just the PW3…

Counsel submits that another instance which shows that the learned trial Judge lost a grasp of the facts of the case due to the delay in delivering the Judgment is that, whereas the processes filed in the suit bore “Suit No. YBS/HC/PT/10CV/2002”, the suit number in the Judgment delivered by the learned

trial Judge was in respect of: “YBS/HC/PT/10CV/2012”. He contends that the Court or the Respondent, having not taken advantage of the Slip Rule to effect a correction of the Judgment, it (the Judgment) remains a stranger to the proceedings. Therefore, any attempt to enforce the Judgment will occasion a miscarriage of justice against the Appellant as it is not a mere irregularity. He relies on Nyavo V Zading (Unreported) Appeal No. CA/YL/124/2015.

Finally, Counsel submits that whereas the Respondent sought for a perpetual injunction in respect of plots number 1101, 1102, 1120 and 1121 at “Sabon Gari Layout Potiskum”, the learned trial Judge made an Order of injunction in respect of those plots at “Sabon Gari Annex Layout Potiskum”. He contends that this has also occasioned a miscarriage of justice as the trial Court awarded the Respondent what he did not ask for.

In response, learned Counsel for the Respondent submits that the provision of Section 294(1) should not be read in isolation to Section 294(5) of the Constitution (supra). The non-delivery of the Judgment within 90 days after the conclusion of evidence and

final addresses of parties does not ipso facto render the Judgment a nullity. Such results only upon cogent and convincing reasons shown that the Appellant suffered a miscarriage of justice thereby. He relies on Owoyemi V Adekoya (2003) 18 NWLR (Pt. 852) 307.

Counsel also submits that all the issues raised by the Appellant under this issue were substantially taken care of, appreciated and evaluated by the learned trial Judge in the course of his Judgment, particularly at pages 84-96 of the Record of Appeal. In answer to the issue of the different date reflected in the suit number on the Judgment of the trial Court (at page 84 of the Record), Counsel submits that the Appellant did not contest the Judgment or contend that the misnomer or irregularity in stating “2012” instead of “2002” in the suit number is so serious as to affect the Judgment of the trial Court. Instead, that the Appellant has conceded that the Judgment is that in respect of the case between the same parties and the same subject matter. He contends that the Appellant is only trying to take refuge in technicality to defeat the course of justice, which is contrary to

the present position of the law. Reliance is placed on a host of decisions such as Saleh V Abah (2017) 12 NWLR (Pt. 1578) 100, 149, B-C; Egbo V Agbara (1997) 1 NWLR (Pt. 481) 293.

Counsel therefore submits that the Appellant failed to show how the delay in the delivery of the Judgment affected the credibility of the Judgment and caused him a miscarriage of justice. This is more so that at page 98 of the Record the learned trial Judge explained the reasons for this delay.

In a brief Reply on point of law, learned Counsel for the Appellant submits that the case of Heritage Bank Ltd V Bentworth Finance Ltd (supra) relied on by the Respondent was decided on the basis of a procedural irregularity which arose in an action initiated by way of an Originating Summons, and not by way of a Writ of Summons accompanied by a Statement of Claim as in the instant Appeal. He argues that this Appeal deals with a substantial irregularity that is fundamental and goes to the root of the suit commenced by way of a Writ of Summons and Statement of Claim. Relying on Kwaa V Kwakwa WACA 3, 176 and F & F Farms (Nig) Ltd V NNPC (2009) 12 NWLR (Pt. 1155) 287;

Nagogo V CPC (2013) All FWLR (Pt. 685) 272, 294, E-F, He therefore urged the Court to discountenance the Respondent’s submissions which failed to distinguish between procedural and substantial irregularities.

RESOLUTION OF ISSUE THREE
Section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides –
(1) “Every Court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of the Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
From these provisions, a Court is mandated to deliver its Judgment within 90 days after final addresses. This applies to both trial Courts and appellate Courts.

In the instant case, there is no doubt that the delay in the delivery of the Judgment by the trial Court offends against Section 294(1) of the Constitution (supra). Ordinarily, that will render the Judgment a nullity. However, by Section 294(5) of the Constitution (supra), delay alone will not lead to setting aside the Judgment, unless there is a miscarriage of justice. See Akoma V Osenwokwu (2014) LPELR-22885(SC) 41-42, F-B, per Onnoghen, JSC; Owoyemi V Adekoya (2003) 18 NWLR (Pt. (Pt. 852) 307.

However, in determining whether a miscarriage of justice has occurred as a result of the delay, a Court has to take into consideration not simply the length of time between when the final addresses were presented and the date on which Judgment was delivered, but the effect the delay has produced in the mind of the Court; such as, if the delay has affected the Court’s perception of the case/evidence, appreciation and evaluation of the case of the parties, particularly where the evaluation is based on the credibility of the witnesses as attested to by their demeanour while testifying – Dibiamaka V Osakwe (1989) 3 NWLR (Pt. 107) 101(SC).

Now, miscarriage of justice commonly depends on the circumstances of the given case. There would be a miscarriage of justice when an error can be seen in the proceedings and/or Judgment. More importantly, a miscarriage of justice occurs where it can be said that, if it had not been for the error evident on the face of the proceedings/Judgment, the decision would have been more favourable to the party that lost the case. There is also a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining. Can this be said to apply to the Judgment of the trial Court?

It is the duty of the Appellant to show how the delay in the delivery of the Judgment affected the perception, appreciation and evaluation of the evidence by the learned trial Judge or how the delay eroded the confidence in the entire judicial process which produced the Judgment.
In the first place, the learned trial Judge, Justice G.M. Nabaruma (of blessed memory), did not pretend or shy away from the fact that the Judgment was not delivered within the time prescribed by the Constitution. Thus, he stated as follows on the last page

of the Judgment (at page 98 of the Record of Appeal):
“Thus judgment of the Court could not be delivered within the constitutionally prescribed period because of the ill-health, official engagements and personal travails encountered by the Judge.”
However, notwithstanding this explanation, as a matter of law where it is established that the delay has distorted the learned trial Judge’s perception and grasp of the facts of the case, it cannot stand. Now the Appellant, acutely aware of his obligation in this regard, itemized certain facts which he said pointed to the fact that due to the long delay, the learned trial Judge’s perception and evaluation of the evidence was flawed:
a) That whereas PW3 testified that “we took the perimeter before it was sub-divided into plots”, the learned trial Judge held that “the PW3 and others took the perimeter of the land before it was sub-divided”.
b) That whereas the processes filed in the suit bore “Suit No. YBS/HC/PT/10CV/2002”, the suit number on the Judgment delivered by the learned trial Judge was: “YBS/HC/PT/10CV/2012”.

He argues that this is not a mere irregularity, relying on the decision in Nyavo V Zading (Unreported) Appeal No. CA/YL/124/2015.
c) That whereas the Respondent sought for a perpetual injunction in respect of plots number 1101, 1102, 1120 and 1121 at “Sabon Gari Layout Potiskum”, the learned trial Judge made an Order of injunction in respect of the said plots at “Sabon Gari Annex Layout Potiskum”.

In the light of these contentions, I have examined the Record of Appeal with a fine tooth-comb, and I fail to see what the discrepancy is between the statement of the PW3 and the review of the evidence of the witness in the Record. The word used by the witness, i.e. “we” in the PW3’s evidence when he said “we took the perimeter before it was sub-divided into plots” certainly connotes the plural of the word “I”. Its meaning is that the PW3 and other persons unnamed, took the perimeter before it was sub-divided into plots. Therefore, where the learned trial Judge set down the testimony of PW3 to mean “the PW3 and others took the perimeter of the land before it was sub-divided” in

its interpretation of the word “we”, it is difficult to see how this could be interpreted as a sign or proof that the learned trial Judge had lost perception or did not have a grasp of the facts of the case.

In respect of the Order of the lower Court at page 98 of the Record wherein it made an Order of injunction in respect of the plots in dispute at “Sabon Gari Annex Layout Potiskum” when the Plaintiff sought an Order for plots of land situate in “Sabon Gari Layout Potiskum”, again I find that this, without more, is not an indication that there was a loss of grasp or perception of the facts of the case. A look at the reliefs sought by the Respondent in paragraph 12 of his Further Amended Statement of Claim (at page 17 of the Record) discloses as follows:
“12. Whereof the Plaintiff claims against the Defendant as follows:
a. A DECLARATION THAT PLAINTIFF is the person entitled to the grant of statutory Right of Occupancy in respect of plot No:- 1101, 1102, 1120 and 1121 at Sabon Gari Annex layout Potiskum.
b. N200, 000.00 (Two Hundred Thousand Naira) as Damages for trespass.

Perpetual injunction restraining the defendant, agents, assigns and successors in title from trespassing into plots number 1101, 1102, 1120 and 1121 at Sabon Gari Layout Potiskum.
d. Cost of this suit.”

Thus, it is apparent that whereas the declaration sought by the Respondent/Plaintiff was in respect of Sabon Gari Layout Annex Potiskum, the third relief sought for an injunction in respect of Sabon Gari Layout. Therefore, while the Appellant is at liberty to contest the propriety of the subject of the Order of injunction vis-a-vis the declaration sought in relief (a), this again cannot be said to be a pointer to a loss of grasp or perception or appreciation of the case of the parties by the learned trial Judge as the Order granted is exactly as stated in the relief sought by the Respondent in his Further Amended Statement of Claim.

This is more so that the witnesses for the Plaintiff, in particular PW3 – the serving officer from the Ministry of Lands and Survey, PW5 – the officer from the Potiskum Local Government and PW6 – the Respondent/Plaintiff himself, all gave evidence that the four (4) plots of land claimed by the Plaintiff were indeed

situated at the Sabon Gari Annex Layout.

Concerning the suit numbering reflected in the heading of the Judgment of the trial Court, “YBS/HC/PT/10CV/2012”, whereas the actual suit number of the case is YBS/HC/PT/10CV/2002”, this clearly is a discrepancy which cannot be said to be a reflection of the mind of the Court. In respect of the decision of this Court in Nyavo V Zading (2016) LPELR-40803(CA) 20-27, per Sankey, JCA relied upon by the Appellant, the facts therein are not on all fours with the facts in this case. In that case, the Appellant filed a preliminary objection wherein he contended, among others, that the suit number in the Notice of Appeal was different from that reflected in the processes of the Court due to a slight discrepancy. The response of the Respondent was that the suit number in his Notice of Appeal is as stated in the Judgment of the trial Court. This Court however held that since the irregularity was in respect of the Notice of Appeal, which is an originating process, it could not be cured by a subsequent amendment. This is as opposed to the Judgment of a Court where, applying the Slip rule, an application could

have been made to the lower Court to correct what was obviously a slight discrepancy in stating the suit number of the case.
In the instant Appeal, the use to which the Appellant seeks to make of this discrepancy is to show that the learned trial Judge did not have a good perception, appreciation and grasp of the facts of the case due to the passage of time, i.e. over 90 days before the Judgment was delivered. He does not seek to have the Judgment set aside on the ground that the irregularity in stating the suit number has rendered the proceedings void. Such a discrepancy or irregularity is not an indicator or a scale of measurement of the mind of the trial Court. The error in correctly reflecting the year in which the suit was registered in that Court, i.e. 2012 instead of 2002, does not touch on the substance of the case. As such, it does not help the Appellant in his quest of showing that the tardiness in the delivery of the Judgment affected the proper appreciation and evaluation of the evidence adduced before the trial Court.
Based on all the above, the areas highlighted in the Judgment of the trial Court to show that the learned trial Judge

had lost his grasp of the facts of the case failed to establish such. The first two instances referred to are baseless, while the third instance is merely a discrepancy in stating the correct suit number of the case in the Judgment of the Court. Issue three is also resolved against the Appellant.

Having resolved issues one, two and three against the Appellant, ordinarily the Appeal ought to fail. However, issue four which raised the issue of jurisdiction, has been resolved in favour of the Appellant and against the Respondent. Consequently, based on the incompetence of the Further Amended Statement of Claim (pages 14-17 of the Record of Appeal), which was not signed by a Legal Practitioner in compliance with Sections 2 and 24 of the Legal Practitioners Act (supra) but by a Law Firm, the proceedings and Judgment of the trial Court arising from such an incompetent process are a nullity.

Consequently, the Appeal succeeds on issue four alone. It is allowed.
Accordingly, the Judgment of the High Court of Justice, Yobe State delivered in suit No. YBS/HC/PT/10CV/2002 on November 16, 2017 by G.M. Nabaruma, J., is set aside.
No costs are awarded.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to read the draft of the judgment just delivered by my learned brother JUMMAI HANNATU SANKEY JCA.

I agree with the reasoning and conclusion therein. I have nothing more useful to add.

The law is trite that every process filed in Court must be signed by a legal practitioner under Sections 2 and 24 of the Legal Practitioners Act. Non-compliance with the provision is fatal to the process. See OLIYIDE & SONS LTD VS OAU ILE IFE (2018) LPELR-4371(SC).

I agree the further amended statement of claim of the Respondent is incurable incompetent.

This appeal therefore succeeds. I abide by the consequential orders in the leading judgment (cost inclusive).

EBIOWEI TOBI, J.C.A.: The lead judgment just delivered by my learned brother, J. H. Sankey, JCA I have had the opportunity of reading in draft before now. The appeal is allowed on the premise that the lower Court lack jurisdiction to entertain the suit in the first place as the originating process in the matter was incompetent. An incompetent process denies a Court the jurisdiction to entertain the matter before the Court.

See Okpe vs Fan Milk Plc & Anor (2016) 12 S.C (pt III) 1, Chairman, Oyo State Government Traditional Council & Ors vs Adegboye III & Ors (2010) LPELR-3903 (CA). What amounts to incompetence was defined in the case of SPDC & Ors vs Chief Isaac Agbara & Ors (2016) 2 NWLR (pt 1496) 353 as meaning disqualification, inability or incapacity and lack of legal qualification or fitness to discharge the required duty.
The originating process of a Court cannot be signed by a law firm but rather by a legal practitioner within the meaning of Sections 2 and 24 of the Legal Practitioners Act, 2004. My Lord has quoted the provision in the lead judgment, there will be no need for me in this my little contribution to repeat same. I will however cite a case or two to buttress the point that a process signed by a law firm is incompetent as a law firm is not a person or legal practitioner within the context of the Legal Practitioners Act. In Okpe vs Fan Milk Plc & Anor (2016) 12 S.C. (pt III) 1, the Supreme Court held per Ariwoola, JSC as follows:
“There is no doubt that both the Rules and Practice of Court require that as an originating process,

for a Notice of Appeal to be valid it must be signed either by the appellant himself or by his counsel or legal practitioner.
Section 24 of the Legal Practitioners Act, defines a legal Practitioner as follows:-
a person entitled in accordance with the provisions of this Act to practice of Barrister or as a Barrister and Solicitor, either generally or for the purpose of any particular office proceedings.
However, Section 2(1) of the same Legal Practitioners Act provides thus:-
Subject to the provisions of this Act, a person shall be entitled to practice as a Barrister and Solicitor if, and only his name is on the roll.
From the above, it is clear without any ambiguity that the person who is entitled to practice as a legal practitioner must have had his name on the roll of the Supreme Court of Nigeria.
Can it therefore be said that the names J.M Majiyagbe & Co and Omolade Makaijuola & Co. are names recognized by law and on the roll of Legal practitioners
In Emmanueal Okafor & Ors vs. Augustine Nweke & Ors (2007) 5 SCM, 180; (2007) 10 NWLR (P1.1043) 521 this Court, when considering some Court processes

which were filed in a business name, had this to say:
“Since both counsel agree that J. H. C Okolo SAN & Co is not a legal practitioner recognized by the law, it follows that the said J. H .C Okolo, SAN & Co., cannot legally sign and/or file any process in the Courts and as such the Motion on Notice filed on 19th December, 2005, Notice of Cross Appeal and Applicants’ brief of argument in support of the said motion all signed and issued by the firm Known and called J.H.C Okolo SAN & Co are incompetent in law, particularly as the said firm of J.H.C OKOLO SAN & Co is not a registered legal Practitioner.”
Perhaps, I must state clearly that there is no dispute and no controversy on whether or not J. M Majiyagbe, Esq., and Omolade Makanjuola, Esq., are names that have been licensed and enrolled in the Supreme Court to practice in Nigeria as legal practitioners. But the same cannot be said of J.M. Majiyagbe & Co and Omolaed Makanjuola & Co. These names are not known to law as legal practitioners, licensed to so practice. As a result, neither of them is qualified in that business name to file Court processes, much more an

originating processes of Court such as in the instant, the Notice of Appeal. In the circumstance and without any further ado on the appeal, I hold that the Notices of Appeal including the Amended Notice of Appeal filed by Messrs J. M Majiyagbe & Co., and Omolade Makanjuola & Co. respectively are incompetent.”
In the same case, Aka’ahs JSC held as follows:
“I agree entirely with his reasoning and conclusion that the Originating processes i.e. the Notices of Appeal taken out on behalf of 1st and 2nd respondents (then appellant in the Court of Appeal) were incurably defective as they were signed by J. B. Majiyagbe & Co and Omolade Makanjuola & Co. Consequently the judgment delivered by the Court of Appeal CA/J/115/99 was a nullity. A law firm cannot sign an originating process since it is not a Legal Practitioner Act 1962 which was the fulcrum of this Court’s decision in Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521 where it was held:
Since both counsel agree that JHC OKOLO SAN & CO is not a legal practitioner recognized by law, it follows that the said JHC OKOLO & CO cannot legally sign and/or file

any process in the Courts and as such the motion on notice filed on 19th December, 2005; notice of cross-appeal and applicants brief of argument in support of the said motion all signed and issued by the firm known and called JHC OKOLO & CO are incompetent on law particularly as the said firm of JHC OKOLO SAN & CO is not a registered legal practitioner.”
For the above reasons and for the fuller reason in the lead judgment, I also allow the appeal on that ground. I also abide by the consequential order.

Appearances:

Abdulsalam, Esq. For Appellant(s)

M.M. Maidoki, Esq. For Respondent(s)