EXCEL STANDARDS LTD v. Z-TANNERY LTD
(2022)LCN/16500(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/K/451/2019
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
EXCEL STANDARDS LIMITED APPELANT(S)
And
Z-TANNERY LIMITED RESPONDENT(S)
RATIO:
ESTABLISHING NOT ONLY THAT THE PIECE OF EVIDENCE ISSUE EXISTED BUT THAT THE PERSON AGAINST WHOM IT IS INVOKED WITHELD IT
Now, if that be the position, of what further relevance is the certificate of occupancy of respondent? What injustice has appellant suffered from the non-production by respondent of the said Certificate of Occupancy and survey plan referenced in its schedule if Exhibit A produced by respondent was “lifted, virtually verbatim, from the schedule of the Certificate of Occupancy and/or the Survey Plan attached thereto” as she also admits? Appellant’s argument in those circumstances is simply academic. In fact, it also renders impotent her other argument that Section 167(d) of the Evidence Act 2011 should have been invoked against respondent for her failure to tender the same Certificate of Occupancy, for before the presumption in Section 167(d) of the Evidence Act 2011 can be invoked, it must be established not only that the piece of evidence in issueexisted but that the person against whom it is invoked withheld it. See Onwujuba v. Obienu (1991) LPELR-2717 (SC) p.13. That is not the case here given (1) that the evidence in question, namely the dimension and boundaries of respondent’s land, was already in evidence before the Court through Exhibit A; (2) the evidence on the records (see p.139-140) that the said Certificate of Occupancy was not in the custody of respondent but with Stanbic IBTC Bank, on whom respondent even caused a subpoena to issue (as it was also done in Onwujuba v. Obienu supra)and even took several adjournments for the bank to produce it and, (2) appellant’s own admission that the said evidence was already before it via Exhibit A. BOLOUKUROMO MOSES UGO, J.C.A.
THE FULL JURISDICTION OF THE COURT OF APPEAL OVER PROCEEDINGS
See also Anyanwoko v. Okoye & Ors (2010) 1 SCM 21 AT 32, (2010) ALL FWLR (PT 515) 214 and APGA v. Oye (2019) ALL FWLR (PT 1011) 596 AT 625.
What I have said above about the position of the Governor and Attorney General of Kano State also resolves the subsidiary argument of appellant of the lower Court not resolving the same argument she raised. That is so because Section 15 of the Court of Appeal Act 2004 states that the Court of Appeal ‘generally shall have full jurisdiction over the whole proceedings as if the proceedings had beeninstituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part…..’ That power includes making appropriate pronouncements even on issues that may have been overlooked by the trial Court. See Etajata v. Ologbo (2007) 16 NWLR (PT. 1061) 554 AT 584 paras E-G and pg. 588 para H – pg. 590 para G. BOLOUKUROMO MOSES UGO, J.C.A.
NON-JOINDER OF A NECESSARY PARTY IN A SUIT IS AN IRREGULARITY THAT DOES NOT AFFECT THE COMPETENCE OF THE COURT
See Lawrence Azuh v. Union Bank of Nigeria Plc(2014) LPELR-22913 (SC) where it was said (Kekere-Ekun, JSC) that:
“The position of the law is that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. See Okoye v. Nigerian Construction & Furniture Co. Ltd & Ors (Reprint) 33 AT 56; Green v. Green (1987) 3 NWLR (PT 60) 480. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such party to the action.” BOLOUKUROMO MOSES UGO, J.C.A
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): The appellant here, Excel Standards Ltd, was defendant to respondent’s Suit No: K/74/2016 at the High Court of Kano State. Appellant did not only defend that action but also counter-claimed against respondent in the same suit. The dispute between them was and still is about the true ownership of a strip of land measuring 50.77 x 121.00m x 16.76m upon which the respondent’s administrative building erected and occupied by it for about eight years before the outbreak of hostilities between them stands.
Respondent had been in peaceable occupation and possession of the said building and the land around it and had even fenced it in along with her larger undisputed expanse of land for all the said eight years without let or hindrance from appellant, her neighbour across its said block fence, until 2015 when she, respondent, suddenly received a letter from the Kano State Ministry of Land and Physical Planning informing her that her said administrative building was an encroachment on appellant’s adjoining land. It was at that point appellant, who had lived peaceably withrespondent and its administrative building for all of seven to eight years, in reliance on the same letter of the Kano State Ministry of Land and Physical Planning to Respondent also started claiming that respondent had encroached on her land with her administrative office building. All efforts by Respondent to deny encroachment and explain to appellant and the Kano State Ministry of Land and Physical Planning that she even obtained the approval of Kano Sate Urban Planning Development Authority before erecting her said building fell on deaf ears hence respondent commenced Suit No: K/274/2016 in the Kano State High Court.
Her suit was initially against appellant as 1st defendant and Kano State Ministry of Land and Physical Planning and Kano State Urban Planning Development Authority as 2nd and 3rd defendants but the latter two were able to get their names struck out, by way of interlocutory applications, on the grounds that Kano State Ministry of Land and Physical Planning was not a juristic person and the requisite pre-action notice was not served on Kano State Urban Planning Development Authority by respondent before she commenced her action against her.
With her efforts to join the Government of Kano State and the Attorney General of Kano State to her action also being successfully resisted by appellant and the office of the Attorney General of Kano State, Respondent, with the nod of the trial judge, eventually continued her action against only appellant and claimed against her from the Kano State High Court:
1. “A declaration that what was sold to and purchased by the Plaintiff is that property covered by certificate of occupancy No. LKN/CON/IND/97/006 or with site plan no. LKN/CON/IND/97/06 measuring as contained in the site plan and schedule to the certificate of occupancy No LKN/CON/IND/97/006.”
2. A declaration that the Plaintiff’s title of ownership of the property covered by certificate of occupancy no. LKN/CON/IND/97/006 with site plan no. LKN/CON/IND/97/06 is subsisting and did not encroach on any part of the 1st Defendant property”.
3. A declaration that the 1st Defendant has no claim over any portion of the said Plaintiff’s property (particularly the portion on which the Plaintiff’s office is built) as that portion form part of the whole property purchased by thePlaintiff”.
4. A declaration that the Plaintiff had sought and obtained the approval before the Plaintiff commenced the erection of the administrative office as well as factory building on the said property”.
5. An order of perpetual injunction restraining the Defendant, whether by themselves, its privies, agents, servants, successor-in-title, howsoever from interfering, intimidating the Plaintiff with respect to any portion and/or the whole property in question as purchased by the Plaintiff and covered by certificate of occupancy no. LKN/CON/IND/97/006 and with site plan No. LKN/CON/IND/97/06.”
Appellant entered a defence to the claim where she averred thus among others:
3(ii) On the contrary, the premises presently occupied by the plaintiff encroached upon the adjoining property of the defendant covered by State Certificate of Occupancy No. IND/RC/98/01
3(viii) The defendant admits that the place occupied by the plaintiff’s administrative building, inter alia, is the portion of its property that was encroached upon by the plaintiff as the said administrative building is in a portion now being disputed as averred in paragraph 24 ofthe amended statement of claim.
She finally went on to counter-claim against respondent in respect of the same portion of land as follows:
1. A declaration that the counter-claimant Excel Standards Limited is entitled to the landed property measuring 50.77 X 121.00m X 16.76m situated at Kirimbu, Challawa in Kumbotso Local Government Area of Kano State, part of property covered by certificate of occupancy no: IND/RC/98/01, which property is presently wrongfully occupied by the Plaintiff/Defendant to counter-claim, Z-Tannery Ltd.
2. An order directing the Defendant to the counter-claim, Z-Tannery Ltd to forthwith vacate and give exclusive possession of the said property described in paragraph 9 (I) above subject matter of this suit to the counter-claimant, Excel Standard Ltd.
3. A perpetual injunction restraining the said Z-Tannery Ltd from continuing to occupy or possess the said property, measuring 50.77mmX 121.0Om X 16.76m part of property covered by Kano State Certificate of Occupancy No. IND/RC/98/01 on the ground that it rightfully belongs exclusively to the counter claimant Excel Standards Ltd.
4. The sum of N2.5 Million (TwoMillion Five Hundred Thousand Naira only) paid by the counter-claim, Excel Standards Ltd, to its solicitors for prosecuting its defence in Suit No: K/74/2016 as well as this counter-claimant (sic) as aforesaid.
5. The Cost of filing this counter-claim and other processes paid by the Defendant/counter-claimant into the treasury of the Government of Kano State in respect of this suit and the counter-claim as evidenced by Kano State Revenue Collectors Receipts.
These claims and counter-claims went to trial at the High Court of Kano State wherein respondent called two witnesses while appellant called three witnesses, the last two of her witnesses being subpoenaed officials from the Kano State Ministry of Land and Physical Planning. Relevant documents were also tendered by parties.
In a bid to get a better grasp of parties’ conflicting claims of encroachment and non-encroachment and what was on actually ground, the Court in the course of the trial visited the disputed portion of land not just once but on two occasions: first on 5/3/2018 in the course of the testimony of P.W.1 and later on 3/7/2018 in the course of the testimony of D.w.3.
At the close of evidence and submission of final addresses by counsel to parties, the learned trial judge (DijeAboki, J.) in her judgment of 13th February, 2019, apparently conscious of the fact that the initial burden of proof was rather on appellant as the one asserting the positive that respondent encroached on her land, first evaluated appellant’s counter-claim and her evidence in proof of her assertion of encroachment on her land by respondent. Her Lordship did that in a most painstaking and meticulous manner and came to the conclusion that appellant failed to prove that respondent encroached on her land. She rather found that if anything, the evidence of appellant’s witnesses, especially those from the Kano State Ministry of Land and Physical Planning, supported respondent’s case of non-encroachment. Her Lordship expressed her findings this way:
“Now the above evidence of the official witnesses called by the counter-claimant has raised more questions than answers on the Ministry’s decision that the plaintiff encroached on the defendant’s portion of the land.
“Now what evidence of the Dw2 and Dw3 hasnot established before this Court is the claim of encroachment.” (p. 581 of the records)
Coming to respondent’s claims, she found positively for her thus:
“In the case at hand as I had earlier stated the evidence of DW1, DW2 and DW3 have supported the plaintiff’s claim in one way or the other. The said evidence coupled with the evidence led by the plaintiff over the ownership of the disputed portion has succeeded in proving the Plaintiff’s claim on the balance of probability.
“This is particularly so as the Plaintiff has been proved to be in possession of the disputed portion for several years and therefore has disclosed the primary onus of acts of possession and has established a prima facie case of ownership of that portion of land, which throws the burden on the defendant to disprove same, which the defendant in this case has failed to do.”
On that note, Her Lordship went on to dismiss appellant’s counter-claim and granted the claims of respondent.
Appellant is dissatisfied with that decision and has lodged the instant ten-ground notice of appeal against it to this Court. Shecomplains, amongst others, that the judgment is against the weight of the evidence adduced; that the Governor and Attorney General of Kano State were necessary parties to respondent’s suit so the failure to join them denied the Court of jurisdiction to entertain the suit, that the learned trial judge erred in her decision and justice was substantially miscarried in that she granted respondent’s claim on the basis of long possession, and that the Court wrongly overruled her submission that the failure of respondent to tender her Certificate of Occupancy over her plot of land means the Certificate of Occupancy was against her case so Section 167(d) of the Evidence Act should have been invoked against her and her claim dismissed.
From her ten grounds of appeal, she distilled the following eight largely repetitive issues for determination by this Court:
1. Whether the lower Court was correct to have failed to pronounce upon several issues which she raised before it, including that of jurisdiction to adjudicate over respondent’s claim, and if not, whether that failure did not violate her constitutional right of fair hearing and thereby vitiatethe entire trial and judgment.
2. Whether having regard to the nature of the reliefs sought by the respondent, the Governor of Kano State or the Attorney-General of the State were necessary parties to the suit, and if so, whether the lower Court was correct to have entertained respondent’s claim in their absence and if not, whether that error did not occasion a substantial miscarriage of justice.
3. Whether the trial Court was right to have dismissed her counter-claim to the disputed property on the ground that no evidence was led to establish the basis of the determination by the Kano State Ministry of Land in Exhibits C2, C3 & J that the disputed property belonged to the appellant and whether that error did not occasion substantial miscarriage of justice.
4. Whether the trial Court was correct to have relied on long possession as the basis for declaring title to the disputed property in favour of Respondent, and if not, whether that decision did not occasion a substantial miscarriage of justice.
5. Whether the lower Court was correct to have rejected her contention that the survey plan and certificate of occupancy pleaded by respondentwere the best evidence of her title to the disputed property in preference for the Sale Agreement or Deed of Assignment and whether that error did not occasion a substantial miscarriage of justice.
6. Whether the lower Court was correct to have overruled the appellant’s contention that the failure of respondent to tender the Certificate of Occupancy and Survey Plan which she pleaded as the root of her title meant that had she produced them they would have been unfavourable to her, and if not, whether that error did not occasion a substantial miscarriage of justice.
7. Whether the lower Court was correct to have dismissed her counter-claim to the disputed property on the ground inter alia that to the extent that respondent was in physical occupation of the property, she was presumed to be the owner, notwithstanding the presumption of regularity which the appellant contended attached to the official act of the State Governor, through the Ministry of Land, that the appellant was the rightful owner, and if not, whether that error did not occasion a substantial miscarriage of justice.
8. Whether on the whole, the legally admissible evidence tenderedby her before the lower Court did not preponderate in her favour and weightier than that of respondent, and if so, whether the failure of the trial Court to so find did not occasion a substantial miscarriage of justice.
The pith of appellant’s argument in her issue one is simply that she canvassed the issue of the constitution of the suit and the jurisdiction of the lower Court to adjudicate on it given respondent’s omission to join necessary parties like the Governor of Kano State and the Attorney General of the State but the lower Court failed in its duty of pronouncing all issues canvassed by parties, including that issue, before it so she was denied fair hearing and that consequently vitiated the whole proceedings.
She argued in her issue no. 2, that the Governor of Kano State and the Attorney General of Kano State were necessary parties to respondent’s claims and her failure to join them was fatal to the case.
Her argument on her issue 3 was simply that the testimony of D.W.2 (Mallam NasiruMariri of the Kano State Ministry of Land and Physical Planning) that officials of his Ministry visited the disputed portion of landand confirmed the encroachment amounts to official act so the Court should have invoked Section 168(1) of the Evidence Act to hold that all formal requisites have been complied with and her failure to so do caused substantial injustice in the case and we should so hold.
On issue 4, she argued that the learned trial judge erred in relying on the long possession of respondent on the land in granting her claims when long possession is only a shield and cannot be the basis of a claim for declaration of title.
On issue 5, appellant submitted that the trial judge equally erred in rejecting her contention that in the light of the claims of respondent before her, the Certificate of Occupancy pleaded by respondent as the root of her title was the best and only admissible evidence to prove her assertion of non-encroachment and we should so hold.
Appellant in her issue 6 largely repeated her argument in issue 5 and added that given the failure of respondent to tender the said pleaded Certificate of Occupancy of the land and her survey plan, the lower Court should have invoked Section 167(d) of the Evidence Act against her and hold that she did not produceit because it was unfavourable to her case.
On issue 7 appellant argued that the lower Court was again wrong in dismissing her case on grounds of respondent’s physical occupation of the disputed portion of land when same should have been canceled out and displaced by the presumption of regularity of officials acts that attaches to the acts of the State Governor through the State Ministry of Land and Physical planning, as he contended before that Court.
On her eighth and final issue, appellant argued that the evidence she adduced in support of her case was weightier than that of Respondent so the lower Court was again wrong in entering judgment for respondent, even when some of respondent’s claims were for declarations which cannot be granted on the basis of admissions.
As against the eight issues of appellant, Respondent reasoned that only the following three issues arose from the complaints of appellant in her ten grounds of appeal:
1. Whether from the circumstances of the case, the lower Court lacked jurisdiction to entertain her (respondent’s) case.
2. Whether the lower Court was right to have dismissedappellant’s counter-claim.
3. Whether respondent proved her case to be entitled to judgment.
In her issue 1, respondent submitted that appellant’s argument that the failure to join the Governor and Attorney General of Kano State denied the trial Court of jurisdiction to entertain the case was misconceived because her reliefs and issue before the Court were all between her and appellant and were such that could be resolved without joining the Governor and Attorney General of Kano State, who according to her were at best nominal parties.
She also submitted that the argument of appellant that they needed to be joined to enable Government correct the records of the Land Registry as it relates to the disputed land was just a ploy by appellant to mislead the Court. She said that there was no record to adjust, and that in any case the extent of the property occupied by her is as contained in her Sales Agreement which was already with the Land Registry.
She next cited APGA v. Okoye (2019) FWLR (PT 1011) 596 AT 625 to submit that even if the Governor and Attorney General of Kano State were necessary parties that does not affect thecompetence and jurisdiction of the Court to adjudicate on the matter before it, that all it means is that orders cannot be validly made against them and any orders made against them were not binding on them.
On the emphasis placed by appellant on the letters (Exhibits C2 and C3) written to her (respondent) by the Kano State Ministry of Land informing her of the purported encroachment, she referred to p.589 of the records where the Court stated that appellant was not contesting the entire land covered by her Certificate of Occupancy but just the portion upon which her administrative building was erected, which further testifies to the fact that non-joinder of the Governor and Attorney General of Kano State was not fatal as they are not necessary parties.
On appellant’s contention that the trial judge did not resolve some of the issues she formulated, including her argument of presumption of regularity under Section 168(1) of the Evidence Act 2011, the non-production of her Certificate of Occupancy by her and the applicability of long as a means of proof of title, she submitted that that submission was erroneous as the trial judge did not fail toresolve any issue. At any rate, she further submitted, the Court is not bound to accept a matter based on issues submitted by parties but at liberty to accept such issues or reframe them in their entirety.
She finally submitted that the Governor of Kano State is not a necessary party to the case and even if he was, the failure to join him was not fatal to her case and the reliefs the Court granted her.
On her issue 2, respondent submitted that appellant’s counter-claim was properly dismissed by the lower Court, appellant having failed to prove it, so no miscarriage of justice was occasioned. She submitted that Section 168(1) of the Evidence Act invoked by appellant was also inapplicable as the issue to be considered was whether she proved her case to be entitled to be entitled to judgment.
On the letters, Exhibits C2 and C3, from the Kano State Ministry of Land informing her of the purported encroachment, she submitted that appellant did not lead any evidence in support of those documents but merely dumped them on the Court.
On the dismissal of the counter-claim, she submitted that the law is clear that once a main claimsucceeds, the counter-claim fails.
On appellant’s argument that the lower Court entered judgment for her on long possession, she submitted that she did not base her claim on long possession and neither did the trial judge base her decision solely on long possession. That is even as she first submitted that she led credible evidence, including long possession, of her claim to the disputed portion of land.
On appellant’s contention that her Survey Plan and Certificate of Occupancy were the best evidence in the circumstances and her failure to tender them deserved the invocation by the trial judge of Section 167(d) of the Evidence Act on presumption that such evidence was withheld because it would have been unfavourable, she argued that she did not fail nor refuse to tender the Certificate of Occupancy. She said it is on record that she led evidence on the fact that the Certificate of Occupancy was with Stanbic IBTC Bank, which Bank she even subpoenaed to produce the said Certificate of Occupancy in its custody but it failed to so do, so she cannot be said to have withheld it. She said that unlike criminal cases, civil cases are decided onpreponderance of evidence and balance of probability, that in the case she adduced evidence, both oral and documentary, to prove her case. She particularly cited her sales agreement which she maintains defined the boundaries of the land in dispute. She argued that appellant tried to make it appear that the issue before the Court was about Certificate of Occupancy when in fact what was in dispute between parties was not her whole property but just the portion where she built her administrative building. That issue, she submitted, can be determined upon her Sales Agreement (Exhibit A) with her vendor, Gafam Nigeria Limited, more so as the said document adequately defined the dimensions of her property. Her Certificate of Occupancy, she submitted was not necessary and important for that purpose.
On her issue 3 of whether she proved her case to be entitled to the judgment of the trial judge, respondent repeated all the submissions she made above on issues 1 and 2 and added that there are five ways of proving title to land namely by evidence of traditional history; by producing documents of title; by proof of various acts of ownership numerous and positiveand extending over a length of time to warrant the inference of ownership; by acts of long possession and enjoyment of the land and by proof of adjacent or connected land in circumstances which render it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute. It is settled, she correctly submitted, that a claimant need not prove all five ways to succeed; it is enough if he can prove or establish only one. In this case, she observed, both parties bought their parcels of land from a common vendor called Gafam Nigeria Limited. It is also in evidence, she said, that upon her own purchase of her property, she met an existing fence in appellant’s property before she went ahead to erect her own fence after permission was sought and granted by the Kano State Urban Development and Physical Planning Board. She said she also traced her root of title to the registered Sale Agreement (Exhibit A) between her and Gafam Nigeria Limited, which document showed clearly the area and extent of the property acquired by her; the emphasis placed on her Certificate of Occupancy by appellant, she thus submitted, was aploy to mislead the Court. Even assuming that the said Certificate of Occupancy was tendered, she further argued, it is its cchedule that is of utmost importance. She submitted that the Schedule to her Sale Agreement (Exhibit A) with Gafam Nigeria Ltd captured the area, dimension, boundaries and features of the land so it sufficiently did what the Schedule of the Certificate of Occupancy would have done as it is same with the schedule to the Certificate of Occupancy. To further buttress this argument Respondent particularly referred us to the Final Written Address of the appellant contained at 415 of the records where appellant himself at paragraph 1.04.7 thereof also admitted that:
“In any event, the material information about the Plaintiff’s property – particularly its location, dimensions and beacon numbers – which are contained in Exhibit A were lifted, virtually verbatim, from the schedule to the schedule of the Certificate of Occupancy and/or the Survey Plan attached thereto.”
She said the witnesses called by both sides were in agreement in respect of the size, location and dimensions of the disputed property asbelonging to her. She pointed out that all three witnesses of appellant also admitted under cross-examination that the disputed property belonged to her; that appellant did not discredit them or even her P.W.1.
She next submitted that appellant misconceived the position of the law on long possession. She submitted that one of the methods of proving title to land is by proof of various acts of ownership numerous and positive and extending over a length of time to warrant the inference of ownership. It is on record, she submitted, that she was on the disputed portion of land for over 10 years before appellant suddenly woke up to dispute her ownership. It was also on record, she further submitted, that during the Court’s visit to the land, it was proved that her fence demarcating her land from appellant’s land is by a straight line and there was nothing to show that she encroached upon appellant’s land. The fact that appellant claimed to have obtained title to the land, she argued, was of no moment because appellant saw her or was aware that she was the first to settle on her land, erected a fence as a form of demarcation of her land andeven built her administrative building. On the basis of all the foregoing and the evidence on record, she submitted that she proved her case and the trial judge was correct in entering judgment for her.
In a reply brief filed on 17/11/2021, appellant argued that a counter-claim is independent action so the grant of the main claim of respondent should not have resulted in the dismissal of her counter-claim. She also argued that respondent who applied, albeit unsuccessfully, in the trial Court to join the Governor and Attorney General of Kano State to her suit cannot change her stance now to argue that those two officials were not necessary parties to her action.
Resolution of issues
I have already hinted while dealing with the contentions of the appellant, that appellant’s eight issues are largely repetitive, overlapping and mostly adornment and embroidery of arguments and complaints already canvassed by her in earlier issues. In fact, the three issues of respondent reflect the complaints of appellant in her ten grounds of appeal. I shall therefore adopt the three issues of respondent even as I shall amend them slightly to read as follows:
1. Whether from the issues before the Court, the Governor and Attorney General of Kano State were necessary parties to the case of Respondent and respondent’s omission to join them denied the lower Court of jurisdiction.
2. Whether the lower Court was right to have dismissed appellant’s counter-claim.
3. Whether respondent proved her case to be entitled to judgment.
Issue 1: Starting with the first argument of appellant of the Governor and Attorney General of Kano State being necessary parties to respondent’s case and failure to join them being fatal to the case and denying the Court of jurisdiction to adjudicate on his claims, it must be noted that the only reason that makes it necessary to join a person to an action is whether without that person’s presence the issues in the case cannot be effectively and completely determined. The mere fact that such person(s) may have relevant evidence to give on the issue at stake or that they may have an interest in the correct solution of some questions involved in the action and had thought of some relevant arguments to advance in the case does not also make them necessaryparties to the case. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and there is a question in the action which cannot be effectually and completely settled unless he is made a party. And in determining whether such a person is a necessary party to the ‘questions involved in the action’ the focus of the Court will ‘relate only to the main and substantial questions and not to collateral and or subsidiary and/or accessory questions like injunctions etc. See the locus classicus of Green v. Green(1987)LPELR-1338 (SC) p. 27, Chief Sir Victor Umeh v. Ichie Jude Ejike (2013) LPELR-23506 (CA) p.27.Here none of the reliefs claimed by respondent before the lower Court relates to the Governor and Attorney General of Kano State or asks those two officials to do anything in the action. On the contrary, the reliefs respondent claimed were only against appellant and they were simply that she did not encroach on appellant’s portion of land with her administrative building. It cannot therefore be seriously suggested as appellant is trying to do now that the determination of that issue requires the presence of the Governor and Attorney General of Kano State. It may be possible that the said two high officials of Government and even their servants may have relevant evidence to give on the said encroachment, as DW2 and DW3 eventually did. It may also be that they had an interest in the correct solution of some questions involved in that action and had had relevant arguments to advance in the case especially more so with their Ministry of Land and Urban Planning’s contention in their Exhibits C2 and C3 that respondent encroached on the land of appellant, but those facts, even if they exist, do not make them necessary parties to be joined in the case. See again Green v. Green (1987) LPELR-1338 (SC) P. 27.
But even assuming, but without by any means conceding, that the Governor and Attorney General of Kano State were necessary parties to the suit, the failure to join them does not affect the jurisdiction of the Court. The only effect it would have had is that the Court cannot validly make orders against them. That that is the position is not open to doubt. See Lawrence Azuh v. Union Bank of Nigeria Plc(2014) LPELR-22913 (SC) where it was said (Kekere-Ekun, JSC) that:
“The position of the law is that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. See Okoye v. Nigerian Construction & Furniture Co. Ltd &Ors (Reprint) 33 AT 56; Green v. Green (1987) 3 NWLR (PT 60) 480. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such party to the action.”
See also Anyanwoko v. Okoye &Ors (2010) 1 SCM 21 AT 32, (2010) ALL FWLR (PT 515) 214 and APGA v. Oye (2019) ALL FWLR (PT 1011) 596 AT 625.
What I have said above about the position of the Governor and Attorney General of Kano State also resolves the subsidiary argument of appellant of the lower Court not resolving the same argument she raised. That is so because Section 15 of the Court of Appeal Act 2004 states that the Court of Appeal ‘generally shall have full jurisdiction over the whole proceedings as if the proceedings had beeninstituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part…..’ That power includes making appropriate pronouncements even on issues that may have been overlooked by the trial Court. See Etajata v. Ologbo (2007) 16 NWLR (PT. 1061) 554 AT 584 paras E-G and pg. 588 para H – pg. 590 para G.
At any rate, it has been said that the effect of failure of a Judge to consider and decide all issues placed before him is not a denial of fair hearing but an abandonment of the duty placed on the Judge to adjudicate. See Irolo v. Uka (2002) LPELR-3335 (SC) P. 28. That is even as appellant’s argument of the trial judge not deciding her contention of lack of jurisdiction in it by reason of non-joinder of the Governor and Attorney General of Kano State is not even borne out by the records.
In all, I resolve this issue against appellant and in favour of Respondent.
Issue 2: Whether the lower Court was right to have dismissed appellant’s counter-claim.
Here, it is necessary to again point out even that it is appellant who asserted the positive that respondent encroached on her land.Respondent only denied, negatively, that she did not encroach on appellant’s land as alleged. It follows, therefore, that the primary onus of proof is on the appellant and not on respondent who only asserted the negative. See Ewo v. Ani (2004) 3 NWLR (Pt. 861) 611 at 630 & 635 – 636.
As I observed earlier, it appears the trial judge was also aware of this fact when she commenced her evaluation of the evidence by starting with the counterclaim where encroachment was alleged. In doing that her Lordship, after a commendably meticulous exercise of that evaluation and with the benefit of the firsthand view she had had of the disputed land on ground from the visit she undertook, concluded thus:
“In the case at hand, as I had earlier stated the evidence of DW1, DW2 and DW3 have supported the plaintiff’s claim in one way or the other. The said evidence coupled with the evidence led by the plaintiff over the ownership of the disputed portion has succeeded in proving the Plaintiff’s claim on the balance of probability.
“This is particularly so as the Plaintiff has been proved to be in possession of the disputed portion forseveral years and therefore has disclosed the primary onus of acts of possession and has established a prima case of ownership of that portion of land, which throws the burden on the defendant to disprove same, which the defendant in this case has failed to do.”
Appellant has tried to fault this finding by arguing that:
1. That respondent ought to tender her pleaded Certificate of Occupancy and the survey plan referenced in its schedule to prove the area, dimensions and boundaries of her land, they being the best evidence in the circumstances.
2. That respondent’s failure to tender her said Certificate of Occupancy and the survey plan was not only fatal to her case, the provisions of Section 167(d) of the Evidence Act 2011 that it was unfavourable to her hence she did not tender it should be invoked against her.
3. That the trial judge relied on respondent’s long possession of the area of land where her administrativebuilding stands to grant her claim for title to the said portion of land, when long possessionis a shield and not weapon in a claim for declaration of title.
Taking on first, the heavy weather being madeby appellant of respondent’s Certificate of Occupancy and its attached schedule and their alleged indispensability, besides the point already made that the initial burden of proof of the area encroached upon by respondent was on appellant as the one asserting the positive of encroachment on her land by respondent, it must also be pointed out that respondent, in a bid to prove the same extent and boundaries of her land contained in the said Certificate of Occupancy pleaded by her, did tender her Sale Agreement, (Exhibit A) with her common vendor with appellant, Gafam Nigeria Limited. That Sale Agreement contains a Schedule in its page 2 where the area of land her vendor sold to her is described in details. What was appellant’s response to the sufficiency of that description in that schedule vis-à-vis the schedule in the Certificate of Occupancy of the respondent which appellant now contends ought to have been produced by respondent by all means? Appellant had this to say at paragraph 1.04.7 of her own final address before the trial High Court of Kano State:
“In any event the material information about the Plaintiff’s [respondent]property – particularly its location, dimensions and beacon numbers – which are contained in Exhibit A were lifted, virtually verbatim, from the schedule to the schedule of the Certificate of Occupancy and/or the Survey Plan attached thereto.” (See p. 415 of the records)
Now, if that be the position, of what further relevance is the certificate of occupancy of respondent? What injustice has appellant suffered from the non-production by respondent of the said Certificate of Occupancy and survey plan referenced in its schedule if Exhibit A produced by respondent was “lifted, virtually verbatim, from the schedule of the Certificate of Occupancy and/or the Survey Plan attached thereto” as she also admits? Appellant’s argument in those circumstances is simply academic. In fact, it also renders impotent her other argument that Section 167(d) of the Evidence Act 2011 should have been invoked against respondent for her failure to tender the same Certificate of Occupancy, for before the presumption in Section 167(d) of the Evidence Act 2011 can be invoked, it must be established not only that the piece of evidence in issueexisted but that the person against whom it is invoked withheld it. See Onwujuba v. Obienu (1991) LPELR-2717 (SC) p.13. That is not the case here given (1) that the evidence in question, namely the dimension and boundaries of respondent’s land, was already in evidence before the Court through Exhibit A; (2) the evidence on the records (see p.139-140) that the said Certificate of Occupancy was not in the custody of respondent but with Stanbic IBTC Bank, on whom respondent even caused a subpoena to issue (as it was also done in Onwujuba v. Obienu supra)and even took several adjournments for the bank to produce it and, (2) appellant’s own admission that the said evidence was already before it via Exhibit A.
At any rate, given her positive assertion that Respondent encroached on her land with her administrative building, the onus was even on appellant to tender her own survey plan, which she also pleaded, to prove that assertion.
For all of these reasons, I find myself unable to fault the decision of the trial judge rejecting this argument same of appellant at the trial.
As for appellant’s argument of the lower Court’s further reliance on long possession in upholding the claim of respondent, while it is true that unlike the other four ways of proving title to land adumbrated in Idundun v. Okumagba (1976) 9/10 SC 277 AT 246-277, long possession as a means of proof of title to land is more in the nature of a shield by a defendant (see Ogbechie v. Onochie (1988) 1 NSCC 211 AT 232,Olayioye v. Oso (1969) 1 ALL NLR 281), one must not fail to realize that respondent was not just a claimant but also a defendant to the counter-claim of the appellant over the same piece of land. To that extent, her seven to eight years possession of the disputed portion of the land with her administrative building standing on it without let or hindrance by the appellant, which possession the trial judge found in his favour as establishing his title to it, cannot be faulted at all.
This issue 2 is also resolved against appellant.
On issue 3, namely whether respondent proved her case to be entitled to judgment, it was demonstrated clearly by the trial judge on the records that appellant who asserted encroachment of her land by respondent failed woefully to prove his positive assertion. In this appeal, outside the technical arguments she has tried unsuccessfully to latch onto in faulting those findings, appellant has not done anything further to show that the trial judge was wrong in her decision entering judgment for respondent. What is more, in the circumstances of this case, where both claim and counter-claim relate to the same issue of encroachment and no encroachment of the same portion of land, the success of one claim automatically means the failure of the other and vice versa. See Akpaji v. Udemba (2009) ALL FWLR (PT 471) 811 AT 831-832 (SC), Ogbonna v. Attorney General of Imo State & Ors (1992) LPELR-2287 (SC) at P. 84 (Akpata, JSC), (1992) 1 NWLR (PT 220) 647 AT 678 (SC), Kwajaffa v. B.O.N. Ltd (1999) 1 NWLR (PT 587) 432 AT 434. Here, not only did the trial judge find, correctly, that appellant failed to make out its case of encroachment of its land by respondent, she further held that even appellant’s witnesses rather supported the case of respondent. In that situation, the correct verdict is nothing else than judgment for respondent as per her claims and dismissal of appellant’s counter-claim, after all the law is well settled that while a claimant for declaration can only depend on his case for his success, he can take advantage of any aspect of the defendant’s case that supports his own.
For all the foregoing reasons, this issue is also resolved against appellant.
The net result of all the foregoing is that this appeal lacks merit and is hereby dismissed while the decision of the High Court of Kano State is affirmed.
Cost of the appeal is assessed at ₦200,000.00 in favour of Respondent.
ITA GEORGE MBABA, J.C.A.: I was privileged to read in draft, the lead judgment just delivered by my learned brother, Boloukuromo Moses Ugo, JCA, and I agree with his reasoning and conclusion that the appeal is devoid of merit and should be dismissed. I too dismiss the appeal and abide by the consequential orders in the lead judgment.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders ascontained in the lead judgment.
Appearances:
Jonathan Mshelizah, Esq. For Appellant(s)
Isaac N. Ambule, Esq. For Respondent(s)
