ADERINTO & ORS v. SULU & ANOR
(2022)LCN/16010(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/213/2017
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
1. BINTU ADERINTO 2. MR. YISA AKOBI ELEMU 3. AVIAN SPECIALTIES LTD 4. MR. GBENGA JAMES APPELANT(S)
And
1. ALHAJI OLAYIWOLA SULU (HEAD OF FAMILY) 2. RAMOTA SULU (For Themselves And On Behalf Of Sulu Family) RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF LEGAL PROCEEDINGS
I think that there is a gross misconception of the law, as it relates to jurisdiction, by the learned counsel for the appellants. Whereas it is correct to argue that where the issue of jurisdiction relates to the “competence” of the Court to entertain a cause or matter, the issue can be raised at any stage or time in the judicial or litigation process; and it can even be raised for the first time in the Supreme Court. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; African Newspapers Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Jonah Onyebuchieze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506; Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465; E. A. Utomudo v. Military Governor of Bendel State & Ors. (2014) 11 NWLR (Pt.1417) 97 and Mrs. Esther I. Adesigbin & Ors. v. Military Governor of Lagos State & Anor. (2017) 10 NWLR (Pt. 1574) 442.
Owing to its strategic significance in the adjudication process, the issue of alleged jurisdictional incompetence of a Court can be raised and entertained with or without leave of Court. See Benson Obiakor & Ors. v. The State (2002) 10 NWLR (Pt.776) 612; Isaac Gaji v. Emmanuel Paye, (2003) 8 NWLR (Pt. 823) 583 and University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (Pt. 1414) 159. And the issue can be raised suo motu by the Court and duly interrogated by the parties for a decision on thereon. See Senator Christian N.D. Anyanwu v. Independent C. Ogunewe & 2 Ors. (2014) 8 NWLR (Pt. 1410) 337. PER ADUMEIN, J.C.A.
THE POSITION OF LAW ON WHEN A COURT IS SAID TO BE COMPETENT TO ENTERTAIN A MATTER BEFORE IT
In the highly celebrated case of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379, it was held that:
“a Court is competent when –
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. See also the case Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517. PER ADUMEIN, J.C.A.
WHETHER OR NOT IT IS A CLAIMANT’S CLAIM THAT DETERMINES THE JURISDICTION OF A COURT
To say the least on the jurisprudence of jurisdiction of a Court, it is the claimant’s or plaintiff’s claim and not the defence or reply of a defendant that determines whether or not a Court of law has jurisdiction. See Izekwe v. Nnadozie 14 WACA 361; Chief Numogun Sam Adeyemi & Ors. v. Emmanuel Opeyori (1976) 9-10 SC 31; Hon. Justice Kalu Anyah & Ors. v. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 306) 290; Jimoh Akinfolarin v. Solomon Oluwole Akinnola (1994) 4 SCNJ 30; Efunwape Okulate & Anor. v. Gbadmosi Awosanya (2000) 2 NWLR (Pt. 646) 530; Lawal Akeem & Ors. v. University of Ibadan (2003) 10 NWLR (Pt. 829) 584; Emeka A Onuorah v. Dr. C. C. Okeke & Anors. (2005) 10 NWLR (Pt. 932) 47; Akauve Moses Osoh & Anor. v. Unity Bank PLC (2013) 9 NWLR (Pt. 1358) 1 and Chief Reagan Ufomba v. Independent National Electoral Commission & Ors. (2017) 13 NWLR (Pt. 1582) 175. PER ADUMEIN, J.C.A.
THE POSITION OF LAW ON ESTOPPEL PER REM JUDICATAM
The law is that generally “estoppel” has several species, including estoppel per rem judicatem or res judicata, estoppel by standing by; etc. However, estoppel is usually invoked by a defendant as a “shield” – defence to an action and not as a “sword” – a ground or reason for prosecuting a case. Whatever species of estoppel that is invoked, in a case, it must be specifically pleaded as a defence by the defendant who is relying on it. See also Order 15 Rule 7 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010 which provides as follows:
“All grounds of defence or reply which make an issue not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleadings shall be specifically pleaded”. By the clear and unambiguous provisions of Order 15 Rule 7 (1) of the Rules of the trial Court, reproduced above, the appellants were required to specifically plead their alleged defence of issue estoppel before they could properly rely on it as defence. The law is that where a procedure for doing a thing has been statutorily laid out, the parties should follow it. See C.C.B. (Nig.) PLC v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528 and Dr. Arthur Agwuncha Nwankwo & 2 Ors. v. Alhaji Umaru Yar’Adua & 40 Ors. (2010) 12 NWLR (Pt. 1209). In this case, the appellants were the defendants in the trial Court and they did not plead any estoppel as a defence to the respondents’ action or suit and they cannot now raise it and rely on it. PER ADUMEIN, J.C.A.
THE METHODS OF PROVING OWNERSHIP OF TITLE TO A LAND IN DISPUTE
It is now settled beyond any arguments that there are five recognized means, methods or ways of proving title to land in Nigeria. The five judicially accepted means, methods or ways of proving title to land are:
(a) by traditional evidence;
(b) by production of documents of title;
(c) by proving numerous and positive acts of ownership to warrant an inference that the claimant is the true owner;
(d) by proving acts of long possession and enjoyment of the land; and
(e) by proof of ownership or possession of adjacent or connected land.
See the cases of Idundun v. Okumagba (1976) 9 – 10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; E. O. Fasoro & Anor. v. Olalere A. Beyioku & 3 Ors. (1988) 2 NWLR (Pt. 876) 263; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242.
It is also trite law that in a claim for declaration of ownership of or title to land, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s defence. See:J. M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Atilade v. Atilade (1968) 1 All NLR 27; O. K. O. Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393; Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & Ors (2016) 15 NWLR (Pt. 1535) 242 and Mr. Moses Benjamin & Ors. v. Mr. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): In Suit No. I/190/2007 instituted in the High Court of Oyo State, holden at Ibadan, the respondents in this Court, as the claimants in the trial Court, sought the following relief in their amended statement of claim:
“(a) DECLARATION that the Claimants are beneficial owner and entitled to grant of right of occupancy in respect of all that large tract of land situate, lying and being at Sulu Family Land, Kogbo Village, Oleyo Area, Off Lagos Road, Orita Challenge, Ibadan.
(b) DECLARATION that the Defendant’s act of entering upon the Claimants’ Family land without authority, knowledge or consent of the Claimants’ Family constitutes trespass.
(c) DECLARATION jointly and severally against the Defendants for a sum of N10,000,000.00k (Ten Million Naira) only as general damages for the Defendants act of trespass on Claimants land.
(d) PERPETUAL INJUNCTION restraining the Defendants, their agents, servants, privies or howsoever called from further entering upon the Claimant’s Family land.
(e) Cost of this suit.”
The appellants were the defendants in the Court below, whereby the 1st and 2nd appellants counterclaimed as follows:
“(a) A declaration that the counter-claimants are entitled to statutory right of occupancy of all that piece of land measuring about 26 Hectares situated at Kogbo Village Oleyo (Odo Ona Elewe) Ibadan.
(b) The sum of N10,000.00 as general damages for trespass committed and still being committed by the Plaintiffs/Defendants on counter-claimants’ land when they entered the land and illegally intend to sell the land to 3rd defendants.
(c) Perpetual injunction restraining the defendants, their agents, servants, privies from trespassing on counter-claimants’ land at Kogbo Village, Ibadan.”
At the close of evidence and after taking the final addresses of the parties’ learned counsel, the trial Court, per Hon. Justice B. O. Adeniji, delivered a reserved judgment on Tuesday, the 5th day of August, 2014 whereby the Court concluded as that:
“From the totality of the above, I hold that the Claimant’s claims as contained in paragraphs 32 (a) – (e) of the Amended Statement of Claim succeed in their entirety whilst the 1st and 2nd Defendants’ counter-claims contained in paragraphs (a)(b) and ‘C’ of their Counter-Claim contained at the back of their Statement of Defence dated 1st April, 2008 fail in their entirety.”
This appeal is against the above judgment and it was heard on the following processes:-
1. Further amended notice of appeal filed on 04/11/2021.
2. Amended appellants’ brief filed on 04/11/2021;
3. Amended respondents’ brief filed on 26/11/2021; and
4. Appellants’ reply brief filed on 07/01/2022.
It should be noted that all the above processes were deemed as properly filed and served on 13/01/2022.
Lukman L. Akanbi, Esq, learned counsel who settled the amended appellants’ brief formulated the four following issues for determination:
“1. Whether the lower Court was right in assuming jurisdiction to entertain the suit. Ground 2.
2. Whether the lower Court has Jurisdiction to deliver a judgment and reserve the reasoning till a later date as done herein by the lower Court. Ground 3.
3. Whether or not the decision of the trial Court is not a nullity when Judgment was delivered in breach of constitutional provisions on delivery of judgment. Ground 7.
4. Whether the trial Court properly evaluated the evidence of the parties to warrant the trial Court giving judgment in favour of the respondents and dismissing the counter claim of the appellants. Grounds 1, 4, 5 & 6.”
In the amended respondents’ brief, settled by Abiodun Amole, Esq; a notice of preliminary objection was raised and argued therein. Learned counsel then proceeded to distill four issues for the determination of the appeal as follows:
“1. Whether the trial High Court of Oyo State lacked jurisdiction to entertain the matter brought before it for adjudication by the Respondents as Claimants. (Ground 2)
2. Whether the lower Court delivered judgment in the matter brought before it by the Respondents as Claimants and reserved its reasoning to a later date. (Ground 3).
3. Whether the trial Court did not properly evaluate the evidence led by the parties before arriving at its decision/judgment. (Grounds 1, 4, 5 and 6).
4. Whether assuming but not conceding that the judgment of the trial Court appealed against by the Appellants was delivered outside the 90 days period prescribed by Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) the development has occasioned or caused any miscarriage of justice to the Appellants as to warrant or justify the setting aside of the said judgment on that ground by this Honourable Court.”
On the 13th day of January, 2022 when this appeal was heard, the respondents failed to move their preliminary objection, and even the attention of the Court was not drawn to it before the appeal was heard. The notice of preliminary objection and the arguments thereon were accordingly, struck out.
The issues identified by the learned counsel for the appellants are concise and they are precisely tied to the grounds of appeal. I adopt the issues as raised by the appellants for the determination of the appeal. The second and third issues will be taken and treated simultaneously. In other words, the issues will be taken and treated as follows: Issues 3 and 2 together, then Issue 1 and Issue 4, separately.
ISSUES NOS. 3 & 2
(3) Whether or not the decision of the trial Court is not a nullity when Judgment was delivered in breach of constitutional provisions on delivery of judgment.
(2) Whether the lower Court has Jurisdiction to deliver a judgment and reserve the reasoning till a later date as done herein by the lower Court.
The above issues are the same as Issues 2 and 4 identified by the respondents.
The learned counsel for the appellants referred to Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the case of F.C.D.A. v. Nwanna (1998) 4 NWLR (Pt. 544) 73 and submitted that “the judgment of the lower Court having being (sic) delivered outside the constitutional provision period, it is a nullity.”
Counsel contended that the parties adopted their final written addresses on the 9th day of April, 2014 but “the purported judgment was delivered on the 5 (sic) of August, 2014 in excess of the period of ninety as provided by the Constitution” and “the reasoning for the judgment was made available when it is (sic) almost a year (that is, more than 8 months) after the earlier judgment of 5 (sic) of August, 2014.” The appellants’ counsel submitted that the appellants suffered miscarriage of justice because immediately the judgment “was delivered on the 5th of August, 2014 without reasoning, the respondents invaded the land and destroyed so many things.” Learned counsel continued:
“Had the reasoning being made available within 90 days this destruction would have been prevented by taking necessary steps by the Appellants, this is indeed a miscarriage of justice to the Appellants; to have signed enrollment of order and warrant of possession by the trial Court who did not make its full judgment available within the constitutional provision period.”
On the characteristics of a valid judgment, learned counsel for the appellants referred the Court to the case of UAC (Nig.) Plc v. Akinyele (2012) 15 NWLR (Pt. 1322) 1028.
In response, the learned counsel for the respondents argued that the appellants’ contention that the trial Court delivered its judgment “and thereafter reserved its reasoning is not in any way or matter whatsoever correct or borne out of the record of appeal before this Hon. Court”. Counsel referred to pages 518 – 541 of Volume II of the record and submitted the trial Court delivered its “judgment in the matter on 5th August, 2014 and never reserved its reasoning as mischievously argued by the appellants.”
Learned counsel submitted that “there is no law that stipulates how a judgment ought to be written” and a “Court’s judgment would not be vitiated simply because it has not been written or presented in a particular manner once it features the essential elements.” In support of these submissions, learned counsel referred the Court to the case ofOgba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331.
The learned counsel for the respondents argued that by virtue of Section (294) 5 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the judgment of a Court will not be rendered void merely because it was delivered outside the 90 days period prescribed by Section 294(1) unless the development has occasioned a miscarriage of justice. In support of this argument, learned counsel relied on the cases of Atungwu v. Ochekwe (2004) 17 NWLR (Pt. 901) 18 and A.C.B. Limited v. Ajugwo (2012) 6 NWLR (Pt. 1295) 126.
It is now clear that where a record of appeal has been transmitted to the Court of appeal, and there is no complaint on exclusion or omission of vital records or proceedings, such record of appeal remains valid and the parties and the appellate Court are bound by it. See the cases of Joseph Agbon Ojeme v. Prince Mark Jimoh Mamodu (1994) 1 NWLR (Pt. 323) 685 and Monday Okpokpo v. Nnana Akpan Uko (1997) 11 NWLR (Pt. 527) 94.
As settled by judicial precedents, the law allows an appellate Court to take judicial notice of all relevant information in the record of appeal, which will assist the Court in doing substantial justice in the resolution of the issues raised in the appeal. See the cases of SBM Services (Nig.) Ltd & Ors. v. Catherine Sede Okon (2004) 9 NWLR (Pt. 879) 529; Alh. Mohammed Sanusi Daggash v. Hajia Fati Ibrahim & Anors Bulama (2004) 14 NWLR (Pt. 892) 144; Alh. Muhammadu Maigari Dingyadi & Ors. v. Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State & Or. v. Adebayo Adeyiga & Ors (2012) 5 NWLR (Pt. 1293) 291.
In this case, the record of appeal was compiled as Volume I and Volume II and transmitted to this Court on 08/06/2017. The record of appeal was deemed as having been properly compiled and transmitted to this Court on 08/07/2020. The “Notes” of the trial Court are on pages 384 – 385; 386 – 390; 400 – 401; 402 – 404; 405 – 407; 408 – 409; 410; 437 – 438; and 442; respectively, of the record of appeal.
From the record of appeal, the parties’ learned counsel adopted their final written addresses on the 9th day of April, 2014 and for the avoidance of any doubt, the “Notes” of the trial spanning pages 437 – 438 of the record of appeal are hereunder fully reproduced:
“Parties are absent except the 1st & 2nd Claimants.
Appearances:-
B. Lawal Esq; for the Claimant.
S. A. Animashaun Esq. for the defendants.
The Defendants/Applicants have an application pending on page 435 of the case file. The applicants’ counsel adopted his written address on the application and he urged the Court to grant the application.
Claimants’/Respondents’ Counsel did not oppose the application. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
RULING
Orders are prayed. Time is hereby extended till today 9/4/14 to enable the 1st and 2nd defendants/counter claimants and the 3rd & 4th defendants file their written address.
1. The written address already filed and served is deemed to have been properly filed and served.
The defendants’ counsel S. A. Animashaun Esq. adopted his written address dated 10/2/14 (pgs 442-448) counsel urged the Court to dismiss the claimants’ claims and grant the counter claims of 1st & 2nd defendants.
B. Lawal Esq. claimants’ counsel applied to Court to withdraw the claimants written address dated and filed on 4/2/14.
RULING
Order as prayed claimants’ final written address dated and filed on 4/2/14 is hereby struck out.
B. Lawal Esq. Claimant’s counsel adopted the claimants final written address dated and filed on 24/4/14 and urged the Court to grant the claimants claim and refused the 1st & 2nd defendant/counter-claimant. Court judgment reserved to 9/6/16.
SIGNED
HON. JUSTICE B. O. ADENIJI
JUDGE
09/04/14”
The underlined portion of the “Notes” reproduced above, is an obvious slip.
In any case the “Notes” of the trial Court on page 442 of the record of appeal clearly show that the trial Court delivered its judgment on “the 5th day of August, 2014” – “05/08/2014” and the “Notes” of the trial Court are as follows:
“Parties are absent except the 1st defendant.
Appearance O. K. Adelaja Esq. for the Claimants
S. A. Animashaun Esq. for the defendants.
Both Counsel readopted their final written address.
JUDGMENT
Read. The claimants’ claims as contained in paragraphs 32 (a)-(e) of the Amended Statement of claim succeed in their entirely whilst the 1st and 2nd Defendants counter-claims contained in paragraphs 7 (a)(b) & (c) of their statement of Defence dated 1st April, 2008 fail in their entirety.
SIGNED
HON. JUSTICE B. O. ADENIJI
JUDGE
05/08/2014.”
The judgment itself covers pages 518 to 541 of the record of appeal. And on the record of appeal, it was clearly pronounced and signed by the learned trial Judge on “the 5th day of August, 2014” –“05/08/2014”.
By the “Notes” of the learned trial Judge, it is very explicit that the learned counsel for the parties “readopted” their final written addresses on the said 5th day of August, 2014 before the trial Court proceeded to deliver its decision immediately.
I think that the “readoption,” by learned counsel of their respective written addresses on 05/08/2014 is taken to mean that the parties ‘finally’ concluded their “final addresses” on the said 5th day of August, 2014.
In any case, the law is now settled that the provisions of Section 294 subsections (1) and (4) must be read together with those of sub-section (5) of the same Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). For the avoidance of any doubt Section 294 subsections (1), (4) and (5) of the Constitution are hereby reproduced:
“294(1) 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.
(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal or the National Industrial Court, shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.“
By the combined provisions of Section 294 sub-sections (1), (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), failure by a Court to render its ruling or deliver its decision within the period of time stipulated by sub-section (1), without more, is not sufficient for that decision to be nullified. For a decision delivered outside the ninety days’ period specified by the Constitution to be set aside for noncompliance, it must be shown by the appellant that the failure to abide by the constitutional prescription has occasioned or resulted in a miscarriage of justice. See the cases of Alhaji Musa Umar v. Alhaji Tijjani Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29 at 51; Forcado Ovo Obodo v. Stafford Olomu (1987) 3 NWLR (Pt. 59) 111; Francis O. Eseigbe v. Friday Agholor (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349; Savannah Bank of Nig. Ltd. v. Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491; Emmanuel Atungwu v. Ada Ochekwu (2013)14 NWLR (Pt. 1375) 605 and Cotecna International Ltd. v. Churchgate Nig. Ltd. (2010)12 SC (Pt. II) 140.
In this case, without conceding that the trial Court delivered its judgment more than ninety days from the parties’ final addresses, the appellants have not been able to show the miscarriage of justice, if any, which enured against them as a result of the alleged failure by the trial Court to deliver its decision within the specified period of time.
Under issue No.2, the appellants complained that the trial Court delivered its judgment on 05/08/2017 and reserved its “reason for its judgment to a later date.” With respect to the appellants, there is nothing on record, from the record of appeal which the appellants compiled and transmitted by themselves to this Court, showing that the trial Court delivered its decision and reserved its reasons to another date. The “Notes” of the trial Court on page 442 of the record of appeal are only a summary of the conclusion of the decision of the trial Court as contained in the judgment which it delivered on 05/08/2014 and nothing more. The judgment itself spans pages 518 to 541 and it is a full decision of 25 (twenty-five) pages and there is nothing therein to show that it is the reasons for its decision which had earlier been delivered by the Court. The “Notes” of 05/08/2014 are normal in a situation where the judgment had been separately typed and not written in the record book of the Court. This practice is very common and wholly recognized and accepted in our Legal System.
It is clear from the judgment on pages 518 to 541 of the record that the trial Court adequately appreciated the facts of the case, the issues involved, the applicable law before arriving at its final decision after due analysis.
In view of all the foregoing reasons, Issues 3 and 2 raised by the appellants are hereby resolved against them and in favour of the respondents.
ISSUE NO.1
Whether or not the lower Court was right in assuming jurisdiction to entertain the suit.
Learned counsel for the appellant submitted that the ownership of the land in dispute had been resolved in Suit No. I/550/97 in favour of the appellants and that the respondents are caught by issue estoppel, which “may arise where a plea of res judicata could not be established because the cause of action may not be same” and the case of Adedayo v. Babalola (1995) 5 NWLR (Pt. 408) 383 was cited to buttress this argument.
The learned referred to pages 406 to 407 of the record of appeal and contended that the 2nd respondent in this appeal attended Court proceedings in Suit No: I/550/97 and even “gave counsel on record the sum of N30,000.00k as his own contribution to prosecute the case” and “having done this, the respondent (sic) is stopped by conduct to raise or litigate on this subject matter again, see Section 169 of Evidence Act”. And on Section 169 of the Evidence Act, learned counsel referred the Court to the cases of Unilorin v. Adesina (2010) 9 NWLR (Pt.1199) 331; Bank of the North v. N. G. Bature (1994) 1 NWLR (Pt. 319) 235 and A.G., Nasarawa v. A.G., Plateau State (2012) 10 NWLR (Pt. 1309) 419.
In urging the Court to resolve this issue in favour of the appellants, learned counsel contended as follows:
“In Suit No: I/550/97, the issue as to the ownership of the Land, subject matter of this appeal were raised before the lower Court and the Court pronounced then that the land rightly belongs to the 1st and 2nd appellants’ family, the said judgment is still valid and subsisting up till today. The said judgment is contained at pages 11 to 34 of the record of appeal. It has not been said that the judgment was obtained by fraud or misrepresentative; having called the attention of the lower Court to the said judgment, the lower Court had a duty to look at it and considered whether the issue of ownership of the land subject matter of the suit before the Court was the same issue considered in Suit No: in I/550/97. This the lower Court failed to do”.
The response of the learned counsel for the respondents is that the appellants did not plead the issue of estoppel in their statement of defence. Relying on the case of Obueke v. Nnamchi (2006) All FWLR (Pt. 313) 195 at 208, learned counsel submitted that “a defendant seeking to raise or rely on the doctrine of estoppel or res judicata as a defence to a plaintiff’s case must specifically and duly plead same in his statement of defence.
Learned counsel also urged the Court to take judicial notice of Order 15 Rule 7 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010 which requires such a defence to be specifically pleaded.
In their reply brief, learned counsel for the appellants referred to the cases of NDIC v. CBN (2002) 7 NWLR (Pt. 766) 272 and State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 and submitted that:
“The issue estoppel raised by the Appellants herein is a specie of jurisdictional issue, and it is trite that a challenge to the competence of a suit or jurisdictional of the Court can be raised at any time, even for the first at the Supreme Court”.
I think that there is a gross misconception of the law, as it relates to jurisdiction, by the learned counsel for the appellants. Whereas it is correct to argue that where the issue of jurisdiction relates to the “competence” of the Court to entertain a cause or matter, the issue can be raised at any stage or time in the judicial or litigation process; and it can even be raised for the first time in the Supreme Court. See Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; African Newspapers Nigeria Ltd. v. Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Jonah Onyebuchieze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt. 51) 506; Isaac Obiuweubi v. Central Bank of Nigeria (2011) 7 NWLR (Pt. 1247) 465; E. A. Utomudo v. Military Governor of Bendel State & Ors.(2014) 11 NWLR (Pt.1417) 97 and Mrs. Esther I. Adesigbin & Ors. v. Military Governor of Lagos State & Anor. (2017) 10 NWLR (Pt. 1574) 442.
Owing to its strategic significance in the adjudication process, the issue of alleged jurisdictional incompetence of a Court can be raised and entertained with or without leave of Court. See Benson Obiakor & Ors. v. The State (2002) 10 NWLR (Pt.776) 612; Isaac Gaji v. Emmanuel Paye, (2003) 8 NWLR (Pt. 823) 583 and University of Ilorin v. Rasheedat Adesina (2014) 10 NWLR (Pt. 1414) 159. And the issue can be raised suo motu by the Court and duly interrogated by the parties for a decision on thereon. See Senator Christian N.D. Anyanwu v. Independent C. Ogunewe & 2 Ors. (2014) 8 NWLR (Pt. 1410) 337.
In the highly celebrated case of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379, it was held that:
“a Court is competent when –
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. See also the case Alhaji Umaru Abba Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517.
To say the least on the jurisprudence of jurisdiction of a Court, it is the claimant’s or plaintiff’s claim and not the defence or reply of a defendant that determines whether or not a Court of law has jurisdiction. See Izekwe v. Nnadozie 14 WACA 361; Chief Numogun Sam Adeyemi & Ors. v. Emmanuel Opeyori (1976) 9-10 SC 31; Hon. Justice Kalu Anyah & Ors. v. Dr. Festus Iyayi (1993) 7 NWLR (Pt. 306) 290; Jimoh Akinfolarin v. Solomon Oluwole Akinnola (1994) 4 SCNJ 30; Efunwape Okulate & Anor. v. Gbadmosi Awosanya (2000) 2 NWLR (Pt. 646) 530; Lawal Akeem & Ors. v. University of Ibadan (2003) 10 NWLR (Pt. 829) 584; Emeka A Onuorah v. Dr. C. C. Okeke & Anors. (2005) 10 NWLR (Pt. 932) 47; Akauve Moses Osoh & Anor. v. Unity Bank PLC (2013) 9 NWLR (Pt. 1358) 1 and Chief Reagan Ufomba v. Independent National Electoral Commission & Ors. (2017) 13 NWLR (Pt. 1582) 175.
In this case, the appellants’ complaint is that the lower Court lacked jurisdiction because they had the defence of “issue” estoppel.
The law is that generally “estoppel” has several species, including estoppel per rem judicatem or res judicata, estoppel by standing by; etc. However, estoppel is usually invoked by a defendant as a “shield” – defence to an action and not as a “sword” – a ground or reason for prosecuting a case. Whatever species of estoppel that is invoked, in a case, it must be specifically pleaded as a defence by the defendant who is relying on it. See also Order 15 Rule 7 (1) of the High Court of Oyo State (Civil Procedure) Rules, 2010 which provides as follows:
“All grounds of defence or reply which make an issue not maintainable or if not raised will take the opposite party by surprise or will raise issues of facts not arising out of the preceding pleadings shall be specifically pleaded”. By the clear and unambiguous provisions of Order 15 Rule 7 (1) of the Rules of the trial Court, reproduced above, the appellants were required to specifically plead their alleged defence of issue estoppel before they could properly rely on it as defence. The law is that where a procedure for doing a thing has been statutorily laid out, the parties should follow it. See C.C.B. (Nig.) PLC v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528 and Dr. Arthur Agwuncha Nwankwo & 2 Ors. v. Alhaji Umaru Yar’Adua & 40 Ors. (2010) 12 NWLR (Pt. 1209). In this case, the appellants were the defendants in the trial Court and they did not plead any estoppel as a defence to the respondents’ action or suit and they cannot now raise it and rely on it.
Without more, Issue No.1 is hereby resolved against the appellants and in favour of the respondents.
ISSUE NO. 4
Whether or not the trial Court properly evaluated the evidence before it in arriving at the decision to grant the respondents’ claim and dismiss the appellants’ counterclaim.
The learned counsel for the appellants referred to the cases of Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 and argued that in an action for declaration of ownership to land, the plaintiff bears the burden of establishing his claim by a preponderance of evidence. Counsel contended that the respondents “failed to prove their title to the land as required by law”.
After referring to the cases of Idundun v. Okumagba (1976) 10 SC 227; Thompson v. Arowolo (2003) 7 NWLR (Pt.818) 163 and Raphael v. Ezi (2015) 12 NWLR (Pt. 1472) 39, learned counsel submitted that “it is trite that there are five methods of proving title to land” and counsel named the five methods. Learned counsel contended that the respondents did not satisfactorily prove their title by any of the five methods, as the averments in their statement of claim were riddled with contradictions and “the 1st respondent gave evidence to the effect that his family, the Sulu family are the owner of the land in dispute by inheritance in one breath and in another breath he stated … that Sulu was a farmer and acquired the same parcel of land in dispute by settlement a long time ago”. Counsel then contended, inter alia, as follows:
“The question at this juncture will then be, can the Respondents herein validly in law in one breath claim that they became the owner of the land in dispute by inheritance and in another breath claim that they became the owner of the land in dispute by settlement long time ago? The answer is capital No!! as the two assertions are completely contradictory and judgment of the trial Court ought not to have flowed from such premise.
It is trite that a piece of evidence is contradictory to another when it asserts or affirms the opposite of what another asserts and not necessarily when there are minor discrepancies in between them. Contradiction between two pieces of evidence goes to the essentiality of something being or not being at the same time. This is the contradiction found in the evidence above highlighted which is fatal to the claims of the Respondents”.
In support of the above contention, learned counsel cited and relied on the cases of Ogoala v. State (1991) 2 NWLR (Pt. 175) 509 and Jeremiah v. The State (2012) 14 NWLR (Pt. 1320) P. 248.
Learned counsel also argued that the evidence of the 1st respondent was discredited by the respondents’ witness PW3 – Iliasu Alaka, under cross-examination, as shown on pages 387 and 388 of the record of appeal.
On how a claimant can succeed in proving his title to land by traditional history, learned counsel for the appellants referred the Court to the cases of Kaigo v. Woluchem (1985) 1 NWLR (Pt. 4) 572; Alade v. Awo (1975) 4 SC 215; Piaro v, Tenalo (1976) 12 SC and Obioha v. Duru (1994) 8 (Pt. 365) 631. And after citing the case of Iordye v. Ihyambe (1993) 3 NWLR (pt. 280) 197. Learned counsel submitted as follows:
“In this case, the respondents by their evidence are relying on the ownership by inheritance and acts of possession derived from their ancestors. The respondents must first establish by credible evidence their ancestor’s ownership and acts of possession in order to sustain their own. In this case the alleged ownership and possession, that is, farming on the land by their ancestors, were not fully and satisfactorily given by any of the Respondents’ witnesses in this case. In this regard, the case of the respondents must fail, this we urged the Court to so hold”.
In response, learned counsel for the respondents relied on the case of Andrew v. INEC (2018) 8 NWLR (Pt. 1625) 507 at 550 and argued that “the way and manner a trial Court evaluates the evidence led before it by parties to a pending proceeding and makes its findings of fact is a matter of style and it absolutely has nothing to do with the substance of the case”. Counsel also cited the cases of U.L.G.C. v. Inwang (2010) 4 NWLR (Pt. 1185) 529 and N.B.C. PLC. v. Olanrewaju (2007) 5 NWLR (Pt. 1027) 255 in contending as follow:-
“Furthermore, assuming but not conceding that there is indeed an error or mistake in the way and manner, the trial Court evaluated the evidence led before it by the parties and made its findings of facts before arriving at its judgment appealed against herein, it is our humble contention and in fact the well settled position of the law is that it is not every error or mistake in a judgment that will vitiate or warrant the setting aside or reversal of same on appeal. It is only where the error or mistake is substantial and has in fact occasioned a serious or grave miscarriage of justice that an Appellate Court could upturn such a judgment”.
I think that the learned counsel for the respondents, with due respect, has missed the bullet point on this issue. The salient issue is whether or not upon a proper evaluation of the evidence adduced by the contending parties, it was right for the trial Court to have granted the respondents’ claims and dismissed the appellants’ counterclaim.
It is now settled beyond any arguments that there are five recognized means, methods or ways of proving title to land in Nigeria. The five judicially accepted means, methods or ways of proving title to land are:
(a) by traditional evidence;
(b) by production of documents of title;
(c) by proving numerous and positive acts of ownership to warrant an inference that the claimant is the true owner;
(d) by proving acts of long possession and enjoyment of the land; and
(e) by proof of ownership or possession of adjacent or connected land.
See the cases of Idundun v. Okumagba (1976) 9 – 10 SC 224; Piaro v. Tenalo (1976) 12 SC 31; Omoregie v. Idugiemwanye (1985) 2 NWLR (Pt. 5) 41; E. O. Fasoro & Anor. v. Olalere A. Beyioku & 3 Ors. (1988) 2 NWLR (Pt. 876) 263; Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 and Alhaji Lasisi Salisu & Anor. v. Alhaji Abbas Mobolaji & 2 Ors. (2016) 15 NWLR (Pt. 1535) 242.
It is also trite law that in a claim for declaration of ownership of or title to land, the claimant must succeed on the strength of his own case and not on the weakness of the defendant’s defence. See:J. M. Kodilinye v. Mbanefo Odu (1935) 2 WACA 336; Atilade v. Atilade (1968) 1 All NLR 27; O. K. O. Mogaji v. Cadbury Nigeria Limited (1985) 2 NWLR (Pt. 7) 393; Alhaji Lasisi Salisu & Anor v. Alhaji Abbas Mobolaji & Ors (2016) 15 NWLR (Pt. 1535) 242 and Mr. Moses Benjamin & Ors. v. Mr. Adokiye Kalio & Anor (2018) 15 NWLR (Pt. 1641) 38.
In this case, the respondents’ amended statement of claim spans pages 162 to 164 of the record of appeal and the respondents anchored their claim to title of the disputed land on traditional history and long possession by averring in paragraphs 4, 5 and 9 of their amended statement of claim as follows:
“4. The Sule Family are the owners by inheritance under native law and custom of a large tract of land lying, being and situate at Sulu Family land, Kogbo Village, Oleyo Area, Off old Lagos Road, Orita Challenge, Ibadan”.
“5. The Sulu Family had always been in possession of this land farming thereon with crops like Cassava, Palm Trees, Kolanuts and Orange Tree for ages”.
“9. Sulu who was a farmer acquired the large piece of land in dispute a long time ago by settlement”.
On the other side, the 1st and 2nd appellants, who were the 1st and 2nd defendants/counterclaimants in the trial Court, responded by pleading in paragraphs 3, 4 and 7 of their statement of defence and counterclaim as follows:
“3. The 1st and 2nd defendants aver with regard to paragraph 4 of the statement of claim that the piece or parcel of land owned by Sulu Family was given to them by Aromona and has been sold by them to Alaka.
“4. The 1st and 2nd defendants aver with regards to paragraph 5 of the Statement of Claim that Sulu Family do not farm on their land and no more in possession since they divested their interest on the land”.
“7. The 1st and 2nd defendants aver with regards to paragraphs 8 & 9 of the Statement of Claim that Sulu, Aromona and Aminu are not relatives and descendants of the same father. Also aver that Sulu is from Ilorin and they are itinerary drummers (Alusekere) for Aromona the fore-father of the 1st and 2nd defendants who gave him the land sold to Alaka by Sulu Family. Aver that Aminu mentioned is not known to the 1st and 2nd defendants”.
When the respondents’ pleadings, reproduced above, are juxtaposed with those of the 1st and 2nd appellants, also reproduced above, the respondents were acknowledged by the 1st and 2nd appellants as the owners of the land but that the respondents had “divested their interest on the land” by selling same to “Alaka”.
In its judgment, the trial Court referred to the witnesses who testified for the parties and summarized their respective evidence from pages 520 to 535 of the record of appeal and after citing the five methods for proving title to land, as set out in the case of Idundun v. Okumagba (1976) 9 – 10 SC 227 at 249, proceeded to find and hold as follows:
“One of the above stated criteria is sufficient. The Claimants tendered Exhibit ‘A’ which is divided into portions, A, B, C and D all totaling 20.28 hectares. Portion C verged red is been occupied by Avian Specialties Ltd., the 3rd Defendant whilst portion D is that portion sold to Alaka (5 acres). Alhaji Eliasu Alaka who testified as the 3rd Claimants witness stated that he bought portion D verged green from the Claimants. Also Raufu Busari, 4th Claimant’s witness testified that he farms on the land in dispute. Both 3rd and 4th Claimants’ Witness testified that the Claimants, the Sulus are the owners of the land.
Exhibit ‘B’, the video compact Disc (VCD) tendered by the 2nd Claimants’ Witness was played in the open Court (part thereof) and Aderinto Aderoju (the original 1st Defendant) took the Claimant round the Sulus land with explanations and on their return they had a reception.
Eliasu Alaka testified that it was Layonu the mother of Rasheed Sulu who sold the land to him. He testified that none of the Claimants witnessed the sale. Under cross examination witness stated that it was not only Layonu who sold the land to him and that Derinto (the former 1st Defendant) and Kolapo jointly sold the land to him.
The 4th Claimants’ witness, Raufu Busari testified that he farms on the land in dispute. A1 the afore-mentioned witnesses for the Claimant stated that the land in dispute is in Kogbo Village.
The 5th Claimants’ witness, Rasheed Sulu (who is also the 2nd Claimant in this case confirmed that his mother Layonu sold 5 acres of the Sulu land to Alaka. Both the 1st and the 2nd Defendants/Claimants also testified that Layonu sold 5 acres to Alaka.
The 6th Claimants’ witness who is the 1st Claimant in this suit testified that the old man he was talking to in Exhibit ‘B’ which was played in Court was Aderinto Aderoju.
With the above pieces of evidence, the Claimants have overt acts of ownership to sustain leg ‘a’ of their Statement of Claim. Latifu Olasupo, 2nd Defence Witness stated that he is a boundary man of the Sulus”.
From the decision of the trial Court, parts of which have been reproduced in this judgment, the trial Court dispassionately evaluated the totality of the evidence adduced by the parties before making far-reaching findings and arriving at its verdict that the respondents proved their title to the disputed land as required by law.
It is instructive to note that the trial Court made some specific findings of facts and these include that:
1. The respondents’ witnesses, including Alhaji Eliasu Alaka and Raufu Busari testified that the respondents are the owners of the land.
2. The original 1st defendant – one Aderinto Aderoju took the respondents round the land with explanations and on their return, they had a reception – in a video compact disc (VCD) which was tendered by the respondents and it was admitted as exhibit “B” and played in open Court.
3. The respondents established their title to the disputed land by their various acts of ownership.
It may be of interest to note that the above specific findings of facts were not appealed against by the appellants. The law is clear that any findings of fact or decision not appealed against are deemed to be correct and accepted as such. See: Alhaji Awesu Atanda Adeyemi & Ors. v. Chief Simon Moronfolu Olakunri & Ors. (1999) 14 NWLR (Pt. 638) 204; Madam Adunola adejumo & 2 Ors. v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike E. Nyesom v. Dakuku A. Peterside & Ors. (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
All that the appellants have succeeded in doing, with reference to this issue, is to merely perambulate over alleged inconsequential contradictions or discrepancies in the respondents’ case. The appellants have not been able to convincingly demonstrate how the trial Court erred in entering judgment in favour of the respondents.
The trial Court appreciated the issues before it, evaluated the evidence tendered by the parties and applied the relevant law and judicial precedents before deciding the case in favour of the respondents. I have not found any reason to justify a departure from the decision of the trial Court.
Issue 4 raised by the appellants is hereby resolved against the appellants.
CONCLUSION
As all the four issues identified by the appellants have been resolved against them and in favour of the respondents, there is no merit in the appeal.
This appeal is hereby dismissed for being devoid of merit.
The judgment of the trial Court in Suit No. I/190/2007 between ALHAJI OLAYIWOLA SULU & 2 OTHERS V. BINTU ADERINTO & 3 OTHERS, per Hon. Justice B. O. Adeniji, delivered on the 5th day of August, 2014 is hereby affirmed.
The sum of N150,000.00 (One hundred and fifty thousand naira only) is hereby awarded as costs in favour of the respondents and against the appellants.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege to read in advance the leading judgment of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, PJCA. He analysed the facts and evidence carefully and concluded that the appeal has no merit and I am in agreement with the lucid reasoning and resonating conclusions which are in accordance with mine. It is trite law that issues of fact or law not considered and pronounced on by the trial Court are fresh issues that can only be heard by an Appellate Court after leave of the Court is obtained. Failure to obtain leave renders the application to raise fresh issues on appeal incompetent. See CGG(NIG) LTD V. AMINU (2015) LPELR-24463(SC), TIMOTHY V. FRN (2012) 6 SC (PT. 111) P.159, INTERCONTINENTAL BANK PLC V. OLAM (NIG) LTD. (2013) 1-2 SC (PT. 111) P.52, ONYEMAIZU V. OJIAKO & ANOR (2010) 1-2 SC P.41 and ADIM V. NBC LTD. & ANOR (2010) 3-5 SC (PT. 111) P.155.
I have also perused the record of Court and I have not seen where the defence of estoppel was raised by the Appellants against the Respondent’s action therefore, the issue of defence of estoppel raised and argued in the Appellants’ brief was not raised and/or pronounced upon by the Court below, hence this Court is without power to pronounce on them in its Appellate jurisdiction. See the case of IKEANYI V. ACB LTD (1997) LPELR-1469(SC) and BARBUS & CO (NIG) LTD & ANOR V. OKAFOR-UDEJI (2018) LPELR-44501(SC).
In conclusion, I agree with the reasoning and conclusion of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA, in the lead judgment, a draft of which I had read, that the appeal is without merit and ought to fail. I therefore order accordingly and abide by the consequential orders contained in the said lead judgment including the order as to costs.
FOLASADE AYODEJI OJO, J.C.A.: I have had the advantage of reading before now the Judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA and I agree with him that this appeal lacks merit. I shall however proceed to make a brief comment on whether the lower Court did a proper evaluation of the evidence on record before arriving at the decision that the Respondents proved their title to the disputed land.
The Courts have in a long line of decided cases including FIRST BANK OF NIGERIA PLC VS. OZOKWERE (2014) 3 NWLR (PT. 1395)439; GUARDIAN NEWSPAPERS LIMITED VS. AJEH (2011) 10 NWLR (PT. 1256)574; AJAGBE VS. IDOWU (2011) 17 NWLR (PT. 1276)422; LAGGA VS. SARHUNA (2008) 14 NWLR (PT. 1114)427 amongst several others, stated again and again that the evaluation of evidence and the ascription of probative value thereto are the primary functions of the trial Court which saw, heard and assessed the witnesses as they testified in the witness box. It is equally basic that where such Court of trial unquestionably did a proper appraisal of facts and evaluation of evidence, it is not the business of an appellate Court to substitute its own view for those of the trial Court. The appellate Court will only interfere where:
i. the trial Court has not made proper use of the opportunity of seeing and hearing of the witnesses at the trial; or
ii. the trial Court has drawn erroneous conclusions from accepted instance or has taken an erroneous view of the evidence adduced before it; or
iii. findings of fact made by the trial Court are perverse in the sense that they do not flow from the evidence accepted by it.
A careful examination of the printed record leaves no one in doubt that the learned trial Judge did a proper evaluation of both oral and documentary evidence placed before him. The Appellants have not placed anything before us to demonstrate that the findings of fact made by him are perverse and we cannot find any. There is therefore no reason to warrant our embarking upon a re-evaluation of evidence and disturbing the finding of facts made by the learned trial Judge.
I agree with my learned brother that the lower Court did a proper evaluation of evidence placed before it before entering judgment in favour of the Respondents. I also dismiss this appeal and abide by the consequential orders contained in the lead Judgment.
Appearances:
L. L. Akanbi, Esq. For Appellant(s)
Abiodun Amole, Esq. For Respondent(s)