LawCare Nigeria

Nigeria Legal Information & Law Reports

ACCORD ENGINEERING LTD v. FAJUKE (2022)

ACCORD ENGINEERING LTD v. FAJUKE

(2022)LCN/15977(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Tuesday, May 31, 2022

CA/AK/287/2019

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

ACCORD ENGINEERING LTD APPELANT(S)

And

MR. OLAITAN FAJUKE (For Himself And On Behalf Of Members Of The I. O. Fajuke Family) RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE QUESTION OF LAW AND JURISDICTION CAN BE RAISED AT ANYTIME IN A PROCEEDING

​It is irrelevant that the Counsel to the Appellant couched the three issues for determination as matters touching on jurisdiction and doctrine of fair hearing, whether or not they indeed raise a point of jurisdiction or breach of right of fair hearing – Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 246, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Abiola & Sons Bottling Company Nig Ltd Vs First City Merchant Bank Ltd (2013) LPELR SC.88/2005, Adama Vs State (2018) 3 NWLR (Pt 1605) 94. In Adejobi Vs State (2011) 12 NWLR Pt 1261) 347, the Supreme Court made the point thus:
“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other must be followed. …”
This is particularly more so as the issues raised are on procedural issues and not on the substantive jurisdiction of the lower Court to hear the matter. The three issues for determination will not be countenanced by this Court and they are hereby struck out along with the arguments canvassed thereon by Counsel to the parties.
PER ABIRU, J.C.A.

THE PRINCIPLE OF REGULARITY OF OFFICIAL AND JUDICIAL ACTS

Though it is not clear from recording of the proceedings of the day on which the photographs were admitted in evidence the exact use the lower Court made of the certificate of compliance, the records show that Counsel to the Appellant did not object to the admissibility of the photographs on the ground of non-compliance with Section 84 of the Evidence Act. The presumption arising from these facts is that the photographs were regularly admitted. Section 168 (1) of the 2011 Evidence Act states that “when any judicial or official act is shown to have been in a manner substantially regular, it is presumed that the formal requisites for its validity were complied with.” This principle of regularity of official and judicial acts, which is expressed in the Latin maxim omnia presumuntur, rite esse acta meaning that a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears, has been applied in a long line of cases including Moss & Ors Vs Kenrow (Nig) Ltd & Ors (1992) 9 NWLR (264) 207 at 222 E–F, Anyanwu Vs State (2002) LPELR-517(SC), Ugwu Vs State (2013) LPELR-20177(SC), Citec International Estate Ltd Vs Francis (2014) LPELR-22314(SC), Dauda Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1626) 169. It was up to the Appellant to rebut this presumption and it failed woefully to do so. PER ABIRU, J.C.A.

THE PRINCIPLE OF LAW THAT GUIDES THE ADMISSIBILITY OF A DOCUMENT
It is settled law by a long line of decisions of the Supreme Court that where a document is legally admissible but on the fulfillment of certain conditions and it is admitted in evidence without objection from the other party, even without the fulfillment of the said conditions, that other party cannot later complain on the admissibility of the document and the Court cannot expunge it and must consider it in its deliberations – see for example Okeke Vs Obidife (1965) All NLR 51, Olukade Vs Alade (1976) All NLR 56, James Vs Mid-Motors (Nig) Ltd (1978) 11-12 SC 31, Etim Vs Ekpe (1983) 1 SCNLR 120, Raimi Vs Akintoye (1986) 3 NWLR (Pt 26) 97, Anyaebosi Vs R T Briscoe (Nig) Ltd (1987) 3 NWLR (Pt 59) 84, Oguma Associated Companies (Nig) Ltd Vs International Bank for West Africa (1988) 1 NWLR (Pt 73) 658, Attorney General of Oyo State Vs Fairlakes Hotels Ltd (1989) 5 NWLR (Pt 121) 255, High Grade Maritime Services Ltd Vs First Bank of Nigeria Plc (1991) 1 NWLR (Pt 167) 290, Kossen Nig Ltd Vs Savannah Bank of Nigeria Plc (1995) 9 NWLR (Pt 420) 439, Naridex Trust Limited Vs Nigerian Intercontinental Merchant Bank Ltd (2001) 10 NWLR (Pt 721) 335, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt 928) 547, Shittu Vs Fashawe (2005) 14 NWLR (Pt 946) 671, Nigerian Bottling Co. Plc Vs Ubani (2009) 3 NWLR (Pt 1129) 512, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287.
The rationale for this position of the law can be located in the doctrine of estoppel by conduct. The essence of the attachment of conditions to the admissibility of evidence is, in most instances, for the benefit of the parties to the litigation. It is to assure the genuineness, correctness and credibility of the evidence. PER ABIRU, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTEFERE WITH THE FINDINGS OF FACT MADE BY THE TRIAL COURT

It is settled law an appellate Court will not interfere with the findings made by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Akinloye Vs Eyiyola (1968) NMLR 92 at 93, Obisanya Vs Nwoko (1974) 6 SC 69 at 80, Woluchem Vs Gudi (1981) 5 SC 291 at 326, Nwankpu Vs Ewulu (1995) 7 NWLR (Pt 407) 269, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564. Therefore, an appellant who desires an appellate Court to interfere with the findings made by a trial Court must attack the findings and visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice – Ude Vs State (2016) 14 (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC).
​Where an Appellant fails to do so, an appellate Court has no business interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377. In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.” PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State, sitting in Osogbo Judicial Division, delivered in Suit No HOS/42/2012 by Honorable Justice A. D. Afolabi on the 21st of March, 2019.

The Respondent was the claimant before the lower Court and his claims were for:
i. A declaration that the Respondent is entitled to damages or compensation for the negligent destruction by the Appellant of the Respondent’s fence lying and situate at Ede Road, opposite NITEL, Oke-Fia, Osogbo, Osun State.
ii. A declaration that the Respondent is entitled to damages or compensation for the continuous and negligent dumping of obnoxious, stinking waste and mud on the Respondent’s property by the Appellant and for the nuisance caused the Respondent thereby.
iii. Special damages in the sum of N8,491,850.00 for the restoration of the Respondent’s fence destroyed by the negligent acts of the Appellant and for the clearing of waste and mud continuously being dumped on the Respondent’s property by the Appellant.
​iv. General damages against the Appellant in the sum of N5 Million for the nuisance, inconvenience and stress caused to the Respondent as a result of the negligent acts of the Appellant.
v. An order of perpetual injunction restraining the Appellant, her servants, agents, privies and any other person howsoever described, acting on behalf of the Appellant, from further causing nuisance to the Respondent by dumping waste and mud from the sea bed into his property.

​The case of the Respondent on the pleadings was that he owned a building consisting of four flats with shops and adjoining landed properties located opposite NITEL, Oke-Fia in Osogbo, Osun State, and which he inherited from his father, and that his father applied for and obtained the approval of the Osogbo Local Government Planning office for his building plan, including the fence. It was his case that the Ogbaagba/Alekuwodo stream at Oke-Fia runs along the left side of the property and that sometime in October, 2011, the Appellant began carrying out dredging works on the stream. It was his case that while carrying out the dredging, the Appellant negligently demolished and destroyed his fence covering one acre of land and that he had discussions with the officers of the Appellant on the damage and they assured him and promised to pay all the expenses for the reconstruction of the fence. It was his case that the Appellant failed and refused to fulfill the promise and rather commenced the dumping of obnoxious stinking waste and mud from the stream unto his property causing dirt to and destructions on the property, including the painted walls, and creating environmental hazards, inconvenience, discomfort and nausea to him and other inhabitants of the property.

​It was his case that when his personal efforts to get the Appellant to desist from dumping waste on the property and to remedy the destruction it had caused to the property failed, he caused his Solicitors to write letter to the Appellant in respect thereto and to demand for a remedy of the situation, but that the Appellant failed to take responsibility and to do the needful. It was his case that the pulling down of the fence exposed the property to heavy erosion, storms, infiltration of hoodlums and criminals and that this culminated into the successful invasion of the property by a gang of armed robbers on the 4th of October, 2012 through the destroyed fence and the disposition of the inhabitants of their valuables. It was his case that the Appellant was negligent in destroying his fence and breached his duty to take proper care not to destroy his building or any part thereof in the course of execution of its contract which required technical skills and professionalism and that he would rely on the doctrine of res ipsa loquitor. It was his case that he engaged labourers to clear the waste dumped on his property by the Appellant in November, 2012 for the sum of N1.95 Million and again in January, 2013 at the cost of N2.424 Million, totaling N4.374 Million and that the contractors he engaged to carry out a re-erection of the fence pulled down by the Appellant have given him a bill of N2,117,850.00. It was his case that sequel to the commencement of this action, the Appellant again dumped some more waste on his property in August 2013 and that he would require the sum of N2 Million to clear the waste.

​In its response on the pleadings, the Appellant challenged the right of the Respondent to the ownership of the property in dispute, being an inherited property, and without his presentation of letters of administration. It was its case that it was contracted by the Osun State to carry out the dredging of the Ogbaagba/Alekuwodo streams and that the strength of the fence of the Respondent did not pass the EIA standard and it denied destroying the fence and/or causing its collapse. It denied dumping any waste into the property of the Respondent and it was its case that the Respondent did not expend any money evacuating waste from the property. It denied being approached by the Respondent since it commenced the dredging works and it was its case that none of its staff or representatives met with or made any promises to the Respondent to reconstruct the fence of the property. It was its case that it did not act negligently in the conduct of its dredging operations and that it observed due diligence in carrying out the contract works and that there were seasoned Engineers on site to inspect all the work carried out and that the Respondent did not incur the expenses pleaded by him.

​The records of appeal show that the Appellant was described as Accord Engineering Limited, Osogbo in the originating processes used to initiate the action and that Counsel to the Appellant entered appearance thereto and filed a statement of defence to the claims of the Respondent, without any protest. The records of appeal show that the parties amended their processes with the Appellant still described as Accord Engineering Limited, Osogbo and without any issues raised thereto by the Appellant or its Counsel. The records of appeal show that trial commenced in the matter on the 18th of December, 2014 when the Respondent called its sole witness and closed his case and that on the 10th of May, 2016 the Appellant also called its sole witness and closed its case and the matter was adjourned to the 7th of July, 2016 for the filing and adoption of written addresses by the Counsel to the parties.

​The records of appeal show that it was at this point that the Appellant changed its Counsel and that the new Counsel filed a motion on notice dated the 6th of June, 2016 praying the lower Court to strike out the suit on the ground of lack of jurisdiction because the Appellant as described was not a juristic person. The Respondent opposed the application and filed a counter affidavit to contest it. The records of appeal show that the Respondent, on his part, filed a motion on notice dated the 20th of June, 2016 pursuant Section 36 of the Constitution of the Federal Republic of Nigeria (as amended) seeking to further amend the processes filed by the Respondent to delete the word “Osogbo” from the description of the Appellant. The Appellant opposed the application and filed a counter affidavit thereto.

The records of appeal show that the lower Court heard the motion of Counsel to the Appellant on the merits and it dismissed same in a considered ruling delivered on the 21st of March, 2017. The lower Court similarly heard the motion of the Respondent to further amend his processes and it granted same in a ruling also delivered on the 21st of March, 2017 and the further amended processes were filed on the 11th of April, 2017. The records of appeal show that the Appellant, being dissatisfied with the ruling dismissing its application, filed a motion dated the 28th of March, 2017 on the 5th of April, 2017 seeking for leave to appeal against it and for stay of proceedings. The records show that the lower Court heard this application on the merits and it dismissed same in a considered ruling delivered on the 15th of May, 2018. The records show that the Appellant also filed another application dated the 28th of March, 2017 on the 5th of April, 2017 praying the lower Court for an order to further amend its statement of defence, to file an additional list of witnesses and to re-open the case for further hearing. The records show that the lower Court heard the application on the merits and it similarly dismissed same in a considered ruling delivered on the 15th of May, 2018.

​The records of appeal show that the Counsel to the parties eventually filed their final written addresses and they relied on and adopted them on the 29th of October, 2018 and sequel to which the lower Court entered judgment granting the five reliefs sought by the Respondent, and it only reduced the amount awarded as general damages to N1 Million as against the N5 Million claimed. The Appellant was dissatisfied with the judgment and it caused its Counsel to file a notice of appeal dated the 21st of March, 2019 and containing two grounds of appeal against it. The notice of appeal was subsequently amended with the leave of this Court and the Appellant filed an amended notice of appeal dated the 14th of November, 2019 and containing six grounds of appeal on the 20th of November, 2019 and the amended notice of appeal was deemed properly filed by this Court on the 28th of January, 2021.

In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 14th of November, 2019 on the 20th of November, 2019 and the brief of arguments was deemed properly filed by this Court on the 28th of January, 2021. In response, Counsel to the Respondent filed a brief of arguments dated the 22nd of March, 2021 on the 23rd of March, 2021 and the brief of arguments was deemed properly filed by this Court on the 1st of March, 2022. Counsel to the Appellant filed a Reply brief of arguments dated the 6th of April, 2021 on the 28th of June, 2021 and the Reply brief of arguments was also deemed properly filed by this Court on the 1st of March, 2022. Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions in the appeal.

​Counsel to the Appellant distilled six issues for determination in the appeal and these were:
i. Whether a Court has jurisdiction to entertain any suit wherein there is no defendant before it ab initio.
ii. Whether the learned trial Court has jurisdiction to hear, entertain and grant an application that is unknown to law.
iii. Whether the learned trial Court ought not to have expunged inadmissible evidence and/or not rely on same in arriving at a decision or judgment.
iv. Whether the failure to particularize negligence and special damages is not fatal to a claim based on negligence.
v. Whether the Respondent’s action which is predicated on proprietary right to land can be brought with respect to land which is vested in the Federal Government of Nigeria by operation of statute.
vi. Whether the Court ought to visit the error of Counsel on a litigant.

Counsel to the Appellant indicated that he distilled the first, second and sixth issues for determination from Grounds One, Two and Six of the amended notice of appeal respectively. These three grounds of appeal read thus:
Ground One
The learned trial Judge erred in law in ruling that the commencement of a suit against a non-existent party at law was a mere misnomer which could be amended and thereby occasioned a grave miscarriage of justice.
Particulars of Error
1. The Plaintiff commenced Suit No HOS/42/2012 against Accord Engineering Ltd Oshogbo which company does not exist in law.
2. Section 37 of the Companies and Allied Matters Act, Cap C20, Laws of the Federation of Nigeria, 2004 states how a limited liability company is named.
3. The Court of Appeal had held in the case of Emecheta v Ogueri (1995) 5 NWLR (Pt 447) 240 that naming a non-juristic person as a defendant is not a misnomer and cannot be amended to substitute a juristic person. The learned Justices of the Court of Appeal placed reliance on the Supreme Court case of Manager, SCOA Benin City v Momodu (unreported) Suit No. SC23/1964 delivered on 17th November, 1964.
4. The learned trial Judge erred in law when he granted the Plaintiff’s prayer to amend the name of the Defendant.
5. By Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 the jurisdiction of the High Court of Justice of Osun State can only be triggered in the event of a dispute between two persons.
6. Where there is no defendant before the Court, the Court does not have jurisdiction.
Ground Two
The learned trial Judge erred in law when it granted the Plaintiff’s prayer to “Amend the Name of the Defendant” when there is no provision in the Osun State High Court Amended (Civil Procedure) Rules 2008 and when such an application is unknown to law.
Particulars of Error
1. The Plaintiff brought an application pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 to “amend the name of the defendant” as against amending the originating processes.
2. The application to amend the name of a Defendant is not known to law.
3. There are no provisions for the amendment of the name of a Defendant in originating processes in the Osun State High Court Amended (Civil Procedure) Rules 2008 or indeed any procedure known to law.
4. The Plaintiff’s application was incompetent and ought to have been struck out by the learned trial Judge suo motu as the Court has a duty to act only on valid processes.
Ground Six
The learned trial Judge erred in law and occasioned a grave miscarriage of justice when he refused the Appellant’s application to reopen its case and place evidence in rebuttal of the Respondent’s case when the Court was aware that due to error of Counsel, the Appellant evidence was not before the trial Court.
Particulars of Error
1. Audi alteram partem (hear both sides of the case) is one of the pillars on which the concept of natural justice rests.
2. The Supreme Court has held on several occasions that the error of Counsel should not be visited on the client.
3. The learned trial Judge was aware that, due to error of Counsel in not tendering the appropriate witness statement on oath, the Appellant did not have any evidence before the Court in support of its case.
4. By an application dated 28th of March, 2017 and filed on the 5th of April, 2017, the Appellant sought to properly file its witness statement on oath. By that application the Appellant also sought to reopen trial for the purpose of placing its evidence before the learned trial Court.
5. The learned trial Court refused the Appellant’s application by its ruling delivered on the 15th of May, 2018.
6. The learned trial Court was aware that the duty of placing the correct witness statement on oath before the Appellant’s witness DW1 was that of Counsel and that it was the error of the Appellant’s former Counsel that led to the situation where the Appellant did not have a witness statement on oath before the Court.
7. By visiting Counsel’s error/incompetence/inadvertence on the Appellant, the learned trial Court deprived the Appellant of its fundamental right to fair hearing and thus occasioned grave miscarriage of justice.

​A read-through of these three grounds of appeal shows clearly that they are directed at the rulings delivered by the lower Court on the 21st of March, 2017 and on the 15th of May, 2018 on two applications filed by the Appellant and one application filed by the Respondent, as narrated in the earlier part of this judgment. The rulings were interlocutory decisions of the lower Court and the complaints in each of the above reproduced grounds of appeal are at best on grounds of mixed law and facts. This fact was recognized by the Appellant and this was why it filed a motion before the lower Court to seek for leave to appeal against the ruling delivered on the 21st of March, 2017, and which motion was considered and dismissed by the lower Court in a ruling delivered on 15th of May, 2018. The three grounds of appeal were made part of this appeal by the amended notice of appeal dated the 14th of November, 2019 filed on the 20th of November, 2019 and deemed properly filed by this Court on the 28th of January, 2021.
Now, by the provisions of Section 24 of the Court of Appeal Act, the Appellant had fourteen days from the dates the rulings were delivered within which to appeal against the rulings and, being that the complaints in the three grounds of appeal are on grounds of mixed law and fact, by the provisions of Sections 241 and 242 of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Appellant required leave of Court to raise the complaints against the rulings in a notice of appeal. The time for the Appellant to appeal against the rulings had long expired, thus the Appellant needed to seek for and obtain from this Court the trinity prayers, i.e. extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal against the two rulings delivered on the 21st of March, 2017 and 15th of May, 2018 before it could legally and legitimately include the grounds of appeal against them in the amended notice of appeal filed against the final judgment of the lower Court.
​There is nothing in the records showing that the Appellant sought for and obtained the trinity prayers to appeal against the rulings before including the complaints in the amended notice of appeal. The application filed by the Appellant in this Court on the 18th of November, 2019 and by which it was granted leave to argue four additional grounds of appeal and to amend the notice of appeal against the final judgment cannot, and does not, suffice. In other words, the three grounds of appeal were filed without the Appellant having first obtained the required leave to appeal and extension of time to appeal. It is settled law that failure to seek for and obtain the required leave of the Court to appeal, where leave to appeal is required, renders the appeal filed incompetent – Abubakar Vs Dankwabo (2015) 18 NWLR (Pt 1491) 123, Chrome Air Services Ltd Vs Fidelity Bank Plc (2017) 12 SC (Pt III) 57, Okolonwamu Vs Okolonwamu (2019) LPELR-46942(SC), Systems Application Products (Nig) Ltd Vs B4G Consulting Ltd (2021) LPELR-52808(CA). Similarly, grounds of appeal filed outside the time allowed for the filing of an appeal, without the Appellant having first sought for and obtained an extension of time to file them, are incompetent – Petgas Resources Ltd Vs Mbanefo (2017) LPELR-42760(SC), Olali Vs Nigerian Army (2020) LPELR-50631(SC), Onwuzulike Vs State (2020) LPELR-52016(SC).
What these translate to is that Grounds One, Two and Six on the amended notice of appeal, being complaints of the Appellant against the rulings of the lower Court delivered on the 21st of March, 2017 and 15th of May, 2018, and which are constituted as grounds of appeal in the notice of appeal against the final judgment are incompetent and cannot be entertained by this Court – Ajani Vs Giwa (1986) 3 NWLR (Pt 32) 796, Tijani Vs Akinwunmi (1990) 1 NWLR (Pt 125) 237, Ogigie Vs Obiyan (1997) 10 SCNJ 1 at 15, Ajayi Vs Ojomo (2000) LPELR-8171(CA), Royal Exchange Assurance (Nig) Plc Vs Anumnu (2003) 6 NWLR (Pt 815) 52, Agbiti Vs Nigerian Navy (2011) LPELR-2944(SC), Ombugadu Vs Congress for Progressive Change(2013) 3 NWLR (Pt 1340) 31, Apapa Bulk Terminal Ltd Vs Nigeria’s Shippers Council (2017) LPELR-43345(CA), Kilawa Vs Kalshingi (2018) LPELR-45630(CA), Richmond Open University Ltd Vs NUC (2018) LPELR-46060. In Kakih Vs People’s Democratic Party (2014) 15 NWLR (Pt 1430) 374, the Supreme Court made the point thus
“A party can include an appeal against a ruling in an interlocutory application in a notice of appeal against the final judgment in a case. And this is encouraged in order to avoid unnecessary delay caused by separate appeals. However, the party has to obtain leave to appeal out of time against the interlocutory ruling. In this case, the Appellant’s fourth ground which is related to the decision of the trial Court made on 3rd May, 2012 could not be merged with the notice and grounds of appeal filed on the 10th September, 2012 without leave of Court because the time to appeal against the trial Court’s decision of 3rd May, 2012 had elapsed. In the circumstance the Court of Appeal was right when it struck out the Appellant’s fourth ground of appeal on the ground that it was incompetent.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The first, second and the sixth issues for determination distilled and argued by the Counsel to the Appellant in this appeal were predicated on the complaints embedded in the notice of appeal against the two rulings of the lower Court delivered on the 21st of March, 2017 and 15th of May, 2018 and were distilled from Grounds One, Two and Six on the amended notice of appeal. It is settled law that for an issue for determination to be viable in an appeal, it must arise from a competent ground of appeal – Umanah Vs NDIC (2016) 14 NWLR (Pt 1533) 458, Mato Vs Hember (2018) 5 NWLR (Pt 1612) 258, Sanmi Vs State (2019) LPELR-47418(SC), Doregos Vs Adele (2020) LPELR-51815(CA). With the finding of this Court that the complaints of the Appellant against the said two rulings of the lower Court and which are constituted as grounds of appeal in the final notice of appeal are incompetent, the three issues for determination distilled from them are also incompetent and invalid.

​It is irrelevant that the Counsel to the Appellant couched the three issues for determination as matters touching on jurisdiction and doctrine of fair hearing, whether or not they indeed raise a point of jurisdiction or breach of right of fair hearing – Dahuwa Vs Adeniran (1986) 4 NWLR (Pt 34) 246, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538, Davies Vs Guildpine Ltd (2004) 5 NWLR (Pt 865) 131, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt 1348) 570, Abiola & Sons Bottling Company Nig Ltd Vs First City Merchant Bank Ltd (2013) LPELR SC.88/2005, Adama Vs State (2018) 3 NWLR (Pt 1605) 94. In Adejobi Vs State (2011) 12 NWLR Pt 1261) 347, the Supreme Court made the point thus:
“A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure. Where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other must be followed. …”
This is particularly more so as the issues raised are on procedural issues and not on the substantive jurisdiction of the lower Court to hear the matter. The three issues for determination will not be countenanced by this Court and they are hereby struck out along with the arguments canvassed thereon by Counsel to the parties.

​This leaves Issues Three, Four and Five formulated by Counsel to the Appellant. This appeal will be determined on the resolution of the three issues for determination and the three issues will be considered seriatim.

Issue Three
Whether the learned trial Court ought not to have expunged inadmissible evidence and/or not rely on same in arriving at a decision or judgment.
In arguing the third issue for determination, Counsel stated that the photographs tendered in the course of trial by the Respondents, i.e. Exhibits 2, 2A, 2B, 2C, 2D, 2E and 2F, 6, 6A, 6B, 6C, 6D, 6E, 8, 8A, 8B and 8C, were computer print outs and that the requirement of Section 84 of the Evidence Act as regards proper certification was not met before they were admitted in evidence. Counsel stated that the provisions of Section 84 were mandatory and it did not give the lower Court any discretion to exercise in the admissibility of documents covered by its provisions and he referred to the cases of Omisore Vs Aregbesola (2015) 15 NWLR (Pt 1482) 205 and Kubor Vs Dickson (2013) 4 NWLR (Pt 1345) 534. Counsel stated that it was not sufficient for a party to file a certificate of compliance and leave it unattended to and that what the law requires is that the certificate must be tendered along with the documents for the provisions of law to be satisfied.

Counsel stated that the Respondent failed to tender the certification and that the lower Court erred in admitting the photographs whether objection was made to their admissibility or not. Counsel stated that having failed to comply with the provisions of Section 84 of the Evidence Act the photographs were inadmissible and ought to be expunged from the records of the Court as it is the duty of a trial Court to admit and act only on admissible evidence and he referred to the case of Olukade Vs Alade (1976) 2 SC 183. Counsel stated that notwithstanding that the attention of the lower Court was pointed to this deficiency in the admission of the photographs, it still went ahead to rely on them in making findings and entering judgment in favour of the Respondent. Counsel stated that the photographs were the basis of the lower Court finding in favour of the Respondent in negligence and that there would be no evidence to support the judgment once the photographs are expunged. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In his response arguments, Counsel to the Respondent noted the Appellant deliberately omitted the certificate of compliance filed by the Respondent in line with the provisions Section 84 of the Evidence Act in support of the photographs tendered as Exhibits 2, 2A, 2B, 2C, 2D, 2E and 2F, 6, 6A, 6B, 6C, 6D, 6E, 8, 8A, 8B and 8C, and that this was compiled and transmitted to this Court in the Additional Record of Appeal deemed proper by this Court on the 1st of March, 2022. Counsel stated that the photographs were properly admitted in evidence by the lower Court and he reproduced the provisions of Section 84(1), (2) and (4) of the Evidence Act and stated further that the certificate of compliance was duly filed and tendered to the lower Court and that it was upon being satisfied that it was in compliance with Section 84 of the Evidence Act that the lower Court admitted the photographs, and that this was why the erstwhile Counsel to the Appellant did not object to their admissibility.

​Counsel stated that it was not part of the provisions of the law that the certificate of compliance must be tendered as an exhibit and it was merely a foundation for the admissibility of the photographs. Counsel stated that the certificate of compliance was tendered along with the photographs to the lower Court and that the lower Court examined same and that, having been satisfied that it complied with the conditions in Section 84 (2) of the Evidence Act, the lower Court proceeded to admit the photographs in evidence. Counsel stated that it was a matter of style and that the Respondent had no control over practice and style the lower Court chooses to adopt in the conduct of its proceedings and he referred to the case of Nneji Vs Chukwu (1988) LPELR-2058(SC). Counsel stated that the style adopted by the lower Court was not strange as the provisions of Section 84 of the Evidence Act did not stipulate that the certificate of compliance must be admitted in evidence and none of the decisions of the Courts that interpreted the provisions made any such stipulation.

​Counsel stated further that it is not correct, as submitted by Counsel to the Appellant, that the Respondent led no evidence, outside the photographs, to sustain his claim in negligence. Counsel stated that the evidence led by the Respondent in proof of his case was uncontroverted, un-contradicted, un-impeached and unchallenged and that it was replete with the several acts of negligence and nuisance committed by the Appellant on the property of the Respondent, including his eye witness account, and his evidence was not met by any contrary credible evidence from the Appellant. Counsel stated that the Respondent testified that he caused all the complaints to be reduced into writing in a letter addressed to the Appellant and that the letter was duly received and acknowledged by the Appellant, without a response thereto denying the assertions. Counsel stated that evidence not challenged is deemed admitted and that it is the duty of a trial Court, upon proper assessment to find in favour of such evidence and he referred to the cases of Omo Vs Judicial Service Committee of Delta State (2000) 7 SCNJ 17 and Ajibade Vs Mayowa (1978) 9-10 SC 1. Counsel urged the Court to resolve the issue for determination in favour of the Respondent.

​Now, it is correct, as stated by Counsel to the Respondent, that a certificate of compliance pursuant to Section 84 of the Evidence Act and made by the photographer who took the photographs admitted in evidence as Exhibits 2, 2A, 2B, 2C, 2D, 2E and 2F, 6, 6A, 6B, 6C, 6D, 6E, 8, 8A, 8B and 8C was filed before the lower Court on the 9th of October, 2014. The certificate identified the photographs and made declarations in tandem with the conditions stipulated under Section 84 (4) of the Evidence Act for the admission of computer generated evidence. The photographs were admitted in evidence on the 18th of December, 2014, meaning that the certificate of compliance was before the lower Court at the time the photographs were admitted in evidence.
Contrary to the submissions of Counsel to the Appellant, it is not a requirement of Section 84 that the certificate of compliance must be tendered in evidence and the law is that even where such a certificate is not produced in writing, oral evidence of a person familiar with the operation of the computer in question can be given of its reliability and functionality to satisfy the conditions under Section 84 – R Vs Shephard (1993) AC 380, Jubril Vs Federal Republic of Nigeria (2018) LPELR-43993(CA). Thus, the fact that the certificate of compliance was not tendered in evidence is of no moment. The certificate showed on its face that it met the conditions in Section 84 of the Evidence Act.

Though it is not clear from recording of the proceedings of the day on which the photographs were admitted in evidence the exact use the lower Court made of the certificate of compliance, the records show that Counsel to the Appellant did not object to the admissibility of the photographs on the ground of non-compliance with Section 84 of the Evidence Act. The presumption arising from these facts is that the photographs were regularly admitted. Section 168 (1) of the 2011 Evidence Act states that “when any judicial or official act is shown to have been in a manner substantially regular, it is presumed that the formal requisites for its validity were complied with.” This principle of regularity of official and judicial acts, which is expressed in the Latin maxim omnia presumuntur, rite esse acta meaning that a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears, has been applied in a long line of cases including Moss & Ors Vs Kenrow (Nig) Ltd & Ors (1992) 9 NWLR (264) 207 at 222 E–F, Anyanwu Vs State (2002) LPELR-517(SC), Ugwu Vs State (2013) LPELR-20177(SC), Citec International Estate Ltd Vs Francis (2014) LPELR-22314(SC), Dauda Vs Federal Republic of Nigeria (2018) 10 NWLR (Pt 1626) 169. It was up to the Appellant to rebut this presumption and it failed woefully to do so.

Further, as stated earlier, Counsel to the Appellant did not object to the tendering of the photographs on the ground of non-compliance with Section 84 of the Evidence Act or on any ground at all. In other words, the photographs were tendered by consent of the parties. It is settled law by a long line of decisions of the Supreme Court that where a document is legally admissible but on the fulfillment of certain conditions and it is admitted in evidence without objection from the other party, even without the fulfillment of the said conditions, that other party cannot later complain on the admissibility of the document and the Court cannot expunge it and must consider it in its deliberations – see for example Okeke Vs Obidife (1965) All NLR 51, Olukade Vs Alade (1976) All NLR 56, James Vs Mid-Motors (Nig) Ltd (1978) 11-12 SC 31, Etim Vs Ekpe (1983) 1 SCNLR 120, Raimi Vs Akintoye (1986) 3 NWLR (Pt 26) 97, Anyaebosi Vs R T Briscoe (Nig) Ltd (1987) 3 NWLR (Pt 59) 84, Oguma Associated Companies (Nig) Ltd Vs International Bank for West Africa (1988) 1 NWLR (Pt 73) 658, Attorney General of Oyo State Vs Fairlakes Hotels Ltd (1989) 5 NWLR (Pt 121) 255, High Grade Maritime Services Ltd Vs First Bank of Nigeria Plc (1991) 1 NWLR (Pt 167) 290, Kossen Nig Ltd Vs Savannah Bank of Nigeria Plc (1995) 9 NWLR (Pt 420) 439, Naridex Trust Limited Vs Nigerian Intercontinental Merchant Bank Ltd (2001) 10 NWLR (Pt 721) 335, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt 928) 547, Shittu Vs Fashawe (2005) 14 NWLR (Pt 946) 671, Nigerian Bottling Co. Plc Vs Ubani (2009) 3 NWLR (Pt 1129) 512, Aminu Vs Hassan (2014) 5 NWLR (Pt 1400) 287.
The rationale for this position of the law can be located in the doctrine of estoppel by conduct. The essence of the attachment of conditions to the admissibility of evidence is, in most instances, for the benefit of the parties to the litigation. It is to assure the genuineness, correctness and credibility of the evidence.

Thus, by not objecting to the admissibility of the document at the time it is tendered, the party with the right to object represents that he accepts the genuineness, correctness and credibility of the document and is not insisting on the fulfillment of the conditions stipulated for its admissibility, and which conditions, if he had insisted, the other party could have easily fulfilled before the trial Court at that point of the trial.

In Kpansanagi Vs Shabako (1993) 5 NWLR (Pt 291) 67 at page 79, Musdapher, JCA (as he then was) stated the doctrine of estoppel thus:
“It is a rule of universal law that if a man either by word or conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it although it could not have been lawfully done without his consent and he thereby induces that other to do that from which the other party otherwise might have abstained, he cannot question the legality of the act he has so sanctioned to the prejudice of that other who has given faith to his word or the fair inference to be drawn from his conduct. In such cases proof of positive assent or concurrence is unnecessary. It is enough that the party had full notice of what was being done and the position of the other party altered.”

The principle upon which estoppel by representation is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt for the purpose of their legal relations – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230. To hold otherwise will be to encourage, support and sanction the use of subterfuge, deceit and underhand dealings by parties in legal relations.

The decision of the Supreme Court in the case of Kubor Vs Dickson supra relied upon by the Counsel to the Appellant in seeking to contest in this appeal the admissibility of the photographs did not interrogate, engage, overturn, overrule or contest the above stated legal principles. The Supreme Court in that case restated the conditions to be fulfilled, as stipulated in Section 84 of the Evidence Act, for the admissibility of computer generated evidence and said that a party that seeks to tender in evidence such computer generated evidence must do more than just tendering same from the Bar and should call a witness for the purpose of laying the necessary foundations for their admission under Section 84 of the Evidence Act. The photographs in the present case were not tendered from the Bar.

The said photographs were properly admitted in evidence and they were available to the lower Court to use in making its findings. The third issue for determination is resolved in favour of the Respondent.

Issue Four
Whether the failure to particularize negligence and special damages is not fatal to a claim based on negligence.
In arguing the issue for determination, Counsel to the Appellant stated that for the Respondent to succeed in his claim based on the tort of negligence, he must have given particulars of the negligence in his pleadings showing precisely in what respect the Appellant was negligent and particulars of the injury suffered or damages sustained and he referred to the opinion of the learned authors of Bullen & Leake & Jacob’s Precedents of Pleadings (12th Ed) Pg 685 and the cases of Ifeanyi Vs Soleh Boneh (2000) 5 NWLR (Pt 656) 322 and Edok-Eter Mandilas Ltd Vs Ale (1985) 3 NWLR (Pt 11) 43. Counsel stated that the only particulars given by the Respondent in their pleadings were particulars of special damages without stating how they were arrived at and he failed completely to give particulars of the duty of care owed to him and in what specific way and manner the Appellant was negligent. Counsel stated that having failed to so give the particulars, the case of the Respondent ought to have failed and this is not about a resort to technicalities but a requirement for success in a case of negligence and he referred to the cases of Julius Berger (Nig) Ltd Vs Nwagwu (2006) 12 NWLR (Pt 995) 518, P. I. P. C. S. Ltd Vs Vlachos (2008) 4 NWLR (Pt 1076) 1, Julius Berger (Nig) Ltd Vs Ede (2003) 8 NWLR (Pt 823) 526.

Counsel referred to the case of Makwe Vs Nwukor (2001) 14 NWLR (Pt 733) 356 in asserting that it was also essential for the Respondent to plead and prove the damage he suffered by reason of the alleged negligence and that apart from a blanket allegation of damage of fence, the Respondent led no evidence to show that the fence indeed existed at the time the dredging of the streams took place or that it was standing before the alleged act of the Appellant caused a damage to it. Counsel stated that the Respondent also claimed to own the land and property in question by reason of inheritance from his father but failed to tender the letters of administration or lead evidence of the devolution of the property on him. Counsel urged the Court to resolve the fourth issue for determination in favour of the Appellant.

​In his response, Counsel to the Respondent conceded that negligence must not just be alleged, the particulars of negligence must also be pleaded, but he disagreed with the Counsel to the Appellant that the Respondent failed to give the particulars of the negligence alleged. Counsel stated that the Counsel to the Appellant apparently assumes that unless a party creates a subhead of Particulars and tabulates the facts of negligence thereunder, then he will not be held to have pleaded the particulars of negligence. Counsel stated that this is not what the law says and that all that the law requires is that the party must set out the facts culminating in the alleged negligence in the statement of claim and they can be in successive paragraphs without a heading of ‘Particulars’. Counsel stated that the Respondent set out the facts of the negligence alleged in the paragraphs of the statement of claim and he referred to paragraphs 6, 8, 9, 11 to 14 and 16 to 25 thereof and that Respondent led unchallenged evidence and tendered documents in proof of the facts. Counsel stated that a perusal of the facts averred in the statement of claim shows that the Respondent met with the requirement of the law on pleading of particulars of damage and he urged the Court to resolve the issue for determination in favour of the Respondent.

A read through the records of appeal shows that the Counsel to the Appellant raised this issue of non-particularization of the negligence alleged and of the injury suffered by the Respondent before the lower Court in his final written address. The lower Court deliberated on the issue in the judgment thus:
“A careful perusal of the principles of law of negligence clearly shows that to succeed in an action for negligence, plaintiff must plead particulars of the alleged acts of negligence and adduce evidence thereon. It is the contention of defendant’s counsel that the plaintiff failed to plead particulars of the alleged acts of the defendant and damages suffered by him in his pleadings. And, as a result, submitted that this suit is incompetent.
However, plaintiff counsel argued to the contrary and referred the Court to salient paragraphs of the plaintiff’s amended statement of claim to show that plaintiff indeed gave particulars of the alleged negligent acts of the defendants and that of damages suffered by him. He referred to paragraphs 6, 8, 9, 11, 12, 13, 14 and 16 to 25 of the amended statement of claim for the particulars of negligence and damages suffered by the plaintiff. And paragraphs 7, 9, 10, 12, 13, 14, 15, 17-24 of the witness statement on oath with regards to the evidence led on the particulars of negligence.
I have examined the above paragraphs of the amended statement of claim and it is my firm opinion that the said paragraphs qualify as particulars of negligence alleged against the defendant. Consequently, I hold that the case as constituted is competent.”

​It is this finding of the lower Court that the Appellant desires this Court to upset under this issue for determination in this appeal. It is settled law an appellate Court will not interfere with the findings made by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Akinloye Vs Eyiyola (1968) NMLR 92 at 93, Obisanya Vs Nwoko (1974) 6 SC 69 at 80, Woluchem Vs Gudi (1981) 5 SC 291 at 326, Nwankpu Vs Ewulu (1995) 7 NWLR (Pt 407) 269, Ajibulu Vs Ajayi (2014) 2 NWLR (Pt 1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564. Therefore, an appellant who desires an appellate Court to interfere with the findings made by a trial Court must attack the findings and visibly demonstrate the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice – Ude Vs State (2016) 14 (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC).
​Where an Appellant fails to do so, an appellate Court has no business interfering with the findings of the lower Court – Njoku Vs Eme (1973) 5 SC 293 at 306, Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377. In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”
In other words, it is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the findings of fact made by the trial Court – Uor Vs Loko (1988) 2 NWLR (Pt 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (Pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543.

In the instant appeal, reading through the entire arguments of Counsel to the Appellant on this issue for determination, all he did was to represent the arguments contained in his final address before the lower Court. Counsel to the Appellant even made no attempt to disguise this fact as he referred to the same case law authorities throughout the length and breadth of his arguments. At no point or stage in the arguments did Counsel refer to any portion of the above reproduced finding or make a comment directed at the finding or even attempt to show how it is perverse. The finding of the lower Court that it was irrelevant that the Respondent did not specifically particularize the acts of negligence of the Appellant complained of and that it was sufficient that the said acts of negligence and damage suffered were averred in the body of the pleadings of the Respondent is supported by law – Rubicon Properties and Developers Ltd Vs Nigerian Agricultural Co-Operative and Rural Development Bank Ltd (2021) LPELR-54820(CA). In the case of A. G. Leventis (Nig) Plc Vs Akpu (2007) LPELR-5(SC), Akintan, JSC, held that:
“On the first question, the contention of the trial Court was that although no particulars of negligence was specifically pleaded by the plaintiff, such omission could be and was in fact cured because the plaintiff has clearly indicated in his pleadings what his case was all about. I entirely agree with that view. I therefore believe and hold that although a plaintiff may not specifically set out the particulars of negligence in his pleadings, that omission could be cured if the relevant details are contained in the various paragraphs of his pleadings.”

The Appellant having failed to attack the finding of the lower Court, this Court has no business interfering with the finding on the point. The fourth issue for determination is thus resolved in favour of the Respondent.

Issue Five
Whether the Respondent’s action which is predicated on proprietary right to land can be brought with respect to land which is vested in the Federal Government of Nigeria by operation of statute
Counsel stated that from a stand point of statutory provisions, the Respondent did not have any entitlement to the property on which he alleged that the Appellant committed the negligent acts and caused the nuisance. Counsel referred to Section 12(2) and 13(b) of the National Inland Waterways Authorities Act, Cap N47 Laws of the Federation of Nigeria 2004 and Sections 1 and 2 of Land (Title Vesting, Etc) Act Cap L.7, Laws of the Federation of Nigeria 2004 and stated that they vested every land within 100 meters of the shoreline in the Federal Government of Nigeria. Counsel stated by the Respondent’s own admission, both in his pleadings and in his evidence, the land on which the alleged negligent acts occurred is situate by the banks of the Ogbaagba/Alekuwodo Streams. Counsel stated that if the Respondent actually erected a fence on the portion of land within the 100 meters of edge of the channel, he must show that the fence was erected with the permission of the National Inland Waterways Authority, otherwise the structure would be illegal.

Counsel stated that the Respondent did not plead or lead evidence that he was granted permission by the National Inland Waterways Authority to erect the fence on the land, thus making the erection of the fence illegal and the law is that a wrongdoer should not be enabled by law to take advantage of his actions and he referred to the cases of Buswell Vs Godwin (1971) 1 All ER 418 and Adedeji Vs National Bank of Nigeria Ltd (1989) 1 NWLR (Pt 96) 212. Counsel stated that the Respondent, being a trespasser on the land belonging to the Federal Government of Nigeria, did not have the locus to initiate the suit and cannot benefit from it. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In his response, Counsel to the Respondent noted that the arguments canvassed by the Counsel to the Appellants under this issue for determination is a point of law that amounts to a special defence which ought to have been raised timeously and ought to have been pleaded in the statement of defence of the Appellant so as to afford the Respondent an opportunity to respond thereto and he referred to the case of UBA Plc Vs BTL Industries Ltd (2006) LPELR-3404(SC). Counsel stated that the Appellant did not plead either of the statutory provisions relied upon by its Counsel and that they are bound by their pleadings and he referred to the case of Onemu Vs Commissioner for Agriculture & Natural Resources, Asaba (2019) FWLR (Pt 1009) 1. Counsel stated that having not pleaded the special defence or the statutory provisions, it was not opened to the Counsel to the Appellant to canvass the issue in his final written address before the lower Court or before this Court in this appeal, and that it is irrelevant that this Court is enjoined by the Evidence Act to take judicial notice of the legislations.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Counsel stated that the question of the Respondent being a trespasser on the Federal Government land was being raised in this appeal for the first time and it was not canvassed and evidence led thereon at the lower Court and the law is that it cannot be raised in this Court for the first time and he referred to the case of Owuama Vs Obasi (2011) 1 NWLR (Pt 1228) 436. Counsel stated that address of Counsel, no matter how well written cannot take the place of pleadings and evidence and he referred to the case of Asaka Vs Raminkura (2015) FWLR (Pt 787) 774. Counsel urged the Court to resolve the fifth issue for determination in favour of the Respondent.

​It is settled law that where the case of a claimant is ex-facie competent, not illegal and it discloses the right of the claimant to the reliefs sought, and a defendant desires to rely on the provisions of a statute which negates the disclosed right of the claimant and renders his action incompetent or illegal, the provisions of the statute constitute a special defence which must be specifically pleaded by the defendant, along with relevant facts in support – Yassin Vs Barclays Bank DCO (1968) LPELR-25440(SC) Afelumo Vs Ojo (2013) LPELR-19976(CA), Isaac Vs Imasuen (2016) 7 NWLR Part 1511 Page 250 at 265, Samaho Vs PHCN (2017) LPELR-43133(CA), Misa Vs Ahmad (2018) LPELR-44247(CA). In United Bank for Africa Plc Vs BTL Industries Ltd (2006) LPELR-3404(SC), Onu, JSC, succinctly made the point thus:
“…it being settled law that special defences must be specifically pleaded. (2) Ibrahim Kano v Gbadamosi Oyelakin (1993) 3 NWLR (Pt. 282) 399 at 404 paras D-F which states as follows: ‘A defence which is a special defence and is available to the defendant at the time of the action must be pleaded specifically; where it is not pleaded, it could not be raised even on appeal.’ (3) Chief Niyi Akintola v Balogun (2000) 1 NWLR (Pt.642) at page 532 particularly at page 551, paras D-E which states thus- ‘A special defence ought to be specifically pleaded. In the instant case, the grant of licence can be taken as a special defence which ought to be specifically pleaded.’ (4) Alhaji Mahmood I. Atta v Miss Chinye A. M. Ezeanah (2000) 11 NWLR (Pt.678) 363 at 383 paras B-D; (5) F.C.D.A. v. Naibi (1990) 3 NWLR (Pt.138) 270 at page 281 para F. Thus, it was held by the Supreme Court in Diab Nasr v. Berini (Beirut-Riyad) (Nig.) Bank Ltd. (1968) 1 All NLR 274 at 295 per Coker, J.S.C.: ‘…but where illegality does not appear ex facie the Court is not entitled to speculate upon its incidence let alone expressly pronounce upon it unless it was made a part of the case of either side.’ … (8) IMNL v. Pegofor Ind. Ltd. (2005) 15 NWLR (Pt.947) 1 at 9 (9) A.I.C Ltd. v. NNPC (2005) 11 NWLR (Pt.937) 536, (2005) 5 SC (Pt. 11) 60 at pages 66 – 68 where this Court held that where a party raising the defence of illegality has not raised it in its pleadings by stating the facts on which it relies the appellate Court will be disabled from considering the issue of illegality. In the earlier decision in the case of Ekwunife v. Wayne (WA.) Limited (1989) 5 NWLR (Pt. 122) at 422 page 436 this Court held as follows:- ‘where a contract is not ex facie illegal and the question of illegality depends on a number of facts, probabilities or possibilities or contingencies to be hammered out by evidence and forensic logic, the general rule is that illegality must be raised in the pleadings.’”

In the circumstances of this case, the reliance placed by the Appellant on the provisions of the National Inland Waterways Authorities Act, Cap N47 Laws of the Federation of Nigeria 2004 and the Land (Title Vesting, Etc) Act Cap L.7, Laws of the Federation of Nigeria 2004 amounted to raising a special defence. The Appellant was obligated to plead it in its statement of defence. Reading through the pleadings of the Appellant before the lower Court it neither pleaded either of the two statutes directly by name nor did it plead facts from which its intended reliance on the special defence could be inferred. It is a firmly established principle of adjudication in a case predicated on pleadings that the parties and indeed the Court are bound by the pleadings filed and exchanged by the parties – Uzodinma Vs Ihedioha (2020) 5 NWLR (Pt 1718) 529, Adamawa State Ministry of Land & Survey Vs Salisu (2021) 2 NWLR (Pt 1759) 1, Eweje Vs O. M. Oil Industry Ltd (2021) 4 NWLR (Pt 1765) 117, Wulangs Vs Central Bank of Nigeria (2021) 16 NWLR (Pt 1802) 195, Imaruagheru Vs Aiguokunrueghian (2021) 18 NWLR (Pt 1808) 307.
​Therefore, a trial Court should not consider an issue not raised by the parties on the pleadings and an appellate Court should also not allow a party to canvass on appeal an issue that was not raised by the party on his pleadings before the lower Court – First Bank of Nigeria Plc Vs Songonuga (2007) 3 NWLR (Pt 1021) 230, Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590, Afolabi Vs Western Steel Works Ltd (2012) 17 NWLR (Pt 1329) 286, Julius Berger (Nig) Plc Vs Ogundehin (2014) 2 NWLR (Pt 1391) 388.

​Parties are not allowed to raise issues of facts in the address of their Counsel which were not raised or agitated on the pleadings as address of Counsel does substitute for pleadings – Buraimoh Vs Bamgbose (1989) All NLR 669, Okwejiminor Vs Gbakeji (2008) 5 NWLR (Pt 1079) 172, Ayanwale Vs Odusami (2011) LPELR-8143(SC).

​The Appellant, having failed to plead the provisions of the National Inland Waterways Authorities Act, Cap N47 Laws of the Federation of Nigeria 2004 and the Land (Title Vesting, Etc) Act Cap L.7, Laws of the Federation of Nigeria 2004 as a special defence, cannot be heard to make a case on the effect of their provisions on the case of the Respondent in this appeal. The fifth issue for determination is thus resolved in favor of the Respondent.

With the resolution of all the viable issues for determination in this appeal in favour of the Respondent, the appeal must fail as lacking in merit and it is hereby dismissed. The judgment of the High Court of Osun State, sitting in Osogbo Judicial Division, delivered in Suit No HOS/42/2012 by Honorable Justice A. D. Afolabi on the 21st of March, 2019 is affirmed. The Respondent is awarded the cost of this appeal assessed at N200,000.00. These shall be the orders of the Court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, HABEEB ADEWALE O. ABIRU, JCA; in this appeal.

My learned brother has meticulously dealt with all the issues formulated by the parties for the determination of the instant appeal and I agree with the conclusions reached by his Lordship on the said issues.

​I do not have anything to add by way of contribution or otherwise to the leading judgment in which the appeal has in my considered view been rightly found to be lacking in merit.

Accordingly, I too find the appeal to be lacking in merit and I hereby dismiss the same. The judgment of the lower Court delivered on 21/3/2019 in Suit No. HOS/42/2012, is affirmed. I abide by the order relating to costs made by his lordship in the leading judgment.

YUSUF ALHAJI BASHIR, J.C.A.: I was obliged a copy of this judgment in draft by my Lord, HABEEB ADEWALE O. ABIRU, JCA.

I am satisfied with the manner his lordship resolved the contending issues in the appeal I therefore abide by his conclusions that the appeal has no merit. Consequently, the appeal must fail for being unmeritorious same is therefore dismissed.

​The judgment of the High Court of Osun State in Suit No HOS/42/2012 delivered on the 21st day of March 2019 is hereby affirmed. I award cost in the sum of N200,000 in favour of the Respondent in this appeal.

Appearances:

Mr. Olakunle Agbebi For Appellant(s)

Mr. Toyese Owoade For Respondent(s)