GANA & ORS v. SALIHU (2022)

GANA & ORS v. SALIHU

(2022)LCN/16711(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/A/239/2021

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

1. ETSU JONAH SAIDU GANA (FOR HIMSELF AND ON BEHALF OF KAKPI COMMUNITY) 2. ALHAJI ABU MOHAMMED 3. MODU MAJIN KAKPI 4. TIFIN DOGO BAGANA KAKPI 5. ALHAJI MODU SONKALI KAKPI 6. ELIJAH GANA KAKPI APPELANT(S)

And

MAIGARI ALHASSAN SALIHU (FOR HIMSELF AND ON BEHALF OF EJINGI COMMUNITY) RESPONDENT(S)

RATIO

THE BURDEN OF PROOF IN CIVIL MATTERS

Burden of proof in civil matters is on the party who asserts a fact and has to prove it. The standard of proof is preponderance of evidence or the balance of probabilities. See the cases of YAKUBU V. JAUROYEL 2005 ALL FWLR PT. 283 184, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and OKUBULE V. OYAGBOLA 1990 4 NWLR PT. 147 P. 723. The onus of proof of an allegation is on the party who claims and it does not shift until he has proved his case on the preponderance of evidence. When the burden is discharged, it then shifts and continues to shift. A party is not allowed to rely on the weakness of his opponent in order to succeed. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, IHEKORONYE V. HART 2000 15 NWLR PT. 692 840 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P.65. PER WILLIAMS-DAWODU, J.C.A.

METHODS OF ESTABLISHING TITLE OF OWNERSHIP TO LAND

In a case for declaration of title, the identity of the land must be clearly established before such relief can be granted. See the case of TEMILE V. AWANI 2001 FWLR PT. 62 1937 and OTANMA V. YOUDUBAGAH 2006 2 NWLR PT. 964 337. A party who seeks a declaration of title to land has the burden to prove same.

Title to land may be proved by anyone or more of the five (5) methods as enunciated in the celebrated case of IDUNDUN V. OKUMAGBA 1976 6-9 SC 227 and followed in ATANDA V. AJANI 1989 3 NWLR PT. 111 511 and KYARI V. ALKALI 2001 FWLR PT. 60 1481 amongst a host of others. The five ways are separate and independent and proof of one shall suffice to succeed in a claim. The following are the five ways:

i. By traditional evidence.

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

Fair hearing first and foremost implies that both sides or all sides be given an opportunity to present their respective cases by the Court or Tribunal. It further implies that each side should know what case is being made against it and be given an opportunity to reply thereto. No party should be allowed to take the opposite party by surprise. “It is a Constitutional provision which acts as the machinery or locomotive of justice not a spare part to propel or invigorate the case of the loser. Not a casual principle of law available to a party to be picked up at will in a case in respect of which the Courts are forced to apply to his advantage.” See the case of SABIRU ADEBAYO V. A-G OGUN STATE 2008 33 NSCQR VOL. 1 P. 25 per Niki Tobi of blessed memory. See further the cases of PDP V NGUROJE & ORS 2012 LPELR -208859 CA, ADIGUN V A-G OYO STATE 1987 1 NWLR PT. 53 678 and LAGOS SHERATON HOTEL & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION 2014 LPELR-233 40 CA.
Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. An appellate Court will not save a correct decision in breach of fair hearing. See the cases of OLUFEAGBA V. ABDUL-RAHEEM 2009 40 NSCQR 684 and SAMBA PETROLEUM LTD V. UBA 2010 43 NSCQR 119. Breach of it vitiates proceedings and renders same null and void. Where denial of a party’s right is established, the proceedings will become null and of no effect. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Niger State, Lapai Division delivered on January 21st, 2021 by Hon. Justice Danladi Ahmad, wherein the reliefs sought by the Respondent (the Plaintiff at the Court below) were granted and the Counter-claim of the Appellants was dismissed.

The following were the Respondent’s claims vide his Writ of Summons and Statement of Claim at the trial Court:
1. A declaration that the historic, customary and established boundary between Ejingi village and Kakpi village is Gushe Makundunu.
2. A declaration that the 2nd to 6th Defendants and any person whatsoever from Kakpi village has no right to farm on or carry out any activity whatsoever on Ejingi village land unless permitted by the plaintiff.
3. A declaration that the entry into the potion (sic) of land belonging to Ejingi village by the 2nd to 6th Defendants and farming thereon without the permission of the Plaintiff is unlawful and amounts to trespass.
4. An order to the defendants to vacate forthwith from the portion of Ejingi land which they have unlawfully entered and trespassed into.
5. An order of perpetual injunction restraining the defendants and all members of Kakpi village from further entry and trespassing into any portion of Ejingi land.
6. An order to the defendants to pay the sum of N500,000.00 to the plaintiff as general damages for trespass.
7. An order awarding substantial sum to the plaintiff as cost of litigation.

The brief facts as garnered from the printed record before this Court are that the Appellants and Respondent are neighbours, with a boundary at a place called Gushe Makundunu which was settled as per the judgment of the Court in Suit No. NSHC/LP/38/2011 which was affirmed on appeal in Appeal No. CA/A/172/2013. Part of the grouse of the Appellants is that, the Respondent herein testified as the DW4 in the said suit, did not apply to be joined as an interested party rather instituted a fresh action Suit No. NSHC/LP/5/2019 to re-establish the boundary between the Ejingi and Kakpi Community and relied on the processes and judgment in Suit No. NSHC/LP/38/2011.

According to the Respondent, some of the Appellants some years ago crossed the known boundary unto the Respondent’s community land started farming and refused to leave even after they were told to leave and rather claimed the portion as theirs. The Respondent in order to settle the issue of boundary commenced the suit at the Court below which has emanated into the instant appeal. The Appellants denied any boundary with the Respondent community and claimed the land as theirs. Consequently, the Respondent sought the intervention of the Court. As already stated, the Court found in favour of the Respondent and being aggrieved the Appellants filed their Notice and Grounds of Appeal dated January 21st, 2021.

In compliance with the Rules of this Court, parties filed and exchanged their briefs of argument. Mr. J.G. Taidi Esq., who urged that the appeal be allowed settled the Appellants’ brief which was dated April 1st, 2021 and filed April 30th, 2021 as well as the Reply brief, dated July 19th, 2021 and filed July 23rd, 2021. The Respondent’s brief dated 3rd June, 2021 was filed June 17th, 2021 and was settled by Mr. Anthony Orifunmishe Esq., who urged that the appeal be dismissed.

RELIEF BEING SOUGHT BY THE APPELLANTS
An order allowing the appeal and dismissing Suit No. NSHC/LP/5/2019.

NOTICE OF PRELIMINARY OBJECTION
It is necessary at this point to consider the Notice of Preliminary Objection filed June 17th, 2021 for the appeal to be struck out on the grounds as hereunder listed:
i. The decisions of the trial Court being appealed against are interlocutory rulings/decisions delivered on 21st January, 2021.
ii. All the grounds of appeal are mixed law and facts.
iii. Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 as amended and Section 24 of the Court of Appeal Act 2004, mandate the Appellants to obtain the leave of the trial High Court or the Court of Appeal to appeal the rulings.
iv. The Appellants did not seek or obtain leave from the High Court or the Court of or (sic) appeal before or after filing the Notice of Appeal on 25th January, 2021.
v. The grounds of appeal are not valid grounds of appeal, as they did not challenge the ratio decidendi of the rulings/decisions of the trial High Court.
vi. The appeal is not competent.
vii. The Court of appeal lacks jurisdiction to hear and determine the appeal.

In reaction to the Respondent’s objection, the Appellants on July 23rd, 2021 filed counter-affidavit of Six (6) paragraphs of even date.

The contention of the Respondent in the main is that the three (3) grounds of appeal contained in the Notice of Appeal were based on two separate interlocutory rulings of the trial High Court delivered on 21st January, 2021. That none of the grounds touched on the main judgment of the Court delivered the same day.

It is in the light of the Respondent’s contention that the three (3) grounds of appeal without the particulars are set out hereunder for ease of reference and appreciation of their contents as follows:
GROUND 1
The trial Court was in breach of Appellants’ right to fair hearing when it struck out the reply on points of law to the Respondent’s final address.
GROUND 2
The trial Court erred in law when it failed to consider the issue of Estoppel by Standing by raised by the Appellants.
GROUND 3
The trial Court erred in law when it set aside the boundary already established at Gushe Makundunu in favour of (sic) the Appellants in Suit No. NSHC/LP/38/2011 and affirmed by the Court of Appeal in Appeal No. CA/A/172/2013.

I have very carefully considered the arguments of both parties for and against the objection as well as the foregoing grounds of objection as raised by the Respondent and having so carefully done, one is unable to agree that this appeal is incompetent.

A ground of appeal is valid where it states the particulars of errors or misdirection in law, not vague and in general terms, not hypothetical, speculative or academic. It must challenge the ratio decidendi, be related to the decision appealed against and the orders of the Court and not the reasons given in making the orders. See the cases of CBN V. OKOJIE 2002 8 NWLR PT. 768 48, ORJI V. DORJI TEXTILE MILLS & ORS. 2009 12 SC PT. 3 P. 73, OLIJFEAGBA V. PROF. SULAR OBA 2009 PT. 11 12 SC 1 and ADEROUNMU V. OLOWU 2000 4 NWLR PT. 652 SC 253.

The grounds in question are regular, viable and not defective in my considered view and humbly.

Still on the Respondent’s objection, it is pertinent to state the clear and firm position of the law with regard to the issue of leave to appeal. Section 241 (1) of the 1999 Constitution as amended states clearly thus: Section 241 (1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
In other words, without any ambiguity, once a decision is the final decision in respect of the suit before a High Court at first instance, it is of no moment that the issues are of facts, mixed law and facts or law. The Constitution says it is as of right to appeal as it is not an interlocutory appeal. Therefore, with regard to the judgment of the Court in respect of the Respondent’s suit, the question of leave or seeking leave to appeal does not come arise, whether the issues are of law or mixed law and facts. In consequence with respect, the submission by the learned Respondent’s Counsel cannot hold that final judgment requires leave. That being the position, the time within which to appeal would therefore be more than fourteen (14) days as opposed to the Respondent’s position.

ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
The Appellants submitted the following two (2) issues:
1. Whether the trial Court did not breach and violate the Appellants’ right to fair hearing when it struck out their Reply on Points of Law and therefore refused to consider the Legal Arguments therein (Ground 1).
2. Whether the trial Court was right when it refused to judicially take notice of the boundary already established at Gushe Makundunu in favour of the Appellants in suit no. NSHC/LP/38/2011 and affirmed by the Court of Appeal in Appeal No. CA/A/172/203 (Grounds 2 & 3).
The Respondent also submitted two (2) issues as follows:
i. Whether the striking out of the Appellants’ reply on points of law to the Respondent’s final written address for being in violation of the rules amounts to breach of the appellants (sic) right to fair hearing.
ii. Whether the boundary between the appellants’ community and the respondent’s community was an issue in suit NSHC/LP/38/2011 and established in that suit as to preclude the trial High Court from adjudicating on this suit.

I shall adopt the issues by the Appellants satisfied that they will fairly and justly determine this appeal.

APPELLANTS’ SUBMISSION
The learned Counsel for the Appellants submitted that the Appellants’ rights to fair hearing was violated by the Court below when it refused to follow the laid down principles of law in dealing with the Appellants’ reply on points of law and the judgment therefore cannot stand. In support, he cited the cases of OKALI & ANOR V. OKALI & ANOR 2017 LPELR- 42838 CA, ZENITH PLASTICS INDUSTRIES LTD. V. SAMOTECH LTD. 2018 LPELR-44056 CA. He submitted further that the Court should have only disregarded the said reply and left it in its file when it found that the reply was incompetent and cited in support the case of BELLO V. COP 2019 LPELR-48057. That, the Court’s action was far reaching, defied known principles of law and occasioned miscarriage of justice on the Appellants.

He argued that the decisions in Suit No. NSHC/LP/38/2011 and Appeal No. CA/A/172/2013 defined the boundary between the Appellants and the Respondent. That since the Respondent testified on behalf of Kakpi village as DW4 in Suit No. NSHC/LP/38/2011 and failed to apply to join therein as an interested party, he was estopped from re-litigating same issue as it will constitute an abuse of the process of the Court. Further that the Court below cannot sit on appeal over afore stated decisions and cited the cases of SALAMI V. WEMA BANK NIG. PLC. & ORS 2009 LPELR 8875 CA and AGWASIM V. OJOCHIE 2004 10 NWLR PT. 882 613. He argued further that since the issue of estoppel by standing by is a jurisdictional one, it can be raised at any stage. The learned Appellants’ Counsel submitted that the Respondent should not be allowed to deviate from his evidence in Exhibit P2 in Suit No. NSHC/LP/38/2011 and with the visit to the locus in quo to give a different description to Gushe Makundunu and referred to Section 169 of the Evidence Act 2011 as amended. In support, he cited the case of KAMALU & ORS V. UMUNNA & ORS 1997 LPELR-1657 SC. He therefore urged this Court to evoke Section 15 of its Act of 2004 and cited also the case of MUDIAGA-ODJE V. YOUNES POWER SYSTEM NIG. LTD. 2013 LPELR 20306 CA.

In conclusion, he urged that the two issues be resolved in favour of the Appellants.

RESPONDENT’S SUBMISSION
The learned Counsel for the Respondent submitted that the reply said to be on point of law by the Appellants to the Respondent’s final written address was a rehash of the Appellants’ brief as it was basically of facts, not on points of law and violated Order 30 Rule 16 of the Niger State High Court Civil Procedure Rules 2018. In support, he cited the cases of ECOBANK NIG. LTD. V. ANCHORAGE LEISURES LTD. 2018 18 NWLR PT. 1651 201, AMADI V. AMADI 2011 15 NWLR PT. 1271 437 and FAYEMI V. ONI 2011 ALL FWLR PT. 554 1. The reply was overreaching, to steal a match against the Respondent and such could not be allowed as fair since the Respondent had no right of reply he submitted. He argued that the Appellants were not denied the right to file a reply, which indeed they did as they were entitled, as opposed to the submission of the Appellants that their right to file a reply was denied. That striking out the Appellants’ incompetent reply was not and could not amount to a denial of fair hearing he argued and cited in support the case of ABU V. KUYABANA 2002 FWLR PT. 99 1141. He argued further that even where the striking out was an omission on the part of the Court, it was not substantial enough to call for the judgment to be annulled and cited in support the cases of CITIZENS INTERNATIONAL BANK LTD. V. SCOA NIG. LTD. 2006 ALL FWLR PT. 323 1680, HARUNA V. UNIVERSITY OF AGRICULTURE, MAKURDI 2006 ALL FWLR PT. 304 432 and MGBENWELU V. OLUMBA 2017 ALL FWLR PT. 884 1598. And that the fact that the Appellants’ reply was not considered cannot bring about setting the judgment aside.

The learned Counsel submitted that there was no issue formulated from ground 2 of the Appellants’ grounds of appeal and therefore ground 2 be deemed as abandoned and struck out. He cited in support the cases of OKEREKE V. UMAHI 2016 ALL FWLR PT. 833 1902, ARE V. IPAYE 1986 3 NWLR PT. 29 416 and OSADOLOR V. STATE 2017 ALL FWLR PT. 895 1581. He argued that grounds 2 and 3 of the Appellants’ Notice of Appeal are different and unrelated, should have been raised separately and that the issues distilled therefrom are unrelated to the grounds and cited in support the cases of SKYE BANK PLC. V. PENBURY NIG. LTD 2016 ALL FWLR PT. 833 1882 and IKPEAZU V. OTTI 2016 ALL FWLR PT. 833 1946.

He submitted that the principle of estoppel by standing by is one of the defences that must be pleaded according to Order 15 Rule 7 (1) of the Rules of the High Court of Niger State before being raised in order to avoid a party from springing surprises at another and cited in support the cases of ADENIRAN V. ALAO 2002 FWLR PT. 90 1285, CBN V. ARIBO 2018 ALL FWLR PT. 925 93, ABUBAKAR V. TANKO 2019 3 NWLR PT. 1658 1 and OLADIMEJI V. TRANS NIG. ASS. CO. LTD. 1998 12 NWLR PT. 576 44. Therefore as the Appellants failed to plead estoppel or facts that the Respondent stood by during the suit, the defence is not maintainable, he argued. He contended that the land litigated upon by Appellants in the earlier suit is different from that in the instant appeal being claimed by the Respondent, therefore he argued that the Respondent is not re-litigating ownership of the land already decided in NSHC/LP/38/2011. That the dispute herein involves the Respondent’s Community land which the Appellants had earlier confirmed is boundary to their land in aforementioned suit which was also the effect of the testimony of the DW4 in that suit. In consequence, he submitted that the Respondent cannot be accused of standing by when the suit did not affect his interest at all and referred to Exhibits P1 and P2. The learned Counsel submitted that the boundary between Kakpi and Ejingi Communities came up in Suit NSHC/LP/38/2011 as a matter of description of the boundaries of the land claimed by Kakpi in the suit and not because the boundary between Kakpi and Ejingi was an issue therein. He submitted further that the judgment being appealed against did not review, shift or amend any boundary decided in the earlier suit or that in Appeal No. CA/A/172/2013 in the instant. In conclusion, he urged that the appeal be refused and dismissed.

THE POSITION OF THE COURT
I have very carefully read all the briefs and the record placed before this Court by the parties. I shall now proceed to consider the issues already adopted for the determination of this appeal together with the findings of the Court below. For ease of reference, the two issues shall be reproduced hereunder and be considered together.

As correctly stated by the Court, the bone of contention between the parties herein is the issue of boundary, whether or not the two communities share boundary and therefore whether or not there was or could have been any incursion or trespass unto the Respondent’s community land by the Appellants. The Appellants who belong to the Kakpi Community denied any trespass and asserted that they were merely farming on their land and for that reason refused to leave when the Respondent Community asked them to. The Respondent on the other hand claimed the farmed portion as part of the Ejingi Community, neighbor to the Kakpi Community.

Burden of proof in civil matters is on the party who asserts a fact and has to prove it. The standard of proof is preponderance of evidence or the balance of probabilities. See the cases of YAKUBU V. JAUROYEL 2005 ALL FWLR PT. 283 184, LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228 and OKUBULE V. OYAGBOLA 1990 4 NWLR PT. 147 P. 723. The onus of proof of an allegation is on the party who claims and it does not shift until he has proved his case on the preponderance of evidence. When the burden is discharged, it then shifts and continues to shift. A party is not allowed to rely on the weakness of his opponent in order to succeed. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, IHEKORONYE V. HART 2000 15 NWLR PT. 692 840 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P.65.

In a case for declaration of title, the identity of the land must be clearly established before such relief can be granted. See the case of TEMILE V. AWANI 2001 FWLR PT. 62 1937 and OTANMA V. YOUDUBAGAH 2006 2 NWLR PT. 964 337. A party who seeks a declaration of title to land has the burden to prove same.

i. By traditional evidence.

ii. By production of document of title.
iii. By acts of ownership over sufficient length of time numerous and positive enough to warrant the inference that the person is the owner.
iv. By proof of ownership of connected or adjacent land would be the true owner.
v. By acts of long possession and enjoyment of the land.

That the two warring communities own land in the area surrounding the particular point in issue was not in dispute as both communities are recognized land owners by numbers 1, 3 and 5 of the aforestated ways to prove ownership of land. The Court in its evaluation of evidence for that reason found the following facts as established between the parties:
1. The existence of Ejingi as a community and having land where it exercises authority and management is not in dispute.
2. The existence of Kakpi as a community and having land where it exercises authority and management is also not in dispute.
The argument was as regards the boundary in question and proper size and description of the disputed land.

ISSUES 1 AND 2
“Whether the trial Court did not breach and violate the Appellants’ right to fair hearing when it struck out their Reply on Points of Law and therefore refused to consider the Legal Arguments therein (Ground 1)”.
“Whether the trial Court was right when it refused to judicially take notice of the boundary already established at Gushe Makundunu in favour of the Appellants in Suit No. NSHC/LP/38/2011 and affirmed by the Court of Appeal in Appeal No. CA/A/172/203.”

A declaratory relief is essentially an equitable relief in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. It is a relief not confined to cases where there is a complete or subsisting cause of action but may be used in all cases where the Plaintiff believes he has a right. See the cases of ADIGUN V. A-G OYO STATE 1987 1 NWLR PT. 53 678, DANTATA V. MOHAMMED 2007 7 NWLR PT. 664 P. 176 and IGBOKWE V. UDOBI 1992 3 NWLR PT. 228 214.

In a case for declaration of title to land, the onus is on the plaintiff to establish his claim with credible and acceptable evidence based on the strength of his own case and not the weakness of the Defendant’s case. Therefore, the Plaintiff as the Respondent herein must satisfy the Court that upon the pleadings and evidence adduced, he is entitled to the declaration he seeks. See the case of CLIFFORD OSUJI V. NKEMJIKA EKEOCHA 2009 LPELR-2816 SC. In other words, he who asserts must prove, therefore, the Respondent who claimed ownership of the property in issue had to prove entitlement to the land by preponderance of evidence or balance of probabilities. See the cases of ITAUMA V. AKPA-IME 2000 7 SC PT. II 24 and KALA V. POTISKUM 1998 3 NWLR PT. 540 1.

The Court in the course of trial visited the locus in quo and found that both Ejingi and Kakpi villages share (sic) common boundary at a place called GIJSHE MAKIJNDIJNIJ. In its findings stated thus on page 403 of the Record:
“All the features described by the Plaintiff above were noticed at the place referred to as the boundary between Ejingi Community and Kakpi Community.”
Therefore it held as follows on pages 404-405 of the record:
“The boundary of Ejingi with Kakpi is at the place known as Gushe Makundunu (Hyena hole). The Gushe makundunu goes through Pati Ejingi (Ejingi Hill or Mountain) cutting the hill in halfs-half of the hill is on the side of Kakpi and the other half on the side of Ejingi.”

It also found from the evidence of one of the Respondent’s witnesses who testified in Suit NSHC/LP/38/2011 as DW4 for the Kakpi Community, in corroboration as he testified in the said suit that the boundary between the Ejingi and Kakpi is located at the hill. By the Appellants’ evidence, the boundary between Kakpi and Loguma/Ejingi is at Gushe Makunnudu. In addition, the Appellants averred that “the boundary stretches northwards into a valley known as Gushe Makunudu” which the Court found best suited the description of Gushe Makunudu as pleaded by the Respondent and seen during the visit to the locus in quo. See page 405 of the Record. The Court therefore held as follows on page 406 of the Record and correctly:
“l am therefore in agreement with the submission of the learned Plaintiff’s Counsel that it has proved the identity and the area of the land to which the claim relates with definite, precise and accurate boundaries known as the boundary between Ejingi Community and Kakpi community at Gushe Makunudu and I so hold.”

The Court from the evidence before it further held as follows on page 408 of the Record:
“It is the considered position of this Court that in view of the judgment in suit no. NSHC/LP/38/2011, the defendants cannot make fresh claim for the same land already declared as Kakpi land just as they cannot cross over the already declared area known as Kakpi community land i.e crossing over the boundary already established as Gushe Makunudu which is the boundary between the Plaintiff and the Defendant/counter-claimant without the authority of the Plaintiff community amounted to a trespass…”

From the foregoing, the case of the Respondent was made and established.

As regards the Appellants’ counter-claim, the Court found as in the foregoing, dismissed it and stated that “they could not make fresh claim for the same land already declared as their land just as they cannot cross over the already declared area known as Kakpi community land i.e. crossing over the boundary already established as Gushe Makundunu which is the boundary between the Plaintiff and the Defendant/Counter claimant.”
See page 408 of the record. The Court would appear also to not encourage the Appellants to re-litigate their claim when it stated as follows: “…consequently, the counter-claim in respect of the same land amounts to abuse of Court process and constitutes res judicata.”

In my respectful and humble view, it would amount therefore to mischief and tending to mislead in general if it is suggested that the Court below refused to judicially take notice of the boundary already established at Gushe Makundunu and also to suggest that the boundary earlier established would give the portion in issue in this appeal to the Appellants. The findings of the Court below herein are clear and cannot be muddled up regardless of the way or manner the Court might have expressed itself. One believes that the careful and clear manner the Court evaluated the evidence led to the conclusion it reached and correctly in my view and humbly by dismissing the Appellants’ counter-claim and granting the case of the Respondent. In evaluating the evidence before it, the Court found that the land the Kakpi Community fought for in suit no. NSHC/LP/38/2011 indeed was different from the land in dispute herein as the land herein is in respect of the boundary between the Appellants and Respondent simpliciter. See page 408 of the Record. In spite of the Appellants’ attempt to present a different picture of the boundary, Gushe Makunudu, between the parties, the Court from the visit to the locus in quo and the evidence of the parties, found and stated as follows on page 405 of the Record:
“In addition, according to Defendant/Counter claimant at Paragraph 14, “the boundary stretches northwards into a valley known as Gushe Makunudu” this best suit (sic) the description of Gushe Makunudu pleaded by the Plaintiff and shown during the visit to locus in quo.” Accordingly, it held thus in conclusion on page 415 of the Record:
“On the whole, the claims of the Plaintiff succeed” and for the Appellants thus: “Accordingly, the counter-claim by the Defendants/counter-claimants dated 3rd day of February, 2020 is hereby dismissed.”

The Appellants argued that they were denied fair hearing by the Court as it held that the reply on point of law by them was a repeat of the arguments already contained in their final written address and for that reason struck out their reply. That, it was not considered in its judgment and therefore violated the principle of natural justice and a miscarriage of justice was occasioned to them.

In response to the argument of the Appellants, the Respondent submitted that by Order 30 Rule 16 of the Rules of Procedure for the High Court of Niger State, it prescribes that in exercising the right to file a reply, the reply can only be on points of law. That, the Appellants’ reply was a re-argument of the facts of the case and there is a difference between denying the appellants right to file a reply on points of law and striking out an incompetent reply on points of law.

One agrees with the line of argument by the learned Respondent’s Counsel that there is a difference between denying the Appellants their right to file a reply on point of law and whereupon exercising that right, the Court adjudged the process as incompetent.

Fair hearing first and foremost implies that both sides or all sides be given an opportunity to present their respective cases by the Court or Tribunal. It further implies that each side should know what case is being made against it and be given an opportunity to reply thereto. No party should be allowed to take the opposite party by surprise. “It is a Constitutional provision which acts as the machinery or locomotive of justice not a spare part to propel or invigorate the case of the loser. Not a casual principle of law available to a party to be picked up at will in a case in respect of which the Courts are forced to apply to his advantage.” See the case of SABIRU ADEBAYO V. A-G OGUN STATE 2008 33 NSCQR VOL. 1 P. 25 per Niki Tobi of blessed memory. See further the cases of PDP V NGUROJE & ORS 2012 LPELR -208859 CA, ADIGUN V A-G OYO STATE 1987 1 NWLR PT. 53 678 and LAGOS SHERATON HOTEL & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION 2014 LPELR-233 40 CA.
Fair hearing lies in the procedure followed in the determination of a case and not in the correctness of a decision. An appellate Court will not save a correct decision in breach of fair hearing. See the cases of OLUFEAGBA V. ABDUL-RAHEEM 2009 40 NSCQR 684 and SAMBA PETROLEUM LTD V. UBA 2010 43 NSCQR 119. Breach of it vitiates proceedings and renders same null and void. Where denial of a party’s right is established, the proceedings will become null and of no effect.

At the Court below, the Respondent in reaction to the nature of the Appellants’ reply on points of law vide his Motion on Notice of September 11th, 2020 urged the Court to strike the reply out for violating the rules of Court. The Appellants replied. The Court after considering the application held on pages 370-371 of the record as follows:
“…I agree with the Plaintiff that the Defendants re-argued their case by adopting all the three issues formulated by the Plaintiff and re-arguing it one after another including responding to facts as if they never had the opportunity for a Final Written Address, there must be an end to litigation and addresses are meant to be a guide… Therefore, this Court is not inclined to accommodating the reopening of the argument by the defendants.”

It consequently struck the reply out. In the light of the foregoing, one is unable to find in my considered view and humbly that the Appellants were denied fair hearing. The said reply is contained on pages 202 to 214 of the record. One finds also that it was a rehash of the Appellants’ final written address the three (3) issues were re-argued as if it were the Appellants’ main address. A reply on point of law is as it is called, only on points of law. The Appellants were not expected to go to town again as if it was a fresh address and from the beginning.

In the light of the foregoing, one is unable to find any denial of the Appellants’ right to fair hearing.

On the issue of whether the Court was right when it refused to judicially take notice of the boundary already established at Gushe Makundunu in favour of the Appellants in Suit No. NSHC/LP/38/2011 and thereby affirm the decision of this Court in Appeal No. CA/A/172/203.

From the record before this Court and the findings of the Court therein, one finds that the Court properly and diligently evaluated the evidence before it and correctly found as therein. The Court was right in the way and manner it applied the evidence before it as well as the findings of the Court below which this Court affirmed in Appeal No CA/A/172/2013. As afore quoted, the Court below stated that in view of the judgment in suit NSHC/LP/38/2011, the Appellants were not allowed to make a fresh claim for the same land which had already been declared as Kakpi Community land, held that the judgment of 2011 constituted res judicata and therefore the Appellants’ counter-claim was an abuse of the process of the Court. As already stated, it will be repeated for emphasis that it would amount to mischief and tending to mislead in general if it is suggested that the Court below refused to judicially take notice of the boundary already established at Gushe Makundunu and also to suggest that the boundary earlier established would give the portion in issue in this appeal to the Appellants. The findings of the Court below herein are clear and cannot be muddled up regardless of the way or manner the Court might have expressed itself in my humble view.

In consequence, the two issues are hereby resolved against the Appellants.

In the result, this appeal cannot be allowed, it therefore fails and accordingly is hereby dismissed. The judgment of the Court below delivered on January 21st, 2021 by Hon. Justice Danladi Ahmad, is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I agree.

DANLAMI ZAMA SENCHI, J.C.A.: I am privileged to reading in draft the lead judgment of my learned brother, E.O Williams – Dawodu, JCA just delivered and I agree with the findings and conclusion arrived thereat that this appeal lacks merit and it is dismissed by me as well.

Accordingly, the judgment of the High Court of Justice, sitting in Lapai Judicial Division Niger State in suit no. NSHC/LP/5/2019 delivered on 21st day of January, 2021 by Danladi Ahmad J., is hereby affirmed.