ABUBAKAR v. FULANI
(2022)LCN/15963(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, March 15, 2022
CA/A/110/2020
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Between
SAIDU ABUBAKAR APPELANT(S)
And
ALHAJI MAIKUMA SAUNI FULANI RESPONDENT(S)
RATIO
WHETHER OR NOT ORIGINATING PROCESSES NOT SIGNED BY A PARTY OR HIS COUNSEL IS INCOMPETENT
My Lords, in considering issue one for determination in this appeal and going by the plethora of decided cases relied upon by Counsel for the parties on these issues, it underscores the fundamental nature of this issue, which is raising the almost over flogged issue of the effect of failure of either a party or his counsel to sign every Court process that is by law required to be signed. The welter of opinions on this issue is that an originating process, such a Writ of Summons, and all other Court processes required by law to be signed either by the party or his counsel if not so signed is incompetent. This issue is based on what can now, in the Nigerian legal jurisprudence, be called the ‘Rule in Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521, which is predicated on the succinct provisions of Sections 2 (1) and 24 of the Legal Practitioner Act. Cap 207 LFN 1990. See Pa Suraj Jinadu & Ors V. Alhaji Oba Yushau Goriola Oseni & Ors (2021) LPELR-54547(CA) per Georgewill JCA. See also Union Bank V. Estate Of Late Clement Ogeh (2018) LPELR – 46701(CA) per Georgewill JCA, Joshua Bernard Famudoh & Anor V. Dominic Edi Aboro & Anor (1991) 9 NWLR (Pt. 214) 210 at p. 229, United Bank for Africa V. Barrister Eyo Nsa Ekpo (2003) 12 NWLR (Pt. 834)1 and Mohammed Marl Kida V. A. O. Ogunmola (2005) 6 SC 147 at pp. 152 – 153. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON DELIVERY OF JUDGEMENT OUTSIDE OF THE 90 DAYS PRESCRIVED BY LAW
But first what is the position of the law on delivery of judgment outside of the 90 days as prescribed by law or delivery of judgment by the Court below? In Okafor V. Swan Ltd (2014) LPELR-24147(CA), this Court had per Georgewill JCA., stated inter alia thus:
“Now, to render a judgment delivered outside the three months period as limited by the Constitution of this Country a nullity, there must be shown, by the Appellant being the party so contending, to have been a miscarriage of justice by reason of such inordinate delay and lapse of time in the date of delivery of the judgment…”
Be the above as it may, it is now well accepted in law that an outcome in a judicial proceeding that is grossly or irredeemably unfair would amount to miscarriage of justice if proved or shown by a party alleging the nullity of a judgment delivered much outside the 90 days limitation period as enshrined in the Constitution of this country. See The State V. Godfrey Ajie (2000) 7 SCNJ 1 at p.11. See also Total Nig. Ltd. V. Wilfred Nwako (1978) 5 SC 1 and Aigbobahi V. Chief Aifuwa (2006) 2 SCNJ 61 at pp 73 – 74. PER GEORGEWILL, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES AND ASCRIBE PROBATIVE VALUE TO IT
It is the law that evaluation of evidence and ascription of probative value to evidence is primarily the duty of a trial Court. However, where it is shown in an appeal that the trial Court had abdicated its primary duty by failing to evaluate or by not properly evaluating the evidence before it, it is then and only then an appellate Court can intervene to undertake that exercise, generally if the assessment of the evidence would not involve the demeanor or credibility of witnesses. See UAC (Nig) Plc V. Akinyele (2012) 15 NWLR (Pt.1322) 1 at Pp. 15 – 16. See also Teriba V. Adeyemo (2010) 13 NWLR (Pt. 1211) 242 at pp. 258 – 259. PER GEORGEWILL, J.C.A.
WHETHER OR NOT JUDGEMENT OF A COURT IS RENDERED INVALID BY REASON OF DELAY IN DELIVERING IT OUTSIDE OF THE PRESCRIBED 90 DAYS PERIOD
Thus, the onus was on the Appellant to demonstrably show that there was a miscarriage of justice by the breach of Section 294(1) of the Constitution of Federal Republic of Nigeria 1999 (as Amended) by the delivery of the judgment of the Court below in 18 days outside of the three months as prescribed by law. See Imoh & Anor V. EFCC & Ors (2018) LPELR-46579(CA), where this Court had per Georgewill JCA., stated inter alia thus:
“The law is well settled that for judgment of a Court of law established under the Constitution of Nigeria 1999 (as amended) to be rendered invalid pursuant to the provisions of Section 294 (1) of the said Constitution by reason of delay in its delivery outside the prescribed 90 days period, it must be shown by the party complaining, generally the Appellant of course, that the delay had occasioned a miscarriage of justice to him, failing which the judgment stands and remains valid.”
Now, by Section 294 Subsections (1) and (5) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
294(1): “Every Court established under the Constitution shall deliver the decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
294 (5): “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal of review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In Dennis Akoma & Anor V. Obi Osenwokwu & Ors(2014) LPELR – 22885 (SC) at Pp. 40 – 41, the Supreme Court per Onnoghen JSC (as he then was but later CJN) had pronounced on the legal effect of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) inter alia thus:
“The question is; what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within the ninety days of the final addresses of counsel? The answer is that the judgment/decision/order is valid except an Appellant can satisfy the Court that the non-delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.”
See also Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 852) 307. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State, Coram: Zainab Aliyu Sadat in Suit No. NSHC/MN/10/2017: Saidu Abubakar V. Alhaji Maikuma Sauni Fulani delivered on 24/10/2019, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter – claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted.
The Appellant was peeved by the said judgment and had promptly appealed against it vide a Notice of Appeal filed on 30/12/2019 on five grounds of appeal. See pages 288 – 293 of the Record of Appeal. The Record of Appeal was duly compiled and transmitted to this Court on 13/2/2020. The Appellant’s brief was filed on 28/2/2020. The Respondent’s brief was filed on 1/3/2021 but was deemed as properly field on 27/1/2022. The Appellants’ reply brief was filed on 17/7/2020 but was deemed as properly filed on 27/1/2022.
At the hearing of the appeal on 27/1/2022, Phillip K. Emmanuel Esq., learned counsel for the Appellant adopted the Appellant’s brief as his arguments in support of the appeal and urged the Court to allow the appeal. On his part, J. O. Okebe Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments against the appeal and urged the Court to dismiss the appeal.
By a Writ of Summons and Statement of Claim filed on 9/1/2017 before the Court below, the Appellant as Claimant claimed against the Respondent as Defendant, the following reliefs, to wit:
1. A Declaration that the Plaintiff is entitled to the Deemed/Customary Right of Occupancy over the disputed land as clearly described at paragraph 6 of the Statement of Claim.
2. An Order of Court declaring the Defendant as a trespasser and consequently directing him to forthwith vacate the Plaintiff’s land quietly and peacefully.
3. An Order of perpetual injunction restraining the Defendant, his agents, privies, successors-in-title, personal representatives or any other person claiming through him from interfering with the Plaintiff’s quiet possession and peaceful enjoyment of the disputed land.
4. General damages of N5,000,000.00 only against the Defendant for the damage done to the Plaintiff’s Groundnuts, Soya beans and Guinea Corn.
5. Substantial cost of prosecuting this action charged at N500,000.00 only
6. Any other further order(s) as meets the interest of justice in the circumstance. See pages 1 – 9 of the Record of Appeal.
Upon service, the Respondent by his Statement of Defense and Counter – Claim filed on 27/3/2017 claimed against the Appellant the following reliefs, to wit:
1. A Declaration of the Court that the Defendant/counter – claimant is the rightful owner of the disputed land lying and situate at Gbalcuku village under Munya Local Government Area bounded at EAST: Old Guni Road, WEST: Small hill and forest SOUTH: Forest then Fulani settlement NORTH: Rock/hill then forest.
2. An Order of perpetual injunction restraining the Plaintiff his privies, agents, assigns and anybody acting on his behalf from further claiming or tampering with the land in any manner
3. The sum of N1,000,000.00 as damages
4. The sum of N2,000,000.00 as cost of litigation. See pages 57 – 65 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
The gist of the case of the Appellant as Claimant before the Court below as can be gleaned from the averments in his pleadings and evidence led as in the Record of Appeal was that he is the owner of the land in dispute by inheritance having inherited same from his father one Abubakar, who had himself inherited the said land from his own father one Salulu, the Appellant’s grandfather, who himself had inherited the said land from his own father one Sarkin Dnabui also known as Tsidnabui Bahago the Appellant’s great grandfather, who was the 1st person to have cleared, deforested and founded the land when it was a virgin land, thick forest and uncultivated. It was also the case of the Appellant that about seven years prior to the filing of the suit before the Court below he loaned the portion of the land in dispute to the Respondent to raise temporary tents for the purpose of grazing his cattle/animals thereon, hence the claim for declaration of title to the land in dispute and other reliefs vide his Writ of Summons and Statement of Claim filed on 9/1/2017, as well as the reply/Defense to Statement of Defense and counter – claim filed on 5/4/2017. See pages 1 – 40, 84 – 86 and 161 – 163 of the Record of Appeal.
The gist of the case of the Respondent as Defendant/counter – claimant before the Court below as can be gleaned from the averments in his pleadings and evidence led as in the Record of Appeal was that he founded the land in dispute over 35 years prior to the filling of the suit before the Court below. It was also his case that he built and lives on mud houses and structures on the land in dispute about 12 years prior to the filling of this suit before the Court below, and is the owner in possession of the land in dispute vide his Statement of Defense and counter – claim filed on 27/3/2017. See pages 57 – 65 of the Record of Appeal.
The parties filed and exchanged pleadings and the matter proceeded to trial. The Appellant called three witnesses. PW1, was one Danjuma Shehu Abubakar. PW2 was one Ibrahim Wakili. The Appellant testified for himself as PW3 and closed his case. The Respondent called five witnesses. DW1 was one Tanko Doma. DW2 was one Garba Dan Ibakuba Isiyaku. DW3 was one Mallam Almu Muhammadu. The Respondent testified for himself as DW4. The Respondent called one more witness, one Adamu Kaduna Sauni who testified as DW5 and closed his defence/counter – claim. Subsequently, the parties filed and exchanged their final written addresses, which were duly adopted by them on 8/7/2019 and on 24/10/2019, the Court below delivered its judgment, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter – claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted See pages 234 – 287 and 288 – 293 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether the Court below was justified in law to have assumed jurisdiction in respect of the Respondent’s Statement of Defense and counter – claim which was ab initio null and void and incompetent in law? (Distilled from Ground 3)
2. Whether on the balance of probability, the Appellant has successfully discharged the burden of proof of his title to the land by traditional history as pleaded? (Distilled from Grounds 1 and 2)
3. Whether the inordinate delay in the delivery of the judgment by the Court below actually impacted on its perception and assessment of the evidence thereby prejudicially tilting the scale of justice against the Appellant? (Distilled from Grounds 4 and 5)
In the Respondent’s brief, three issues were also distilled as arising for determination in this appeal, namely:
1. Whether the Statement of Defense and counter- claim filed by the Respondent at the lower Court was incompetent to have prevented the trial judge from assuming jurisdiction to entertain same?
2. Whether from the pleadings and totality of the evidence before the Court, it is the Appellant and not the Respondent that established a better title to the disputed land?
3. Whether in the circumstances of this case, failure of the trial Court to deliver its judgment within the stipulated ninety days has occasioned miscarriage of justice?
I have taken time to consider the averments in the pleadings and evidence led thereon by the parties before the Court below as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the Court below and I am of the view that the apt issues arising for determination in this appeal are Appellant’s issues one and two and Respondent’s issue three, a consideration of which, in my view, would invariably involve a consideration of the Appellant’s issue three as well as the Respondent’s issues one and two.
However, since issues one and three deal with issues of competence and validity, I shall consider and resolve them first before proceeding to consider issue two which deals with the merit or otherwise of the respective cases of the parties.
ISSUE ONE
Whether the Court below was justified in law to have assumed jurisdiction in respect of the Respondent’s Statement of Defense and counter – claim which was ab initio null and void and incompetent in law?
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that in law a counter-claim is not merely a defense to the plaintiff’s claim but is to all intents and purposes an independent action and contended that in essence, a counter-claim is by nature an originating process that must be initiated by due process of law and without any feature that prevents a Court from exercising its jurisdiction and urged the Court to hold that the Respondent’s Statement of Defense and counter-claim having not been shown or indicated to have been signed by any one of the three legal practitioners, Y. G. Koroka Esq., Sani Ibrahim Esq., and Miss Nwaigwe Pauline, all of Summit Chambers, No. 2 Mu’azu Mohammed Road Minna, Niger State, whose names were endorsed thereon as required by law is fundamentally defective, incurably bad and incompetent in law and to allow the appeal, strike out the said Statement of Defense and counter-claim and set aside the judgment of the Court below entered in favor of the Respondent. Counsel referred to Section 2(1) of the Legal Practitioners Act and relied on Tyonex (Nig) Ltd V. Pfizer Ltd. (2020) 1 NWLR (Pt.1704) 125 at pp. 130 – 133; Madukolu V. Nkemdilim (1962) 2 SCNLR 341.
It was also submitted that in law where a Court process is settled by more than one counsel and a signature appears on the process, for such a process to be said to have been properly signed and competent, the person whose signature appears on the process amongst the list of counsel who settled same must be indicated with clarity and certainty by a tick of the name of the owner of the signature and contended that failure to so indicate by ticking the name of the particular counsel who signed the Court process will render the same incurably bad, fundamentally defective and incompetent in law and thus liable to be struck out and urged the Court to hold that the Respondent’s Statement of Defense and counter – claim having suffered this fate was incompetent and to allow the appeal, strike out the said incompetent Court process and set aside the judgment of the Court below founded on the said incompetent Court process. Counsel relied on SLB Consortium Ltd. V. NNPC (2011) 9 NWLR (Pt.1252) 317 at pp. 337 – 338, Braithwaite V. Skye Bank PLC (2013) 5 NWLR (Pt.1346) 1 at Pp.16 – 19, Eyo Etum Nyong & Anor Vs. Bassey Edet & Ors (2002) LPELR – (CA), Oyama V. Agibe (2016) All FWLR (Pt. 840)1274 at pp. 1285 -1286, Barr. Okey Ezea & Anor V. Hon. Ifeanyi & 4 Ors (Unreported) with Appeal No CA/E/EPTS/06/2015 delivered on 20/8/2015, Alikor V. Ogwo (2019) 15 NWLR (Pt.1695) 331 at pp. 364 – 365;, M. C. C (Nig) Ltd. V. COSEDA (Nig) Ltd (2018) 11 NWLR (Pt.1629) 47 at pp. 57-58; Mamman V. Bwacha (2017) 1 NWLR (Pt.1547) 425 at pp. 462 – 463, Ogunseide V. Societe Generale Bank Ltd. (2018) 9 NWLR (Pt.1624) 230 at p. 246, NLC V. FGN (2018) 7 NWLR (Pt.1619) 561, Okafor V. Nweke (2007) 10 NWLR (PT.1043) 521, Oketade V. Adewunmi (2010) 8 NWLR (Pt.1195) 63; Nnalimuo V. Elodumuo (2018) 8 NWLR (Pt.1622) 549 at p. 559, Raji V. Unilorin (2018) 15 NWLR (Pt.1642) 220 at p. 235.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondent had submitted that the Respondent’s Statement of Defense and counter – claim was not incompetent to prevent the Court below from assuming jurisdiction merely on the basis of the misconceived contention by the Appellant that out of the three counsel whose names appeared on the Respondent’s Statement of Defense and counter – claim, the person who signed the process was not indicated and contended the Appellant having not raised this issue, of the mere irregularity of the omission to place a tick beside the name of Y. G. Koroka Esq., on the Statement of Defense and counter – claim when the Respondent’s Motion on Notice which was duly signed and sealed by the Counsel for the Respondent was moved and leave granted to the Respondent to file his Statement of Defense and counter – claim out of time, had waived his right to do so and urged the Court to hold that in law that a person who participates in a proceeding without raising necessary objection to an irregularity is taken to have waived his right and to dismiss the appeal on this ground for lacking in merit and amounted to overstretching cheap technicality. Counsel relied on NACB Ltd. V. Salems Farms Ltd. (2006) All FWLR (Pt. 320) 1174 at p. 1187, Panalpina World Trans. Holding AG. V. CC Ltd. (2011) All FWLR (Pt. 600) 1258 at p. 1277 – 1278.
It was also submitted that the reliance on the provisions of Section 2(1) of the Legal Practitioners Act by the learned counsel for the Appellant was misconceived in that the said provision only stipulates the condition precedent for a person to practice as a Barrister and Solicitor in Nigeria and therefore, has nothing to do with the issue of signature of counsel and contended that in the absence of any issue regarding the status of Y. G. Koroka Esq., as a legal practitioner whose name is on the roll, there was no basis for the inappropriate reference to and invocation of the provisions of Section 2(1) of the Legal Practitioners Act and urged the Court to hold that in law once a Court process is signed by a legal practitioner, it is competent and the Court can act on same and to dismiss the appeal on this ground and affirm the sound judgment of the Court below. Counsel relied on Williams V. Adold/Stamm International (Nig.) Ltd & Anor (2017) All FWLR (Pt. 879) 721 at p. 739 and Registered Trustees of Apostolic Church Lagos Area V. Rahman Akindele (1967) NMLR 263.
It was further submitted that since the stamp/seal which is on the process is that of Y. G. Koroka Esq., whose status as a legal practitioner whose name is on the roll is not in issues, the Appellant was not left in doubt or misled neither is this Court misled as to who signed the Respondent’s Statement of Defense and counter – claim and contended that in law the mere omission to place a tick by the side of the name Y. G. Koroka Esq., cannot and did not invalidate the Respondent’s Statement of Defense and counter – claim and urged the Court to hold that there was no feature in the Respondent’s Statement of Defense and counter – claim before the Court below that could have affected its jurisdiction as laid down in a long line of decided cases, including Madukolu V. Nkemdilim (1962) 2 SCNLR 341, which are no avail to the Appellant and to dismiss the appeal for lacking in merit.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the submission by the Respondent that the Appellant’s failure to raise the issue of the fundamentally defective Statement of Defense and counter – claim before the Court below amounts to waiver in law is highly misconceived and contended that in law the failure to properly sign an originating process is a jurisdictional question which cannot be waived and therefore, can be raised at any stage of the proceedings, including for the first time on appeal and urged the Court to hold that in law the parties cannot by waiver, indolence, silence, passively or actively confer jurisdiction on the Courts and to allow the appeal, strike out the incompetent Respondent’s Statement of Defense and counter – claim and set aside the judgment of the Court below founded on such an incompetent Court process. Counsel relied on R. A. Oliyide & Sons Ltd V. OAU Ile – Ife (2018) 8 NWLR (Pt.1622) 564 at p. 567; Savannah Bank Nig. Plc. V. Saba (2018) 14 NWLR (Pt.1638) 56 at p. 64.
RESOLUTION OF ISSUE ONE
My Lords, in considering issue one for determination in this appeal and going by the plethora of decided cases relied upon by Counsel for the parties on these issues, it underscores the fundamental nature of this issue, which is raising the almost over flogged issue of the effect of failure of either a party or his counsel to sign every Court process that is by law required to be signed. The welter of opinions on this issue is that an originating process, such a Writ of Summons, and all other Court processes required by law to be signed either by the party or his counsel if not so signed is incompetent. This issue is based on what can now, in the Nigerian legal jurisprudence, be called the ‘Rule in Okafor V. Nweke (2007) 10 NWLR (Pt. 1043) 521, which is predicated on the succinct provisions of Sections 2 (1) and 24 of the Legal Practitioner Act. Cap 207 LFN 1990. See Pa Suraj Jinadu & Ors V. Alhaji Oba Yushau Goriola Oseni & Ors (2021) LPELR-54547(CA) per Georgewill JCA. See also Union Bank V. Estate Of Late Clement Ogeh (2018) LPELR – 46701(CA) per Georgewill JCA, Joshua Bernard Famudoh & Anor V. Dominic Edi Aboro & Anor (1991) 9 NWLR (Pt. 214) 210 at p. 229, United Bank for Africa V. Barrister Eyo Nsa Ekpo (2003) 12 NWLR (Pt. 834)1 and Mohammed Marl Kida V. A. O. Ogunmola (2005) 6 SC 147 at pp. 152 – 153.
It has been contended, and quite vehemently too, for the Respondent that the issue of the failure and or omission to tick the name of particular counsel who had out of the names of three counsel endorsed on the Respondent’s Statement of Defense and counter – claim having not been taken up at the time when leave was granted to the Respondent to regularize his pleadings before the Court below amounted to waiver and therefore, can no longer be raised at this stage in this appeal by the Appellant. In response, it was contended, with equal vehemence too, for the Appellant that this issue borders not on mere irregularity but on jurisdiction and competence and therefore, not affected by the concept of waiver.
I have considered the divergent contention of the parties on this aspect of issue one and taken time to read through the decided cases relied upon by their respective counsel. In law, whilst in matters of mere irregularity the issue of waiver could arise, but in matters of fundament defect amounting to incompetent Court process, the issue of waiver does not arise as the parties cannot even by their own agreement or consent confer either jurisdiction on the Court or competence on a fundamentally defective Court process.
I, therefore, cannot but agree with the unassailable submission of learned counsel for the Appellant that the contention by the Respondent that the Appellant’s failure to raise the issue of the allegedly incompetent Respondent’s Statement of Defense and counter – claim before the Court below amounted to a waiver in law was highly misconceived. This is so because, in law an allegation bordering on failure to properly sign an originating process or pleadings required to be signed by law is a jurisdictional question which cannot be waived by the parties or even of their own consent or waiver or indolence. Thus, being jurisdictional it can be raised at any stage of the proceedings, including for the first time on appeal. I therefore find no merit in the contention by the Respondent that the issue of the competence of the Respondent’s Statement of Defense and counter – claim having not been raised before the Court below can no longer be raised before this Court in this Appeal, and since same does not represent the correct position of the law, it is hereby discountenanced. See R. A. Oliyide & Sons Ltd V. OAU Ile – Ife (2018) 8 NWLR (Pt.1622) 564 at p. 567. See also Savannah Bank Nig. Plc. V. Saba (2018) 14 NWLR (Pt.1638) 56 at p. 64.
My Lords, having held as above that the concept of waiver does not avail the Respondent as it is not applicable to issues of jurisdiction and competence, the law as it stands today, unless and until it is overturned by the apex Court, is that any Court process for that matter, not just originating processes only, not verifiable to have been signed by either the party himself or his legal practitioner is incompetent and therefore, liable to be struck out. See GTB Plc V. Innoson Nigeria Limited (Supra). See also SLB Construction V. NNPC (2011) 9 NWLR (Pt.1252) 317 at pp. 336 -337.
However, to properly focus on issue one, I have taken a calm look at the Respondent’s Statement of Defense and counter – claim filed on 27/3/2017 and which can be found at pages 57 – 65 of the Record of Appeal. I have noted the fact, over which the parties are ad idem, that it was endorsed with a signature and under which appears names of three counsel for the Respondent with none of the three names ticked.
Our attention was drawn to two pertinent decisions of the Supreme Court, one apiece by counsel to the respective parties. The first was the decision in Alikor V. Ogwo (2019) 15 NWLR (Pt. 1695) 331 at p. 346 – 365, heavily relied upon by the Appellant and with which we were urged to hold that the Respondent’s Statement of Defense and counter- claim was incompetent. The second was the decision in Williams V. Adold/Stamm International (Nig.) Ltd. & Anor (2017) All FWLR (Pt. 879) 721 at p. 739, heavily relied upon by the Respondent and with which we were urged to hold that the Respondent’s Statement of Defense and counter – claim was competent.
Now, in the first decision, Alikor V. Ogwo (2019) 15 NWLR (Pt 1695) 331 at p. 346 – 365, the issue was that on the Amended Statement of Claim, a signature was endorsed by an unknown person for F. A. Oso Esq., SAN. The issue was not about the non-ticking of one of several counsel whose names are endorsed on the Court process, as in the instant appeal. The Supreme Court had per Uwani Musa Abba Aji, JSC, stated inter alia thus:
“It is clear that the Amended Statement of Claim was signed by an unknown proxy – for F.A. Oso. Esq (SAN) which is what the trial Court’s judgment was based on….In this case, the originating process was signed by an unknown person for F. A. Oso (SAN), and it is settled law that – once it cannot be said, who signed the process, it is incurably bad… In this case, the originating process filed by an unknown person “for F. O. Oso. Esq., (SAN),” was dead at the point of filing. So, the suit filed at the trial Court was fundamentally defective and incompetent. This issue touches on jurisdiction which is aptly described as the pillar upon which the entire case stands, and once it is shown that the Court lacks jurisdiction, the foundation of the case is not only shaken, the case crumbles…”
However, in the second decision, Williams V. Adold/Stamm International (Nig.) Ltd & Anor (2017) All FWLR (Pt. 879) 721 at p. 739, the issue turned ultimately on signature endorsed above the names of several counsel but none of which was ticked, and which is on all fours with issue one under consideration in this appeal. Nonetheless, the Supreme Court had emphatically pronounced inter alia thus:
“A process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice…I am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name Chief Ladi Rotimi Williams, SAN has not misled the Respondents nor this Court as to who signed the process and such omission cannot invalidate it.”
Now, by Section 2(1) of the Legal Practitioners Act provides thus:
“Subject to the provisions of this Act, a person shall be entitled to practice as a barrister and solicitor if, and only if, his name is on the roll.”
By Section 24 of the Legal Practitioner’s Act provides inter alia thus:
“In this Act, unless the context otherwise requires, the following expressions have the meaning assigned to them respectively, that is to say – – “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or solicitor, either generally or for the purposes of any particular office or proceedings.”
My Lords, from the brief pertinent issues to issue one in this appeal as disclosed in the two decisions of the Supreme Court, coupled with the succinct provisions of the Sections 2(1) and 24 of the Legal Practitioners Act, it seems clear to me that it is the decision of the Supreme Court in Williams V. Adold/Stamm International (Nig.) Ltd & Anor (2017) All FWLR (Pt. 879) 721 at P. 739, in which the issue is on all fours with this issue in the instant appeal that should govern and bind us in our consideration and resolution of issue one in this appeal. In law, a decision for the purposes of stare decisis is an authority for only what it decides.
In the circumstances therefore, and in the absence of any dispute or challenge regarding the status of Y. G. Koroka Esq., as a legal practitioner whose name is on the roll of Legal Practitioners, I find and I so firmly hold that the mere omission or absence of a tick against the name Y. G. Koroka, Esq., whose seal and stamp were endorsed on the processes leading to the regularization of the Respondent’s Statement of Defense and counter – claim, neither vitiates nor render as incompetent the Respondent’s Statement of Defense and counter – claim filed on 27/3/2017.
Indeed, such omission to place a tick beside the name Y. G. Koroka Esq., did not and has not, and was not shown to have, misled the Appellant, neither is this Court misled, as to who signed the process and in law such an omission cannot invalidate Respondent’s Statement of Defense and counter – claim, which can be found at pages 57 – 65 of the Record of Appeal. See Williams V. Adold/Stamm International (Nig.) Ltd. & Anor (2017) All FWLR (Pt. 879) 721 at p. 739, where the Supreme Court had emphatically pronounced inter alia thus:
“…I am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name Chief Ladi Rotimi Williams, SAN has not misled the Respondents nor this Court as to who signed the process and such omission cannot invalidate it.”
See also Registered Trustees of Apostolic Church Lagos Area V. Rahman Akindele (1967) NMLR 263.
In the light of the above finding therefore, issue one is hereby resolved against the Appellant in favor of the Respondent.
ISSUE THREE
Whether in the circumstances of this case, failure of the trial Court to deliver its judgment within the stipulated ninety days has occasioned a miscarriage of justice?
APPELLANT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Appellant had submitted that the parties adopted their final written addresses on the 8/7/2019 but the judgment of the Court below was only delivered on 24/10/2019, which was 108 days after the adoption of the final written addresses of counsel and contended that this fact led to a poor appreciation, assessment and evaluation of the evidence in the judgment of the Court below in that the judgment appealed against, the Court below had suo moto changed the Appellant’s pleading from his great grandfather being the original founder of the land in dispute to the Appellant’s grandfather as the founder of the land as pleaded and proved by the Appellant, amongst several other lapses in memory as the facts pleaded and proved by the Appellant and urged the Court to hold that despite the evidence of other person sin occupation of segments of the land in dispute with the license of the Appellant, at the visit to the locus in quo on 29/3/2019, the Court below failed to ascribed appropriate value to the evidence before it as a result of the lapse of time and arrived as very perverse findings running contrary to the pleadings and evidence led before it by the Appellant and to allow the appeal and set aside the judgment of the Court below for being a nullity and consider the evidence and judgment for the Appellant on his claims as squarely proved by him against the Respondent. Counsel referred to Section 15 of the Court of Appeal Act 2004 as amended by the 2010 Amendment Act and relied on INEC V. Abubakar (2009) 8 NWLR (Pt.1143) 259 at p. 290, Omon V. Ekpa (2019) 15 NWLR (Pt.1696) 504 at Pp. 536 – 537; Emeka V. Chuba – Ikpeazu (2017) 15 NWLR (Pt.1589) 345.
It was also submitted that some of the lapses occasioned in the judgment of the Court below arose from the fact that the inordinate delay in the delivery of same from the date of adoption of final addresses has obviously and apparently affected the perception, appreciation and evaluation of the evidence by the Court below which has invariably occasioned a miscarriage of justice to the Appellant and contended that this is a proper case for the intervention of this Court to properly evaluate the entirety of the evidence led by the parties as in the Record of Appeal in line with the averments in their pleadings and make appropriate and proper findings of facts and allow the appeal, set aside the perverse judgment of the Court below and enter judgment for the Appellant on his claims against the Respondent whilst dismissing the unproved and incompetent counter – claim of the Respondent against the Appellant. Counsel relied on Abayomi V. Saap – Tech (Nig) Ltd. (2020) 1 NWLR (Pt.1706) 453 at pp. 475 – 476, Lagga V. Sarhuna (2008) 16 NWLR (Pt.1114) 427 at pp. 438 – 439.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Respondent had submitted that the failure of the Court below to deliver its judgment within ninety days did not result in miscarriage of justice in the circumstances of this case in that the Appellant’s great grandfather who purportedly founded the disputed land was pleaded as one Tsid Dnabui, which exact name was clearly referred to by the Court below and contended that the omission of the word ‘great’ which made it simply ‘grandfather’ is not germane and material to the determination of the case and urged the Court to hold that contrary to the mix up in the Appellant’s brief, the Court below carried out proper evaluation and appraisal of the evidence led by the parties, including the evidence of DW4, who testified that the land which was reported to the Police at Area Command was different from the land in dispute and to dismiss both this ground and the appeal as lacking in merit and affirm the sound judgment of the Court below.
It was also submitted that the mere fact that the DW1 stated that he does not know the disputed land, that is as to its extent and boundaries, does not take away the fact that he built mud houses for the Respondent 12 years prior to the filing of the Appellant’s suit and contended that the mere fact also that the DW2 is from Katsina State and does not know the District Head of Gini village where the land in dispute is purportedly situate is immaterial since the issue before the Court below was title to land and not Chieftaincy stool and urged the Court to hold that neither the fact of the tribe of the Respondent nor his non-farming on the land in dispute nor the speculative statement of one Usman Turaki at the visit to the locus in quo were material to the just determination of the real issue as between the parties which is who as between the Appellant and the Respondent proved his title to the land in dispute, which the Court below rightly resolved in favor of the Respondent and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below. Counsel referred to Section 43 of the Constitution of the Federal Republic of Nigeria 1999 (As amended).
RESOLUTION OF ISSUE THREE
My Lords, in an appeal challenging the validity of the judgment of a Court by reason of it being delivered after the lapse of time as Constitutionally prescribed, the crux of such a challenge is not whether or not there was delay, whether inordinate or not, in the delivery of the judgment of the Court but rather whether or not the delay had occasioned a miscarriage of justice. In law what is inordinate delay? Now, what would amount to inordinate delay may or would vary from case to case and therefore, the categories of what may constitute inordinate delay can never be closed with any sense of finality but would depend on the peculiar circumstances of each case.
The parties are ad idem as to when the final addresses were adopted by their respective counsel before the Court below on 8/7/2019. There is also no dispute as to the date of the delivery of the judgment of the Court below on 24/10/2019, which was about 108 days from the date of the adoption of the final written addresses by counsel for the respective parties before the Court below. Furthermore, there is also no difficulty in arriving at the length or period of time that lapsed before the delivery of the judgment by the Court below, which was 18 days outside the 90 days as prescribed by the Constitution. See Section 294(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended.
So, in the circumstances of this case, and considering the findings and conclusions reached in the judgment appealed against, did the 18 days delay in the delivery of the judgment of the Court below amount to inordinate delay and if yes, did it also occasioned any miscarriage of justice? But first what is the position of the law on delivery of judgment outside of the 90 days as prescribed by law or delivery of judgment by the Court below? In Okafor V. Swan Ltd (2014) LPELR-24147(CA), this Court had per Georgewill JCA., stated inter alia thus:
“Now, to render a judgment delivered outside the three months period as limited by the Constitution of this Country a nullity, there must be shown, by the Appellant being the party so contending, to have been a miscarriage of justice by reason of such inordinate delay and lapse of time in the date of delivery of the judgment…”
Be the above as it may, it is now well accepted in law that an outcome in a judicial proceeding that is grossly or irredeemably unfair would amount to miscarriage of justice if proved or shown by a party alleging the nullity of a judgment delivered much outside the 90 days limitation period as enshrined in the Constitution of this country. See The State V. Godfrey Ajie (2000) 7 SCNJ 1 at p.11. See also Total Nig. Ltd. V. Wilfred Nwako (1978) 5 SC 1 and Aigbobahi V. Chief Aifuwa (2006) 2 SCNJ 61 at pp 73 – 74.
Now, from the facts and circumstances of this appeal, it seems clear to me that what the Appellant had relied principally upon in the judgment appealed against as demonstrative of the loss of touch and mental alertness of the Court below are, in my view, merely matters of evaluation of evidence, which he felt were not properly carried out by the Court below and findings and decisions reached which he believes strongly do not flow from the evidence led by the parties and for which he has invited this Court to exercise its power under Section 15 of the Court of Appeal Act 2004 (as amended by the 2010 Act) to re-evaluate the evidence as in the Record of Appeal and arrive at proper findings of facts and make a just determination of the real crux of the issues between the parties, which is as between the Appellant and the Respondent who proved his title to the land in dispute in line with his pleadings and evidence led before the Court below.
It is the law that evaluation of evidence and ascription of probative value to evidence is primarily the duty of a trial Court. However, where it is shown in an appeal that the trial Court had abdicated its primary duty by failing to evaluate or by not properly evaluating the evidence before it, it is then and only then an appellate Court can intervene to undertake that exercise, generally if the assessment of the evidence would not involve the demeanor or credibility of witnesses. See UAC (Nig) Plc V. Akinyele (2012) 15 NWLR (Pt.1322) 1 at Pp. 15 – 16. See also Teriba V. Adeyemo (2010) 13 NWLR (Pt. 1211) 242 at pp. 258 – 259. Honesty, these are not issues ordinarily covered under an appeal challenging the validity of a judgment on the ground of inordinate delay in its delivery that has occasioned a miscarriage of justice, and for which the resultant effect, if made out, is a nullification of the judgment as well as the entire proceedings. In this appeal, it would appear that the Appellant whilst in one breadth is contending under issue three that the judgment of the Court below delivered outside the three months period as prescribed by law is a nullity, yet he is in another breadth contending and calling on this Court to intervene and carry out proper evaluation and make proper findings of facts and enter judgment on the Appellant’s claims before the Court below against the Respondent.
In law, these are entirely two different and mutually – excusive issues, with one if successful results into a nullification of the judgment appealed against, and the other if successful results into a re-evaluation of the evidence and setting aside all wrong findings of facts and reaching correct decisions as dictated by the justice of the case on the proved evidence as in the Record of Appeal. Thus, an Appellant cannot use a challenge to the validity of a judgment by reason of its having been delivered outside the three months as prescribed by law and therefore, a nullity, to also canvass a re-evaluation of the evidence by the appellate Court for the purpose of setting aside perverse findings of fact and making proper and correct finding of facts with a view to reversing the, already null judgment, in favor of entering judgment on the merit for the Appellant.
Thus, the onus was on the Appellant to demonstrably show that there was a miscarriage of justice by the breach of Section 294(1) of the Constitution of Federal Republic of Nigeria 1999 (as Amended) by the delivery of the judgment of the Court below in 18 days outside of the three months as prescribed by law. See Imoh & Anor V. EFCC & Ors (2018) LPELR-46579(CA), where this Court had per Georgewill JCA., stated inter alia thus:
“The law is well settled that for judgment of a Court of law established under the Constitution of Nigeria 1999 (as amended) to be rendered invalid pursuant to the provisions of Section 294 (1) of the said Constitution by reason of delay in its delivery outside the prescribed 90 days period, it must be shown by the party complaining, generally the Appellant of course, that the delay had occasioned a miscarriage of justice to him, failing which the judgment stands and remains valid.”
Now, by Section 294 Subsections (1) and (5) of the Constitution of Nigeria 1999 (as amended), it is provided thus:
294(1): “Every Court established under the Constitution shall deliver the decision in writing not later than ninety (90) days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
294 (5): “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal of review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In Dennis Akoma & Anor V. Obi Osenwokwu & Ors(2014) LPELR – 22885 (SC) at Pp. 40 – 41, the Supreme Court per Onnoghen JSC (as he then was but later CJN) had pronounced on the legal effect of Section 294 (1) and (5) of the Constitution of Nigeria 1999 (as amended) inter alia thus:
“The question is; what is the consequence(s) of the failure of the lower Court, in the circumstances of this case, to deliver its decision within the ninety days of the final addresses of counsel? The answer is that the judgment/decision/order is valid except an Appellant can satisfy the Court that the non-delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him.”
See also Owoyemi V. Adekoya (2003) 18 NWLR (Pt. 852) 307.
My Lords, having taken time to consider the totality of the evidence before the Court below and the judgment of the Court below appealed against, it does appear to me that the Appellant was torn between and really not sure whether the decision was simply not correct or that it had indeed occasioned any miscarriage of justice to him by reason of the 18 days that lapsed after the expiration of the 90 days period before it was delivered. In law, a judgment may be correct on the law but yet turn out to occasion a miscarriage of justice to the complaining party by reason of the long delay in its delivery and the likelihood of the Court not keeping in focus the evidence as led by the parties through their witnesses.
Having looked at the alleged lapses, which in reality are findings which the Appellant is thoroughly dissatisfied with and or, in my findings, are matters which did not in any way go to the real crux of the issues or disputes between the parties as to the ownership of the land in dispute, and upon an anxious consideration of the totality of the evidence and submissions of the parties in the light of the findings and decisions in the judgment appealed against, I hold firmly that Appellant failed to show, as required of him by law, any miscarriage of justice occasioned to him by the failure of the Court below to deliver its judgment, now appealed against, within the 90 days period as prescribed by law. It is not enough merely to allege a delay and miscarriage of justice the Appellant must go further to show how the delay of the 18, ‘short days’, in my view, had caused him or occasioned a miscarriage of justice to him. See Unilorin V. Akinola (2014) LPELR – 23275(SC), where the Supreme Court succinctly defined what in law amounts to a miscarriage of justice inter alia thus:
“The law is well settled that what constitutes miscarriage of justice varies from case to case depending on the facts and circumstances. To reach the conclusion that a miscarriage of justice occurred, it does not require a finding that a different result necessarily would have been reached in the proceedings. It is enough if what happened is not justice according to law.”
In law therefore, the mere use of the phrase ‘miscarriage of justice’ alone without more or proof is not a talisman by which a judgment of a Court of law is made or rendered invalid just by the mention of the phrase alone by an Appellant. The law does not work like that as there must be proof of miscarriage of justice to render an otherwise valid judgment of a trial Court invalid on appeal by virtue of Section 294(1) of the Constitution of Nigeria 1999 (as amended). See Section 294 (5) of the Constitution of Nigeria 1999 (as amended).
In Dibiamaka & Ors V. Osakwe & Anor (1989) 3 NWLR (Pt. 107) 101 at pp. 114 – 115, the judgment complained of was delivered after a delay of nine months, unlike the delay of mere 18 days in the instant appeal, yet the nine months delay was not by itself alone capable of rendering the affected judgment invalid. The Supreme Court per Oputa JSC., (God bless his soul) had succinctly pronounced inter alia thus:
“The law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.”
Again, in Ogundele V. Fasu (1999) 12 NWLR (Pt.632) 662, the Supreme Court per Iguh, JSC., had emphatically restated the succinct position of the law inter alia thus:
“It is clear that by the introduction of Sub-section (4) to Section 258 of the 1979 Constitution, (now Section 291 (1) and (5) of the 1999 Constitution (as amended) the non-delivery by all Courts established under the Constitution of their decision in writing within a period of three months after the conclusion of evidence and final addresses in a cause or matter does not per se now render such a decision or judgment invalid and null and void. It shall only be treated as a nullity where an appellate Court in the exercise of its jurisdiction over such a decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
My Lords, I have already found that there was no miscarriage of justice occasioned by the 18 days delay in the delivery of the judgment of the Court below. In my further finding therefore, there was neither any inordinate delay in just the 18 days delay nor any miscarriage of justice occasioned by the mere trifles relied upon by the Appellant against the judgment of the Court below under issue three, which is hereby resolved against the Appellant in favor of the Respondent.
I thought I should pause here to state that this ground of appeal should be the last resort only by an Appellant who is double sure that his appeal on the merit is baseless or that he has not the least of chances of succeeding on the substantive issues in the appeal. This is because an otherwise successful appeal on the merit on the issues determined by the Court below could still end up as a pyric victory, if this ground of appeal succeeds and thereby resulting into a nullification of the judgment of the Court below, notwithstanding the success of the Appeal on the substantive issues involved in the appeal.
ISSUE TWO
Whether on the balance of probability, the Appellant has successfully discharged the burden of proof of his title to the land by traditional history as pleaded?
APPELLANT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Appellant had submitted that in civil cases, the burden of proof is on balance of probability and that the burden is on the party who substantially asserts the affirmative, though it also shifts to the Defendant who also has a counter – claim and contended that in land cases the law is that there are five recognized ways of proving title to land, namely: By traditional evidence; By production of document of title duly authenticated and executed; By act of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership; By act of long possession and enjoyment; Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute and urged the Court to hold that as between the parties to this appeal, it was the Appellant that clearly by evidence of traditional history of title through ‘first occupation’ or ‘first settlement’ proved his title to the land in dispute against the Respondent contrary to the perverse findings of the Court below and to allow the appeal, set aside the judgment of the Court below and grant the claims of the Appellant against the Respondent. Counsel referred to Section 134 of the Evidence Act 2011 and relied on Idundun V. Okumagba (1976) 9 -10 SC 227, Awodi V. Ajagbe (2007) 4 WRN 95 at p. 100; Nruamah V. Ebuzoeme (2013) 9 SCNJ 128 at P. 131; Addah V. Ubandawaki (2015) 1 SCNJ 85, Osu V. Nwadialo (2009) 12 NWLR (Pt.1155) 286, Nwokorobia V. Nwogu (2009) 10 NWLR (Pt.1150) 553 at pp. 556 -557.
It was also submitted that the Appellant who had pleaded and relied on evidence of traditional history of title to the land in dispute led credible, consistent, cogent, reliable and unimpeachable evidence and proved that his great grandfather founded the land in dispute by first settlement by disvirgining the said land and was succeeded by his grandfather and who in turn was succeeded by his father and ultimately he succeeded his father to inherit the land in dispute which devolved on him from his father without any gaps and contended that these pieces of evidence were not in any way discredited by the Respondent, and having been believed by the Court below, it was a grave error for the Court below to turn around to grant title to the land in dispute to the Respondent who failed to lead any consistent and reliable evidence in proof of his counter – claim to the title to the land in dispute and urged the Court to so hold and to allow the appeal, set aside the perverse judgment of the Court below, grant the claims of the Appellant against the Respondent and dismiss the counter – claim of the Respondent against the Appellant for lacking in merit.
It was further submitted that in law there is no requirement for corroboration in order to establish title to land by evidence of traditional history in that in proving title to land by evidence of traditional evidence, the testimony of family members is more cogent, credible and most reliable due to the family ties they have with the Claimant and contended that in law evidence of traditional history is a historical fact transmitted from generation to generation in respect of a family which may be given by witnesses who by virtue of their peculiar and special relationship and circumstances between them and their ancestors, are in a position and knowledgeable enough to testify on the traditional evidence in question and urged the Court to hold that the Court below was in grave error when it described the family tie existing between the Appellant and PW1 and PW2, which should have reinforced and accredited their testimony as ‘leakages’ whilst accepting the evidence of the Respondent, DW1, DW2 and DW3, who are strangers elements assembled from Gwada in Niger State and to allow the appeal, set aside the perverse findings of the Court below and enter judgment for the Appellant on his claims against the Respondent, since in law once title is satisfactorily proved by traditional history, acts of long and adverse possession cannot defeat the title of a true owner, the Respondent remained a trespasser on the land in dispute. Counsel relied on Dazuwa & Ors V. Dzugu (2014) LPELR – 24166 (CA), Pina V. Mai-Anguwa (2018) 15 NWLR (Pt.1643) 431 at p. 443, Akinyemi V. Ojo (2011) 10 NWLR (Pt.1254) 188 at p. 202, Pada V. Galadima (2018) 3 NWLR (Pt.1607) 436 at p. 460, Ohiari V. Akabeze (1992) 2 NWLR (Pt. 221) 1 and Carrena V. Akinlase (2008) 14 NWLR (Pt.1107) 262 at p. 291.
It was also further submitted that the Respondent was most inconsistent in his pleading and evidence as to his root of title to the land in dispute, in that in one breadth, he claimed to be the founder of the land in dispute as his root of title, in another breadth he relied on acts of ownership and possession as his root of title and contended that in law a party is duty bound to be consistent in his pleadings from the beginning to the end of the case and urged the Court to hold that that the Respondent failed to prove the mode of root of title relied upon by him since in law proof his claim to the land in dispute by evidence of traditional history of title cannot be sustained because he is still alive, which does not in law qualify as traditional history and to allow the appeal, set aside the perverse judgment of the Court below and grant the claims of the Appellant to the title to the land in dispute against the Respondent. Counsel relied on Abubakar V. Yar’adua (2008) 19 NWLR (Pt. 1120) 1 at p. 154, Oshoboja V. Amida (2009) 18 NWLR (Pt.1172) 188 at p. 194, Elegushi V. Oseni (2005) 14 NWLR (Pt. 945) 349 at p. 566, Irawo V. Adedokun (2005) 1 NWLR (Pt. 906) 199, Ewo & Ors V. Ani & Ors (2004) LPELR-1182 (SC), Dike & Ors V. Nzeka II & Ors (1986) LPELR-945 (SC), Ojoh V. Kamalu (2005) 18 NWLR (Pt.958) 523.
RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Appellant had submitted that from the pleadings and evidence, it is the Respondent and not the Appellant that established a better title to the land in dispute and contended that the Appellant who had relied on evidence of traditional history of title failed to lead any credible and consistent evidence of traditional history in support of his claim and urged the Court to hold that the evidence of the Appellant concerning the traditional history of how the land in dispute was founded was not credible as the Appellant was not a witness of truth having lied to the Court below by approbating and reprobating on his alleged root of title to the land in dispute and to dismiss the appeal for lacking on merit and affirm the judgment of the Court below. Counsel relied on Ariolu V. Ariolu (2011) All FWLR (Pt. 599) 1152 at P. 1167.
It was also submitted that the Appellant failed to prove by credible and consistent evidence that he loaned the land in dispute to the Respondent seven years prior to the filing of the Suit before the Court below in that the Appellant was not a witness of truth, having in one breadth testified that he was not born when his father died and in another breath that he knew when his father was the Hakimi (District Head) of Gini and contended that a clear evaluation of the evidence given by PW1 and PW3 clearly shows that the purported Abubakar Dallato, the alleged District Head never existed and there was nothing like loaning of the land in dispute to the Respondent by the Appellant either seven years prior to the filling of the suit before the Court below or at any time at all and urged the Court to hold that the evidence of Appellant and his brother PW1 concerning the issue of loaning the disputed land to the Respondent is a huge doubt if not contradictory and should not be believed when they admitted under cross-examination that the Respondent has mud block houses on the land in dispute and to dismiss the appeal for lacking in merit and affirm the sound judgment of the Court below.
It was further submitted that the Respondent’s counter – claim to title to the land in dispute was not founded on evidence of traditional history of title but on the fact that the Respondent personally founded the disputed land and owns the land and had been in peaceful possession of same for over a period of 35 years, exercising numerous positive acts of ownership such as developing the land from tent houses to mud houses roofed with zinc and also planting various economic trees on the land which clearly warranted the inference of true ownership and contended that the Court below was right when it relied on the Respondent’s act of long possession to the land in dispute in granting his counter – claim to the title to the land in dispute against the Appellant and urged the Court to hold that since the Appellant did not prove satisfactorily his title by way of traditional history, long possession of the disputed land by the Respondent and numerous positive acts of ownership in the circumstances of this case were effectual and grounded the counter -claim of the Respondent on the title to the land in dispute as against the Appellant and dot dismiss the appeal for lacking in merit and affirm the judgment of the Court below.
It was also further submitted that there were no material contradiction between the evidence of DW2 and the averments in the pleadings of the Respondent that from thatch rooms he built mud houses in that the evidence of DW2 basically has to do with his knowledge of when the Respondent settled on the disputed land and not when the mud houses were built and contended that it was DW1 that gave evidence that he built the mud houses for the Respondent on the land in dispute about 12 years before the suit was filed, which clearly debunked the false claim by the Appellant he had seven years before the filing of the suit loaned the land in dispute to the Respondent and urged the Court to hold that the consistent evidence of DW1 and DW2 were neither successfully challenged nor discredited by the Appellant and was thus rightly believed and acted upon by the Court below and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Total Nig. Plc V. Morkah (2003) FWLR (Pt. 148) 1343 at p. 1358, Ajanaku V. Osuma (2014) All FWLR (Pt. 727) 695 at p. 735, Oyekan V. Oyewale (2012) All FWLR (Pt. 623) 1991 at p. 2007.
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, submissions learned counsel for the Appellant virtually reiterated his earlier submissions but in law, the reply brief is not an avenue to re-argue the appeal or merely to have a second bite at the cherry. The reply brief is for the serious business of answering new points or fresh issues raised in the Respondent’s brief, which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed just as a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2021. See also Olafisoye V. FRN 2004 1 SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94, Longe V. FBN (2010) 2 – 3 SC 61, Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA).
Be that as it may, it was submitted that the evidence of the Appellant as PW3 that he was not born when his father died and later that he was told the history by his father did not amount to any material contradiction in that the fundamental question was whether or not the late Abubakar was his biological father, and whether or not the chain of traditional history was broken, leaving any unexplained gap and contended that on the state of consistent and credible evidence of traditional history of title to the land in dispute as led by the Appellant and the PW1, the issue of whether or not the Appellant was or was not born when his biological father died was immaterial so long it was duly established in evidence that he is the surviving son of Abubakar who also got the land from his progenitors as pleaded and proved through evidence and urged the Court to hold that whether Appellant’s father died before the Appellant was born or not was material to the genealogical tree projected and proved by him and therefore, such mere discrepancy in evidence that did not touch on the life issue as it relates to the traditional history in question was inconsequential. Counsel relied on Njoku V. Jonathan (2012) NWLR (Pt.1304) 135 at P. 150 and Dazuwa & Ors V. Dzugu (2014) LPELR – 24166 (CA).
RESOLUTION OF ISSUE TWO
My Lords, issue two deals with the real crux of the case between the parties as to who as between the Appellant, who was the Claimant before the Court below and the Respondent, who was the Defendant/counter – claimant led credible, cogent and reliable evidence and proved his claim to title to the land in dispute.
In considering this crucial issue on the pleadings and evidence led by the parties and the findings already made thereon by the Court below, with which the Appellant is aggrieved, I bear in mind that it is now well accepted that in a claim for declaration of title, a Claimant as well as a Defendant/counter-claimant claiming declaration of title to land has open to him five ways by which to prove his title to the land in dispute. These five ways, which have crystallized over the years in a long line of decided cases as are replete in our law reports are each if proved by credible and cogent evidence sufficient to ground title in the party who so claims, are namely:
A. Evidence of traditional history of title;
B. By production of title documents;
C. By acts of ownership;
D. By acts of possession long enough to warrant the person in possession as the owner;
E. By acts of possession of adjoining or adjacent land in such a way as would make it probable that the owner of the adjoining or adjacent land is also the owner of the land in dispute. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okore V. Onuyejuwa (2001) FWLR (Pt. 41) 1820.
On the averments of the parties as in the Record of Appeal, whilst the Appellant had relied solely on evidence of traditional history of title to land as his root of title, the Respondent had relied on personal founding of the land as well as act of ownership and long possession as his roots of title to the land. I have considered the submission of the learned counsel for the Appellant that the Respondent also relied on evidence of traditional history of title as his root of title, and I cannot but agree with the submission of learned counsel for the Respondent that the reference in final written address before the Court below to evidence of traditional history of title as being one of the roots of title relied upon by the Respondent having not been based on the pleadings and evidence led by the Respondent, as in the Record of Appeal, should go to no issue. I therefore, un-hesitantly hereby discountenance the submission that the Respondent carried the burden of proving his title to the land in dispute by evidence of traditional history of title to the land in dispute. In law, the parties are bound by the pleadings and are thus obligated to and must conduct their cases within the confines of their pleadings. The Court is also bound by the pleadings of the parties and therefore, cannot go out of the issues as joined by the parties to make findings on facts not put in issue by the parties. See Nsiegbe V. Mgbemena (2007) All FWLR (Pt. 372) 1769. See also George V. Dominion Flour Mills Ltd (1963) NLR 74, Emegokwue V. Okadigbo (1973) 4 SC 113 and Oyebade V. Ajayi (1993) 1 NWLR (Pt. 260) 313.
I am aware that since a claim for declaration of title to land is by its nature a declaratory relief, a Claimant as well as a Defendant/counter – claimant claiming title to land must succeed on the strength of his own case and not on the weakness of the other party’s case. However, this does not rule out the fact that a party is legitimately and perfectly entitled to make use of evidence from the other party that supports his own case. See Nruamah V. Ebuzoeme (2013) 1 SCNJ 128.
Thus, in law, once a party relies on a particular root of title, it is that root of title that must first be proved before any other acts may rightly be regarded as acts of ownership and or possession. In other words, where a Claimant had relied, as in the instant case the Appellant, on evidence of traditional history of title, and a counter – claimant, as in the instant case, the Respondent, on first settlement, each of them was under a duty to prove the particular root of title relied upon before he can rely on acts of ownership and possession. It follows therefore, in the event of failure of either of the parties to prove the primary root of title pleaded, such a party cannot turn round to rely merely on acts of ownership and possession, no matter how long. The claim to title of such a party, in such circumstances is liable to be dismissed for lacking in merit.
However, neither a Claimant nor a counter – claimant for declaration of title to land need rely on more than one of the five methods since any of them proved sufficiently to the satisfaction of the Court would suffice. In Ezukwu V. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 at p. 679, it was reiterated inter alia thus:
“A Claimant of title to land, of course, need not rely on more than one of the five methods. No. where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails, the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root title needs must be, firstly established before the exercise of the rights of ownership may exercisable…”
See also Idundun V. Okumagba (1976) 6 – 10 SC 48, Nruamah V. Ebuzoeme (2013) All FWLR (Pt. 681) 1426, Paul Lawani V. Mrs. Risikatu Grillo & Ors (2018) LPELR – 44912(CA) per Georgewill JCA; Nwokorobia V. Nwogu & Ors (2009) All FWLR (Pt. 476) 1868 and Nathan Igbudu & Ors V. Mr. Godspower Othe (2021) LPELR- 55559 (CA) per Georgewill JCA.
Interestingly, when it comes to the issue of possession of land in dispute, the law is that he who proves valid title is equally entitled to possession of the land in dispute. So settled is this position of the law that a person with a better title to land is by law deemed to be in possession even where he is not in de – facto physical possession of the land as against a person without any color of right to the land. Thus, if there be dispute as to which of two persons is in possession, the presumption is that the person having the better title to the land is in lawful possession. Therefore, no matter the length of time of unlawful and or unauthorized entry and occupation of land, it cannot in law metamorphose or ripen into legal possession of the land. See Carrena V. Akinlase (2008) 14 NWLR (Pt. 1107) at p. 262, where the Supreme Court emphatically pronounced inter alia thus:
“A person who has title over a piece of land, though not in defacto physical possession, is deemed, in law, to be the person in possession. This is because the law attaches possession to title and ascribes it to the person who has title. Such possession is the legal possession, which is sometimes also called constructive possession.”
See also Oyadare V. Chief Keji (supra) at p. 571; Gankon V. Ugochukwu Chemical Ind. Ltd (1993) 6NWLR (Pt. 297) 55; Ezeanali V. Attah (2004) 7 NWLR (Pt. 873) 468; Osazuwa V. Ojo (1999) 13 NWLR (Pt. 634) 286; Bennet Ude Agu V. Ozo Moses Nnadi ((1999) 2 NWLR (Pt. 589) 131; Ojomo V. Olaide Ibrahim (1999) 12 NWLR (Pt. 631) 415; Solomon V. Mogaji (1982) 11 SC 1.
Now, the burden of proof in civil cases is that of balance of probability or preponderance of evidence ensuing from a careful evaluation of the evidence proffered by the parties and putting same on the imaginary scale of justice to see which side the evidence preponderates. However, the evidence that is worth putting on the scale are such evidence that are credible, probable and worthy of weight not evidence which are incredible, inadmissible and not worthy of any weight. See Jiaza V. Bamgbose & Anor (1999) 7 NWLR (Pt. 610) 182. See also Dibiamaka V. Osakwe (1989) 3 NWLR (pt. 107) 101, Mogaji V. Odofin (1978) 4 SC 2, Onwuka V. Ediala (1989) 1 NWLR (pt. 96) 182; Ekpo V. Ita (1932) 11 NLR 68.
Now, having sufficiently averted my mind to the applicable principles of law, on the one hand, what were the pieces of evidence led by the Appellant as Claimant in proof of his claim to title to the land in dispute, and on the other hand, what were the pieces of evidence led by the Respondent as counter – claimant in proof of his counter – claim to the land in dispute on the other hand?
The Appellant’s case was presented through three witnesses, PW1, PW2 and PW3. PW1 was one Danjuma Shehu Abubakar, whose evidence in chief and cross-examination are at pages 96 – 97 and 115 – 123 of the Record of Appeal. PW2 was one Ibrahim Wakili, whose evidence in chief and cross-examination are at pages at pages 124 – 128. PW3 was the Appellant, whose evidence in chief and cross-examination are at pages 130 – 137 of the Record of Appeal.
The Respondent’s case was presented through five witnesses. DW1 was one Tanko Doma, whose evidence in chief and cross-examination are at pages 140 – 143 of the Record of Appeal. DW2 was one Garba Dan Ibakuba Isiyaku, whose evidence in chief and cross-examination are at pages 144 – 147 of the Record of Appeal. DW3 was one Mallam Almu Muhammadu, whose evidence in chief and cross-examination are at pages 149 – 152. DW4 was the Respondent, whose evidence in chief and cross-examination are at pages 152 – 155 of the Record of Appeal. DW5 was one Adamu Kaduna Sauni, whose evidence in chief and cross-examination are at pages 257 – 160 of the Record of Appeal.
On 29/3/2019, the Court below went on a visit to the locus in quo, which proceedings are at pages 161 – 163 of the Record of Appeal. It was on the strength of the evidence led by the parties through their respective witnesses as above, that the Court below delivered its judgment on 24/10/2019, in which it dismissed the claims of the Appellant against the Respondents, whilst granting the counter – claims of the Respondent against the Appellant, and thereby awarded the title to the land in dispute to the Respondent as well as issued an order of perpetual injunction against the Appellant on favor of the Respondent. See pages 234 – 287 of the Record of Appeal. See also pages 1- 9 and 84 – 86 of the Record of Appeal for the Writ of Summons, Statement of Claim and Reply to Statement of Defense/Defense to counter – claim. See further pages 57 – 65 of the Record of Appeal for the Statement of Defense/counter – claim.
I have taken time to review the averments in the pleadings of the parties. I have also taken the pains to set out in extenso the evidence as led by the parties and their witnesses. In considering the evidence of the parties as led through their witnesses and the findings of the Court below, I thought I should remind myself at once that in law evidence of a party which is unchallenged and uncontroverted by the adverse party is good evidence on which the Court should act to make appropriate findings. See Saipem SPA V. India Tefa (2001) FWLR (Pt. 74) 377 at p. 394. See also Igbinovia V. Agboifo (2002) FWLR (Pt. 103) 505 at p. 514.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
So, who as between the Appellant as Claimant and the Respondent as counter – claimant proved his title to the land in dispute and was the Court below right or wrong when it believed and preferred the evidence of the Respondent to that of the Appellant and held that it was the Respondent who by evidence of acts of ownership and long possession proved his title to land in dispute as against the evidence of traditional history of title of the Appellant, which it found to be riddled with unexplained leakages?
My Lords, I have taken time to review averments in the pleadings of the parties. I have also taken time to evaluate the evidence led through their respective witnesses in line with their pleadings. I have further taken time to review and consider the findings and conclusions of the Court below in the judgment appealed against in the light of the submissions of counsel for the respective parties in this appeal. I find that, contrary to the findings of the Court below, the evidence led by the Appellant and his two witnesses were rather in line with and supported by his pleadings. In law, mere discrepancy, particularly in evidence of traditional history, which basically refer to oral stories passed on from generation to generation and outside living memory, is usual and expected as otherwise such evidence may have been product of tutoring of witnesses.
I find the evidence of founding of the land in dispute by the Respondent, in the Appellant’s community to which the Respondent is admittedly a stranger element to be hazy as well as lacking any foundation, support and credibility contrary to its unjustifiable reception hook, line and sinker by the Court below. The Respondent is not only a complete stranger but even his story of ownership of the land in dispute and how he came into the land to put up the mud building thereon as acts of possession is stranger than fiction but which the Court below incredulously believed and preferred to the cogent and credible evidence of the Appellant on account of very insignificant discrepancies.
The evidence of traditional history of the Appellant as ably and amply supported by the evidence of PW1 was very consistent, cogent and without any unexplained gap in the founding of the land in dispute by his great grandfather by means of first settlement outside living memory and devolution of same on a long line of unbroken chain of successions from the Appellant’s grandfather to the Appellant’s father and unto the Appellant. I find this evidence far more probable and preponderates much more than the hazy story of founding of the land in dispute within the Appellant’s community by the Respondent, a stranger element, barely 35 years ago as alleged by the Respondent.
The Appellant who had relied on evidence of traditional history as his root of title, carried and adequately and satisfactorily, in my finding, discharged the burden of proving the three essentials facts, namely: (a) Who founded the land (b) How the land was founded (c) The particulars of intervening successors through whom the Appellant claims title to the land and he was therefore entitled to the grant of his claim to the title to the land in dispute as against the baseless story of founding of land barley 35 years ago within living memory by a stranger in a community not belonging to him and over which land there was before the Court below by way of evidence form the Appellant and PW1 a very rich, consistent, balanced and indeed heavy dose of the evidence of traditional history of title to the land in dispute in favor of the Appellant. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Falomo V. Onakeme (2005) 11 NWLR (pt. 935) 125 at P. 135, Lawani Alli V. Chief Gbadamosi (2000) 6 NWLR (Pt. 660) 177 at P. 223, Oyadare V. Keji 1 (2005) 7 NWLR (Pt. 925) 571; Alade V. Awo (1975) 1 SC 215 and Ewo v. Ani (2004) 1 SC (Pt.11) 115).
It was contended for the Respondent that the Appellant, who had in one breadth stated that his father died before he was born and yet in another breadth stated that it was his father who told him of the traditional history of the land in dispute, was not reliable. However, there is also the cogent evidence of PW1, the brother of the Appellant on the same traditional history of the title to the land in dispute in favor of the Appellant. Now, even assuming but not so deciding that the evidence of traditional history of title to the land in dispute as led by the Appellant as PW3 was or amounted to hearsay having not met his dad at his birth, does the law relating to evidence of traditional history permit of hearsay evidence contrary to the general rule of inadmissibility of hearsay evidence? I think it does. See Elegushi & Ors V. Oseni & Ors (2005 2009 Vol. 5 SCJL 108 at p. 118, where the Supreme Court had reiterated inter alia:
“Proof of ownership of land by traditional history is usually based on hearsay evidence, that is oral evidence often extending beyond human memory and time of the witnesses narrating the history, which narrations were handed down from generation to generation up to the present one.”
Indeed, it is not even the requirement of the law that a person narrating historical evidence must know the ancestors personally before the Court accredits his historical testimony. It is sufficient that he was handed down the ancient narration by any of his family members especially those who met his predecessors and are conversant with the said history. See Dazuwa & Ors V. Dzugu (2014) LPELR – 24166 (CA).
Now, additionally, and very Crucially too, the Court below had gone on a visit to the locus in quo on 29/3/2019 in company of the parties to see things for itself going by the evidence it had already received from the parties and their witnesses. This is allowed and highly permissible and commendable in land cases in this Country. It has a rich history of practice in this Country, particularly in land cases. The Court below had on its visit to the locus in quo confirmed from persons, neutral who are neither parties nor witnesses to any of the parties on record, that they are in temporary occupation of other lands situate in the same area with the land in dispute by virtue of the license by way of loan from the Appellant. In law, the main purpose of a view or a visit to the locus in quo is to assist the Court to understand fully the questions in issue in a case, to appreciate and follow the evidence before it and properly to apply such evidence in arriving at its decision. See Olumolu V. Islamic Trust of Nigeria (1996) LPELR – 2626 (SC).
Thus, the confirmation at the locus in quo by neutral person cannot be merely wished away as was sought to be done away within the submissions of the learned counsel for the Respondent on the basis that they were neither parties nor witnesses in the case before the Court below. On the contrary, in law, this is really one of the purposes for visit to the locus in quo in land cases in addition to the Court seeing and feeling by itself the fixtures and dimensions and other peculiar characteristics of the land in dispute over which evidence may have been led before it.
In my finding therefore, the statement of neutral persons at the locus need not be pleaded to be of assistance to the Court below in determining which of the parties’ evidence was more probable. The evidence taken at the locus in quo supports and further affirmed the truth of the evidence of the Appellant as PW3 and his brother as PW1 that the land was most likely loaned to the Respondent by the Appellant for temporal use and therefore, does not belong to the Respondent. In civil cases, including cases for declaration of title to land, the standard of proof is preponderance of evidence or balance of probability. It is not and had never been proof beyond reasonable doubt. I find the evidence led by the Appellant as PW3 and his witnesses as PW1 and PW2, far outweighing the hazy evidence led by the Respondent as DW4, and his witnesses as DW1, DW2, DW3 and DW5. The fact of the Respondent being a stranger has nothing to do with his constitutional right to acquire and own land in any place in this Country. It is rather about a stranger founding a land as first settler in a community he admittedly does not belong to as a member or native. I therefore, without any hesitation discountenance the submission by the learned counsel for the Respondent alluding to the right of the Respondent to own land anywhere in Nigeria.
It is in the light of the above findings of facts, and having taken time once again to go through the entire judgment of the Court below, that it appears certain to me that the Court below, with due deference but regrettably, did not properly evaluate the evidence of the parties as led before it in line with the averments in the pleadings of the parties, with which both the parties as well as the Court below were bound in reaching proper and appropriate findings as supported by the evidence as well as the pleadings of the parties.
The evidence of traditional history of title led by the Appellant as PW3 and his brother as PW1, which evidence does not in law require any further corroboration as was erroneously thought by the Court below as can be seen in its judgment, was both cogent and unchallenged and in my finding completely satisfied the requirement of proof of title to land by way of evidence of traditional history of title, leaving no unexplained or unexplainable gaps on the succession from the Appellant’s great grandfather to his grandfather to father and to himself. It is the law that evidence of traditional history alone is sufficient to support a claim of title to land. See Alade V. Awo (1975) 4 SC 215 at P. 228. See also Aikhionobare V. Omoregie (1976) 12 SC 11 at p. 27; Falomo V. Onakanmi (2005) 11 NWLR (pt. 9350 925 at P. 135.
In the circumstances therefore, in which the only credible evidence led by the Respondent as DW4, and his hordes of witnesses, DW1, DW2, DW3 and DW5 was his occupation or possession of the land in dispute, which possession was on the credible evidence of the Appellant as PW3 and his witness was attributed and the result of the loan for temporary use of the Respondent by the Appellant, which evidence I believe and find to be true, I hold firmly that the Court below fell into grave error when it relied on such evidence of mere possession by the Respondent, which no matter how long but not backed by title is of no consequences against the person with the better title such as the Appellant, to find in favor of the Respondent to the title to the land in dispute. This finding so very clearly unsupported by the credible and reliable evidence led was utterly perverse and is thus liable to be set aside. I hold that the Respondent having been permitted by the Appellant to enter into possession of the land in dispute for temporal use, notwithstanding the length of time of possession and the use into which the land in dispute was put by the Respondent, it does not, cannot, would not and in fact did not ripen into ownership in favor of the Respondent against the Appellant. See Sanya V. Suaman & Ors (2012) All FWLR (Pt. 618) 917 at p. 957.
In my view therefore, the mere possessory rights of the Respondent in the instant case falls into insignificance in the face of both the ownership right of the Appellant and the possession of the Respondent traceable to the temporary loan and permission of the Appellant. In law, it is worth repeating here that, a party must prove his root of title first and any consequential acts following therefrom can then properly qualify as acts of ownership.
In other words, acts of ownership are done because of and in pursuance to the right of ownership. Thus, once the root of title pleaded and relied on fails, as in the instant case by the Respondent as first settlement or founding by himself failed, all acts of ownership and possession relied upon by the Respondent had become clear acts of trespass. See Okhuarobo & Ors V. Aigbe (2002) 9 NWLR (Pt. 711) 29 at p. 61. See also Lawal V. Olufowobi (1996) 10 NWLR (Pt. 477) 177 at p. 187, Fasoro V. Beyioku (1988) 2 NWLR (Pt. 76) 263, The Registered Trustees of the Diocese of Aba V. Helen Nkume (2002) 1 NWLR (Pt. 749) 726, Adole V. Gwar (2008) 11 NWLR (PT. 1099) 562 and Alli V. Alesinloye (2000) 6 NWLR (Pt. 660) 177.
Looking critically at what the Court below did in the name of the evaluation of evidence, it was clearly lopsided, but in law, the evaluation of evidence by a Court must not be lopsided or on the basis of double standard to the parties. Where the evidence of one party, as in this case the Appellant was from the onset evaluated with a view to demolishing it, while the evidence of the Respondent was believed willy nilly without any critical appraisal, such an evaluation cannot stand and the finding totally perverse as was rightly contended by the learned counsel for the Appellant. See SPDC Ltd V. Otoko (1990) 6 NWLR (Pt. 159) 693 at p. 707, Nwaezema V. Nwaiyeke (1990) 2 NWLR (Pt. 137) 230, Adeleke V. Iyanda (2001) 13 NWLR (Pt. 729) 1 and Awudu V. Daniel (2005) 2 NWLR (Pt. 109) 199.
The Court below as well as the learned counsel for the Respondent had harped so much on contradictions in the evidence of the Appellant and his witnesses on matters which clearly are mere minor discrepancies. In law, a piece of evidence will be said to contradict another when it affirms the opposite of what that evidence has stated and not when there is just minor discrepancy between the two. Thus, it is not all contradictions that would result in the rejection of evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence. See Wachukwu V. Owunwanne (2011) All FWLR (Pt. 589) 1044 at P. 1964. See also Egesimba V. Onuzuruike (2002) FWLR (Pt. 128) 1386; Nsirim V. Nsirim (2002) FWLR (Pt. 96) 433; Ezemba V. Ibeneme & Anor (2004) All FWLR (Pt. 223) 1788; Nwokoro V. Onuma & Ors (1999) 9 SCNJ 63.
Finally, my Lords, having come to the inescapable conclusion and the clear finding that it was the Appellant who had by cogent, credible and consistent evidence of traditional history established his title to the land in dispute, the law is clearly on the side of the Appellant to the effect that proof of ownership to land in dispute is prima facie proof of right to possession of the land in dispute. In law therefore, one in possession though he can maintain an action in trespass against any person but he certainly cannot maintain an action against the person having a better title to the land, who is in law presumed and or deemed to be the person with the right to lawful possession of the land in dispute as against the person who is in possession of the land in dispute without any color of right. See Solomon V. Mogaji (1982) 11 SC 1, Ojomo V. Ibrahim (1999) 12 NWLR (pt. 631) 415 at p. 435.
By reason of all the foregoing, issue two for determination is hereby resolved in favor of the Appellant against the Respondent and I hold firmly that it was the Appellant rather than the Respondent that proved his title to the land in dispute on the balance of probability on the evidence he led through him and his witnesses, contrary to the perverse finding by the Court below that it was rather the Respondent that proved his title to the land in dispute. In law, such a perverse finding is liable to be set aside. See Central Bank of Nigeria V. Dantrans Nigeria Limited & Ors. (2018) LPELR – 46678(CA), where this Court per Georgewill JCA has stated inter alia thus:
“In law, when it is said that a decision is perverse it means persistent in error, different from what is reasonable or required and against the weight of evidence…A decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence led before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties.”
See also CSS Book Shop Ltd v The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 at P. 19; Fabiyi V. State (2013) LPELR – 21180 (CA), Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA., at Pp. 34 – 35; Michael V. Access Bank Plc(2017) LPELR – 41981 (CA) per Georgewill JCA., at pp. 38 – 39.
On the whole therefore, having resolved issue two for determination dealing with the merit of the case of the parties in favour of the Appellant against the Respondent, notwithstanding the determination of issues one and three against the Appellant in favour of the Respondent, I hold that the appeal has merit and ought to be allowed in part only on issue two for determination. Accordingly, the appeal is hereby allowed in part.
In the result, the judgment of the High Court of Niger State, Coram: Zainab Aliyu Sadat in Suit No. NSHC/MN/10/2017: Saidu Abubakar V. Alhaji Maikuma Sauni Fulani delivered on 24/10/2019, in which the claim of the Appellant as Claimant for declaration of title to the land in dispute against the Respondent as Defendant was dismissed, while the counter – claim of the Respondent for declaration of title to the land in dispute against the Appellant was granted, is hereby set aside.
In its stead, judgment in Suit No. NSHC/MN/10/2017: Saidu Abubakar V. Alhaji Maikuma Sauni Fulani is hereby entered in favour of the Appellant against the Respondent and it is hereby declared and ordered as follows:
1. It is hereby declared that the Appellant as Claimant before the Court below is the person entitled to the deemed/Customary Right of Occupancy over the land in dispute as clearly described at paragraph 6 of the Statement of Claim.
2. An order be and is hereby issued directing and compelling the Respondent as Defendant before the Court below to forthwith vacate the land in dispute quietly and peacefully.
3. An order of perpetual injunction be and is hereby issued restraining the Respondent as Defendant before the Court below, his agents, privies, successors-in-title, personal representatives or any other person claiming through him from interfering with the title and quiet possession and peaceful enjoyment of the land in dispute by the Appellant as Claimant before the Court below.
4. The sum of N500,000.00 only is hereby awarded as General damages in favor of the Appellant against the Respondent for trespass on the land in dispute.
The counter – claim of the Respondent against the Appellant is hereby dismissed for lacking in merit.
There shall be cost of N200,000.00 against the Respondent in favour of the Appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading before now the lead judgment of my learned brother Sir, Georgewill, JCA. I fully agree with his reasonings and conclusions. I too would allow this appeal in part and abide by all the consequential orders of His Lordship.
Further to that, I wish to add that with respect to the impeccable resolution of the 3rd issue for determination pertaining to an alleged inordinate delay in the delivery of the judgment of the lower Court. Suffice it to say that trial in this matter commenced on 23rd May, 2017 when PW1 took to the witness box and ended when the judgment was delivered on 24th October, 2019. A total period of approximately 29 months. At page 233 of the printed record of appeal, the learned trial judge adjourned the matter to 24th October, 2019 for judgment after respective learned counsel had adopted their filed and exchanged written addresses on 8ih July, 2019. Therefore, right from the onset respective learned counsel were aware that judgment was not likely to be delivered within 90 days as required by Section 294 (1) of the 1999 Constitution, as amended, because the period between 8th July, 2019 to 24th October, 2019 was clearly more than 90 days.
None of the learned counsel who were present in Court on 8th July, 2019, for the parties made any attempt to draw the attention of the learned trial judge that there was a possible error in adjourning the matter for judgment against the 24th October, 2019. I am fully aware that it is not an unusual thing for counsel to draw the attention of a Court to anything that may amount to an error. Even though the acquiescence of respective learned counsel may not operate as estoppel to deny them any opportunity of raising this question of delay in the delivery of judgment, in my view the learned trial judge need not be held to have occasioned an inordinate delay in delivering the judgment of the Court.
Notwithstanding the above observation, I think it is preposterous to say that there was any inordinate delay in the delivery of the judgment of the lower Court, it cannot be said with any degree of seriousness that the learned trial judge could have lost touch of any of the fundamental facts or issues in the circumstances of the instant matter by a delay of mere 18 days. It must be noted that this requirement of Courts to deliver judgments within a particular time frame was introduced into the management and control of adjudication of matters by Section 258 (1) of the 1979 Constitution of the Federal Republic of Nigeria. This provision is pari materia with Section 294 (1) of the 1999 Constitution, as amended, even though it did not go far enough to have the equivalent of current Section 294 Subsections 5 and 6. Be that as it may, I am of the view that Section 294 is no more than a utopian and idealist stipulation that is aimed at being a procedural safeguard and a bulwark against impunity and dereliction of duty by Judges and Justices of our Courts. Because it is a cardinal rule in adjudication that cases should be decided on their peculiar facts and circumstances, I fully agree that there was no miscarriage of justice to the Appellants by the slight delay in the delivery of judgment by the lower Court.
Ground five of the grounds of appeal complains that the judgment of the trial Court was against the weight of evidence.
Even though this ground of appeal, as an omnibus ground of appeal, could have been included as one of the grounds upon which issue two for determination was formulated rather than the 3rd issue, it suffices to say that a general or omnibus ground of appeal implies that the judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified. According to the decision of the Supreme Court in MUSA SHA & ANOR V. DA RAP KWAN & ORS (2000) 5 SCNJ 101 at 115 to 117, an omnibus ground of appeal is fully capable of giving rise to a competent issue for determination in an appeal. This can be by itself standing alone or in combination with other grounds.
The full implications of an omnibus ground of appeal is that it makes it necessary and desirable for this Court to consider whether the lower Court was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given or misplaced then that would, of course, affect the cogency given to the testimonies. Additionally, it also covers situations where there are no acceptable evidence to support the findings of a trial Court or situations where or when the evidence adduced by the Appellant upon being weighed on the imaginary scale against that adduced by the Respondent it would qualitatively be in favour of the Appellant to the extent that the judgment in favour of the Respondent can be said to be against the totality of the evidence adduced at the trial.
Since the decision of the Supreme Court in the cases of AKIBU V. OPALEYE & ANOR (1974) 11 SC 189 at 203, WOLUCHEM V. GUDI (1981) 5 SC 291 at 320 and ATANDA V. AJANI(1989) 4 NWLR (PT. Ill) 511 at 524, and a plethora of other decisions of the apex Court and this Court decided on their hallowed principles, the law has become settled and well established that the evaluation of relevant material evidence before the Court and the ascription of probative value to such evidence are the primary functions of trial Courts who saw, heard and assessed the witnesses while they testified. Where such Courts of trial unquestionably evaluate the evidence and justifiably appraise the facts, it is not the business of the appellate Courts to substitute their own views for the views of the trial Courts. See also BUHARI V. INEC (2008) 19 NWLR (PT. 120) 246. However, where a trial Court fails to properly do what is expected of it by the law with respect to the pleadings and evidence adduced to support them, upon a proper complaint and invitation, an appellate Court is placed in a position to review any findings of a trial that are perverse or are a miscarriage of justice.
With respect to the instant appeal. I have carefully read and considered the pleadings of the parties, the evidence adduced as well as the visit to the locus in quo and I am of the firm view that the evaluation of the evidence on record, with all due respect to the learned trial judge, was merely perfunctory and offhanded. For example, there was abundant credible evidence that the land in dispute is known as “Gbakuku” a Gwari word. There was also credible evidence that the land in dispute is situated amongst lands in Gwari Communities and owned by Gwari people. The Appellant established by credible evidence that he is of Gwari ethnic background while the Respondent is a full blooded fulani man. Added to that the Appellant and his witness adduced credible evidence that the graves of some of their ancestors are still on the land in dispute. The description of the land in dispute in terms of its physical features, such as its bordering streams, hills and mountains as well as the trees on it was virtually fully confirmed by the lower Court during its visit to the locus in quo. It is therefore erroneous for the lower Court to find as it did at page 46 of its judgment as specifically now contained at page 279 of the record of appeal that the evidence adduced by the Appellant left his case without a proper linkage to the land in dispute. It is equally erroneous for the lower Court to totally discountenance the evidence of traditional history adduced by the Appellant in preference to the feeble and orchestrated claim of the Respondent of being merely in possession, more so, when there was ample evidence that the Respondent sometime in the recent past migrated to the community where the land in dispute is located. Added to that all the witnesses of the Respondent are also migrants and were not born in the Gwari Communities where the land in dispute is situated. The lower Court simply appeared to have wrongly acted on the evidence adduced by the Respondent which it accepted willy – nilly, hook, line and sinker without weighing its preponderance or probability. Before a Court grant title to land, it must be fully satisfied that on the pleadings and the evidence adduced in support a very strong and cogent case has been made out. See J. A. MAKANJUOLA V. CHIEF AJILORE (2000) FWLR (PT. 18) 132.
Where evidence given by a witness is not contradicted by any other admissible evidence, a trial Court is bound to accept and act on it, even if it had been minimal evidence.
See ADELEKE V. IYANDA (2001) 13 NWLR (PT. 729) 1 at 22 – 23 A – C. In my view, the evidence of traditional history pleaded and established by the Appellant was not sufficiently challenged by the Respondent. The findings of the lower Court against the evidence of the Appellant in favour of the counter – claim of the Appellant are manifestly and profoundly perverse. A perverse finding leads to miscarriage of justice and ought to be set aside. I hereby in total agreement with His Lordship in the lead judgment, hold that the finding in favour of the counter – claim and dismissal of the claim of the Appellant for declaration of title is utterly perverse and it is accordingly set aside by me.
All in all, I too allow this appeal in part I abide by all the consequential orders in the lead judgment, including the order for costs.
RITA NOSAKHARE PEMU, J.C.A.: I agree.
Appearances:
Phillip K. Emmanuel, Esq. For Appellant(s)
J. O. Okebe, Esq. For Respondent(s)