AHMADU ALI v. AHMADU SALIHU & ORS. (2010)

AHMADU ALI v. AHMADU SALIHU & ORS.

(2010)LCN/3678(CA)

In The Court of Appeal of Nigeria

On Thursday, the 1st day of April, 2010

CA/A/242/2008

RATIO

ACTION: MEANING OF A COUNTER-CLAIM

The law is clear concerning the status/nature of a counter-claim. It is that a counter-claim is a separate and independent action which must be instituted in accordance with the rules of the court. See OGLI OKO MEMORIAL FARMS LTD & ANOR V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD & ANOR 2008,112 NWLR (Pt. 1098) 412 at 428. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

COUNTER-CLAIM: NATURE OF A COUNTER-CLAIM

See the case of FIRST BANK OF NIGERIA PLC V. FAIKO NIG. LTD [2008] All FWLR (ft. 416) 1960 at 1971 -1972 where this Court per Alagoa, J.C.A.; said thus:-

“Perhaps, the first point that should be made with respect to this issue is that a counter-claim is a separate, independent and distinct action by itself and does not lean on the statement of defence for support or sustenance even though it is filed along with the statement of defence. It is equal to and not subservient to the main suit and as such, must comply fully with the law with regard to pleadings. The implication of this is that material facts which by law are expected to be pleaded in a statement of claim or statement of defence as the case may be or relevant particulars which ought by law to be supplied in a normal pleading…must of necessity be pleaded in a counter-claim before evidence can be led on those facts. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

ACTION: PURPOSE OF FILING A REPLY TO A STATEMENT OF DEFENCE

The purpose of filing of a reply to a statement of defence has been succinctly stated by Kawu, J.S.C; in the case of AKEREDOLU V. AKINREMI (1989) 3 NWLR (Pt. 108) 164 at page 172 as follows: –

“Now, the rule of practice is that where no counter claim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. The proper function of reply is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of facts not arising out of the defence – Bullen & Leake and Jacob’s Precedents of Pleadings, 12th Edition, p. 107. (Also see Williamson v. London & North Western Rly. Company (1879) 12 Ch.D 787 at 794). Reply is the proper place for meeting the defence by confession and avoidance – Hall v. Eve (1876) 4 Ch.D 341”. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS EMBARKING ON EVALUATION OF EVIDENCE

The law is settled as to when an appellate court can properly embark on evaluation of evidence. An appellate court is competent to do this when a trial Judge abdicates the sacred duty of evaluation of evidence and approbation of weight thereto, or when he demonstrates that he had not taken proper advantage of his having heard and seen a witness testify. In such a situation an appellate court is in as good a position as the trial court to evaluate the evidence provided the exercise does not involve the credibility of the witnesses who testified at the trial. See FAGBENRO V. AROBADI & ORS (2006) All FWLR (Pt.310) 1575. The lower court has not abdicated its duty to evaluate and ascribe credibility or weight to the evidence adduced before it in the instant case. This Court can only competently interfere with the findings of fact made by the lower court upon the establishment of a perversion in the performance by the said court of its duty in the evaluation and approbation of weight to the evidence before it. See BENJAMIN V. KALIO (2006) All FWLR (Pt. 340) 1064. In other words where there is a proper evaluation of evidence in the sense that every material finding is supported by the totality of evidence on record, an appellate court has no business to embark on a re-appraisal of the evidence in order to arrive at a different conclusion. See ONISAODU & ANOR V. ELEWUJU & ANOR (2006) 1 All FWLR (Pt. 328) 676. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

AYOBODE LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

AHMADU ALI
(For himself and on behalf of Members of Banda Community) Appellant(s)

AND

1. AHMADU SALIHU
2. GARUBA UMORU
(For and on behalf of themselves and Members of Esikaku Community)
3. MALLAM SHAIBU HASSAN )
Village Head of Odama Community for and on behalf of himself and members of Odama Community Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 20/3/2008 by the High Court of Kogi State presided over by Honourable Justice Tom Yakubu. The High Court of Kogi State will hereinafter be imply referred to as ‘the lower court’. The lower court in its said judgment dismissed the claims of the Claimant and granted the counter-claim of the Defendants in part.
The Claimant commenced the instant action against the Defendants by a writ of summons dated 31/1/2007 and which was filed on the same day. The endorsements on the said writ of summons read thus:-
“The Claimant as the village head of Banda village in Oworo District of Lokoja Local Government Area of Kogi State claims for and on behalf of him (sic) and as representing members of Banda village, the owner (sic) of a piece of land known, called and referred to as Okumi, which land is situate, lying and being within Oworo District of Lokoja Local Government Area of Kogi State. The 1st and 2nd defendants are farmers from Esikaku village who have trespassed unto the said Okumi land by farming on same without prior consent of the Banda village who is the owner of the land. The 3rd defendant is the village head of Odama Community and is sued for and on behalf of himself and members of Odama village because when 1st and 2nd defendants who are sued on behalf of themselves and members of Esikaku village were confronted by the Claimant, they averred and alleged that it was the 3rd defendant that gave them the land on which they were farming which land does not belong to the 3rd defendant but to the Claimant. The land is situate at a place along Lokoja – Abuja road and is within the 16 kilometers from Lokoja Post Office: the land has five ponds on it and was founded by a Banda’s ancestor called Ometa and the land has since time immemorial belonged to and controlled by Banda village exclusively until recently, when the 1st and 2nd defendants trespassed to the land at the instance of the 3rd defendant and the 3rd defendant is even claiming ownership of the land.
WHEREOF the Claimant claims as follows:
1. A declaration that the Claimant is the one entitled to a Statutory Right of Occupancy over the said parcel of land known as ‘OKUMI’ with the five ponds thereon and ail appurtenances, thereto.
2. An order of perpetual injunction restraining the defendants, their servants, privies, agents, workmen, tenants and anybody claiming through them from further trespassing to the said land or in any way whatsoever interfering with the Claimant’s title, interest, right, use and enjoyment of the land, the ponds thereon and all appurtenances thereto”
The case set up in the Statement of Claim by the Claimant in support of the reliefs being claimed is to the effect that the land in dispute was founded by Banda’s ancestor called and known as Ometa who was a native of Banda and a farmer as well as a hunter. Ometa was said to have moved from Banda and disvirgined the land in dispute called Okumi and settled thereon exercising control over the land without challenge, let or hindrance from anyone. The Claimant traced the line of successors in title to the land in dispute from Ometa to himself and said that he had been in charge of the said land since 1985. The uses to which the land in dispute and the ponds thereon are being put to were stated. The Claimant described the land in dispute as being along Lokoja – Abuja road and at a place called Kuroko and that the said land is within 16 kilometres of the Lokoja Post Office. The land, it was further stated is about 3 kilometres wide and 4 kilometres long and located on the right hand side if one is going to Abuja from Lokoja, and the boundaries of the land were set out. The Claimant said that, when he first saw the 1st and 2nd Defendants on the land, he sued them before the Area Court Grade 1 Lokoja as they disputed his right thereto. When the said court became defunct, the case was transferred to the Upper Area Court II Lokoja for adjudication. It was in this court that it was discovered that the land is in an urban area and that the Upper Area Court has no jurisdiction to entertain the case; hence the institution of the instant case before the lower court.
The Defendants filed a Joint Statement of Defence. Therein the 1st and 2nd Defendants denied being representatives of Esikaku Community in this action. They claimed to be tenants of the 3rd Defendant on the land in dispute. The 3rd Defendant on his part claimed that the land in dispute is an island (Eda) known as Ebu-gabi belonging to the Odama Community from time immemorial. It is the case of the Defendants that the land in dispute was founded by Agabi. The Defendants pleaded how Agabi came to found the said land. They also pleaded the various names by which the land in dispute is known or called. The line of successors in title from Agabi to Shaibu Hassan (i.e. 3rd Defendant) the present village head who ascended the throne of Odama and Ebu-gabi 47 years ago was pleaded. The land in dispute according to the Defendants is about 5 kilometres long and 3 kilometres wide and the boundaries were set out. The defendants said that no one has effectively challenged the ownership of the land in dispute by the Odama Community from time immemorial save the Claimant and his community members who have been trespassing thereon. The Defendants having averred in paragraph 21 of the Statement of Defence thus:-
‘WHEREOF the Defendant (sic) prays that the suit be dismissed as frivolous and baseless’: proceeded to counter-claim thus: –
COUNTERCLAIM
i) A DECLARATION that the Odama Community are the customary owners and are entitled to the Customary Right of Occupancy of Ebugabi land together with all the fish ponds thereof situate and lying at Ebugabi in Kogi L.G.A. of Kogi State bounded in the North by Ikumo Community land, in the SOUTH with Ogbangede Community land, in the East with ESIKAKU Community land and in the WEST with Banda Community.
ii) N500,000.00 as damages for trespass.
iii) Perpetual injunction restraining the claimant either by himself, agents, servants or privies from further trespassing, alienating or interfering in any manner howsoever with the Defendant’s (sic) ownership of the land.”
The claimant adduced evidence in the proof of his case through 4 witnesses while the Defendants adduced evidence in the proof of the case they set up in their Joint Statement of Defence through 7 witnesses. After considering the pleadings of the parties, and the evidence adduced by the parties in the proof of their respective cases, the lower court in its judgment at pages 121 – 142 of the Record of Appeal dismissed the case of the Claimant and granted relief (i) and (iii) of the Defendants’ counter-claim. Relief (ii) of the counter-claim was refused as there was no iota of evidence adduced in its proof.
The Claimant who will hereinafter be referred to as ‘the Appellant’ being dissatisfied with the judgment of the lower court lodged an appeal against the whole of the said judgment by a Notice of Appeal dated 2/6/2008 and filed on 5/6/2008. The Notice of Appeal contains seven grounds of appeal and the said grounds shorn of their respective particulars read thus:-
“GROUND ONE
The learned trial judge erred in law when in his judgment the judge held that the counter claim of the Respondents herein succeeded when the counter-claim had no pleading upon which it was based.
GROUND TWO
The learned trial judge erred in law when in his judgment aforesaid the judge held that the paragraph 1 of the reliefs of the counter claimant who are respondents herein succeeded, wherein the respondents were claiming entitlement to customary right of occupancy which cannot be granted in law over land situated in urban area.
GROUND THREE
The learned trial Judge erred in law when in his Judgment the Judge held that Okumi land and Ebugabi land are the same when this was not borne out by the evidence before the Judge.
GROUND FOUR
The learned trial Judge erred in law when in his Judgment the judge held that the claims of the claimant, the appellant herein failed because he did not file a reply to the statement of defence to dispute the fact as to whether the land is an island or not.
GROUND FIVE
The learned trial Judge erred in law when in his Judgment the Judge rejected the traditional history of the appellant when same was neither controverted, contradicted nor impeached.
GROUND SIX
The learned trial Judge erred in law when he held that the traditional evidence of the appellant was not established using the doctrine of evidence against interest when same was not applicable in favour of the respondents.
GROUND SEVEN
The whole Judgment is against the weight of evidence.”
In compliance with the Rules of this Court, parties duly filed and exchanged briefs of argument. Appellant’s brief of argument dated 10/9/2008 and filed on 11/9/2008 was settled by Sam Owoyomi Esq. while Respondents’ brief of argument dated 28/10/2008 and filed on the same day was settled by J. O. Ajewole Esq. The appeal was entertained on 21/1/2010 and both learned lead counsel for the Appellant – Sam Owoyomi and learned counsel for the Respondents R.O. Oianiyi relied upon and adopted the briefs of argument they filed on behalf of their respective clients in arguing the appeal.
The Appellant formulated five issues for the determination of the appeal in his brief of argument. The Issues are: –
1. Whether the learned trial Judge was right when he held that the counter-claim of the respondent herein succeeded despite the defects therein. (Grounds 1 and 2 of the grounds of appeal).
2. Was the learned trial Judge correct when he held that both Okumi and Edugabi lands are the same when the holden was not borne out by evidence. (Ground 3 of the grounds of appeal).
3. Was the learned trial Judge correct when he refused the claims of the Appellant for failing to file a reply when a reply was unnecessary. (Ground 4 of the grounds of appeal).
4. Whether the learned trial Judge was right in rejecting the traditional history of the Appellant in view of the state of evidence before him and the position of the law on admission against interest.
5. Was the learned trial Judge right in his assessment and evaluation of the evidence before him. {Ground 7 of the grounds of appeal – the omnibus ground}.
The Respondents in their brief of argument equally formulated five Issues for the determination of the appeal. The Issues are: –
i) Whether the facts pleaded and proved by the Respondents can sustain the counter-claim as found by the learned trial Judge. (Grounds 1 and 2 of the grounds of appeal),
ii) Whether Okumi land and Ebugabi land are the same. (Ground 3 of the grounds of appeal),
iii) What is the effect of the Appellant’s failure to file a reply to the Respondents’ counter-claim. Ground 4 of the grounds of appeal)
iv) Whether the Appellant proved his case by traditional evidence. (Grounds 4 and 5 of the grounds of appeal),
v) Whether the trial court correctly evaluated the evidence of the parties. (Ground 7 of the grounds of appeal).
The appeal will be decided upon the Issues formulated by the Appellant as the said Issues clearly actuate the complaints of the Appellant. However related Issues or Issues which dovetail into one another will be dealt with together.
APPELLANT’S ISSUES 1 AND 3
Dwelling on Issue 1, the Appellant submitted to the effect that the lower court was wrong to have granted the Respondents’ reliefs Nos. 1 and 2 (sic) in their counter-claim because the counter-claim has no pleaded facts as its foundation. That all the counter-claim contains are three reliefs. The Appellant submitted that, it is trite law that a counter-claim is a separate and distinct action from that of the case of a claimant. That this being so, a counter-claim must be properly constituted. The Appellant submitted to the effect that the Statement of Defence in the instant case merely defended his claims. That the Respondents in setting up their own new and distinct claims must plead facts in the new case before their reliefs can be considered and that the Respondents failed to do this. The cases of Jeric Nigeria Ltd v. Union Bank (2000) 12 SCNJ 184; and Marindex Trust Ltd v, NIMB (2001) 4 SCNJ 208 were cited in aid. The lower court was accused of trying to build a superstructure where there was no structure, or trying to build something out of nothing by granting the counter-claim.
It is also the submission of the Appellant that the lower court was wrong to have granted relief No. 1 in the counter-claim. The relief is for a declaration to a Customary Right of Occupancy over a parcel of land called Ebugabi which the Respondents agreed is located in an urban area of Kogi State. This is because the only right of occupancy grantable in respect of land in a designated urban area is a Statutory Right of Occupancy. That, the Customary Right of Occupancy claimed by the Respondents can only be granted in respect of land in a non-urban area. The lower court was accused of not appreciating this valid and fundamental difference with distinct incidences and that if it had, it should have rejected relief No. 1 in the counter-claim. Reliance was placed on sections 5 and 6 of the Land Use Act Cap. 202 LFN 1990; which created both statutory and customary rights of occupancy and which rights of occupancy, the Appellant submitted, are not interchangeable.
Dwelling on Issue 3, the Appellant having referred to the finding of the lower court to wit: “… I am satisfied that the counter claim has no defence against it…” posed the question as to where the facts in the counterclaim against which the lower court was expecting a defence are. The Appellant also referred to what the lower court said to wit;… and what is even worse, the claimant did not deem it expedient, as he ought to have done, in my mind, to have filed a reply to the defendants’ statement of defence, in order to dispute the land in dispute being an island or not, and submitted that whether the land is an island or not was not the issue before the court. That nobody disputed whether or not the land is an island. The Appellant not only said that the lower court was in error in using this misconception to refuse his claims, but also that it shows that the lower court did not understand his case and the location of the land. That the lower court in the circumstances should have visited the land, but this it did not do, and on the contrary was finding faults where there were none. It is the submission of the Appellant that no new or strange issues were raised in the Statement of Defence that required the filing of a reply. The Appellant said that, it is trite law that a reply is not always necessary and that one was not necessary in the instant case.
Dwelling on Appellant’s Issue 1, the Respondents said that a counter claim is an independent action which can be taken together with the main action. That it is a cross action which for convenience and speed is usually joined with the defence of the defendant and the cases of NAL Merchant Bank v. Onu (2001) FWLR (Pt. 33) 245; and Usman v. Garke (2003) FWLR (Pt. 177) 815 at 833 were cited in aid. The Respondents said that the heart of the Appellant’s complaint is that no facts were pleaded as the foundation of their counter-claim. It is the submission of the Respondents that sufficient facts were pleaded in support of the counter-claim in the Statement of Defence. The Respondents submitted that it is not the position of the law that separate pleading christened ‘statement of counter-claim’ has to be filed in proof of a counter-claim. That it is sufficient, if facts contained in the statement of defence and proved before the court can sustain the counter-claim. That the lower court so found this to be the case in the instant suit.
Dwelling on relief No. 1 in the counter-claim granted by the lower court, the Respondents said to the effect that though the Appellant pleaded in paragraphs 1, 9 and 12 of the Statement of Claim that the land in dispute is a village within 16 kilometres of the Lokoja Post Office, they however denied this in paragraphs 1 and 2 of the Statement of Defence and averred that the said land is an island owned by Odama Community. This piece of evidence according to the Respondent was not controverted. It is the submission of the Respondents that whether or not the land in dispute falls with an urban area as designed by the Land Use (Designation of Lokoja Metropolitan Area) Order, 1991 as contained in Volume 2 at page B16 of the Laws of Kogi State of Nigeria 1991, to qualify for Statutory Right of Occupancy, is a matter of evidence and that no evidence was adduced before the lower court in this regard. The Respondents submitted that a court is circumscribed by the evidence before it and urged this Court to hold that the lower court was right in granting reliefs Nos. 1 and 2 (sic) in the counter-claim.
Dwelling on Appellant’s Issue 3, the Respondents said that it is common ground that the Appellant did not file a reply to their counter-claim and this, the lower court so found. The Respondents stated the law to be that once a counter-claim is filed and served, the claimant is expected to file his defence in his reply and that where no defence is filed; the facts averred in the counter-claim are regarded as admitted. The case of Akhigbe v. Paulosa Nig Ltd (2006) 12 NWLR (Pt. 944) 373 at 383 was cited in aid. The case of Maidara v. Halilu (2000) FWLR (Pt. 19) 433 at 447 was cited as deciding that a court has the discretion to either enter judgment in favour of a counter claimant at his instance in default of pleadings, or in the alternative call upon the counter claimant to prove his case with minimal evidence; but that when the counter-claim includes a declaratory relief, the counter claimant has to satisfy the court that he is entitled to the same regardless of the failure of the claimant to file a defence and the case of Mohammed v. Nwobodo (2000) FWLR (Pt. 15) 2546 at 2568 was cited in aid. It is the submission of the Respondents that although the Appellant did not file a reply to the counter claim, they still went ahead to prove their counter-claim through their witnesses and that the lower court found the said counter-claim proved.
Appellant’s Issues 1 and 3 deal with the Respondents’ counter-claim and in respect of which the lower court granted reliefs Nos. 1 and 3 claimed therein and not reliefs Nos. 1 and 2 as stated in the briefs of argument of the parties.
The law is clear concerning the status/nature of a counter-claim. It is that a counter-claim is a separate and independent action which must be instituted in accordance with the rules of the court. See OGLI OKO MEMORIAL FARMS LTD & ANOR V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD & ANOR 2008,112 NWLR (Pt. 1098) 412 at 428. In this case, it was held amongst others that a counter-claim in respect of which filing fees was not paid, was not properly before the court and that no defence could be filed to such a non-existent counter-claim. See also the case of DABUP V. KOLO (1993) 12 SCNJ 1, where it was held amongst others that a counter-claim is a cross action and that it is equally affected by the rules of pleadings; and the case of FALOMO V. ONAKANMI (2006) All FWLR (Pt. 298) 1242.
In the instant case, the Respondents’ Joint Statement of Defence is at pages 26 – 29 of the Record of Appeal. The process contains 21 paragraphs. In its paragraph 21 the Respondents averred thus:-
11
“WHEREOF the Defendant (sic) prays that the suit be dismissed as frivolous and baseless.”
And immediately following this averment is:-
COUNTER-CLAIM
i) A DECLARATION that the Odama Community are the customary owners and are entitled to the Customary Right of Occupancy of Ebugabi land together with ail the fish ponds thereof situate and lying at Ebugabi in Kogi LGA of Kogi State bounded in the North by Ikumo Community land, in the SOUTH with Ogbangede Community land, in the East with ESIKAKU Community land and in the WEST with Banda Community.
ii) N500,000.00 as damages for trespass.
iii) Perpetual injunction restraining the claimant either by himself, agents, servants or privies from further trespassing, alienating or interfering in any manner howsoever with the Defendant’s (sic) ownership of the land.”

The action of the Appellant was instituted by the filing of a writ of summons and Statement of Claim. This mode of commencement of action is clearly one of the various modes permitted by the Civil Procedure Rules of the High Court of Kogi State. The filing of a counter-claim by the Respondents in the action of the Appellant does not derogate from the fact that the Respondents’ counter-claim is a separate and independent action. The Respondents’ counter-claim being a separate and independent action must therefore not only be instituted in accordance with the rules of court but also must comply with the rules of pleadings. In order words just as the Appellant’s action (in which the counter-claim was filed) had facts averred to in the Statement of Claim as its foundation, the Respondents’ counter-claim also must have facts upon which the reliefs sought in the counter-claim are predicated. It is in fulfillment of this requirement of pleadings that that a defendant who decides to file a counter-claim in the action of a plaintiff, incorporates the averments in his statement of defence by reference as the facts he relies upon to sustain the reliefs being claimed in the counter-claim. Of course such a defendant is at liberty to aver additional or further facts to the facts contained in the statement of defence that have been incorporated by reference into the counter-claim. Indeed in law, nothing stops the party counter-claiming from re-producing all the averments in the statement of defence as the averments he relies upon to sustain the counter-claim instead of incorporating the same by reference.
It is clear on the face of the Joint Statement of Defence filed by the Respondents in the instant action that they did not plead any fact or facts as the basis or foundation of the reliefs set out under the title or heading ‘Counter Claim’ therein contained. There is also nothing in the said Joint Statement of Defence remotely suggesting that the Respondents incorporated the averments or any of the averments set out in therein, as averments they relied upon to sustain the reliefs set out under the title or heading ‘Counter Claim’ contained in the said Joint Statement of Defence. In the circumstances the counter-claim of the Respondents which is a separate and independent action from that of the Appellant, was glaringly filed in total disregard of the rules of pleadings and I hold it (i.e. the Respondents’ counter-claim) to be no more than a purported counter-claim in respect of which no evidence could be said to have been adduced by the Respondents to sustain the reliefs claimed therein. This is because it is trite law that evidence to sustain the claims/reliefs in a civil case must be in line with the facts pleaded in relation to the said claims/reliefs. Where the reliefs sought in a counter-claim are not predicated on any pleaded facts as in the instant counter-claim of the Respondents, it therefore cannot be argued by any stretch of imagination that evidence was adduced in aid or in line with any such unpleaded fact or facts. See the case of FIRST BANK OF NIGERIA PLC V. FAIKO NIG. LTD [2008] All FWLR (ft. 416) 1960 at 1971 -1972 where this Court per Alagoa, J.C.A.; said thus:-
“Perhaps, the first point that should be made with respect to this issue is that a counter-claim is a separate, independent and distinct action by itself and does not lean on the statement of defence for support or sustenance even though it is filed along with the statement of defence. It is equal to and not subservient to the main suit and as such, must comply fully with the law with regard to pleadings. The implication of this is that material facts which by law are expected to be pleaded in a statement of claim or statement of defence as the case may be or relevant particulars which ought by law to be supplied in a normal pleading…must of necessity be pleaded in a counter-claim before evidence can be led on those facts. All too often, it is observable that, a statement of defence consists of quite a good number of paragraphs that are carefully couched and tailored to meet all the requirements of pleadings while a counter-claim filed along with it consists of only a few paragraphs that are lacking in depth in the quite erroneous belief that the statement of defence is there to provide for any short fall in the counter-claim. Even though it is the law as in Fayemi v. Olorunfunmi (supra) that a defendant who has filed a counter-claim and enters into defence to rebut the plaintiff’s claim can also prove his counter-claim in the process, all material facts and particulars relied upon in such proof must also be stated in the counterclaim, otherwise they go to no issue in the proof of the counter claim…”
In the instant counter-claim of the Respondents, they did not plead any facts at all that they relied upon to sustain the reliefs set out therein talk less of their relying on their Joint Statement of Defence to provide for any short fall in the facts pleaded in the counter-claim. The lower court was therefore wrong to have granted reliefs Nos. 1 and 3 in the counter-claim as all the three reliefs claimed in the counter-claim were not predicated on any pleaded fact or facts talk less of any evidence being adduced in relation to such unpleaded fact or facts.
In granting the counter-claim, the lower court at page 141 of the Record of Appeal said thus: –
“I have considered Issue B dealing with the Defendants’ Counter claim. Mr. Ajewole contended that the same has been proved whilst the learned Counsel to the Claimant – Mr. Owoyomi, contended that the Counter-Claim has no merits. Upon a careful consideration of the pleadings of the defendants and evidence led for them by the DW1, DW2, DW3, DW4, DW5, DW6 and DW7 whom I believe as witnesses of truth, I am satisfied that the Counter-Claim has no defence against it and what is worse, the Claimant did not deem it expedient as he ought to have done, in my mind, to have filed a Reply to the defendants’ Statement of Defence, in order to dispute the fand in dispute being an island or not. I am satisfied that on a minimal of proof, the Counter claim has merits…”
The law is no doubt settled that a reply is not filed to a statement of defence as of course. Further pleading by way of reply is to be filed for the purpose of bringing parties to an issue. It is not necessary for a plaintiff to file a reply if the only purpose to be so achieved is to deny any of the allegations the defendant may have made in the statement of defence. This is because if no reply is filed, all the material allegations/facts in the statement of defence are in issue. A reply to merely join issues is therefore not permissible. See paragraph 18.06 of the Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria by T.A. Aguda. The purpose of filing of a reply to a statement of defence has been succinctly stated by Kawu, J.S.C; in the case of AKEREDOLU V. AKINREMI (1989) 3 NWLR (Pt. 108) 164 at page 172 as follows: –
“Now, the rule of practice is that where no counter claim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defence. The proper function of reply is to raise, in answer to the defence, any matters which must be specifically pleaded, which make the defence not maintainable or which otherwise might take the defence by surprise or which raise issues of facts not arising out of the defence – Bullen & Leake and Jacob’s Precedents of Pleadings, 12th Edition, p. 107. (Also see Williamson v. London & North Western Rly. Company (1879) 12 Ch.D 787 at 794). Reply is the proper place for meeting the defence by confession and avoidance – Hall v. Eve (1876) 4 Ch.D 341″.
In the light of the above, it is clear that the lower court misapprehended the purpose of a reply when it said to the effect that there was need for the same so that the Appellant could dispute whether or not the land in dispute is an island. In the same vein the lower court was in serious misapprehension of the state of pleadings in the main case (i.e. the Appellant’s case) and the purported counter-claim of the Respondents when it said to the effect that the counter-claim had no defence. The counter-claim itself having not been predicated on any pleaded fact or facts could not have a defence. See again the case of OGLI OKO MEMORIAL FARMS LTD & ANOR V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD & ANOR (supra).
The Appellant has also specifically attacked the granting of relief No. 1 in the counter-claim by the lower court. It is the submission of the Appellant that the lower court was wrong in granting the said relief.
The first of the Appellant’s claims/reliefs is for a declaration of his entitlement to the Statutory Right of Occupancy over the land in dispute. In paragraphs 12 and 13 of the Statement of Claim, the Appellant gave the description of the land in dispute as well as its location and averred to the effect that is within 16 kilometres of the Lokoja Post Office. Four witnesses gave evidence in the proof of the Appellant’s case. PW1 adopted his written statement that was attached to the Statement of Claim as his evidence in the case. In paragraph 6 of the written statement the witness adopted as his evidence, it is stated amongst others to the effect that the land in dispute is within 16 kilometres of the Lokoja Post Office. PW1 was cross-examined. This aspect of his evidence was not challenged at all under cross-examination.
In their brief of argument, the Respondents said to the effect that they denied that the land in dispute is within 16 kilometres of the Lokoja Post Office. This they claimed to have done by paragraphs 2 and 4 of their Joint Statement of Defence. The averments in these paragraphs read thus: –
Paragraph 2
The Defendants denies (sic) paragraphs 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 of the statement of claim and puts the claimant to the strictest proof thereof.
Paragraph 4
The 3rd Defendant in answer to the Claimant’s claim states that the land in dispute is an island (Eda) belonging to the Odama Community from time immemorial known as Ebu-gabi.”
I cannot but say that I do not see how it can be said by any stretch of imagination that the averment in paragraph 4 of the Respondents’ Joint Statement of Defence re-produced above constitutes a denial of the averment of the Appellant to the effect that the land in dispute is within 16 kilometres of the Lokoja Post Office. At the same time, it is my considered view that the averment in paragraph 2 of the aforementioned Joint Statement of Defence does not constitute a sufficient denial or in any way controvert the averment of the Appellant that the land in dispute is within 16 kilometres of the Lokoja Post Office. In this regard see the case of UNION BANK OF NIGERIA PLC V. OKPARA CHIMAEZE [2007] All FWLR (Pt. 364) 303, where this Court held amongst other that a denial in a statement of defence that the defendant denies a paragraph in the statement of claim and puts the plaintiff to the strictest proof thereof amounts to insufficient denial or insufficient traverse to put the matter in issue. It would therefore appear that the Respondents did not traverse the averment of the Appellant that the land in dispute is within 16 kilometres of the Lokoja Post Office sufficiently to put the matter in issue. In any case the Respondents never pleaded any fact concerning the location of the land in dispute as being in a non-urban area or facts from which the same is inferable talk less of adducing evidence in that regard.
Aside from what has been said above, the lower court in its judgment found that the land being claimed by the Appellant and the land the Respondents also call their own, is one and the same even though they are known by different names. The implication of this finding is that the land in dispute is within 16 kilometres of Lokoja Post Office as pleaded by the Appellant and in respect of which evidence was adduced. This is against the backdrop: (i) that the evidence of PW1 to the effect that land which he claims is within 16 kilometres of the Lokoja Post Office was not challenged at all under cross-examination; and (ii) that the Respondents never controverted the averment of the Appellant that the land which he claims, is within 16 kilometres of the Lokoja Post Office. It is not in doubt that, it is in respect of this very parcel of land in dispute between the parties that the lower court granted the Respondents Customary Right of Occupancy. This is glaringly wrong, because Customary Right of Occupancy can only be granted in respect of land in non-designated urban areas. In the circumstances the granting of relief No.1 in the counter-claim is manifestly wrong as it is in violation of the provisions of Sections 5 and 6 of the Land Use Act, Cap. 203, LFN 1990 relating to Rights of Occupancy.
From all that has been said above, in respect of Appellant’s Issues 1 and 3, the said Issues are hereby resolved in favour of the Appellant and against the Respondents.
APPELLANT’S ISSUE 2
Dwelling on this Issue, the Appellant said that the lower court was in error when it held that both Okumi land and Ebugabi land is one and the same parcel of land as the pleadings of the parties and evidence do not support the finding. The appellant said that the pleading and evidence before the lower court showed that Okumi land which he claims is in Lokoja Local Government Area of Kogi State while Ebuagabi land which the Respondents claim is in Kogi Local Government Area of Kogi State and that River Niger is in between the local government areas. The Appellant asked the question as to how two parcels of land situate and lying in two different and distinct Local Governments can be one and the same. This Court was urged to allow the appeal on this Issue as it was a misconception on the part of the lower court to hold that the parties were disputing the same land and to have awarded the land to the Respondents.
Dwelling on this Issue, the Respondents said that the test to be applied in determining whether the Okumi land claimed by the Appellant and Ebugabi land claimed by them are the same is to see from the evidence adduced before the lower court whether parties were referring to the same land. According to the Respondents parties joined issues right from the inception of the case on the land in dispute as can be seen from the pleadings before the lower court. The Respondents referred to portions of the evidence of PWs 1, 2, 3 and 4 as well as DWs 1, 2 and 4 relating to the land in dispute and submitted that parties were referring to the same land.
Dwelling on the issue that Okumi land is in Lokoja Local Government while Ebugabi land is in Kogi Local Government, the Respondents said that PW1 admitted under cross-examination that Lokoja Local Government was created in 1991 while the land in dispute had been in existence long before the creation of the said Local Government. This Court was urged to take judicial notice of the fact that Lokoja Local Government was created out of Kogi Local Government in 1991. The creation of Local Governments the Respondents submitted could not have affected the ownership of the land in dispute from time immemorial. It is also the submission of the Respondents that when parties by the evidence adduced are ad idem on the land in dispute, the fact that different names are ascribed to it or the area where the land is located are known by different names is immaterial and the cases of Chukwueke v. Okoronkwo (1991) 1 SCNJ 44 at 57 and Awoyolu & Anor v. Yusuf Aro (2006) 2 SCNJ 44 at 57 amongst others were cited in aid.
It would appear to be sufficiently clear from the pleadings of the parties that it is the very land that the Appellant claims to own and in respect of which he seeks a declaration of entitlement to the Statutory Right of Occupancy, that the Respondents equally claim as theirs and also seek a declaration of entitlement to a Customary Right of Occupancy amongst other reliefs. It is clear from the case of the Appellant on his pleading and evidence adduced that the Appellant claims that the 1st and 2nd Respondents trespassed on the land in dispute by farming thereon. The Respondents too given the evidence which they adduced never denied having anything to do with the land in dispute. It is their evidence that all they did on or in relation to the land in dispute were done by virtue of the land being theirs. After a review and evaluation of the evidence before it, the lower court made a finding that the land being claimed by both parties is one and the same although the Appellant called it Okumi land while the Respondents called it Ebu-Gabi land.
I am in no doubt that the lower court was very correct in its finding that the land in dispute is the same land being claimed by the two parties respectively as theirs. This much is most glaring from the evidence of the parties. Needless to say, the very act of the Appellant in suing the 3rd Respondent for challenging his title to the land in dispute by giving the said land to the 1st and 2nd Respondents to farm on and the claim of the Respondents that they own the land and at the same time not denying that they have been exercising acts of possession over the land being litigated upon leaves one in no doubt that it is the same land parties are disputing its ownership. If parties are disputing parcels of land situate in different locations and it is not the land of the Appellant that the Respondents are claiming, the question may then be asked as to what the basis of the Appellant’s action against the Respondents is. In other words, if it is not the land being claimed by the Appellant that the 1st and 2nd Respondents are farming on and which the Respondents are indeed claiming as theirs, and are exercising acts of ownership upon, but another parcel of land, how can the Appellant then sue them for a claim analogous to a declaration of title to a parcel of land that the Respondents are not contesting with him. The very nature of the Appellant’s claims portray the parcels of land parties are contesting or disputing to be the same and the lower court was eminently right in its conclusion in this regard in its judgment. The argument of the Appellant that there is no evidence that both Lokoja Local Government and Kogi Local Government jointly own any piece of land is irrelevant. The dispute here is not ownership of land by Local Governments. Likewise the argument as to how two parcels of land situate in two different Local Governments can be one and the same overlooks the fact that by the pleadings and evidence adduced by the parties, the land being disputed had been in existence much earlier in time to the evolution of Local Government system.
Appellant’s Issue 2 having regard to the foregoing is accordingly resolved against him and in favour of the Respondents.
APPELLANT’S ISSUE 4
Dwelling on this Issue, the Appellant submitted that the evidence of tradition he adduced before the lower court was cogent, concrete, credible and remained uncontroverted and uncontradicted by the evidence adduced by the Respondents and was also not impeached under cross-examination. It is the further submission of the Appellant that the lower court ought to have accepted the evidence he adduced especially as the evidence adduced by the Respondents was in relation to another parcel of land in a different Local Government from the one he claimed. The lower court was accused of misapplying the doctrine of admission against interest and that it was under a misconception to have rejected the solid traditional history of the Appellant on the basis of the doctrine. The case of Alhaji J.A. Odutola v. Papersack Nigeria Ltd (2006) 18 NWLR (Pt.1012) 470 at 494 was cited on the doctrine of admission against interest.
Dwelling on the Issue, the Respondents said that it is settled law that for a claimant relying on traditional history in the proof of title to land to succeed, he must plead and prove the following facts: (i) who founded the land; (if) how he founded the land; and (iii) the particulars of the intervening owners through whom he claims and the cases of Onwugbufor v. Okoye (1996) 1 SCNJ 1 at 21; and Nruama v. Ebuzoreme (2007) All FWLR (Pt. 347) 733 at 738 – 739 were cited in aid. The Respondents referred to the evidence of PW1 and that of PW3 under cross-examination to show that the evidence adduced by the Appellant in respect of the founder of the land in dispute was diametrically opposed. It is the submission of the Respondents that where parties make opposing claims to land and a witness gives evidence of a third party ownership of the land or interest in the land, the case of the party that called the witness cannot stand and the case of Odi v. Iyala (2004) 4 SCNJ 35 at 51 was cited in aid. The Respondents further submitted that where a witness called by a party gives evidence against the party, such evidence will be regarded as being against the interest of the party that called the witness. That unless explanations which satisfies the court are given, the court is bound to disregard the evidence, or not give or accord any weight to it and the cases of Anyaegbu Ojiegbe & Ors v. Okwaranyia & Ors (1962) All NLR 598 at 603; and Okai vs. Ayikai (1946) 12 WACA 31 were cited in aid. It is the submission of the Respondents that the lower court was right in holding that the Appellant did not establish his ownership of the land in dispute vide traditional evidence given the apparent evidential somersault of PW3 in respect of the founder and in respect of which no explanation was offered by the Appellant.
Now, what does the law expect of a plaintiff who relies on traditional evidence or traditional history to sustain his claim for declaration of title. The law is settled that for traditional history or evidence of tradition to sustain a claim for declaration of title, the plaintiff must adduce evidence conclusively establishing: –
1. who founded the land in dispute;
2. how the person came to found the land; and
3. the particulars of the intervening owners through whom the plaintiff claims.
See OKOKO V. DAKOLO [2006] All FWLR (Pt. 336) 201: ELEGUSHI V. OSENI [2005] All FWLR (Pt. 282) 1837; and OYADARE V. KEJI [2005] All FWLR (Pt.247) 1583.
The lower court dwelled on the question as to whether or not the Appellant proved his claim to the land in dispute by traditional evidence upon which he rested his claim, from pages 138 – 142 of the record and concluded that the evidence of tradition in respect of the land in dispute was not established.
The lower court rejected the traditional history of the Appellant and dismissed his claims. It is clear from the judgment that the lower court in rejecting the traditional history of the Appellant relied heavily on the answer elicited from PW3 under-cross-examination to wit: ‘The first settler on the land was ‘SIDI ALI’. This piece of evidence elicited from PW3 under cross-examination was treated by the lower court as evidence against the interest of the Appellant particularly as no satisfactory explanation was offered for the contradiction between the founder of the land in dispute as stated by PW3 and the case of the Appellant as it relates to the person who founded the said land.
PW3 at the commencement of his cross-examination stated that he knows the land in dispute very well and he had lived there for 60 years. He also, stated that the land in dispute is at Okumi land and that he knows the boundaries of the land in question. He however also stated that he did not know how many boundaries the land has. It was after this, that he stated that the first settler on the land was SIDI ALI. This witness in his written statement which he adopted as his evidence before the lower court stated amongst others that he knows that the land in dispute which is called Okumi belongs to the ‘Claimants’ and not the defendants, as the defendants do not have land around that place. Parties having regard to the pleadings were not ad idem on the founder of the land in dispute. The case of the Appellant on his pleading is that the land in dispute was founded by Banda’s ancestor known and called OMETA. PW1 testimony as it relates to the founder of the land in dispute was in line with the pleaded founder. The evidence of PW3 in relation to the founder of the Appellant’s land as elicited under cross-examination was contradictory to that of PW1 in that he named SIDI ALI as the first settler thereon. It has not been suggested (and I do not think it can be so suggested) that questioning PW3 in relation to who the founder/first settler on the land in dispute was, is out of place given the pleadings of the parties and particularly his evidence to the effect that he knows the land in dispute very well. If PW3 did not know who the founder/first settler on the land in dispute was, all he should have said in response to such a question is that he does not know the person. After all, just before he gave the name of the first settler on the land in dispute as SIDI ALI, he had the presence of mind to respond to the question relating to the boundaries of the land that he did not know how many boundaries the said land has.
It is in my view clear as crystal that the evidence of PW1 and that elicited from PW3 under cross-examination as it relates to the founder/first settler on the land in dispute is glaringly contradictory. It is also clear from the Record of Appeal that there is no explanation adduced in respect of the piece of contradictory evidence. The evidence in relation to the founder/first settler on the land in dispute is clearly against the interest of the Appellant inasmuch as a court cannot act on contradictory evidence. It was in this vein that the lower court applied the principle of admission against interest.
As has been earlier said, one of the factors a plaintiff relying on traditional history must plead and prove is who founded the land in dispute. The Appellant has clearly failed to adduce any credible evidence in this regard given the contradiction in the evidence of PW1 and PW3 as to the founder of the said land.
The law as it relates to a claim for declaration of title is that the claimant must succeed on the strength of his case and not on the weakness of the defence. This is not to say that the standard of proof in a claim for declaration of title is higher than that required in civil cases generally. The only difference rests on the fact that the burden of proof is on a plaintiff who is claiming title, and never shifts to the defendant throughout the trial. The difference therefore lies not in the standard of proof, but on the burden of proof. See ADEWUYI V. ODUKWE [2005] All FWLR (Pt.278) 1100 at 1113. It is my considered view that given the lack of credible evidence from the Appellant as to the founder of the land in dispute, the traditional history he relied upon in the proof of his title to the land in dispute was inconclusive and definitely deficient to sustain his claim for declaration of title. An inconclusive and deficient evidence of tradition cannot be plausible and credible and definitely cannot sustain a claim for declaration of title. See OGUN V. AKINYELU (2005) All FWLR (Pt.243) 601 at 623. This being the position, I am unable to hold as urged by the Appellant that the lower court had before it any cogent and credible evidence of tradition that it could have relied on to sustain the claim for declaration of his entitlement to a Statutory Right of Occupancy in respect of the land in dispute based on the Appellant’s traditional history in respect of the same.
In conclusion I find the lower court to be eminently right when it held that the traditional history relied on by the Appellant over the land in dispute has not been established. Consequently, Appellant’s Issue 4 is resolved against him and in favour of the Respondents.
APPELLANT’S ISSUE 5
Dwelling on this Issue, the Appellant submitted that the assessment and evaluation of the evidence adduced at the hearing of this case and ascription of probative value to the same by the lower court was erroneous, perverse, misconceived, against the weight of evidence and that this has resulted in a wrong decision and also occasioned a miscarriage of justice against him. This being the situation, the Appellant said that this Court is entitled and indeed has a duty to interfere and correct the error committed by the lower court.
Dwelling on the Issue, the Respondents in the main submitted that the lower court correctly evaluated the evidence adduced before it. That the evidence adduced by the parties was placed on the imaginary scale and weighed by the lower court to see where it tilted, The cases of Odofin v. Mogaji (1978) 1 LRN 212 at 213 and Nana v. Nana (2006) 3 NWLR (Pt. 966) 1 at 47 – 48 were cited in aid.
In the event this submission does not find favour with this Court, the Respondent submitted that this Court is in a good position as the lower court to evaluate the evidence adduced in the instant case as it does not involve the demeanour of witnesses. The case of Julius Berger (Nig) Plc v. Nwagwu (2006) 12 NWLR 518 at 537 was cited in aid.
It is glaring from the judgment of the lower court that the finding upon which the dismissal of the Appellant’s claims was predicated is that “the traditional history evidence of the Claimant over the land in dispute has not been established”.
The law is settled as to when an appellate court can properly embark on evaluation of evidence. An appellate court is competent to do this when a trial Judge abdicates the sacred duty of evaluation of evidence and approbation of weight thereto, or when he demonstrates that he had not taken proper advantage of his having heard and seen a witness testify. In such a situation an appellate court is in as good a position as the trial court to evaluate the evidence provided the exercise does not involve the credibility of the witnesses who testified at the trial. See FAGBENRO V. AROBADI & ORS (2006) All FWLR (Pt.310) 1575. The lower court has not abdicated its duty to evaluate and ascribe credibility or weight to the evidence adduced before it in the instant case. This Court can only competently interfere with the findings of fact made by the lower court upon the establishment of a perversion in the performance by the said court of its duty in the evaluation and approbation of weight to the evidence before it. See BENJAMIN V. KALIO (2006) All FWLR (Pt. 340) 1064. In other words where there is a proper evaluation of evidence in the sense that every material finding is supported by the totality of evidence on record, an appellate court has no business to embark on a re-appraisal of the evidence in order to arrive at a different conclusion. See ONISAODU & ANOR V. ELEWUJU & ANOR (2006) 1 All FWLR (Pt. 328) 676. The lower court in finding the traditional history of the Appellant not to have been established, not only properly evaluated the evidence of PW1 and PW3 and but also gave proper consideration to the contradiction in the evidence of the said witnesses in relation to the founder of the land in dispute; and in my considered view correctly did not find the traditional history of the Appellant to have been established, given the contradictory evidence before it in relation to the said founder. I see no perversion on the part of the lower court in this regard. Indeed it would have been perversion on the part of the lower court if it had in the face of the unexplained contradictory evidence before it in relation of the founder of the land in dispute, found the traditional history of the Appellant established. See ONISAODU & ANOR V. ELEWUJU & ANOR (supra) at pages 686 – 688.
In conclusion, I find the evaluation by the lower court of the totality of evidence in respect of the case instituted by the Appellant to be very proper. This being so, there is no competence in this Court to interfere with the same as there is no error to be corrected. Appellant’s Issue 5 is therefore resolved against him and in favour of the Respondent.
Given the resolution of Issues 1 and 3 in favour of the Appellant, this appeal hereby succeeds in part. Accordingly, the judgment of the lower court delivered on 20/3/2008 dismissing the claims of the Appellant is affirmed. However, the judgment of the said court finding the counter-claim of the Respondents as proved and entering judgment for the said Respondents in respect of reliefs Nos. 1 and 3 in the counter-claim is set aside. It being my conclusion that that there was no counter-claim before the lower court in which any judgment could be given, the said counter-claim is hereby struck out.
I make no order as to costs.