ADEAGBO & ANOR v. JINADU
(2022)LCN/15994(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/IB/501/2014
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
1. RAFIU ADEAGBO 2. MADAM SILIFATU JIMOH ABODUNRIN APPELANT(S)
And
MUDASIRU JINADU RESPONDENT(S)
RATIO
THE POSITION OF EVIDENCE OF TRADITIONAL HISTORY
Now, evidence of traditional history is evidence as to right or interest in family or communal land alleged to have existed from time beyond living memory given by members of the community or village who claim or defend a right or interest in the family or communal land. By its very nature, it is hearsay evidence which is statutorily recognized as admissible by the Evidence Act for the purpose of establishing title to or interest in family or communal land. See: Section 66 of the Evidence Act, 2011 and the cases of DIKE & ORS v NZEKA II & ORS (1986) LPELR-945(SC), per Oputa, JSC at pages 23 – 24, paras. D – A; OLATOMIDE & ANOR IKUMUYILO & ORS (2019) LPELR-48374(CA), per Omoleye, JCA at pages 40 -41, para. B and AJIDAHUN v OJO (2014) LPELR-41108(CA), per Lokulo-Sodipe, JCA at page 86, para. A. PER MOHAMMED, J.C.A.
THE DUTY OF THE TRIAL COURT WHERE PARTIES IN AN ACTION FOR DECLARATION OF TITLE TO LAND, ADDUCE TRADITIONAL EVIDENCE
It is therefore trite that where, as in this case, both parties have adduced traditional evidence, the trial Court is enjoined to first resolve the conflict by deciding on the preponderance of evidence which of the traditional evidence is more believable. In IHENACHO & ORS v EGBULA & ORS (supra), the Apex Court restated this when His Lordship Ogunwumiju, JSC held as follows:
“Where the traditional history of both parties are in conflict which usually is the case, but the trial Judge is able to resolve the conflicts there would be no need to resort to the Rule in Kojo II v. Bonsie supra. Where on the other hand, the traditional History are in conflict and each has much weight, i.e. they both appear reliable and probable, it would then be the duty of the judge to resolve the impasse by reference to facts in recent years by compelling evidence. The rule is only applicable in a case where traditional evidence is inconclusive. It is therefore, only when the evidence of traditional history adduced by the parties is inconclusive that the trial Court should apply the test in KOJO II v BONSIE to resolve the conflict.”
See also FALEYE & ORS v DADA & ORS (2016) LPELR-40297(SC); ONOVO & ORS v MBA & ORS (2014) LPELR-23035(SC); GRAHAM v EUSMAI (1984) 11 S.C. 123 and IBIKUNLE v LAWANI (2007) 3 NWLR (Pt. 1022) 580 at 594, paras. B – C. PER MOHAMMED, J.C.A.
WHETHER OR NOT TRADITIONAL EVIDENCE IS BY ITS NATURE HEARSAY EVIDENCE
It is however important to point out that, as stated by Ibekwe, JSC in ALADE v AWO (1975) LPELR-400(SC) at page 12, paras. A – F, traditional evidence is by its nature hearsay evidence of events which occurred beyond the time of living memory, which the law allows to be adduced for the purpose of establishing the rights or interests of the parties. In that case, His Lordship Ibekwe, JSC held that:
“Most often than not, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory. It is therefore recognized that the witnesses who are called upon to give traditional evidence would not necessarily be in a position to give eye-witness account. Such witnesses cannot speak from personal knowledge; they merely repeat the stories which their ancestors had told them. Our legal system, in its wisdom allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded.” PER MOHAMMED, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES BEFORE IT AND ASCRIBE PROBATIVE VALUE TO IT
It is basic principle of law that evaluation of evidence and ascription of probative value to such evidence is primarily the function of the trial Court which has seen, heard and assessed the witnesses. See OKEOWO v A-G OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E; GUARDIAN NEWSPAPERS LTD & ANOR v AJEH (2011) LPELR-1343(SC), per Rhodes-Vivour, JSC at page 13, para. B and NDUKWE v LPDC & ANOR (2007) LPELR-1978(SC), per Onnoghen, JSC (as he then was) at page 38, para. D.
Therefore, where a trial Court had duly and justifiably evaluated the evidence as in the instant case, an appeal Court can only find out whether there is evidence on the record on which the trial Court had acted. Once there is sufficient evidence on record from which the trial Court had arrived at its findings of fact, an appellate Court cannot interfere. In other words, unless such evaluation was not done or was perversely done, an appellate Court will not interfere, even if it would have evaluated such evidence differently. See EZEKWESILI v AGBAPUONWU (supra), OKEOWO v A-G OF OGUN STATE (supra), OBUEKE & ORS v NNAMCHI & ORS (2012) LPELR-7810(SC), per Peter-Odili, JSC at page 25, para. B and MAINAGGE v GWAMMA (2004) LPELR-1822(SC), per Akintan, JSC at pages 16 – 17, para. F. And it is the party who complains that a finding or decision of a trial Court is perverse that has the duty to show in what way the said finding or decision is perverse and how the said finding or decision has occasioned miscarriage of justice. See AMADI v A-G, IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B, SOLAR CONSTRUCTION SERVICES v MINISTER OF THE FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46648(CA), per Ige, JCA at page 33, para. A and DANIA v UNICAL & ORS (2019) LPELR-48144(CA), per Nimpar, JCA at pages 27 – 28, paras. F – F. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This appeal is against the final judgment of the High Court of Oyo State (the trial Court), delivered by Hon. Justice A. A. Gbolagunte on the 6th day of February, 2014. Before the trial Court, the Respondent, as claimant, instituted Suit No. I/984/1992 for and on behalf of the Makinde family, seeking for the following reliefs against the Appellants (as defendants) jointly and severally:
(a) Against all the Defendants:
1. Declaration that members of the Makinde family are the persons entitled to apply for and be granted the Certificate of Statutory Right of Occupancy in respect of a piece of land situate, lying and being at Salako Village, along Iddo Road, Omi-Adio, Ibadan particularly verged Red on Survey Plan No. ADAKS93D/OY93 of 30th May, 1994 except the land already in absolute possession of the Plaintiffs.
2. Injunction against the Defendants, their heirs, agents and servants and manner of persons that may be claiming and/or doing anything on the said land.
3. N10,000 each from each of the Defendants, being damages for trespass being committed by each of the Defendants on the said land.
(b) Against the 1st and 2nd Defendants only:
1. Forfeiture of the area edged yellow on the Plaintiff’s plan.
2. Possession of the said land.
3. Injunction restraining the said Defendants from entering the said portion or doing anything or claiming any right that may effect the interest of the Plaintiffs (sic).
(See the Further Amended Statement of Claim with Survey Plan at pages 47 – 50 of the Record of Appeal).
The Appellants responded to the suit with the Statement of Defence that was twice amended to a Further Amended Statement of Defence and Counter Plan filed on 9th April, 2006. The Further Amended Statement of Defence and Counter Plan is at pages 94 – 97 of the Record of Appeal. The Respondent then filed a reply to the Further Amended Statement of Defence and Counter Plan. The reply which is at pages 98 – 102 was filed on 4th June, 2007.
BRIEF FACTS OF THE CASE:
The Respondent’s case, as borne by the Further Amended Statement of Claim and Survey Plan, was that his grandfather and ancestor, Makinde was a warrior who fought under Bashorun Ogunmola in the area known as Aba Salako, Omi Adio, Ibadan, Oyo State and in recognition of his gallantry and loyalty, Makinde was given the land verged blue by Bashorun Ogunmola, which includes Oke Aremo, Idi Ose, Beere and Omi Adio and that Makinde leased some parts of the land to some other families who pay rent to him and by virtue of this became his customary tenants.
During his lifetime, Makinde married two wives named Iya Ijesha and Lalubi. Iya Ijesha gave birth to Adepeju while Lalubi gave birth to Adeoti, both female daughters for Makinde. Before marrying Makinde however, Lalubi had earlier married a man named Odunewu for whom she begat three children named Ajibola, Mobola and Adeniyi and Mobola married one Salako who lived in Alaro village. Among the persons whom Makinde gave land to was Salako, the husband to his stepdaughter, Mobola and the said land is verged yellow, which was solely for farming purposes. Makinde also granted the remaining portion of the area verged yellow to his other stepchildren Adeniyi and Ajibola and they also became his customary tenants. Upon the death of Makinde, the village came to be known as Salako Village because of the abundance of food grown there.
During the lifetime of Jinadu Akanji, one of the children of Adeoti, Makinde’s biological daughter born of Lalubi, he borrowed N1,000 from one Alhaji Busari Oyolola (now deceased) in order to pursue a legal action in Court over a dispute he had with the children of Adejetu, Makinde’s first wife for unilateral sale of the family land. To return the money, he made an exchange of the land in dispute to Alhaji Busari Oyolola for N4,000 by deducting the N1,000 earlier borrowed as part payment for the land sale transaction. Alhaji Busari Oyolola took possession of the land after the death of Jinadu Akanji by carrying out a survey plan of the land and erecting survey pillars without paying the outstanding N3,000 for the land. Busari Oyolola was interjected by the Respondent because his consent was not obtained and Busari Oyolola claimed the property was sold to him by Madam Ajike, the daughter to Ajibola, the stepchild of Makinde who was a customary tenant on the land and who claimed that the land belonged to her and her brothers.
In their Further Amended Statement of Defence however, the Appellants denied the claim of the Respondent and stated that the land in dispute lying and situate at Salako Village, Omi Adio was originally settled upon by Bako who was a warrior who fought under Bashorun Apampa at Omi Adio in Iddo Local Government Area. That Bako granted some portions of the land to the boundary men of which the land in dispute was granted to Salako and the rest to Adeniyi and Ajobola. That Salako took possession of the land by building a house which location was later referred to as Salako Village and being an Ogun worshipper, he also built shrines on the land and his children who are Muslims also built a mosque. That Adeniyi and Ajibola farmed on their portions of the land given to then by Bako and upon their death, their children inherited the area verged Red under native law and custom. That late Ajibola was the father of Adeagbo Ayinde and Madam Ajibike Abeo who was the initial 1st Defendant but who died and was substituted by the 1st Appellant, while late Adeniyi was the father of Adeleke.
It was also the Appellant’s case that Lalubi who was the second wife of Makinde was initially married to Odunewu for whom she had three children, namely – Mobolaji, Adeniyi and Ajibola before the got married to Makinde. That upon the death of Odunewu, Lalubi married Makinde and begat Adeoti. That the three children later migrated to Bako village and lived with the son of Aderinto, the son of Bako where Bako granted Adeniyi and Ajibola the area verged red for farming purpose. That the three children migrated to Salako Village where Salako saw Mobolaji their sister and married her.
The Appellants also averred that sometimes in 1978, Juandu Akanji also known as Junadu Makinde, the father of the Respondent agreed to sell part of the land verged red to the 2nd Appellant (2nd Defendant), Adeagbo Ayinde for N4,000 and received N1,000 for which Jinadu Akanji issued a receipt in acknowledgement to Adeagbo Ayinde, but he was interjected of possession by the 1st Appellant who claimed that the land did not belong to Makinde’s family (the Respondent).
After a full trial in which each of the parties relied on evidence of traditional history and tendered some documentary evidence, the trial Court entered judgment for the Respondent (Claimant) granting the Respondent’s reliefs on the 6th of February, 2014. Dissatisfied with the judgment of the trial Court, the Appellants brought this appeal vide Notice of Appeal filed on 22nd of April, 2014. The Notice of Appeal is at pages 249 – 251 of the Record of Appeal. The Record of Appeal was complied and transmitted to this Court on the 15th of October, 2014 and same was deemed properly transmitted on the 9th of April, 2019. Parties filed and exchanged briefs of argument. The Appellants’ Brief of Argument was filed on 17th March, 2021 and deemed properly filed on 18th March, 2021. The Respondent’s Brief of Argument was filed on the 11th of August, 2021 and deemed properly filed on the 25th of September, 2021. The Appellant’s reply brief was filed on the 4th of November, 2021 and deemed properly filed on the 9th of November, 2021. At the hearing of the appeal on the 9th of November, 2021, the parties adopted their respective briefs of argument.
In the Appellants’ Brief of Argument, the following four issues were distilled for determination:
1. Whether the learned trial judge was right in granting a declaration to statutory right of occupancy on the land in dispute situate and being at Salako Village, Omi Adio to the Respondent in view of the admission of the Respondent’s grantor Raimi Olahan Ogunmola who testified as PW5 to the effect that “Ogunmola fought wars both along Oyo and towards Ijebuland. Ogunmola did not go to fight any war personally along Ijebuland but sent his daughter.” (Distilled from Ground 1).
2. Whether the evidential burden of proof on the Respondent was discharged by the Respondent on the balance of probabilities to warrant the shifting of onus of proof on the Appellants by the learned trial judge. (Distilled from Grounds 2 and 5).
3. Whether the constitutional right of the Appellants to fair hearing was breached by the refusal of the learned trial judge to consider the Defendants’ reply on points of law to the Claimant’s final written address and thereby occasioned a miscarriage of justice. (Distilled from Ground 3).
4. Whether the judgment delivered on the 6th day of February, 2014 was not a nullity having regard to the purported re-adoption of the parties’ final written addresses against the clear provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thereby occasioned miscarriage of justice. (Distilled from Ground 4).
On his part, the Respondent distilled the following four issues for determination in his brief of argument:
1. Whether the learned trial judge erred in law when he granted declaration of statutory right of occupancy on the land in dispute to the Respondent. (Distilled from Ground 1).
2. Whether the honourable trial judge rightly evaluated the traditional evidence led by both parties in granting the reliefs of the Respondent and rejecting the traditional evidence of the Appellants. (Distilled from Grounds 2 and 5).
3. Whether the trial Court was right in rejecting the Appellant’s reply on point of law filed before the lower Court as been (sic) filed out of time. (Distilled from Ground 3).
4. Whether the judgment of the trial Court delivered on 6th day of February, 2014 is a nullity having regard to the re-adoption of the parties’ final written addresses. (Distilled from Ground 4).
But for the use of different words, the four issues raised by each of the parties are essentially the same. Since the Appellants are those with the grouse, I shall adopt the four issues as raised by them in determining the appeal. I shall however consider and resolve issues 1 and 2 together.
ISSUES 1 & 2:
ISSUE 1: Whether the learned trial judge was right in granting a declaration to statutory right of occupancy on the land in dispute situate and being at Salako Village, Omi Adio to the Respondent in view of the admission of the Respondent’s grantor Raimi Olahan Ogunmola who testified as PW5 to the effect that “Ogunmola fought wars both along Oyo and towards Ijebuland. Ogunmola did not go to fight any war personally along Ijebuland but sent his daughter.”
ISSUE 2: Whether the evidential burden of proof on the Respondent was discharged by the Respondent on the balance of probabilities to warrant the shifting of onus of proof on the Appellants by the learned trial judge.
APPELLANTS’ SUBMISSIONS ON ISSUES 1 & 2:
On issue 1, learned Counsel for the Appellants contended that a party who based his claim for declaration of title to land on traditional history must show with cogent and conclusive evidence that his ancestors acquired the land whether by settlement, conquest or grant. He cited AIKHIONBARE v OMOREGIE (1976) 12 SC 16; KODINLINYE v MBANEFO ODU 2 WACA 1336; EBOHA v ANAK WENZA (1967) FNLR 279; ALHAJI GANIYI M. B. ISEOGBEKUN & ANOR v ALHAJI SIKIRU GBENGI ADELAKIN & ORS (2012) LPELR-15516(SC), per Muhktar, JSC at page 30, paras. A – E.
Counsel pointed out that the Respondent called three witnesses and placed reliance on the evidence of PW3 and PW4 and the evidence in Exhibit A. That according to PW1, Bashorun Ogunmola gave the land in dispute to Makinde for his gallantry and upon the grant, Makinde leased some parts to some other families who became his customary tenants. Counsel pointed out that during cross-examination, PW1 had admitted that there is a village known as Bako Village at Omi Adio and that there is no village there called Ogunmola Village. He referred to page 114 of the Record.
Learned Counsel for the Appellants also pointed out that PW2 who gave evidence that his father Babalola was a grantee of Makinde and that his village was Makinde Village had under cross-examination at page 117 of the record contradicted himself and stated that his village was Otun Village on the way to Elenusonso. Counsel similarly referred to the evidence of PW3, the Claimant’s Surveyor who tendered Exhibit B, the Plan No. ADAKS 93D/OY94 dated 30-05-1994. He pointed out that under cross-examination, PW3 had admitted that he met some beacon numbers tagged YADP on the land which shows that there had been previous title survey on the land during which those beacons were erected and numbered. PW3 had admitted that he incorporated the earlier survey made by Surveyor Ogunbadejo in his survey admitted as Exhibit B, and the said Ogunbadejo’s survey was tendered under cross-examination through the said witness and admitted as Exhibit C. Counsel pointed out that PW3 had admitted that Salako Village was written on Exhibit C first prepared by the Claimant before he engaged PW3 to prepare Exhibit B.
Learned Counsel for the Appellants submitted that the Respondent’s claim should have failed and ought to have been dismissed because his root of title was destroyed by the evidence of the grantor represented by PW3, Raimi Ogunmola who under cross-examination had stated that Ogunmola did not personally fight wars along Ijebuland but he sent his daughter. Counsel contended that in a declaration of title to land, if the defendant is able to adduce either oral or documentary evidence which discredits the Plaintiff’s claim, such a declaration should be refused. He relied on OGUNDAIRO & ORS v OKANLAWON & ORS (1963) 1 All NLR 358; and FALEYE & ORS v OTAPO & ORS (1995) LPELR-1235(SC), per Iguh, JSC at page 48, paras. C – D. He submitted that a party who seeks declaration of title to land must prove his root of title to the land and if he traces his title to a particular person, he must go further to prove how that person got his own title, including where necessary, the family that originally owned the land. He cited THOMAS v PRESTON HOLDER 12 WACA 78 and AJIBONA v KOLAWOLE (1996) 10 NWLR (Pt. 476) 22. He submitted that the Respondent was only able to trace the root of title to Bashorun Ogunmola whom, as the witness had stated, fought no war personally along Ijebuland but sent his daughter Omosa, which is not the case of the Respondent. He argued that the only person that can grant the Respondent land is Omosa who allegedly fought along Ijebuland where the land in dispute is situate and not Bashorun Ogunmola to whom the Respondent traced his title.
Learned Counsel further contended that in an action for declaration of title to land, where the Plaintiff fails to discharge the burden of proving his root of title as pleaded by him, he cannot fall back on long possession and acts of ownership to prove title. He must first prove root of title to be able to claim title on acts of ownership or long possession. He cited KALIO v WOLUCHEM (1985) 1 NWLR (Pt. 4) 610 at 628.
Learned Counsel argued that the inconsistency in the pleadings and evidence of the Respondent especially from his grantor Raimi Olahan Ogunmola to the effect that Ogunmola did not personally fight war along the disputed land is so material and fundamental. Citing and relying on the cases of QUEEN v ABDULLAHI ISA (1961) 1 ANLR (Pt. 4) 668; ENAHORO v THE QUEEN (1965) 1 ANLR 125 at 149 – 150; EZEMBA v IBENEME & ANOR (2004) 14 NWLR (Pt. 894) 617 and BASSIL & ANOR v FAJEBE & ANOR (2001) 4 SC (Pt. II) 119, counsel submitted that the trial judge failed to avert his mind to the inconsistent evidence which led to miscarriage of justice.
On their issue 2, the Appellants contended that the Respondent who was seeking for declaration of title to land had the burden to establish his claim, which he must discharge on the strength of his case and on the balance of probabilities. The Appellants cited CALABAR CENTRAL COOPERATIVE THRIFT AND CREDIT SOCIETY LTD & 2 ORS v BASSEY EKPO (2008) All FWLR (Pt. 418) 224; ADEWALE ALABI EBOADE & ANOR v OLANIYAN ATOMESIN & ANOR (1997) 5 NWLR (Pt. 506) 490 at 502 – 503, paras. H – A.
Learned Counsel for the Appellants also contended that a party who relied on traditional evidence is required to prove three elements: (a) who founded the land in dispute; (b) how the land was founded; and (c) particulars of intervening owners through whom he claims. He cited ELEGUSHI v OSENI (2005) 14 NWLR (Pt. 945) 384 and NWOKOROBIA v NWOGU (2009) 10 NWLR (Pt. 1150) 553. He submitted that the Respondent having failed to discharge the burden of proof placed on him, his claim ought to fail and there was no need shifting the burden to the Appellants as done by the trial Court. The Appellants restated that the evidence of PW3 in Exhibit A, who is the grantor of the Respondent did not support the findings of the learned trial judge, in that PW3 never claimed that Ogunmola gave Bako land and the witness only stated that he had heard of Bako and knew that he had land in Omi Adio, but did not know him. Counsel further posited that the inference of the learned trial judge that the Respondent claimed that Bashorun Ogunmola gave his war lieutenant Makinde land and also gave Bako whom the Appellants stated was a war lieutenant under Bashorun Apampa was not supported by the evidence of the Respondent’s grantee, PW3 in Exhibit A. He also argued that the learned trial judge failed to appreciate the relevance of Exhibit E which was Baale Omi Adio Chieftaincy Declaration to the effect that if Bashorun Ogunmola had acquired land by settlement as claimed by the Respondent, the declaration would not have been made in the name of Osi Osundina (Apampa family). He submitted that Exhibit E is to assist the Court as to the fact in recent time which is to be used in resolving conflicting traditional history. He added that Exhibit D, the judgment of the Provincial Court, Ilugun in 1921, was meant to show that Ajala Ogunola’s land was one of the seven Court actions instituted against Bello when he trespassed on the land and that Bashorun Apampa’s ownership of the land was recognized in a declaration by Oyo State Government, but the learned trial judge found all these to be unhelpful and thereby came to a wrong conclusion. Citing BALOGUN v AGBOOLA (1974) 10SC 111, IKE v UGBOAJA (1993) 6 NWLR (Pt. 301) 539 at 555 and WOLUCHEM v GUDI (1981) SC 291 at 295 and 326, Counsel argued that the findings of the trial Court were perverse and urged the Court to resolve this issue in favour of the Appellants and allow the appeal.
RESPONDENT’S SUBMISSIONS ON ISSUES 1 & 2:
Arguing per contra, learned Counsel for the Respondent contended in relation to issue 1, that where both parties are relying on traditional evidence, the position of the law is that the trial Court has a duty to consider which is more reliable and probable. He cited NWABU OKEI v AFAM-MORDI (2018) LPELR-44162(CA). He submitted that traditional evidence is not determined by demeanour of witnesses but on a consideration of the activities of the parties in the exercise of their rights and whether such activities accord with the evidence of traditional history. He cited MORENIKEJI v ADEGBOSIN (2003) 8 NWLR (Pt. 823) 612 at 663; KAYILI v YILBUK & ORS (2015) LPELR-24323(SC); DIKE & ORS v NZEKA II & ORS (1986) LPELR-945(SC); SALAWU & ANOR v YUSUF & ANOR (2007) LPELR-2988(SC) and ALADE v AWO (1975) LPELR-400(SC) at page 12, paras. A – F, and submitted that the minor discrepancies is not unusual in evidence of traditional history, and the evidence of PW3 under cross-examination that Ogunmola sent his daughter to fight war along Ijebuland under his control will not affect the potency of the evidence of the Respondent.
Learned Counsel also relied on the cases of OJUKWU v OBASANJO & ORS (2004) 7 SC (Pt. I) 117 at 143 and DAN MAINAGGE v ISIAKU GWAMNA (2004) 7 SC (Pt. II) 86 at 140, to the effect that evaluation of evidence is an exclusive preserve of the trial Court and an appellate Court does not interfere unless such evaluation and finding is perverse. He argued that the grant of declaration of title to land being a discretionary relief, this Court should not interfere since the Appellants have not shown that the decision is perverse. He relied on OGUNMADE v FADAYIRO (1972) LPELR-2344(SC) and FABUNMI v AGBE (1985) LPELR-1221(SC). He added that the name by which the land was called, whether Makinde or Salako Village, is immaterial, since the land in dispute is well known to both parties. He cited ATANDA v ILIASU (2012) LPELR-19662(SC) and urged the Court to resolve this issue in favour of the Respondent.
In his counter submission on issue 2, learned Counsel for the Respondent contended that the procedure for evaluation of traditional evidence as laid down in WACHUKWU v OWUNWANNE (2011) 14 NWLR (Pt. 1266) 1 at 31, paras. B – D, is that the Court usually evaluates the evidence side by side any available documentary evidence and acts of possession by parties in recent memory, and then decides on the balance of probability which version is preferable and why. Citing ADEWUYI v ODUKWE (2005) LPELR-165(SC), he submitted that from the judgment of the trial Court, is has exhaustively evaluated the entire evidence of all the witnesses of the parties with the exhibits tendered before coming to the just conclusion in granting the reliefs claimed by the Respondent.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Learned Counsel repeated his arguments in issue 1 that the minor discrepancies in the traditional evidence should not affect the Respondent’s case. He pointed out that the evidence of PW1 before the trial Court collaborated with the evidence of earlier witnesses and also the evidence of PW3. He posited that the trial Court had done a thorough and exhaustive review of the entire evidence as shown in its judgment. He referred to pages 213 – 242 of the Record of Appeal.
It was further argued that the Appellants have rather than focusing on their own traditional history and show why it was to be preferred, have persisted in addressing minor discrepancies in the traditional evidence of the Respondent and the holding of the trial Court thereon. It was submitted that the traditional evidence led by the Appellants is inconsistent, because while they claimed in paragraphs 7 and 9 of their Further Amended Statement of Defence and Counter Plan that the whole land in the area was originally settled upon by Bako a warrior who fought under Bashorun Apampa, they summersaulted in the same pleadings and mentioned in paragraph 33 that the land was granted to the Ibadan people through the permission from Oba Gbadebo of Egbaland as against the settlement they relied upon. Counsel relied upon the case of DOKUBO & ANOR v OMONI & ORS (1999) 6 SC (Pt. I) 103, to the effect that there is a clear difference between a grant and a settlement.
As for the Appellant’s reliance on Exhibit D, the judgment of the Provincial Court, it was argued that the document was totally irrelevant and had destroyed the evidence of DW4. It was pointed out that a plan was tendered which showed the area in dispute as verged RED. It was submitted that since Bashorun Apampa sought permission from Alake Gbadebo to allow Ibadan people to settle on Egba land west of Omi River, it was wrong for DW4 to say that the judgment covers all the land in Omi Adio. It was argued that the trial Court was right to have regarded the said Exhibit D as unhelpful, as the land in dispute at Makinde village is quite different from south and west of Omi Adio River. Reference was made to page 244 of the record. It was submitted that the Respondent had duly discharged the burden of proof placed on him.
APPELLANTS’ REPLY ON ISSUES 1 & 2:
In their reply on points of law, the Appellants repeated their earlier arguments made in their Brief of Argument that the Respondent had failed to establish his case on traditional history because of the contradictions in the evidence of PW2 and PW3. They also contended on the power of the appellate Court to review the exercise of discretion by trial Court where it is shown to have been improperly and or injudiciously exercised. They particularly cited the case NJC v DAKWANG & ORS (2019) LPELR-46927(SC), was relied upon.
RESOLUTION OF ISSUES 1 & 2 TOGETHER:
As borne by the Record of Appeal, each of the parties to this appeal had relied on evidence of traditional history to substantiate their respective cases before the trial Court.
Now, evidence of traditional history is evidence as to right or interest in family or communal land alleged to have existed from time beyond living memory given by members of the community or village who claim or defend a right or interest in the family or communal land. By its very nature, it is hearsay evidence which is statutorily recognized as admissible by the Evidence Act for the purpose of establishing title to or interest in family or communal land. See: Section 66 of the Evidence Act, 2011 and the cases of DIKE & ORS v NZEKA II & ORS (1986) LPELR-945(SC), per Oputa, JSC at pages 23 – 24, paras. D – A; OLATOMIDE & ANOR IKUMUYILO & ORS (2019) LPELR-48374(CA), per Omoleye, JCA at pages 40 -41, para. B and AJIDAHUN v OJO (2014) LPELR-41108(CA), per Lokulo-Sodipe, JCA at page 86, para. A.
The Appellants herein seem to have made so much arguments over some aspects of the evidence of PW2 (Rafiu Jinadu) and PW3 (Raimi Olahan Ogunmola). On the evidence of PW2, the Appellants have pointed to the aspect of the evidence of the witness at page 5 of Exhibit A where he stated that Ogunmola fought war in the area of the land in dispute and on the land itself, and that Ogunmola settled Makinde in the area of the land in dispute, and that Bashorun Apampa and Ogunmola were warriors. The Appellants argued that the witness had confirmed under cross-examination at page 7 of Exhibit A that Baale of Omi Adio is always from Apampa side.
As for PW3, the Appellants’ contention was that even as the witness had stated that Ogunmola was the one who put Makinde on the land in dispute, PW3 had under cross-examination stated that Ogunmola fought wars all around both along Oyo and Ijebuland, but did not fight war personally along Ijebuland, rather he sent his daughter to do so.
The Appellants have argued that these discrepancies in the evidence of the Respondent’s witnesses before the trial Court are material. They similarly contended that since the parties have adduced competing traditional evidence, the learned trial judge ought to have applied the rule in KOJO II v BONSIE (1957) 1 WLR 1223, to resolve the conflict. But the Respondent had countered that the evidence of PW3 under cross-examination that Ogunmola sent his daughter to fight along Ijebuland under his control cannot affect the potency of the traditional evidence of the Respondent and also argued that the trial Court was right when it held that the rule in KOJO II v BONSIE (supra), did not apply to this case since it was able to resolve the conflict in the traditional evidence adduced.
In KOJO II v BONSIE (supra), the Privy Council had at page 1226 explained the rule in the following words: “The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.”
The above rule basically enjoins trial Courts in situations where the competing traditional evidence adduced by the parties is inconclusive to refer to facts in recent years established in evidence by the parties in order to determine which of the competing traditional evidence is more believable. See EBOADE & ANOR v ATOMESIN & ANOR (1997) LPELR-989(SC), per Kutigi, JSC (as he then was) at pages 12 – 13, para. G; TAIWO & ORS v OGUNDELE & ORS (2012) LPELR-7803(SC), per Rhodes-Vivour, JSC at pages 31 – 32, para. A; FALEYE & ORS v DADA & ORS (2016) LPELR-40297(SC), per Sanusi, JSC at pages 60 – 61, para. F and IHENACHO & ORS v EGBULA & ORS (2021) LPELR-55931(SC), per Ogunwumiju, JSC at pages 43 – 45, para. A.
It is therefore trite that where, as in this case, both parties have adduced traditional evidence, the trial Court is enjoined to first resolve the conflict by deciding on the preponderance of evidence which of the traditional evidence is more believable. In IHENACHO & ORS v EGBULA & ORS (supra), the Apex Court restated this when His Lordship Ogunwumiju, JSC held as follows:
“Where the traditional history of both parties are in conflict which usually is the case, but the trial Judge is able to resolve the conflicts there would be no need to resort to the Rule in Kojo II v. Bonsie supra. Where on the other hand, the traditional History are in conflict and each has much weight, i.e. they both appear reliable and probable, it would then be the duty of the judge to resolve the impasse by reference to facts in recent years by compelling evidence. The rule is only applicable in a case where traditional evidence is inconclusive. It is therefore, only when the evidence of traditional history adduced by the parties is inconclusive that the trial Court should apply the test in KOJO II v BONSIE to resolve the conflict.”
See also FALEYE & ORS v DADA & ORS (2016) LPELR-40297(SC); ONOVO & ORS v MBA & ORS (2014) LPELR-23035(SC); GRAHAM v EUSMAI (1984) 11 S.C. 123 and IBIKUNLE v LAWANI (2007) 3 NWLR (Pt. 1022) 580 at 594, paras. B – C.
In the instant appeal, the record of appeal shows that in his evaluation of the evidence of the witnesses at pages 241 – 244 of the record of appeal, the learned trial judge was able to resolve the competing traditional evidence led by the parties when he held as follows:
“I have considered the totality of the evidence adduced by the Claimant’s witnesses including PW2, PW3 and PW4 in Exhibit A with the evidence adduced by Defendants’ witnesses in this case. I am being invited to resolve which set of traditional evidence is more reliable and probable as to grant title to the land in dispute to the party with a better traditional history. The evidence of PW2 (Rafiu Junadu) in Exhibit A that Ogunmola came to the land in dispute before Apampa and that he gave Makinde and neigbours to the land in dispute land before Apampa gave Bako land later on, is to my mind much more probable than the evidence to the contrary by the Defendants’ witnesses that Bako (Apampa’s lieutenant) granted the land at Salako and other villages to the villagers. It is curious to note that the Defendants did not state that Bako gave the land at Omi-Adio to the villagers there. The evidence of PW2 in Exhibit A shows that it is Ogunmola that that (sic) also gave Bako (a Tapa man) land which is separate to the land given to Makinde (Land in dispute) than the version that Bashorun Apampa gave land to Bako. This witness testified that he was born on the land and that Makinde stayed long on the land in dispute and died there.
I am fortified in my belief by the evidence of PW3 in Exhibit A that Ogunmola drove the Egbas away and gave land to Makinde his war lieutenant as a reward for his loyalty and gallantry during the war.
The evidence of PW4 in Exhibit A, a boundary man (Wahab Akanji) is strong. He claimed to be a boundary man from Alakoso family with common boundary to the land in dispute. He stated that Bako village is far away which evidence is consistent with the probability that Ogunmola could not have given his war lieutenants land close by to one another. He also admitted that Ogunmola gave his (PW4 in Exhibit A) great grandfather land on which he is now from time immemorial. His evidence is consistent with that of PW1 – Mudasiru Jinadu and PW2 (Layi Babalola), particularly that it was Ogunmola that also gave Bako land and there is no relationship between Bako and Apampa.
On the other hand, the DW1 (Albert Solagbade Opaogun Bako) who gave evidence as a member of Bako family though he testified that it was Bako that gave land to boundary men to the land in dispute after have been granted land by Apampa under cross-examination, he denied knowing Salako and Makinde but admitted that Bako is about half a mile to the land in dispute. He could not say whether Ogunmola was Bashorun before Apampa came, which casts doubt on his knowledge of traditional history. He could also not distinguish between Mudasiru Jinadu and Raifu Jinadu property.
The evidence of DW2 is also not helpful much because under cross-examination, he admitted he could not say with certainty whether Bako was a warrior under Ogunmola or under Apampa’s army. He also admitted that Bako village is some distance to the land in dispute and could not say how Bako got to the village neither could he say how Alakaso and Olawale (boundary men to land in dispute) got their land.
The evidence of DW3 (Raifu Adeagbo – 1st Defendant) is that Ogunmola never fought in the area of the land in dispute or Omi-Adio and that it was Bako who granted land to the boundary men to the land in dispute at Arasan, Olawale, Alakaso, Alagbede and Ajala Ogunmola. I noticed that he did not specifically state that Bako granted land to Omi-Adio villagers. On the contrary, he stated that Omi-Adio belongs to Bashorun Apampa and this has been affirmed by Exhibit E which is a Chieftaincy declaration of succession to the Baaleship of Omi-Adio. Though he stated portions of the land in dispute was given by Bako to Salako and the rest to Adeniyi and Ajibola. He however admitted under cross-examination that Jinadu has a building on the land in dispute and that Jinadu’s children are on the land though as tenants.
As I said earlier, the version of traditional history presented by the Claimant and his witnesses is more probable than that of the Defendants, and all the Defendants’s witnesses (particularly DW3) seem to be interested in is that since Apampa/Ogundina family by Exhibit E control who becomes Baale of Omi-Adio then by extension their version of traditional history of the land in dispute should be believed. From the weight of evidence, it is better and more probable version that Bashorun Ogunmola fought the Egbas away and granted land to his war lieutenant at Makinde village and also surrounding villages of Alakasans, Olawale, Ajala, Ogunola, Alagbede and indeed Bako village and that the children of Makinde had been in exclusive possession at Makinde village before the previous 1st Defendant trespassed on the land by selling to 2nd Defendant and sending Surveyor on the land.”
Instructively, the Appellants have challenged the above specific findings of fact by the learned trial judge only on the basis of the discrepancies in the evidence of PW2 and PW3 under cross-examination. They have hinged their argument on the fact that PW2 (Rafiu Jinadu) had stated under cross-examination that Baale of Omo-Adio is always from Apampa side, while PW3 (Raimi Olahan Ogunmola) who represented Ogunmola family, had stated under cross-examination that although Ogunmola fought wars all around both Oyo and towards Ijebuland, he did not fight war personally along Ijebuland but sent his daughter to do so.
It is however important to point out that, as stated by Ibekwe, JSC in ALADE v AWO (1975) LPELR-400(SC) at page 12, paras. A – F, traditional evidence is by its nature hearsay evidence of events which occurred beyond the time of living memory, which the law allows to be adduced for the purpose of establishing the rights or interests of the parties. In that case, His Lordship Ibekwe, JSC held that:
“Most often than not, the rights which the parties seek to establish by traditional evidence are such as had existed outside living memory. It is therefore recognized that the witnesses who are called upon to give traditional evidence would not necessarily be in a position to give eye-witness account. Such witnesses cannot speak from personal knowledge; they merely repeat the stories which their ancestors had told them. Our legal system, in its wisdom allows such evidence, most probably, in view of the fact that much of our past is practically unrecorded.”
As for the contradictions in the evidence of PW2 and PW3 relied upon by the Appellants in this appeal, the contradictions which may be inherent in testimonies of traditional history were highlighted. For instance, in KOJO II v BONSIE (supra), the Privy Council had held that:
“The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago.”
Thus, in KAYILI v YILBUK & ORS (2015) LPELR-24323(SC), the Supreme Court had held that minor contradictions are to be expected in traditional evidence and such evidence should not be rejected merely because of such minor contradictions. In that case, His Lordship Ogunbiyi, JSC held at page 68, para. E, as follows:
“The Court does not reject the evidence of a party simply on minor contradictions. This is moreso especially in situations where proof is based on evidence of traditional history, as it is in the case at hand, there are bound to be slips in the evidence of witnesses; absence of such would certainly give reason for casting doubts on the credibility and the truth of the witnesses. Traditional history of witnesses cannot come out in mathematical exactness or exactitude.”
In the instant appeal, the learned trial judge had after a thorough evaluation of the traditional evidence of the parties as shown above, found that the evidence led by the Respondent was more probable and believable. Instructively, the learned trial judge had in so doing and in granting the Respondent’s claims, also considered the Appellant’s argument in this appeal over the applicability of the rule in KOJO II v BONSIE (supra). At page 244 of the Record of Appeal, the learned trial judge had held as follows:
“I need to consider the whether the rule in KOJO II VS. BONSIE (1957) 1 W.L.R. 1223 at 1226 is applicable in this case as canvassed by the learned defence counsel on how to resolve conflicting traditional history of parties. Though the Defendants depend on Exhibit E as a way of resolving traditional history of the land in dispute, Exhibit E relates to succession to Chieftaincy of Baale Omi-Adio and not to Makinde Village which is the land in dispute, thus Exhibit E is not useful in resolution of traditional history here.
Also Exhibit D relates to judgment delivered in 1921 which is not helpful here because it merely shows that Bashorun Apampa sought permission from Alake Gbadebo to allow Ibadan people to settle on Egba land west of Omi-Adio, it has nothing to do with the land in dispute at Makinde Village quite different from South and West of Omi River.
In my respectful view, the Claimant has successfully proved traditional history of the land by proving that Bashorun Ogunmola conquered the land and granted same to Makinde, his war lieutenant and boundary men.”
It is basic principle of law that evaluation of evidence and ascription of probative value to such evidence is primarily the function of the trial Court which has seen, heard and assessed the witnesses. See OKEOWO v A-G OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E; GUARDIAN NEWSPAPERS LTD & ANOR v AJEH (2011) LPELR-1343(SC), per Rhodes-Vivour, JSC at page 13, para. B and NDUKWE v LPDC & ANOR (2007) LPELR-1978(SC), per Onnoghen, JSC (as he then was) at page 38, para. D.
Therefore, where a trial Court had duly and justifiably evaluated the evidence as in the instant case, an appeal Court can only find out whether there is evidence on the record on which the trial Court had acted. Once there is sufficient evidence on record from which the trial Court had arrived at its findings of fact, an appellate Court cannot interfere. In other words, unless such evaluation was not done or was perversely done, an appellate Court will not interfere, even if it would have evaluated such evidence differently. See EZEKWESILI v AGBAPUONWU (supra), OKEOWO v A-G OF OGUN STATE (supra), OBUEKE & ORS v NNAMCHI & ORS (2012) LPELR-7810(SC), per Peter-Odili, JSC at page 25, para. B and MAINAGGE v GWAMMA (2004) LPELR-1822(SC), per Akintan, JSC at pages 16 – 17, para. F. And it is the party who complains that a finding or decision of a trial Court is perverse that has the duty to show in what way the said finding or decision is perverse and how the said finding or decision has occasioned miscarriage of justice. See AMADI v A-G, IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B, SOLAR CONSTRUCTION SERVICES v MINISTER OF THE FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR-46648(CA), per Ige, JCA at page 33, para. A and DANIA v UNICAL & ORS (2019) LPELR-48144(CA), per Nimpar, JCA at pages 27 – 28, paras. F – F.
In the instant case, I hold the respectful view that, given the evidence led before the trial Court as thoroughly evaluated by the learned trial judge, the mere admission by PW3, Raimi Olahan Ogunmola to the effect that Ogunmola fought wars both along Oyo and towards Ijebuland, but Ogunmola did not go to fight any war personally along Ijebuland but sent his daughter, is not a material contradiction as to affect the decision of the trial Court. I therefore resolve issue 1 against the Appellants.
As for issue two, the Respondent had in paragraph 42(1) of the Further Amended Statement of Claim at page 90 of the Record of Appeal, sought for a declaration that members of the Makinde family are the persons entitled to apply for and be granted the Certificate of Occupancy in respect of the piece of land situate, lying and being at Salako Village along Iddo Road, Omi-Adio Ibadan particularly verged Red on the Survey Plan No. ADAKS 93D/OY94 of 30th May, 1994 except the land already in absolute possession of the Plaintiffs. It is an established principle of law that, being an equitable relief, a Claimant who seeks declaration of title to land must establish his entitlement to such a declaration with cogent and credible evidence, and must do so on the strength of his own case and not on the weakness of the case of the Defendant. See ADDAH & ORS v UBANDAWAKI (2015) LPELR-24266(SC), per Fabiyi, JSC at pages 19 – 21, paras. E – B; AG RIVERS STATE v AG BAYELSA STATE & ANOR (2012) LPELR-9336(SC), per Fabiyi, JSC at pages 42 – 43, para. D, BULET INTERNATIONAL (NIG) LTD & ANOR v OLANIYI & ANOR (2017) LPELR-42475(SC), per Kekere-Ekun, JSC at pages 29 – 30, paras. E – C and MOHAMMED v WAMMAKO & ORS (2017) LPELR-42667(SC), per Ogunbiyi, JSC at pages 21 – 22, paras. A – B. This the Claimant must discharge on the balance of probabilities. See Section 134 of the Evidence Act, 2011 and ATUYEYE & ORS v ASHAMU (1987) LPELR-638(SC), per Oputa, JSC at page 27, para. B; EYIBOH v ABIA & ORS (2012) LPELR-20607(SC), per Tabai, JSC at page 42, para. A and DIBIAMAKA & ORS v OSAKWE & ORS (1989) LPELR-940(SC), per Oputa, JSC at page 16, para. D.
It is pertinent to state that the burden of proof on the balance of probabilities or by preponderance of evidence as required for civil cases in Section 134 of the Evidence Act, 2011, simply requires that the evidence adduced by the Claimant and the evidence adduced by the Defendant should be placed on the opposite sides of the imaginary scale of justice and weighed, in order to determine which side preponderates or is most probably true. This requirement was more graphically stated in the case of MOGAJI v ODOFIN (1978) 4 SC 91, where the Supreme Court, per Fatayi- Williams, JSC (as he then was), held at page 93, thus:
“Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a Court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it. If that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed.”
From my careful examination of the Record of Appeal and the judgment of the trial Court, part of which I have quoted above, it is clear to me that the learned trial judge was fully conscious of this duty placed upon him when he held at page 241 of the Record, that:
“I am being invited to resolve which set of traditional evidence is more reliable and probable as to grant title to the land in dispute to the party with a better traditional history.”
And after a thorough evaluation of the traditional evidence led by both parties on imaginary scale, the learned trial Judge had concluded at page 243 – 244 that:
“As I said earlier, the version of traditional history presented by the Claimant and his witnesses is more probable than that of the Defendants and all the Defendants’ witnesses (particularly DW3) seem to be interested in is that since Apampa/Ogundina family by Exhibit E is in control of who becomes Baale of Omi-Adio then by extension their version of traditional history of the land in dispute should be believed. From the weight of evidence, it is better and more probable version that Bashorun Ogunmola fought the Egbas away and granted land to his war lieutenant at Makinde village and also surrounding villages of Alakasans, Olawale, Ajala, Ogunola, Alagbede and indeed Bako village and that the children of Makinde had been in exclusive possession at Makinde before the previous 1st Defendant trespassed on the land by selling to 2nd Defendant and sending Surveyor on the land… In my respectful view, the Claimant has successfully proved traditional history of the land by proving that Bashorun Ogunmola conquered the land and granted same to Makinde, his war lieutenant and boundary men.”
It is therefore evident that the learned trial had duly evaluated the evidence in relation to the burden of proof on the Respondent and determined that the Respondent had discharged the burden of proof on the balance of probabilities.
As stated earlier, unless evaluation of evidence was not done or was perversely done by the trial Court, an appellate Court will not interfere, even if it would have evaluated such evidence differently. See EZEKWESILI v AGBAPUONWU (supra), OKEOWO v A-G OF OGUN STATE (supra), OBUEKE & ORS v NNAMCHI & ORS (supra) and MAINAGGE v GWAMMA (supra). And in this appeal, the Appellants have failed to show how the above finding of the trial Court is perverse and how it has occasioned miscarriage of justice: AMADI v A-G, IMO STATE (supra); SOLAR CONSTRUCTION SERVICES v MINISTER OF THE FEDERAL CAPITAL TERRITORY & ORS (supra); and DANIA v UNICAL & ORS (supra). Consequently, I also resolve issue 2 against the Appellants.
ISSUE 3: Whether the constitutional right of the Appellants to fair hearing was breached by the refusal of the learned trial judge to consider the Defendants’ reply on points of law to the Claimant’s final written address and thereby occasioned a miscarriage of justice.
APPELLANT’S SUBMISSIONS ON ISSUE 3:
It was submitted by the Appellants’ Counsel that when the Appellants closed their defence on 16th March, 2021, they were to file their final written address within 21 days while the Respondent was also to file his final written address within 21 days of service on him of the Appellants’ final address, and the Appellants will then file a Reply within 7 days. However, the Appellants filed their final address on 24th September, 2012 along with motion for extension of time and for a deeming order, which was granted on 25th September, 2012 while the suit was adjourned to 9th of November, 2012 for adoption. The Respondent filed his final written address out of time and also applied for extension of time three times and same was eventually filed on the 29th of January, 2013 outside the 7 days granted by the trial Court for the Respondent to file same, and no further extension of time was sought. Upon receipt of the Respondent’s final address, the Appellants filed their reply on points of law on 14th March, 2013. The parties first adopted their respective addresses on the same 14th of March, 2013 and on that date, the Respondent’s Counsel had raised that the Appellant’s reply was out of time and no late filing fees was paid and urged the Court to discountenance same, but the Appellant’s Counsel had countered that the reply was filed within time, after which judgment was reserved for 7th June, 2013.
Learned Counsel also pointed out that the parties were however, invited to readopt their respective addresses and there was no elaboration on that day and the issue of late filing of the Appellant’s reply on points of law was never raised by any of the Counsel when the addresses were readopted. However, this formed the basis of the learned trial judge’s refusal to countenance the Appellants’ reply and thereby struck out same.
Referring to page 236 of the Record of Appeal, Counsel pointed out that Order 18 Rule 1 of the Oyo State High Court (Civil Procedure) Rules, 2010 relates to the time for filing Reply to Statement of Defence and not reply to final written address as interpreted by the learned trial judge. He argued that since the issue was never placed before the trial Court, it had no business whatsoever dealing with it without inviting parties to address it on same. He cited OMOKUWAJO v FRN (2013) 9 NWLR (Pt. 1359) 300 and FLORENCE OLUSANYA v OLUFEMI OLUSANYA (1983) SC 41 at 56 – 57 and OCHONMA v UNOSI (1965) NMLR 321 at 323. He submitted that the invocation of Order 18 Rule 1 which ordinarily should have been Order 30 Rule 16 of the Oyo State High Court (Civil Procedure) Rules, 2010 is inapposite in the circumstance when the learned trial judge failed to make any findings as to when the Respondent’s final written address was served on the Defendant. He submitted that this amounts to a denial of fair hearing and this Court is duty bound to set aside the decision of the trial Court, especially as there is no provision in the rules for re-adoption of written addresses. He cited OKON v ITA (2010) LPELR-9010(CA) and OLUBUKOLA & ANOR v A.G. OF LAGOS & ORS (2016) LPELR-41451(CA), and argued that the re-adoption of the written addresses was unconstitutional and therefore, null and void.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
RESPONDENT’S SUBMISSIONS ON ISSUE 3:
Counsel for the Respondent submitted that the Counsel for the Appellants was wrong when he stated that the issue of filing the Appellant’s (Defendants’) reply on points of law out of time was not raised by any of the counsel. He referred the Court to paragraph 12.05 of the Appellant’s Brief of Argument were the Appellants stated that the Respondent’s Counsel had objected that the said reply was filed out of time and urged the trial Court to discountenance same, but later summersaulted in paragraph 12.08 that the issue was not raised by any of the counsel. He submitted that the Appellants’ Counsel cannot approbate and reprobate at the same. He relied on AKINBIYI v LAGOS ISLAND LOCAL GOVT COUNCIL & ORS (2012) LPELR-19839(CA) and SCOA (NIG.) PLC v TAAN & ORS (2018) LPELR-44545(CA).
Learned Counsel submitted that having filed their reply out of time allowed by the rules without regularizing it, there was no reply and the trial Court cannot look into same and this cannot amount to denial of fair hearing as claimed by the Appellants. He relied on DICKSON OGUNSEINDE VIRYA FARMS LTD v SOCIETE GENERALE BANK LTD & ORS (2018) LPELR-43710(SC) at page 11, paras. A – C and MC INVESTMENTS LTD & ANOR v CORE INVESTMENTS & CAPITAL MARKETS LTD (2012) LPELR-7801(SC). He pointed out that the Appellants’ Counsel had cunningly avoided stating when they were served with the Respondent’s (Claimant’s) final written address and also avoided mentioning same in this appeal. Counsel submitted that the Court can look into its record to determine an issue raised before it and that will not amount to raising an issue suo motu. He relied on AKEREDOLU v ABRAHAM & 3 ORS (2018) 3 SC (Pt. III) 106 at 111, and urged the Court to resolve this issue in favour of the Respondent.
APPELLANTS’ REPLY ON ISSUE 3:
In reply, the learned Counsel for the Appellant submitted that the trial Court never referred to its record to see when actually the Respondent served his final written address on the Appellants and as such failed to resolve the issue with a finding on when the process was served on the Appellants before striking same out thereby denying the Appellants of their constitutional right to fair hearing and occasioned miscarriage of justice.
RESOLUTION OF ISSUE 3:
The essential complain of the Appellants under this issue is that the learned trial judge failed to consider their reply on points of law to the Respondent’s final address and this had breached their constitutional right to fair hearing and occasioned miscarriage of justice. But the Respondent had countered that the Appellants’ reply was filed out of time and the trial Court was right to have discountenanced the said reply.
I have carefully gone through the Record of Appeal. At page 178 of the record, the Claimant (Respondent herein) was first granted an extension of 14 days within which to file his final written address while the Defendants (Appellants herein) were to file their reply if any within 7 days of being served with the Claimant’s final written address. The case was then adjourned by the trial Court to 15th of January, 2013 for adoption of written addresses. On the return date of 15th January, 2013, the Claimant was granted a further extension of 7 days to file the Claimant’s final written address and the matter was again adjourned by the trial Court to 8th February, 2013 for adoption of final addresses. (See page 179 of the Record). Further, at page 208 of the record, it shows that on the 14th of March, 2013, the day the parties eventually adopted their respective written addresses, learned Counsel for the Claimant Tope Olufokunbi Esq., had pointed out that the Defendants’ reply was filed out of time and no late filing fees was paid and urged the Court to discountenance the Defendants’ Reply. The learned Counsel for the Defendants, Yusuff Raimi Esq., had countered that the Defendants’ reply was filed within time. The trial Court then adjourned the case to 16th May, 2013 for judgment.
It is therefore clear that contrary to the argument of the Appellants in paragraph 12.08 of their brief that the issue of filing the Defendants’ reply out of time was not raised, it was duly raised by the Claimant’s Counsel and responded to by the learned Counsel for the Defendants. Indeed, as pointed out by the Respondent, the Appellants have approbated and reprobated on this issue, in that they have earlier posited in paragraph 12.05 of their brief that the Respondent’s Counsel had raised the issue and the Appellant’s Counsel had responded to same. In litigation, a party is not allowed to approbate and reprobate on the same issue. See AJUWON & ORS v GOVERNOR OF OYO STATE & ORS (2021) LPELR-55339(SC), per Eko, JSC at pages 34 – 35, para. F and NASKO & ANOR v BELLO & ORS (2020) LPELR-52530(SC), per Abba-Aji, JSC at page 9 para. B.
While discountenancing the Appellants’ reply on points of law, the learned trial judge had in his judgment held at page 235 of the Record of Appeal as follows:
“On 30th November, 2012, I granted the Claimant extension of time to file final written address by 14 days from that day and the Defendants to file reply within 7 days after being served with the Claimant’s written address. The Claimant’s written address was deemed filed and served on 8th February, 2013 when the Claimant was granted another extension of time pursuant to application dated and filed on 29th January, 2013. Effectively, this translates that the Defendants ought to file reply address within 14 days from that date going by provision of Order 18 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010 in the absence of any order of abridgment by the Court. From 8th February, 2013 to 14th March, 2013 by my calculation is 24 working days, that is excluding weekends. This, in my view translates to the filing of the Defendants’ reply on point of law out of time prescribed by the rules of Court without leave. See ONYEMAIZU VS. OJIAKO (2010) LPELR-2738(SC) 29 – 30, paragraphs E – D (also reported in (2010) 4 NWLR (Pt. 1185) 504 (SC). See also ALHAJI IDIRISU SANNI VS. MALLAM AHMADU SALIHU BELLO AGARA (2009) LPELR-3724(CA) page 32, paragraphs B – D.
“It is trite law that, where a process is/was filed outside the statutory period provided in the rules of Court and there is no application for leave to file same out of time, and none was granted, the consequence is that such a process is incompetent and therefore liable to be struck out…”
To this end, the “Defendants’ reply on points of law to Claimant’s address dated and filed 29/1/2013” is accordingly struck out having been filed contrary to Order 18 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010 and without any leave of Court extending time granted.”
(underlining mine for later emphasis)
The Appellants have argued in paragraph 12.07 of the Appellants’ Brief of Argument that when the Claimant filed the second application for extension of time which was granted on 13th January, 2013, the Claimant was ordered to file his final address within 7 days and that the computation of that 7 days would be to the 22nd of January, 2013, but that the Claimant filed his final address on 29th January, 2013, 7 days after the order of the trial Court extending time had lapsed. They have also argued in paragraph 12.11 of the Appellant’s Brief of Argument that Order 18 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules, 2010 relied upon by the learned trial judge is inapplicable as it relates to pleadings, while the applicable rule is Rule 16 of Order 30 of the said rules, and the trial judge had failed to make any finding as to when the Claimant’s final address was served on the Defendants.
However, from the holding of the learned trial judge on page 235 of the record which I quoted above, the learned trial judge had held that the Claimant’s final address was deemed properly filed and served by the trial Court on 8th February, 2013 when the Claimant was granted extension of time pursuant to application dated and filed on 29th January, 2013, and that the Defendant had 14 days from that date to file their reply which they only filed out of time on 14th March, 2013 and did not seek leave of the trial Court to do so. It is therefore clear that contrary to the argument of the Appellants, the learned had resolved that the Claimant’s (Respondent’s) final address was not only deemed properly filed but also served on the Defendants (Appellants) on the 8th of February, 2013.
Observably, that specific finding of the trial Court to the effect that the Claimant’s final address was deemed properly filed and served on 8th February, 2013 was not challenged by the Appellants. The settled position is that any specific finding of a Court which is not challenged on appeal is conclusive and binding on the parties. See COMPTROLLER GENERAL OF CUSTOMS & ORS v GUSAU (2017) LPELR-42081(SC), per Eko, JSC at pages 9 – 10, paras. B – B; OPARA v DOWEL SCHLUMBERGER (NIG) LTD & ANOR (2006) LPELR-2746(SC), per Onnoghen, JSC at page 19, para. A, OGUGUA v DIAMOND BANK (2019) LPELR-48735(CA), per Agim, JCA (as he then was) at page 15, para. A and OGWUDIRE v OBIGWE & ANOR (2014) LPELR-23635(CA), per Mbaba, JCA at pages 34 – 35, para. F. Hence the finding that the Claimant’s final written address was deemed properly filed and served on 8th February, 2013 is sacrosanct and binding on the Appellants as well as the Respondent.
As for the Appellants’ complain over the wrong reference by the learned trial judge to Order 18 Rule 1 instead of Order 30 Rule 16 of the High Court of Oyo State (Civil Procedure) Rules, 2010, I do not think that the wrong reference to the applicable rule by the learned trial judge had occasioned any miscarriage of justice to the Appellants. On the contrary, Order 18 Rule 1 which was wrongly referred to by the learned trial judge gives 14 days for filing of a reply to a defence, while the correct Order 30 Rule 16 gives 7 days for filing of a reply to the Claimant’s final address. By the correct applicable rule, the Appellants had 7 days to file their reply from the 8th of February, 2013 when the Claimant’s final address was deemed properly served on them by the trial Court, instead of the 14 days stated by the learned trial judge.
As rightly contended by the Respondent, the settled law is that processes which are filed out of the time stipulated by law or rules of Court without leave of Court extending time within which those processes may be filed and served, are incompetent and liable to be discountenanced by the Court. See JULIUS BERGER (NIG) PLC v IGP & ORS (2018) LPELR-46127(CA), per Pemu, JCA at pages 37 – 38, paras. B – B and OGUNDANA & SONS TRADING CO. (NIG) LTD & ANOR v FIRST BANK (2019) LPELR-48517(CA), per Elechi, JCA at pages 55 – 58, para. F. Hence, I hold that the lower Court was right to hold that the Defendants’ (Appellants’) reply on points of law to the Claimant’s address filed out of time was incompetent and to strike out same.
Therefore, where, as in this case, a party has no right to be heard as a result of non-compliance with the requirement of law or rules of Court, he cannot complain of lack of fair hearing, especially when he was duly granted the opportunity to be heard. See OJO & ANOR v OLROF NIG LTD & ANOR (IBRAHIM v NIGERIA UNIVERSAL BANK LTD (2001) LPELR-6970(CA), per Mohammed, JCA (as he then was) at pages 8 – 9, para. C.
I also observe that in the 9 page Appellants’ reply on point of law to the Claimant’s address, which is contained at pages 199 – 207 of the record, the Appellants have, apart from few arguments on points of law, mostly tried to reargue the facts. This is contrary to the essence of a reply on point of law. The purpose of a reply on points of law is to respond to new points of law raised in the other party’s address. As held by Oseji, JCA (as he then was) in ECOBANK (NIG) LTD v ANCHORAGE LEISURES LTD & ORS (2016) LPELR-40220(CA) at page 42, para. B, where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the Court. In other words, a reply on points of law or reply brief is not meant to improve the quality of the argument in the written address or brief of argument earlier filed. See OKOROAFOR & ANOR v MADUMERE (2019) LPELR-48410(CA), per Pemu, JCA at page 13, para. F – F, UBA PLC VS UBOKULO (2009) LPELR (8923) CA, FRN VS IWEKA (2011) LPELR (9350) SC, OPENE VS NJC (2011) LPELR (4795) CA and OKPALA VS IBEME (1989) 2 NWLR (Pt. 102) 208.
It must also be mentioned that it is not in all cases that the failure to countenance the parties’ written addresses will result in a denial of fair hearing. As stated by Oputa, JSC in NIGER CONSTRUCTION LTD v OKUGBENI (1987) LPELR-1993(SC), the purpose of address of counsel or party is to assist the Court. In the instant case, the learned trial Judge had reviewed the submissions of the parties as contained in their respective final written addresses. And as I earlier noted, the Appellants’ reply on points of law which the learned trial judge struck out was filed out of time and no leave of Court was sought to regularize same. It was therefore incompetent and was rightly struck out by the learned trial judge. Consequently, I hereby resolve issue three against the Appellants.
ISSUE 4: Whether the judgment delivered on the 6th day of February, 2014 was not a nullity having regard to the purported re-adoption of the parties’ final written addresses against the clear provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thereby occasioned miscarriage of justice.
APPELLANTS’ SUBMISSIONS:
It was submitted on behalf of the Appellants that Section 258(1) of the 1999 Constitution has prescribed a mandatory three months within which a judge must deliver judgment, and it was argued that any judgment delivered outside the three months is null and void. The case ofCHIEF HAROLD SODIPO v LEMMINKAINEN & ANOR (1985) LPELR-3088(SC), was cited in aid. It was further submitted that where the trial judge raises an issue suo motu, he ought to invite the parties to address him on the issue before deciding same, and that the issue so raised must be a genuine issue which is not in contemplation of the parties and not a sham issue raised with a view to securing an illegal extension of time outside the statutory period in which to deliver his judgment.
Learned Counsel for the Appellants also contended that to have judgment delivered outside the 90 days stipulated by Section 294(1) of the 1999 Constitution set aside, the Appellants must show that they have suffered a miscarriage of justice as a result of the failure to deliver the judgment within the stipulated period. He pointed out that in determining whether a party has suffered miscarriage of justice, the emphasis is not on the length of time, but on the effect that the delay has had in the mind of the Court. He cited DIBIAMAKA & ORS v OSAKWE & ORS (1989) 3 NWLR (Pt. 107) 101 and ANYAFULU v AGAZIE (2006) 5 NWLR (Pt. 973) 260. Counsel argued that the learned trial judge was unnecessarily critical of the evidence of the Appellant by shifting the onus of proof on the Appellant when the Respondent has neglected to discharge the evidential burden on him to warrant the shift. He also pointed out that the learned trial judge had failed to utilize the reply on points of law filed by the Appellant by this failure to determine the actual time the final written address of the Respondent was served on the Appellants to know when the time for filing of the Reply began to run, and the fact that the issue was not subsequently raised when counsel were asked to elaborate on their written addresses on 7th June, 2013 and judgment was reserved to 12th July, 2013 but eventually delivered on 6th February, 2014. Counsel argued that the learned trial judge had lost the impression of the evidence of the parties and the demeanor of the witnesses and has therefore occasioned miscarriage of justice.
RESPONDENT’S SUBMISSIONS:
Learned Counsel for the Respondent submitted that parties adopted their final written addresses on the 14th of March, 2013 and judgment was reserved to 16th of May, 2013. He added that the parties re-adopted their final addresses on the 7th of June, 2013 and judgment was reserved to 12th July, 2013. He pointed out that both parties fully participated in the re-adoption of the final addresses without raising any objection before the lower Court. He contended that waiver is an abandonment of right by words or conduct not insisting on the said right. He cited ANIE & ORS v UZORKA & ORS (1993) LPELR-490(SC), per Onu, JSC at pages 33 – 34, paras. D – A and BAKARE v LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR-711(SC).
Learned Counsel submitted that it is not enough for the Appellants to state that the judgment was delivered outside the three months without showing how the delay has occasioned miscarriage of justice. He cited ESEZOOBO v SHABA & ANOR (2017) LPELR-42713(CA) and ESENOWO v SAM (2013) LPELR-21130(CA). He pointed to page 245 – 246 of the Record of Appeal where the learned trial judge had stated that none of the parties was prejudiced by the delay in delivery of the judgment. He submitted that the lower Court had excellently reviewed all the evidence before it, placed same on imaginary scale and gave reasons why it preferred the evidence of the Respondent to that of the Appellants and pronounced on all the issues argued in the parties’ addresses. He added that the Appellants have fully participated without complaining as such they are estopped from turning around to complain against the re-adoption proceedings. He urged the Court to resolve this issue in favour of the Respondent.
APPELLANTS’ REPLY:
On the Respondent’s argument relating to waiver of the 3 months statutory period, it was submitted that no individual can waive the right bestowed on a people by their Constitution or rules and regulations proclaimed as a matter of public policy, even if such policy may seem to benefit only an individual. The cases of OGBONNA v A.G. OF IMO STATE & ORS (1992) LPELR-2287(SC) and ARIORI v ELEMO & ORS (1983) 1 SC 13 at 67, were relied upon.
RESOLUTION OF ISSUE 4:
It is beyond doubt that Section 294(5) of the Constitution of the Federal Republic of Nigeria mandates that a judgment of the trial Court must be delivered within 90 days of the final addresses of counsel.
In the instant appeal, page 208 of the Record of Appeal shows that the Counsel for the parties adopted their respective final addresses on the 14th of March, 2013 after which the trial Court reserved judgment for the 16th of May, 2013. From the 14th of March, 2013 when the parties adopted their respective final addresses therefore, the trial Court had to the 12th of June, 2013 within which it must deliver the judgment. But on the return date of 16th May, 2013, the trial Court further reserved judgment to 7th of June, 2013. (see page 209 of the record).
The record further shows that on the 7th of June, 2013, the trial Court invited Counsel to re-adopt their respective final addresses and again reserved judgment to the 12th of July, 2013. (see page 210 of the record). However, the judgment was eventually delivered by the trial Court on the 6th of February, 2014.
There is therefore no doubt that the judgment of the trial Court was delivered outside the 90 days stipulated by Section 294(5) of the Constitution. The question then is what is the legal effect of the judgment delivered beyond the stipulated period? This has been settled by decisions of the appellate Court. The position is that a decision so rendered after the 90 days period is not a nullity unless an appellate Court is satisfied that miscarriage of justice has been occasioned by reason of the delay. In other words, the party who complains must satisfy the appellate Court that he has suffered miscarriage of justice by reason of the delay. In so doing, the party must show how the delay has affected the trial Court’s perception, appreciation and evaluation of the case. See STATE v KAPINE & ANOR (2019) LPELR-49511(SC), OWOYEMI v ADEKOYA (2003) 18 NWLR (Pt. 852) 307 and AKOMA v OSENWOKWU (2014) 11 NWLR (Pt. 1419) 462.
In the instant case, the learned Counsel for the Appellants has only opined in paragraphs 13.06 of their brief of argument that the learned trial judge had been unnecessarily critical of the evidence of the Appellants by shifting the onus of proof on the Appellants when the Respondent had neglected to discharge the evidential burden on him to warrant the shift in the burden of proof. He also argued that the learned trial Judge had failed to utilize the Appellants’ reply on points of law.
While the first reason advanced by the learned Counsel for the Appellant is, to me, merely an expression of the Counsel’s opinion on the evaluation of the preponderance of the evidence of the parties made by the learned trial judge, which evaluation I have found to be well-founded in the earlier part of this judgment, I have also dealt with the second reason relating to the Appellants’ reply on points of law while considering issue 3 and resolved same against the Appellants.
Conversely, the learned trial judge had given explanation for the delay in his judgment at pages 245 – 246 of the Record of Appeal wherein he stated as follows:
“I need to state that the delivery of this judgment has been delayed for many reasons, including that fiat was granted by the Honourable, the Chief Judge of Oyo State, that I should continue with the hearing and determination of this case despite my posting to Oyo Judicial Division during the 2010 to 2011 and 2011 to 2012 Legal year and also my carrying this case file over along with files inherited from Hon. Justice W. K. Olaifa (retired) in Court 8 of the Ibadan Judicial Division. Between when this case was first adjourned for judgment and today I went on annual vacation, I was also on official training abroad and then proceeded to refresher course at the National Judicial Institute in April and December 2013. Needless to say that being a year 1992 case, the evidence reviewed in this case is scattered in several record books in Court which took a while to articulate together. In any event, in my view, none of the parties in this case has been prejudiced as a result of the delay in delivery of this judgment.”
Having failed to show how the delay in the delivery of the judgment had occasioned miscarriage of justice to them, I also resolve this issue against the Appellants.
On the whole, having resolved all the four issues in this appeal against the Appellants, I hold that this appeal is devoid of merit. Accordingly, I hereby dismiss same and affirm the judgment of the trial Court delivered on 6th February, 2014 in Suit No. I/984/1992: MUDASIRU JINADU v RAFIU ADEAGBO & ANOR. Cost of N100,000.00 (One Hundred Thousand Naira Only) is hereby awarded against the Appellants in favour of the Respondent.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the leading judgment of my learned brother, Abba Bello Mohammed, JCA, which has just been delivered. The manner of resolution of the issues thrust up for determination are in accordance with my views. I however wish to say a few words on the facade of re-adoption of final written addresses after the expiration of the constitutional period for a Court to deliver its decision.
Section 294 (1) of the 1999 Constitution stipulates as follows:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety 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.”
The main thrust of Section 294 (1) of the 1999 Constitution is for a Court to deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. From the cold printed records, the parties addressed the lower Court on 14th March, 2013 and the lower Court fixed 16th May, 2013 for judgment. Judgment was however not delivered until 6th February, 2014. The Records show that on 16th May, 2013 when the matter was fixed for judgment, the lower Court further adjourned the matter to 7th June, 2013. On the said 7th June, 2013, the parties re-adopted their written addresses and the matter was adjourned to 12th July, 2013 for judgment. However, the lower Court did not deliver judgment until 6th February, 2014.
The re-adoption of addresses by learned counsel on 7th June, 2013 seems to be a mere window dressing designed to circumvent the stipulations of Section 294 (1) of the Constitution. While it may be desirable for a Court to entertain further address on an issue not covered in the original final addresses filed, in which case time would then run from the date of such further address, it does not seem to me to be permissible for a Court to simply invite counsel to re-adopt their addresses, without more. Such an exercise does not add any new points to the initial final addresses and ought to be recognised for the ploy it is, id est, avoidance of the stipulations of Section 294 (1) of the 1999 Constitution. Be that as it may, even with the re-adoption of address in this matter, the lower Court still delivered its decision beyond the ninety day period stipulated in Section 294 (1) of the Constitution.
It is my informed view that a Court does not have the vires, after the constitutional period of ninety days has elapsed, to invite parties to re-adopt their final address. While it may be permissible within the ninety day period for a Court to invite counsel for further address, not a mere re-adoption which doesn’t add any value to the initial final address, I am hesitant to accept that it would be justifiable if done after the ninety day period set out in the Constitution. After the ninety day period, the Court can only proceed to deliver its judgment when it is eventually ready, duly complying with the provisions of Section 294 (6) of the Constitution. (In fairness, the lower Court duly complied with the said provision at pages 245-246 of the records). The effect of such a judgment delivered after ninety days will depend on how Section 294 (5) of the Constitution affects it. Any invitation for the parties to re-adopt their final address, without more, after the ninety day period would not in my deferential view obviate the consequences of the non-compliance with Section 294 (1) of the 1999 Constitution as the computation of the ninety day period will still be reckoned from the date of the initial final address. See OKON vs. ITA (2010) LPELR (9010) 1 at 15-16 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 10-11.
In the light of the foregoing, I hold that the period for the lower Court to deliver judgment in this matter started running from 14th March, 2013 when the final addresses of counsel was taken. The re-adoption on 7th June, 2013 which was designed to defeat the purpose of Section 294 (1) of the 1999 Constitution and relieve the Court of its duty of strictly complying with the said stipulation did not achieve the desired goal. The judgment of the lower Court delivered on 6th February, 2014, eleven months after the final address and eight months after the purported re-adoption of address, was delivered outside the period stipulated in the Constitution.
Now, even though the said judgment was delivered outside the ninety (90) day period stipulated by the Constitution, it does not ipso facto render the judgment a nullity. For the said decision to be rendered a nullity, the Appellant has to establish that the said decision occasioned a miscarriage of justice. See OFULUE vs. OKOH (2014) LPELR (23218) 1 at 22-23. Section 294 (5) of the 1999 Constitution provides as follows:-
“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 Sub-section (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The Appellants argue that they suffered a miscarriage of justice as a result of the delay in delivering the judgment. They have based their contention on the evaluation of evidence by the lower Court and the fact that the lower Court struck out their reply on points of law. These are matters which the Appellants ventilated in their issue numbers one, two and three herein, the said issues were resolved against them in the leading judgment. I have insightfully considered the judgment of the lower Court and I am satisfied, as held in the leading judgment, that the lower Court properly evaluated the evidence and it equally arrived at the correct decision that the Appellants’ reply on points of law was filed out of time and consequently struck the same out. Accordingly, the passage of time and delay in delivering the judgment could not have occasioned a miscarriage of justice as the lower Court arrived at the correct decision. The concomitance is that even though the judgment was delivered outside the stipulated ninety day period, the judgment will still not be liable to be set aside since I am not satisfied that a miscarriage of Justice had been occasioned. See OLOKOTINTIN vs. SARUNMI (1997) 1 NWLR (PT 480) 222, ATUNGWU vs. OCHEKWU (2004) 17 NWLR (PT 901) 18; IGWE vs. KALU (2002) 5 NWLR (PT 761) 678; ACB vs. AJUGWO (2011) LPELR (3637) 1 at 34 – 35 and MOLEGBEMI vs. AJAYI (2011) LPELR (4501) 1 at 30-32.
It is for the foregoing reason and the more elaborate reasoning and conclusion articulated in the leading judgment that I equally join in dismissing the appeal on the same terms as set out in the leading judgment.
ABDUL-AZEEZ WAZIRI, J.C.A.: An advance copy of the judgment prepared by my noble Lord, Abba Bello Mohammed JCA, was made available to me before now.
I entirely agree with his Lordship’s reasoning and conclusion that the appeal lacks merit and dismiss the appeal too. It is unnecessary for me to restate the facts of the case that brought about the appeal, same having been thoroughly captured in the lead judgment in emphasizing the resolve to dismiss the appeal. The four issues crafted for the determination of the appeal have been resolved in the negative against the Appellants and in favour of the Respondent. I too adjudge the appeal as lacking in merit and dismiss same.
I abide by the consequential orders made in the lead judgment including that on costs in favour of the Respondent, but against the Appellants.
Appearances:
Kolawole Fatoye John, Esq. For Appellant(s)
J. D. Olaniyan, Esq., with him, A. U. Adepoju, Esq. For Respondent(s)