JOSHUA BARAU & ORS v. CONSOLIDATED TIN MINES LIMITED & ORS
(2019)LCN/12738(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of February, 2019
CA/J/285/2014
RATIO
LAND LAW: TITLE TO LAND
“That is an application, so to speak, of the trite position that one cannot give what one does not have, otherwise expressed as nemo dat quod non habet in Latin. In Dosunmu v. Joto (1987) 2 NSCC 1182 @ 1193, (1987) 4 NWLR (PT 65) 197, (1987) LPELR-961 (SC) p.27 – 28 the apex Court (Oputa, J.S.C.) confirmed this position as follows:
‘When a plaintiff in a land case relies on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Just how far will such a plaintiff have to go to succeed ‘as far back as Adam I suppose’. Unless the title of his/her vendors has become an issue (in which case those vendors will be joined as parties to prove or defend such title) parties to a land case whose titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. It will be enough for them to plead and prove only their own root of title, certainly not those of their vendors.” PER BOLOUKUROMO MOSES UGO, J.C.A.
LAND LAW: FAILURE TO PROVE POSSESSION
“Having thus failed to prove the title he pleads, it will be wrong of him to turn around to rely on acts of ownership or acts of possession which acts are in the nature of things derivable from and rooted in the radical title pleaded.’In fact, having failed to prove his radical title, 1st appellant’s said acts of possession are actually acts of trespass: see Fasoro v. Beyioku (1988) LPELR-1249 (S.C) @ p.18; Ogbechie v. Onochie (1988) 1 N.S.C.C. 211.”PER BOLOUKUROMO MOSES UGO, J.C.A.
STATUTE: APPLICATION OF STATUTE
“Application of limitation statute: It must be pointed out, first, that issue of statute bar was not raised by appellants at the lower Court; it is rather being raised for the first time on appeal and without the requisite leave of Court (see Agu v. Ikewibe (1991) 3 NWLR (PT 180) 385; Bankole v. Pelu (1991) 11 SCNJ 108 @ 131 -133). In Ibrahim v. Lawal (2015) LPELR-24736 (S.C.) at p. 42 – 44 the apex Court emphasized the necessity to first obtain leave of this Court to raise limitation statute on appeal if it was not raised before the trial Court. Unless leave is first obtained, this Court may not even hear appellant on the issue: Saude v. Abdullahi (1989) LPELR-3017 (S.C.) p.80-81 (Oputa J.S.C.), Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT 109) 250 supra (Oputa J.S.C.).”PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. JOSHUA BARAU
2. DA DALYOP DIH
3. MR. PAM DUNG DEME Appellant(s)
AND
1. CONSOLIDATED TIN MINES LTD
2. MINISTRY OF LANDS, SURVEY AND TOWN PLANNING, PLATEAU STATE
3. JOSHUA S.B. GYEL Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Plateau State in Suit No. PLD/J/242/2002 in which it dismissed the counterclaim of appellants against 1st respondent and granted the rival counterclaim of the 3rd respondent’s Late father, Da Sambo Bashi Gyel (aka Da S.B. Gyel), for declaration of ownership and ancillary relief against appellants and 1st respondent over the same land.
Third respondent and one Alhaji Muniru Baba originally commenced the said action against appellants as defendants but Alhaji Muniru Baba was later struck off, leaving 3rd respondent as sole plaintiff.
Along the line, the Plateau State Ministry of Lands, Survey and Town Planning joined the suit as 4th defendant.
Later on, Da Sambo Bashi Gyel, the now deceased father of the present 3rd respondent, for whom 3rd respondent was substituted in this Court, was on his own application also joined to the suit as 5th defendant.
First respondent’s claim in the suit was basically for a declaration against all appellants and 3rd respondent that it was the only legal title holder of all the land situate at Bukuru, Jos and covered by Right of Occupancy No. PL 14800 granted it by the Plateau State Government for 99 years, that for that reason, it was entitled to an order of injunction and damages against appellants for trespassing on it. It however transpired that 3rd respondent’s ‘lawyers’ prepared and signed its writ of summons and statement of claim as Markus Y. Saleh & Co., for which the trial Court in its final judgment held, rightly, that same rendered its action incompetent, Markus Y. Saleh & Co. not being a human being and so incapable of being a legal practitioner enrolled to practice law in Nigeria.
However, before the order striking out 1st respondent’s suit, which order was only made in the course of its final judgment, not only had appellants filed a defence to the suit, 1st appellant in particular had even counterclaimed against it for ownership of the same parcel of land.
In the same vein, Da Sambo Bashi Gyel, upon joining the suit as 5th defendant, also counterclaimed not just against the original plaintiff/1st respondent but against appellants, too, for ownership of the same land. His claims were for:
1. A declaration that the defendant, counterclaimant is the customary title holder of the disputed land having acquired same from the customary title holders and is entitled to the quiet possession and enjoyment of same exclusively.
2. A declaration that the subsequent purported sale of the disputed land and or of any part or portion thereof, by the 2nd defendant to the 1st defendant is a nullity and of no legal effect, the purported sale of the disputed or of any part or portion thereof, coming much after the disputed land had been legally sold to the defendant and when there was no interest left in the disputed land which the 2nd defendant who has no interest in the land, can sell or transfer and or assign to the 1st defendant.
3. A declaration that the title acquired by the plaintiff over the disputed land or on any part or portion thereof was illegally and or wrongly acquired and thus a nullity and of no legal effect.
4. Alternatively, A declaration that the interest and or title acquired by the plaintiff in the disputed land was temporary and for a specific term cannot extinguish the interest of the customary title holders in the disputed land and which interest the defendant counter claimant has duly and or validly acquired.
5. An order declaring that the plaintiff and the other defendants have wrongly and illegally prevented the defendant counterclaimant from further development of the disputed land from the enjoyment of same as the title holder.
6. An order declaring that any document of title purported to have been issued in favour of the plaintiff or the 1st defendant by the 4th defendant or by any other person or authority is a nullity and of no legal effect.
7. An order of perpetual injunction restraining the plaintiff, the other defendants, their privies, assigns, successors in interest or title or any person or group howsoever called, purporting to be acting on the instructions of the plaintiff or that of the other defendants from going into the disputed land for anything whatsoever.
8. The sum of #500,000.00 (Five Hundred Thousand Naira) only as general damages against the plaintiff and the other defendants jointly and severally, for all the hardships which the plaintiff and the other defendants have subjected the defendant counterclaimant to.
9.The cost of this action.
In other words, there were three sets of claimants to the same land: one by 1st respondent as the original plaintiff and originator of the suit, another ? a counterclaim – by 1st appellant but against 1st respondent only, and a third one by 3rd respondent’s late father against appellants and 1st respondent.
The case of Late Da Sambo Bashi Gyel as 5th defendant/counterclaimant (now substituted by his son, the 3rd respondent) was that he acquired the land in issue on 12/12/1990 by way of purchase from the customary title holders, the Jok family of Jos, under Berom custom and same was evidenced by Exhibit 20 made in Hausa Language but translated into English Language as Exhibit 20A. In paragraph 61 of his statement of defence which he further adopted in his counterclaim and witness statements on oath, he traced the traditional history of the ownership of the said land from its founding by Jok down to Simon Danboyi Zang and his uncle Davou Zang Jok of Jok family from whom he bought it. He maintained that 1st appellant who claimed to have bought the same land from the 2nd and 3rd appellants of Dih family in 1994 three years after his purchase did not buy from the rightful owners so his (1st appellant’s) said purchase was null and void.
In their defences to 3rd respondent’s Late father’s counterclaim, whereas appellants asserted that 1st appellant bought his land from 2nd appellant of Dih family who they claimed is ‘one of the bona fide customary owners’ of the said land and that 1st appellant had since his purchase been issued a Right of Occupancy No. PL 35934 by the Plateau State Governor over the said land and had even entered into possession of the said land, first respondent on its part relied strongly on three successive Rights of Occupancy it held over the disputed land first – the first being granted it in 1948 for twenty-one years, the second a re-grant in 1969 for another twenty years term, and finally a third one for 99 years in 1993 evidenced by Right of Occupancy No. PL 14800.
In its judgment of 29/04/2014, the High Court of Plateau State, after striking out 1st respondent’s suit on grounds of its incompetence for reasons as earlier, proceeded to consider the counterclaims of 1st appellant and 3rd respondent and dismissed 1st appellant’s counterclaim against 1st respondent on the grounds first that he (1st appellant) failed to plead and prove the title of his vendors [2nd and 3rd respondents] as required by law and secondly that in any event, 2nd respondent sold family land as his personal land so the said sale was null and void. It then went to consider the counterclaim of 3rd respondent and upheld it in its entirety including its alternative relief 4 after dismissing all the arguments of the 1st respondent and appellants against it.
Both sets of vanquished defendants to the said counterclaim are dissatisfied and promptly lodged separate appeals to this Court against that judgment. Consolidated Tin Mines Ltd, the original plaintiff, is appellant in sister Appeal No. CA/J/248/2018. In fact, both appeals were moving together until they parted ways in 2018.
In this appeal, Joshua Barau and his vendors as appellants have framed the following three wordy issues for determination:
1. Whether given the pleadings of the 1st appellant and evaluation of evidence led, the learned trial judge was right in relying on the case of Onwugbufor v. Okoye (1996) 1 SCNJ 1 @ 21 and arriving at the conclusion that the 1st appellant did not plead and prove the origin of his title or trace conclusively the title of his vendors to the disputed land and thereby declaring the sale of the land to the 1st appellant by the 2nd appellant as void on ground that the 2nd appellant sold the land in his personal capacity.
2. Whether from the preponderance of evidence led vis–vis the burden of proof and in the absence of clear identity of the land claimed, the learned trial judge was right in entertaining and granting the counterclaim of the 3rd respondent by relying on the evidence of the 3rd respondent and arriving at the conclusion that the appellants admitted the traditional history stated by the 3rd respondent despite the fact that the evidence of the 3rd respondent was a bunch of hearsay and his specimen signatures in conflict with the one on his witness statement on oath.
3. Whether the learned trial judge was right in granting relief (vi) in the counterclaim of the 3rd respondent despite the fact that it was statute barred and also granting alternative relief, to wit, relief (iv) along with relief (iii) in the counterclaim of the 3rd respondent.
Whereas the 2nd respondent (Plateau State Ministry of Lands, Survey and Town Planning) did not respond to the appeal, 1st and 3rd respondents filed briefs of argument and framed their own issues for determination and argued them. First respondent framed a single issue while 3rd respondent distilled six issues for determination which I am not in any doubt are subsumed in the three issues of appellants.
Under Issue 1, appellants through their counsel, P.A. Akubo, S.A.N., who also adopted their brief in Court, first made the point that the case of 1st appellant was not predicated on traditional history as to necessitate pleading and proof of origin of title of his vendors as the trial judge held. Counsel submitted that 1st appellant?s case was rather predicated on his Right of Occupancy No. PL35938 (Exhibit 17) dated 12/04/2002 and his other documents of title, namely Sale Agreement (Exhibit 14), Site Plan (Exhibit 15) and Change of Ownership (Exhibit 16). Citing the cases of Idundun v. Okumagba (1976) 9-10 S.C. 227 @ 246-250, Thompson v. Arowolo (2003) 7 NWLR (PT 818) 163 and Onwugbufor v. Okoye (1996) 1 SCNJ 1 @ 21, learned silk submitted that production of documents of title is one of five independent ways of proving ownership of land so a party need not rely on more than one of them to succeed and for that reason, the learned trial judge was wrong in holding that mere production of his title documents as 1st appellant did was not enough, that he needed to plead and prove conclusively the title of his vendors and his failure to do that was fatal to his case.
On another wicket, learned senior counsel faulted the decision of the lower Court upholding the contention of 3rd respondent that 2nd appellant sold family land as his personal land and that rendered the said sale void. Counsel submitted that it did not lie in the mouth of 3rd respondent who is not a member of 2nd and 3rd appellants? Dih family who sold the said land to 1st appellant to say 2nd appellant sold it as his personal land. No member of Dih family disputed 2nd respondent?s right to sell the said land to 1st appellant and none came to Court to challenge that evidence; on the contrary, counsel observed, both 2nd and 3rd appellants confirmed on oath that 2nd appellant is not only the head of Dih family, he also sought and obtained the consent of principal members of that family to sell the land to 1st appellant. It follows, therefore, counsel argued, that the conclusion of the lower Court on this point is faulty.
Learned silk next drew our attention to the acts of possession namely building a bungalow on it, putting a tenant thereon and securing Statutory Right of Occupancy No. PL35938 (Exhibit 17) over the same land already exercised on the disputed land by appellant and urged us to hold that the lower Court was wrong in its decision that 1st appellant failed to prove his case by the required standard because he failed to plead and prove the origin of his title by tracing conclusively the title of his vendors.
Both 1st and 3rd respondents were opposed to this argument of appellants but had separate reasons for their positions. Whereas 1st respondent (appellant in CA/J/248/2018) through its counsel, M.Y. Saleh, S.A.N., relied heavily on what it regards as the potency of its three Statutory Rights of Occupancy over the said land as overriding and extinguishing the purchases and conveyances including the rival Right of Occupancy No. PL PL35938 claimed by 1st appellant over the said land, Mr. F.M. Pwul for 3rd respondent, citing a number of cases, supported the lower Court?s decision on need for 1st appellant to plead and prove the title of his vendors, especially as the said vendor?s title was not admitted but rather made an issue.
Right of Occupancy, Mr. Pwul submitted, is only prima facie and rebuttable evidence of title and once it is shown that someone else had better title to the area of land over which it is issued, it becomes useless. Counsel was however ambivalent on the other aspect of the lower Court’s finding that 2nd appellant sold family land as personal land and that on its own also voided the sale. He was nevertheless quick to add that assuming but without conceding that the lower Court was wrong on that point, the judgment would still be the same in view of the lower Court’s undoubted correct finding on the effect of 1st appellant’s failure to plead and prove his vendor’s root of title, which he argued completely knocked off the case of appellants.
Resolution of issue 1
There is no doubt that appellants’ arguments on this issue is against the dismissal of 1st appellant’s counterclaim. Their argument here is in two limbs and I shall consider them in their separate parts.
Starting with the argument that because 1st appellant relied on documents of title including Right of Occupancy in proof of his ownership of the disputed land, while it is true that production of documents of title is one of five independent ways of proving ownership of land as stated in Okumagba’s case and the endless line of authorities following it, I am afraid learned silk is with due respect wrong in his contention that production of title documents without more suffices in every circumstance including this one. The contention of learned silk will be correct only where the title of such grantors or vendors is not made an issue in the case. Once a claimant’s vendor’s title is put in issue, he must, to succeed, first prove his said vendor’s title as he cannot get a better title than that of his vendor.
That is an application, so to speak, of the trite position that one cannot give what one does not have, otherwise expressed as nemo dat quod non habet in Latin. In Dosunmu v. Joto (1987) 2 NSCC 1182 @ 1193, (1987) 4 NWLR (PT 65) 197, (1987) LPELR-961 (SC) p.27 – 28 the apex Court (Oputa, J.S.C.) confirmed this position as follows:
‘When a plaintiff in a land case relies on and proves a conveyance as his root of title, he does not need to go beyond his vendor and then proceed to prove that vendor’s title as well. Just how far will such a plaintiff have to go to succeed ‘as far back as Adam I suppose’. Unless the title of his/her vendors has become an issue (in which case those vendors will be joined as parties to prove or defend such title) parties to a land case whose titles are rooted in Deeds of Conveyance need not plead or prove the title of their vendors. It will be enough for them to plead and prove only their own root of title, certainly not those of their vendors.
His Lordship (Oputa, J.S.C.) elaborated on this issue a year later in Fasoro v. Beyioku (1988) 2 NWLR (PT 76) 263 @ 271, (1988) LPELR-1259 (S.C) p.16-17 thus while rejecting similar argument of learned silk:
From the above, the question to be answered in this appeal appears to be:
Did the plaintiffs succeed in proving a valid transfer of the land in dispute from the Olayalo family (in whom, as they pleaded, the radical title resides), to them Put in a different way – did Exhibits B, C, D and E transfer a valid legal title from the vendors therein to the plaintiffs especially as the defendants had specifically pleaded in paragraph 30 of their amended statement of defence that the plaintiffs’ vendors were not the owners of the land that they purported to convey to the plaintiffs and they thus had no right to sell to anybody? The learned trial judge adverted to this fact but somehow conveniently brushed it aside saying that ‘the fact that the Deeds of Conveyance were not executed in Olayalo’s family name is not in issue in this case.’ Of course, it was very much in issue when the plaintiff?s vendors? title and their capacity to sell the land are both challenged by the defendants, the onus is on the plaintiffs to establish that title. Also, from the plaintiffs’ own pleadings, radical title was originally vested in the Olayalo family.
It was thus their duty to trace the devolution of that title form the Olayalo family to their vendors otherwise the principle of nemo dat quod non habet will apply. See also Balogun v. Akanji (1988) 1 NWLR (PT 70) 301 (S.C.) and more recently Aiyeola v. Pedro (2014) 13 NWLR (PT 1424) 409 @ 442 (S.C).
It is a similar position the appellants particularly 1st appellant found him/themselves when they averred that the land in dispute originally belonged to Dih family of 2nd and 3rd appellant and 3rd respondent countered that the same land rather belonged customarily to his own vendors, the Jok family, and not 1st appellant’s vendor’s Dih family. It was thus incumbent on 1st appellant to first plead and prove the title of his Dih family vendors to stand any chance of success in his counterclaim and defence to 3rd respondent’s counterclaim. He failed woefully to do that so the trial judge was on firm ground in his decision.
And coming to the second limb of appellants’ argument, while it is undoubtedly a correct statement of the law that sale of family land by head of family is voidable while sale of family land as personal land by even head of family is void (Olorunfemi v. Ojo (1993) NWLR (PT 313) 542 @ 555 (S.C); Coker v. Ogunsola (1982) 2 NWLR (PT 5) 87 (S.C); Odekilekun v. Hassan (1997) LPELR-2206 (S.C.) p. 15-16), it does not appear to me that the lower Court’s conclusion that 2nd appellant sold the disputed land to 1st appellant as his personal property instead of family land of Dih family is supported by the evidence in the records. Second appellant deposed in paragraph 6 of his witness statement of 2nd June 2010 that he ‘sought for and obtained’ the consent of principal members of Dih Family before the land was sold to 1st appellant. This was confirmed by D.W.3, Pam Dung Deme, of the same Dih family when he swore in paragraph 6 of his witness statement of the same 02/06/2010 that 2nd appellant ‘sought for and obtained’ the consent of principal members of the Dih Family before the land was sold to 1st appellant. Both witnesses adopted these statements in their evidence in Court yet none of them was challenged on this assertion. It is therefore bewildering how the lower Court arrived at the conclusion that 2nd appellant sold Dih family land as his personal property. Little wonder Mr. Pwul for 3rd respondent was unable to defend this finding of the lower Court. I agree with him, just as I equally agree with his further submission that since the decision of the lower Court dismissing the counterclaim of 1st appellant on grounds of his failure to plead and prove his said vendor’s title is correct, its apparent wrong finding that 2nd appellant purported to sell family land as personal land and that voided the sale becomes of no moment.
Judgments are not upset for every misstatement. If a judgment would be the same without a wrong finding or misstatement complained of, it will stand nevertheless: see Bankole v. Pelu (1991) 11-12 S.C. 116 @ 120 lines 1-24; Ukaegbu v. Ugoji (1991) 6 NWLR (PT196) 127 @ 147 (S.C.); Agu v. Nnadi (2003) M.J.S.C. 51 @ 58;Ifeanyi-Chukwu Osondu Ltd v. Soleh Boneh (2000) SCNJ 18; Okeahialam v. Nwamara (2003) FWLR (PT 176) 635. That is the case here.
As for the acts of possession said to have been exercised by 1st appellant over the land as alluded to by Mr. Akubo, those acts will be of no avail since 1st appellant failed to prove his title upon which he purported to exercise them: See again Fasoro v. Beyioku (1988) 2 NWLR (PT 76) 263, (1988) LPELR-1249 (S.C) p.14-15 where it was said thus:
‘When therefore a plaintiff pleads Sale and Conveyance as his root of title, he either succeeds in proving the Sale or Conveyance or he fails. Where he succeeds, he wins and where he fails his case ought to be dismissed: see Akerele v. Atunrase (1969) 1 ALL N.L.R. 201. Having thus failed to prove the title he pleads, it will be wrong of him to turn around to rely on acts of ownership or acts of possession which acts are in the nature of things derivable from and rooted in the radical title pleaded.’In fact, having failed to prove his radical title, 1st appellant’s said acts of possession are actually acts of trespass: see Fasoro v. Beyioku (1988) LPELR-1249 (S.C) @ p.18; Ogbechie v. Onochie (1988) 1 N.S.C.C. 211.
In summary, I resolve issue 1 against appellants.
Issue 2: Appellants argued Issue 2 on different fronts. First, their counsel, Akubo, S.A.N., citing the decisions of this Court in Akhigbe v. Paulosa (Nig.) Ltd (2006) 12 NWLR (PT 994) 373 @ 384 and U.B.A. Plc v. Samba Petroleum Co. Ltd (2006) 12 NWLR (PT 994) 373 @ 384, argued, wrongly on the facts no doubt, that since 1st respondent who initiated the action did not make any claim against 3rd respondent (3rd respondent having joined the action on his own application) and since a counterclaim by its very nature is a cross-action to the original plaintiff?s claim, 3rd respondent?s counterclaim against his clients the appellants was incompetent and the lower Court was wrong in rejecting their argument to that effect.
On a second wicket learned senior counsel made the trite point that in any case 3rd respondent could only succeed on the strength of his counterclaim and not on the weakness of the defendant?s, in this case appellants? claim. Learned silk then submitted that 3rd respondent?s counterclaim was not proved and the lower Court wrong in upholding it. To buttress that contention counsel argued, first, that there were obvious discrepancies between 3rd respondent?s signature on his two witness statements on oath and Exhibit 21 (a document which he seems to have been made to sign in Court) thus suggesting that the said witness statements did not belong to him.
On still another front, he argued that the traditional evidence of ownership of the disputed land that was adduced by 3rd respondent was exposed on cross-examination to be full of inadequacies, sweeping statements and generally hearsay, even more so as 3rd respondent did not call any person from Jok family of his vendors to confirm the traditional history he pleaded. The evidence of his only witness, Mr. Rwang Pei (D.W.4), learned silk submitted, did not fill these inadequacies as D.W.4, according to counsel, rather even ?confessed? that he is not from Jok family, did not even know Jok and has no relationship with Jok family. Counsel disagreed with the learned trial judge that appellants admitted the traditional history pleaded by 3rd respondent so it was not necessary for him to call members of Jok family to confirm his claim.
Counsel next observed that 3rd respondent pleaded a Right of Occupancy No. PL 16951 he claimed was issued him by 2nd respondent yet he did not produce it at the trial. On that basis, learned silk asked us to invoke Section 167(d) of the Evidence Act against him and hold that he did not produce it because if he did it would have been against him.
Learned silk also complained that 3rd respondent did not prove the identity, boundaries and size of the land claimed by him so the lower Court was again wrong in granting his counterclaim.
For all these reasons, learned silk urged us to resolve issue 2 in appellants’ favour.
Mr. Saleh, S.A.N., for 1st respondent and P.M. Pwul for 3rd Respondent were again opposed to these contentions of appellants but again differed on their reasons. Mr. Saleh, while pointing out that appellants relied on traditional history of the ownership of 2nd and 3rd appellant who sold the land to 1st appellant and so they had a duty to plead and prove that history, resorted once again to his earlier argument of the potency of the Rights of Occupancy 1st respondent had over the disputed land. He submitted once again that they superseded and extinguished whatever rights appellants had over it going by the provisions of Section 5(2) of the Land Use Act. In support of this, he cited the cases of Adole v. Gwar (2008) 3-4 S.C. 78; Ibrahim v. Mohammed (2008) 4 SCM 40 and Nigerian Engineering Works Ltd v. Denap Limited & Anor (2002) 2 SCM among others. Learned silk next submitted that the same Section 167(d) of the Evidence Act invoked by appellants against 3rd respondent should be rather invoked against appellants for their failure to tender a certain File No. PL 35934 which they pleaded was with the 2nd respondent and contained documents that were useful to their case.
Mr. Pwul for 3rd respondent on his part first argued, in response to the attack of appellants on the competence of 3rd respondent?s counterclaim, that contrary to the submission of appellants, 3rd respondent?s father?s counterclaim was not only against appellants but also against 1st respondent as the original plaintiff in the action, and to that extent the decision of this Court inAkhigbe v. Paulosa (Nig.) Ltd (2006) 12 NWLR (PT 994) 373 @ 384 relied on by Mr. Akubo rather supports 3rd respondent.
Mr. Pwul next supported the lower Court?s decision rejecting the argument of appellants of inconsistencies in Late Da Gyel’s (D.W.5) signatures in his witness statements, especially D.W.5’s explanation that he had two signatures one of which he uses for bank and the second for other transactions.
Learned counsel also dismissed appellants? argument that 3rd respondent did not prove the traditional history he pleaded and all the evidence he adduced were inadequacies, sweeping assertions and hearsay. He submitted that appellants admitted the traditional history pleaded by 3rd respondent, that all they tried to do even in evidence was to show, unsuccessfully he submitted, that 2nd and 3rd appellant who sold the land to 1st appellant are also descendants of Jok, the ancestor of Simon Danboyi Zang and his uncle Davou Zang Jok who sold to 3rd respondent. In any event, learned counsel continued, the traditional history of a piece of land need not necessarily be given by a member of the vendor’s family, for which he cited Alli v. Alesinloye (2000) 4 SCNJ 254 @ 289.
On appellants’ argument that 3rd respondent did not prove the identity of the land claimed by him, Mr. Pwul submitted that appellants did not join issues with 3rd respondent on identity of the disputed land so it is not open to them to argue to the contrary.
Resolution of issue(s)
Competence of counterclaim: The attack by appellants of the counterclaim of 3rd respondent can be easily disposed of, for it is founded on quicksand. The records just do not support their argument that 1st respondent as initiator of the action did not claim against 3rd respondent and he did not also counterclaim against it but only against them. First respondent following the grant of 3rd respondent’s application to join the action further amended its statement of claim and claimed not only against appellants but also 3rd respondent’s father who became 5th defendant to the suit. The said Further Amended Statement of Claim of 1st respondent dated and filed on 6th May 2009 is contained at pages 169 – 180 of the records. The counterclaim of 3rd respondent which spans pages 531 – 534 also shows that he claimed against all the existing parties on record. Appellants’ contention on this issue is accordingly rejected.
Traditional history of 3rd respondent’s vendor: whether it was not admitted by appellants and implication of its admission, if at all, by appellants: Here again I am in complete agreement with Mr. Pwul not only on his submission that the traditional history of the disputed land as pleaded by Late Da Sambo Bashi Gyel, the father of 3rd respondent, was admitted by appellants, counsel is also correct in his contention that it is not the law that unless members of a claimant’s vendor or grantor’s family testify to the traditional history pleaded by him, his evidence will be incomplete and deemed hearsay.
Starting from the traditional history of the land, 3rd respondent’s father averred in paragraph 61 of his amended statement of defence as follows:
61.The defendant acquired his interest in the disputed land by way of customary purchase from the customary title holders in the accordance from the Berom people of Gyel native law and custom as follows:
i. That he acquired the disputed land from the customary title holders Simon Danboyi Zang and Davou Zang Jok of the Lo-Jok family of Gyel.
ii. That Jok, whose name became the name of the family of the customary title holders, was the founder or the person that first cleared and put to any form of use the disputed land.
iii. that on the death or demise of Jok (founder of the disputed land), the land and or interest in same passed to his only male child Zang in accordance with the Berom native law and custom, and who continued in possession and enjoyment of the disputed land unchallenged and or without let or hindrance up to the time he died or passed on.
iv. On the demise of Zang, the disputed land devolved on or passed to his two sons namely, Danboyi and Davou, all of whom continued to enjoy the disputed land without let or hindrance.
v. Danboyi Zang later died leaving behind him a son by name Simon Danboyi Zang and his brother Davou Zang Jok.
vi. Simon Danboyi Zang and his uncle Davou Zang Jok continued in possession of the disputed land without let or hindrance up to the time that they decided to divest themselves of their interest in the disputed land by way of customary sale of same to the defendant counterclaimant Da S. B. Gyel (Da Sambo Bashi Gyel).
vii. the customary sale was carried out in the presence of witnesses before the traditional heads of the area where the disputed land is situate, the Gwom Rwei of Gyel, then District Head of Gyel, did not only confirm the title of the defendant’s vendor to the disputed land, but endorsed the sale of same to the defendant as did other lesser chiefs or heads in the area.
viii. the defendant paid fully the purchase price for the disputed land in the presence of witnesses and was immediately led into possession of same, where he commenced some development as confirmed by the plaintiff.
Late Gyel adopted these averments in his counterclaim against appellants and went on to further specifically aver regarding 2nd appellant (1st appellants’ vendor) in paragraph 4 of his same counterclaim thus:
3. That while the defendant was in possession of the disputed land that his two vendors died.
4. That it was after the demise of the Defendant’s vendors as above stated that Dalyop Dih, the 2nd defendant (who claimed to be a member of Jok family of the defendant’s vendors) took the land and purportedly sold same to the 1st defendant (Joshua Barau Esq.).
‘What was appellants’ response to this specific averment that 2nd appellant Dalyop Dih who purportedly sold the disputed land to the 1st appellant did so claiming to be a member of Jok family of 3rd respondent’s vendors’ It is at page 3 of their Defence to the said Counterclaim where they averred as follows:
(3).In answer to paragraph 4 of the claim the 1st, 2nd and 3rd Defendants aver that the 2nd defendant is one of the bona fide beneficial customary owners of the disputed land and same was acquired by the 1st defendant vide right of Occupancy No. PL 35934. (Italics mine.)
Clearly, appellants were not by this averment denying paragraph 4 of 3rd respondent’s father’s counterclaim; they were rather simply saying/admitting his assertion that 2nd appellant actually sold the disputed ‘claiming to be a member of Jok family of the defendant’s vendor.’ What appellants simply added is that he is actually ‘one’ of the bona fide members of Jok family and not just claiming to be one of them. Any doubt that may have lingered in anybody’s mind about this admission was dispelled first from the questions put to Late Da S.B. Gyel (D.W.5) by Akubo, S.A.N. for appellants during his cross-examination. Da S.B. Gyel, is shown at p.803 of the record to have answered Mr. Akubo for appellants thus:
I am not from Jok family. I am from Gura Riyom which is part of Gyel.
I do not know the number of children Jok had. I do not know much about Jok family. I do not know that Jok had eight children. I do not know that Dih is the son of JOK. I do not know that Dalyop is the son of Jok. (Italics mine.)
All these answers, I completely agree with Mr. Pwul for 3rd respondent, could only have been in response to suggestions by appellants seeking to show and confirm their contention in paragraph 3 of their defence to the counterclaim that 2nd appellant Dalyop Dih is actually also a descendant of Jok through his father Dih who is one of eight sons of Jok, the undisputed ancestor of 3rd respondent’s vendors and so also one beneficial owner of the land through its founder, Jok. It is therefore not open to learned silk nor his clients the appellants, having failed to get the admissions they wanted from 3rd respondent’s Late father Da S.B. Gyel, to now try to give a different spin to those very answers by arguing that Da Gyel made ‘vague, sweeping’ and inadmissible ‘hearsay’ statements about the traditional history he pleaded. I am in no doubt that appellants admitted 3rd respondent’s father’s traditional history of his vendors as pleaded. If anything, D.W.2 (3rd appellant) of same Dih family in evidence reinforced appellants? admission of 3rd respondent’s vendors, Late Simon Danboyi and Davou Zang Jok?s connection to Jok, the admitted founder of the land as pleaded by 3rd respondent’s father, Da Gyel. This witness, after also adding flesh to his side?s admission by saying ‘I am a member of Dih Family, the Head are Jok Mitin, Zang Jok, Delgok Jok, Gang Pwak Jok, Dalyop Jok and Dalyop Zi,’ (Note the several Joks), went on to admit under cross-examination from Mr. Bashiri for 3rd respondent thus:
‘I know Danboyi Zang Jok, Davou Zang Jok. They are truly descendants of Jok. Danboyi Zang died and left his son Simon.’
Instructively, Davou Zang Jok and Simon, son of Danboyi Zang Jok are the two persons 3rd Respondent claimed sold the land to him on behalf of their family, so what else did appellants want Da Gyel to prove by way of his vendors’ history and their Jok family’s ownership of the disputed land.
Proof is about disputed facts and not otherwise. Facts admitted need no further proof. This well-settled position of the law also finds statutory expression in Section 123 of the Evidence Act 2011. In Akinlagun v. Oshoboja (2006) LPELR 348 @ p. 33, (2006) 12 NWLR (PT 993) 60, (2006) 5 S.C. (PT11) 100 the Supreme Court (Ogbuagu, J.S.C.) reconfirmed this trite position thus:
‘It is now firmly settled that what is admitted needs no further proof. There are too many decided cases in respect thereof: see Akpan Obong Udofia v. Okon Akpan Udofia (1940) 6 WACA 216 @ 218, 219, Alhaji Ndayako v. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152 @ 172, (2004) 13 NWLR (PT 889) 189. See also Section 75 of the Evidence Act which is clear and unambiguous. It therefore in my respectful view becomes idle for the appellants who expressly and clearly admitted that they are customary tenants of the respondents’ family to now argue or submit that (perhaps with tongue in cheek) the incidents of customary tenancy were not proved by the respondents.’
Similar conclusion was reached by the apex Court (Kawu, J.S.C.) earlier on in Fatuade v. Onwoamanam (1991) NWLR (PT 131) 322, (1990) LPELR-1253 (S.C.) p.12 – 13 thus:
Ground 3 reads:-
The judgment of the Court of Appeal are (sic) wrong in law and in fact in that the said judgment overlooked and failed to consider the finding of the learned trial judge did not avail herself of the opportunity of adducing oral evidence from the Ojora Chieftaincy family who were alleged to be the plaintiff’s landlord and who could positively prove her title.
Again, the issue before the trial Court was not as the Court of Appeal correctly identified, whether the land was acquired from the Ojora family by the plaintiff. The issue was whether the plaintiff was the owner of the house which the defendant claimed belonged to the plaintiff?s husband who had sold to him. In fact, both parties would appear to have agreed that the land originally belonged to the Ojora Chieftaincy family. In this regard the defendant tendered exhibits D2A and D2E which he claimed were issued by the Ojora Chieftaincy family relating to the property. In the circumstances, I do not see any need or necessity for the plaintiff to call a witness from the Ojora Chieftaincy family to prove the grant of land.
This dictum in Onwoamanam’s case also answers the other limb of Mr. Akubo’s argument that Da Gyel’s traditional evidence was inadmissible and weightless hearsay so he needed to call members of Jok family to confirm it for the Court to properly rely on it. Besides the fact that Da Gyel’s pleading of his vendors’ Jok family’s ownership of the disputed land was admitted by appellants, it is not even the law, as confirmed by even Fatuade v. Onwoamanam above, that a member of a claimant?s grantor or vendor’s family must always testify in support of his traditional history before such claimant can succeed in his claim. This same contention rejected in Onwoamanam’s case was again canvassed before the apex Court nine years later in Alli v. Alesinloye (2000) 77 LRCN 742 @ 786 – 788, (2000) 6 NWLR (PT 660) 177, (2000) FWLR (PT 15) 2610, (2000) 4 S.C. (PT 1) 111, (2000) 4 SCNJ 264) and again rejected.
What is more, in the instant case there was also the evidence of D.W.4 called by Da Gyel in support of his case. D.W.4 while admitting, apparently honestly, that he did not know or meet Jok the founder of Jok family (who must conceivably be long dead before his birth), and that he is not even from Jok family and has no relationship with that family, went on to state under cross-examination that Davou Zang Jok (now dead, according to D.W.4) was related to him, that he knew Davou Zang Jok owned the said land hence he witnessed the transaction for him, that Davou Zang got the land from his father Zang, and that he even knew when Late Davou Zang’s father was farming the disputed land (See p. 796 and 797 of the records). That also adds further weight to the traditional history of the land related by Da Sambo Bashi Gyel. This is even more so when nothing in the records suggests that this witness was taken up on his claims.
I wish to only add, in further answer to learned silk?s contention about hearsay evidence that, hearsay evidence is actually admissible in proof of traditional history of land ownership, exception having been made for its admission by Section 66 of the Evidence Act. In fact it has been said too by high authority that the rationale behind this statutory exception is the universal condition of illiteracy of years past, and that the provision applies not only to claims in land cases but to all claims (including chieftaincy claims founded on traditional history) which owe their origin to antiquity and could only be proved by oral evidence: Popooola v. Adeyemo (1992) 3 NSCC 46 @ 59 -60.
Proof of identity of the disputed land by 3rd respondent: I am afraid the argument of appellants on need for 3rd respondent’s father to prove identity of the land he counterclaimed does not fare better either. I am rather in complete agreement with the lower Court that appellants in their defence did not join issues with 3rd respondent’s father on identity of disputed land to warrant that. The law is well settled that identity of disputed land will only be in issue when the defendant makes it so in his defence to the claim: see Fatuade v. Onwoamanam (1991) NWLR (PT 131) 322, (1990) LPELR-1253 (S.C.), Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 41. Related to that is that, where from the evidence or processes filed by parties the identity of the disputed land is clear, for instance where the defendant in agreement with plaintiff in his statement of defence repeatedly refers to a disputed land as ‘the disputed land?, it will not be open to him to raise issue of identity of disputed land at address stage: Atolagbe v. Shorun (1985) 1 NWLR (PT 2) 360 @ 374 – 376; Osho v. Ape (1998) 8 NWLR (PT 562) 492 @ 506 – 507; Oshodi v. Eyifunmi (2000) 1 SCNJ 295 @ 325; Motanya v. Elinwa (1994) 7 NWLR (PT 356) 252 @ 361; Ayuya & Ors v. Yonrin & Ors (2011) 5 SCM 16 @ 38.
Furthermore, even though a plaintiff’s description of the disputed land is vague but the defendant claims a counterclaim and in it clearly identifies the land, a declaration which will otherwise not be granted can be granted on that basis: Okedare v. Adebara (1994) 6 NWLR (PT 349) 157 (S.C). The same principle applies where the defendant clearly identifies a disputed land in his statement of defence: Anyanwu v. Uzowuaka (2009) ALL FWLR (PT 499) 41
Here, appellants never indicated even remotely in their processes or evidence that the land in dispute claimed by 1st and 3rd respondents separately, which land 1st appellant also counterclaimed and even added he was in possession, was not clear to him.
What is more, 3rd respondent as earlier shown averred in paragraph 4 of his counterclaim that the very land in dispute which he said he bought from Jok family is what the 1st appellant claimed 2nd defendant also sold to him. He even went on to further say in paragraphs 7 and 8 of the same counterclaims that appellants and 1st respondent had continuously disturbed his quiet possession of the said land. Appellants filed a defence to that claim but never suggested there that they did not know the land he was talking about. On the contrary, they proceeded headlong in their defence to that counterclaim to assert that:
i. 2nd defendant is one of the beneficial owners of the disputed land and same was acquired by the 1st defendant [1st appellant] vide Right of Occupancy No. PL 35934. (para 3.)
ii. That 1st, 2nd and 3rd defendants [appellants] aver that 1st defendant [1st appellant] has carried out development on the land in question in exercise of bona fide right of claim having acquired the land from the family of the original owners, namely the 2nd and 3rd defendants [2nd and 3rd appellants] devoid of any encumberance. (para 6.)
iii. The 1st defendant [1st appellant] will show at the trial that he has since become the registered owner of the said land having been issued with R of O No. Pl 35934 by the appropriate authority with the consent of the owners. (para 8.)
Having so clearly agreed with 3rd respondent?s father on the identity of the disputed land, it amazes me that appellants could turn around to say they were after all not clear about the identity of the same land and 3rd respondent should have given them further description of same. That contention, with all due respect to the learned silk, does not seem to me seriously made.
Purported differences in 3rd Respondent?s father?s signature in Exhibit 21 and his two witness statements on Oath. Like the trial judge, I also fail to see substance in this contention of appellants. Da Gyel, under cross-examination by Akubo for appellants, stated that he had two signatures one of which he uses in signing bank documents and the other for other documents. It is not very clear from the records whether Da Gyel was made to sign his said two signatures in open Court, but the records at pages 801-802 show a plain sheet of paper (Exhibit 21) containing two handwritten signatures marked 1 and 2 which Mr. Akubo tendered from the Bar without objection from Mr. Bashiri for Da Gyel. There is nothing to suggest that it was put to Da Gyel in the witness box that there was a discrepancy between Exhibit 21 and his two witness statements. On the contrary, it seems it is Mr. Akubo’s own comparison outside Court of these two signatures with the ones contained in the two witness statements of Da Gyel in the records that forms the basis of learned silk?s argument of inconsistencies in the said signatures.
The learned trial judge, founding his decision on Late Da Gyel’s assertion that he had two different signatures for banking and other things as earlier said, rejected that contention of learned silk. I am in agreement with the trial judge. If anything, the signature of Da Gyel in the additional statement at p. 542 of the records is as close as it can possibly be to Signature No. 1 on Exhibit 21 in the circumstances it was made, contrary to learned silk’s contention. One must also note that Da Gyel’s two statements were all interpreted to him from English
Language to Hausa and both witness statements bear the interpreters’ names and signature with the necessary jurat in each of them. That means that Da Gyel was not literate, which fact could well explain whatever little differences that may have existed in the said signatures that learned silk is capitalizing on.
I also note that both witness statements of Da Gyel were made before the Commissioner for Oaths and carry the usual declaration/attestation that the witness statements of Da Gyel were made by him before the Commissioner for Oaths. They also bear the said Court official?s signature and stamp of Court. In that circumstance the presumption enshrined in Section 168 of the Evidence Act that says ?when any judicial or official act is shown to have been done in a manner substantially regular it is presumed that formal requisites for its validity were complied with? will inure to the benefit of Da Gyel, even more so when there is nothing to suggest that it was suggested to Da Gyel by learned silk during cross-examination that he did not make any or all of his witness statements. See Udeagha v. Omegara (2010) LPELR-3856 (C.A.) p.18 -19, (2010) ALL FWLR (PT 542) 1785 @ 1800 – 1801, (2010) 11 NWLR (PT 1204) 168 @ 195.
In any event, the burden of proof, and in fact the duty to rebut the presumption provided by Section 168 of the Evidence Act that Late Da Gyel did not sign his two witness statements is on the appellants who are asserting it, just like it is the duty of a person who alleges forgery of a document produced by his opponent to prove that the said document is actually forged as he alleges: Aderounmu v. Olowu (2000) 2 S.C. (PT 11) 1 @ 6, (2000) LPELR-141 (S.C.) P.12; Oketie v. Olughor (1985) SCNJ 217 @ 230 – 231. That proof they failed to provide. For each and all of these reasons, I also dismiss this ground of appellants? argument.
Failure to produce Right of Occupancy No. PL 16951: I am also not impressed by the heavy weather learned silk for appellant tried to make of Da Gyel?s failure to produce the Right of Occupancy No. PL 16951 he pleaded. The issue that should bother us is whether he was able to produce his primary source of title to the disputed property, exhibit 20 translated into English Language in Exhibit 20A, which he claimed Jok family of his vendors issued him.
That, he produced and it was nowhere suggested that the said family did not sell to him. Anything else, including the said Right of Occupancy No PL 16951 which he later admitted, apparently frankly, under cross-examination, was not actually issued to him, could only be additional evidence to Exhibit 20 without which any such Right of Occupancy may even be just a useless document: see Ibrahim v. Mohammed (2003) FWLR (PT 156) 902 @ 922 (S.C.). In the result, I unhesitatingly resolve issue 2 against appellants.
On issue 3, appellants submitted first, that 3rd respondent?s father?s counterclaim was statute barred and the lower Court wrong in granting it, and secondly, that the lower Court also granted alternative claim 4 of 3rd respondent after granting his 3rd claim to which claim 4 was alternative.
The response of Mr. Pwul for 3rd respondent to these arguments is that the Rules of the lower Court, specifically Order 26 Rule 6(1) and (2), require, mandatorily, that Limitation statute be pleaded before it can be invoked and since appellants failed to do that, it was not open to them to argue application of Limitation statute.
As for the grant of 3rd respondent’s alternative claim 4 alongside his main claim 3, counsel argued that neither claim was sought or granted against appellants, but only against 1st respondent who has not complained, so appellants lack standing to complain about their grant. Assuming that he was wrong in that argument, he continued, the grant of those two reliefs has not affected the judgment in any way; that the judgment of the lower Court against appellants will stand even without alternative claim No. 4 so their complaint is merely academic. For these reasons, counsel further urged us not only to resolve this issue against appellants but also dismiss Ground 15 of their Notice and Grounds of appeal where it was raised.
In further response in the reply brief of appellants, Mr. Akubo argued that statute bar is an issue that strikes at the jurisdiction of the Court to entertain the claim so it can be raised at any time in the proceedings. On the alternative relief 4, learned silk argued that if 3rd respondent is correct in his response that appellants lack standing to question the grant of claim 3 and its alternative claim 4 since they were not directed at appellants, it means in effect that 3rd respondent cannot also seriously argue against the dismissal of 1st appellant’s counterclaim since it was also only made against 1st respondent and not him. At any rate, learned silk went on, appellants having filed pleadings against the counterclaim of 3rd respondent, they are parties affected by it and so entitled to challenge any part of the judgment that they do not agree with.
Resolution of issues
Application of limitation statute: It must be pointed out, first, that issue of statute bar was not raised by appellants at the lower Court; it is rather being raised for the first time on appeal and without the requisite leave of Court (see Agu v. Ikewibe (1991) 3 NWLR (PT 180) 385; Bankole v. Pelu (1991) 11 SCNJ 108 @ 131 -133). In Ibrahim v. Lawal (2015) LPELR-24736 (S.C.) at p. 42 – 44 the apex Court emphasized the necessity to first obtain leave of this Court to raise limitation statute on appeal if it was not raised before the trial Court. Unless leave is first obtained, this Court may not even hear appellant on the issue: Saude v. Abdullahi (1989) LPELR-3017 (S.C.) p.80-81 (Oputa J.S.C.), Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (PT 109) 250 supra (Oputa J.S.C.).
But even assuming that appellant could properly raise that issue before us without our leave (the particular Limitation statute was not even stated by appellants), it is settled law (1) that whether an action is barred by limitation statute is done with reference to the averments in the writ of summons and statement of claim regarding when the cause of action accrued: Elabanjo v. Dawodu(2006) 15 NWLR (PT 1001) 76; Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (PT 47) 1 and, (2) the defence being a special one must be first pleaded by the defendant in his/her statement of defence as required by the Rules of Court before he/she can properly raise it in the proceeding: SeeOlagunju v. PHCN (2011) 4 MJSC 114 @ 127.
In this case not only did appellants fail to raise defence of limitation in their defence to 3rd respondent?s counterclaim, there is also no averment in the counterclaim of 3rd respondent regarding the date appellants entered the disputed land to guide the Court in calculating when 3rd respondent’s cause of action arose and became barred by the unnamed limitation statute. Without that this Court will be practically engaging in speculation in embarking on the course suggested by appellants of determining when cause of action accrued to 3rd respondent that has been barred by a limitation statute. That is assuming one was even minded to discountenance appellants’ failure to plead statute bar as a defence. Defence of Limitation of action or statute bar, I hold, is out of the question.
On the grant of both claim No. 3 and its alternative claim No. 4 by the lower Court, it stands both law (see G.K.F. Investment Nig Ltd v. NITEL Plc (2009) 15 NWLR (PT 1184) 344; U.B.N. Penny-Mart Ltd (1992) 5 (NWLR (PT 240) 228 @ 241) and logic on the head for something which is claimed only as an alternative to be granted along with the main thing to which it is alternative. That will not only amount to double compensation (G.K.F. Investment Nig Ltd v. NITEL Plc supra), it also means technically giving a claimant what he did not claim. Such relief ought not to be allowed to stand. But the question is whether the appellants against whom the claim was neither made nor granted can properly challenge it. The answer is No. Appellants not being the ones against whom those orders were made cannot assert as they purported to do in their Notice of Appeal that they are ?dissatisfied? with the judgment on that ground and it should be set aside. The Court seldom grants audience to persons whose interests are not affected by issues before it. That seems the case with appellants.
But then, that is not the end of the matter, as the bigger question is whether this Court should in any event allow such very incongruous order to stand in the records on the ground simply that the wrong person has drawn its attention to it. I think not. The framers of the enabling statute of this Court and its Rules seem to have anticipated situations like this hence they conferred necessary general powers in this Court by Section 15 of the Court of Appeal Act 2004 to deal with them. That provision (S.15) reads:
15.The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and … shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as a Court of first instance and may re-hear the case in whole or in part…”
The Rules of this Court 2016 also provide in its Order 4 Rules 3 and 4 that:
Or. 4 R.3: The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further order(s) as the case may require, including any orders as to costs.
R.4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no appeal or Respondent?s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and that the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.
These powers have been further confirmed and exercised in a number of cases including Akpan v. Umoh (1999) 6 NWLR (PT 627) 156 @ 166; Okeowo & Ors v. Migliore & Ors. (1979) N.S.C.C. 210 @ p. 238-23; Chikere v. Okegbe (2000) 7 SCNJ 154 @ 166; Osurinde v. Ajamogun (1992) 6 NWLR (PT 264) 156 @ 191-193 (S.C.) and Ikuomola v. Oniwaya (1990) 3 NSCC 95 @ p.101, 105. In the event, the judgment of the High Court of Plateau State of 29th April 2014 in Suit No. PLD/J/242/2002 granting alternative relief 4 is amended and the said relief No. 4, which is alternative to main relief 3, is hereby struck out.
That having been done, issue 3 is also resolved against the appellants.
In the final analysis, this appeal fails and is dismissed and the judgment of the lower Court subject to the amendment here made is affirmed.
There shall be costs of #100,000.00 against appellants in favour of 3rd respondent only.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Judgment of my learned brother Ugo, J.C.A. just delivered. I completely agree with his reasoning and conclusion that the appeal is devoid of merit and ought to be dismissed. My learned brother had adequately considered and resolved the issues raised for determination in this appeal. I have nothing more to add but to adopt same as mine. I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment, costs inclusive.
TANI YUSUF HASSAN, J.C.A.: I read a draft of the leading judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, J.C.A. I agree with his Lordship’s reasoning and conclusion dismissing the appeal. I abide by the order as to costs.
Appearances:
P.A. Akubo, SAN with him, S.Y. Tsok, Esq., A.J. Adudu, Esq. and Miss G.S. Orshio
For Appellant(s)
E.L. Madaki, Esq. for 1st respondent.
F.M. Pwul, Esq., for 3rd respondent.
Second respondent is unrepresented.For Respondent(s)
