AFOLAYAN v. OGUNDIPE & ORS
(2022)LCN/16074(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Wednesday, March 16, 2022
CA/EK/26/2020
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
SUNDAY MATHEW AFOLAYAN (FOR AND ON BEHALF OF THE ENTIRE ASALU FAMILY OF ILORO-EKITI) APPELANT(S)
And
1. MR. FEMI OGUNDIPE (SUED AS ADMINISTRATOR OF CHIEF BABAJIDE OGUNDIPE’S ESTATE DECEASED) 2. MRS. OLAJIDE AWE 3. MR. MATHEW DUDUYEMI (FAJI) 4. MR. ADEBAYO OMOTOSHO 5. MRS. ANIKE OLOGBOGI 6. MR. RAPHAEL EGUNMO 7. MR. BABAJIDE BENSON 8. CHIEF MICHAEL BABATUNDE ASA 9. PASTOR KOMOLAFE 10. MR. GBENGA AJEYO RESPONDENT(S)
RATIO
WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT AND SEPERATE ACTION
I have given an insightful and analytical consideration to the state of pleadings, evidence led, legion of judicial authorities rendered by the contending learned counsel to the parties. By all odds it is common sense that a counter-claim is an independent and separate action triable within the main claim for reason of convenience. Just as the main claim, it must be proved by the counter-claimant. See the cases of KOLADE VS. OGUNDOKUN (2017) 18 NWLR (PT 1596) 152 at 173, ATIBA IYALAMU SAVINGS & LOANS LTD VS. SUBERU (2018) 13 NWLR (PT.1637) 387 at 409-410. PER WAZIRI, J.C.A.
THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND
It is trite law that the burden of proof is always on the Plaintiff in an action for declaration of title. An evasive pleading or averments such as the Defendants are not in a position to deny or admit paragraph is of no moment at all in an action for declaration of title to land. See the case of MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (PT 92) 90/92 when it held as follows:
“A fact which is admitted by the other side needs no proof. But in a case such as the one for declaration, an evasive averment such as the Defendant is not in a position to deny or admit paragraphs and will put the Plaintiffs to the strictest proof thereof does not remove the burden on the Plaintiff……”. See also SALIU VS. EGBEIBON (1994) 6 NWLR (PT. 348) at 44. PER WAZIRI, J.C.A.
WHETHER OR NOT THE COURT OF APPEAL CAN INVOKE THE PROVISION OF ORDER 23 RULE 11 (1) & (2) OF THE COURT OF APPEAL RULES TO GIVE ANY JUDGEMENT OR ORDER AS TO COURT EVEN WHEN NOT PRAYED FOR
However, this Court can invoke the provision of ORDER 23 Rule 11(1) & (2) of the Court of Appeal Rules (2021) to give any judgment or make an order as the case may require including any order as to costs even when not prayed for. ORDER 23 Rules 11(1) & (2) of the 2021 reads as follows:
(1) The Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including any order as to costs.
(2) The powers contained in Sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of the decision.
It is inpari materia with Order 23 Rules 1 & 2 of the old Court of Appeal Rules.
The Apex Court in ONUAGULUCHI v. NDU & ORS (2001) 7 NWLR PT. 712 p. 309 interpreted this order as follows:
“In the present ruling, I do not consider it necessary to comment on the respective reliefs sought before the Court of Appeal other than to say that ORDER 3, Rule 23 of the Court of Appeal Rules gives that Court the liberty to give appropriate reliefs on hearing an appeal and will not therefore be bound by the reliefs sought in the notice of appeal. The rules read:
“The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs (2) The powers contained in paragraph (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that part of a decision may be reversed or varied and may also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have appealed from or complained of the decision “This power may be exercised by the Court of Appeal as the justice of the case demands to make orders which the trial Court could have made.” Per UWAIFO JSC. PER AWOTOYE, J.C.A.
ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Ado-Ekiti delivered on the 31st March, 2016 in suit no. HIJ/8/2013. The judgment can be found on pages 181-202 of the printed Record of Appeal.
The Appellant as Claimant took out a writ of summons with endorsed statement of claim on the 8th day of July, 2013 which was amended with leave of Court wherein at paragraph 44 thereof the Appellant/Claimant sought the following reliefs:
a) A DECLARATION that the Claimants are the ones entitled to the Statutory Right of Occupancy in respect of the land situate, lying and being at is located through Osolo situated on the left hand stretching to Seriki and Sajiyan farms through Oke Ore and bounded with Ajana and also joins Onibaomuo and Eyeribisu farms on the left while Asalu farms are on the way by the right hand side is located on Otita Ogun (Ogun seat) which is for Ogun Isalu where Chief Asalu is the head and the Otita Ogun is within Asalu farm which forms part of the disputed land along Ijuku.
b) N6,000,000.00 (Six Million Naira) only general damages for the trespass committed and still being committed by the Defendant on the Plaintiffs family land.
c) AN ORDER of perpetual injunction restraining the Defendant by himself, his agents, servants and/or privies from further committing acts of trespass on the land in dispute.
Upon being served with the originating processes, the Respondents/Defendants filed their statement of defence and counter-claimed as follows:
(a) A DECLARATION that the Counter-Claimant is the traditional owner, lawful occupier, holder and the people are entitled to the Customary Right of Occupancy over the entire Ijemu land which they have inherited and have been in continuous exclusive and undisturbed possession for over 300 years.
(b) AN ORDER of perpetual injunction restraining the Claimants by himself, his servants, agents, attorneys and or privies from committing acts of trespass on the Defendant Counter-Claimant’s land at Ijemu Quarters, Iloro-Ekiti.
(c) General damages in the sum of N5,000,000 (Five Million Naira) for the acts of trespass committed and is still being committed by the Claimants on the Defendant/Counter-Claimants’ land at Ijemu Quarters, Iloro-Ekiti.
Upon service of the originating processes, the Respondents/Defendants/Counter-Claimants filed their statement of defence and incorporated a counter-claim therein. The Appellant/Claimant filed his reply to the statement of defence.
Upon service of the amended statement of claim, the Respondents/Defendants/Counter-Claimants filed their reply to the amended statement of claim. Issues duly joined.
A summary of the case of the parties revolve around the disputed land which each side lay claim to through traditional evidence and acts of long possession.
A full blown trial was conducted by the lower Court wherein testimonial and documentary evidence were adduced by the parties. In a considered judgment delivered by the Lower Court on the 31st of March, 2016 he found in favour of the Respondents/Defendants/Counter-Claimants wherein he held thus:
“Consequently, the counter-claim succeeds, however, on the leg of the counter-claim a general damages of only N500,000.00 is awarded to the counter-claimants.”
Disgruntled by the above decision, the Appellant filed a Notice of Appeal on the 20th of April, 2018. The Notice of Appeal contained four (4) grounds of Appeal at pages 205-207 of the Record of Appeal. The Record of Appeal was compiled and transmitted on the 16/3/2020 but deemed properly compiled and transmitted on the 2/11/2020. The Appellant Amended Notice of Appeal was filed on the 22/3/2020 but deemed properly filed on the 23/8/2020.
In substantial compliance with the Rules of this Court, parties filed their respective Briefs of Arguments as follows:-
(i) The Appellant’s Brief of Argument settled by Olakanmi Falade Esq., was filed on the 26/3/2021 and deemed properly filed on the 11/11/2021.
(ii) Appellant’s reply brief was filed on the 16/2/2022 and deemed properly filed on the 17/2/2022.
The Respondents’ Brief of Argument was settled by Taiwo Martins Ogunmoroti Esq. on the 16/11/2021.
Learned counsel to the Appellant in his brief of argument nominated two issues for determination of this appeal thus:
1. Whether the trial Court did evaluate or properly evaluate the evidence before it before arriving at its decision (Grounds 1, 2, 3 and 4).
2. Whether a claim based on declaratory relief can be granted on the admission of a party (Ground 5).
Learned counsel to the Respondents on his part nominated two issues as arising for the determination of this Appeal thus:-
1. Whether from the pleadings and available evidence on record the learned trial Judge rightly, correctly and justly dismissed the Appellant’s claim (Grounds 1, 2, 3 and 4).
2. Whether from the pleadings and available evidence on record, the learned trial Judge was right, correct and just in granting the counter-claim of the Respondents (Ground 5).
I have carefully married the two sets of issues nominated by the contending parties and the grounds of Appeal and it is my take that the issues nominated by the Respondents are more apt and germane so I will be duly guided by them in the resolution of this Appeal one way or the other.
ARGUMENT OF THE APPELLANT ON THE TWO ISSUES SERIATIM
ISSUE I – Whether the trial Court did evaluate or properly evaluated the evidence before it before arriving at its decision.
Learned counsel to the Appellant submits that by the decision of IDUNDUN & ORS VS. OKUMAGBA & ORS (1976) 10 SC 247 there are five (5) ways of proving ownership of land namely:
(i) By traditional evidence.
(ii) By production of title which of course must be duly authenticated in the sense that their due execution must be proved.
(iii) Acts of person claiming the land e.g selling, leasing etc.
(iv) Acts of possession of the land may be prima facie evidence of ownership.
(v) Proof of possession of connecting or adjacent land.
He posits that the Appellant placed reliance on traditional evidence as a way of proving ownership of the Res. See EGBO VS. AGBARA (1997) 1 NWLR (PT 481) 293 at 317-318 RATIO 12.
He further submits that the Appellant went ahead to prove by evidence that they have been in occupation of the land for over 100 years being the first tribe to settle on the land known as Oro. He posits this assertion was further confirmed by the third ranking Chief in Iloro-Ekiti (PW4). That Appellant’s ownership of the land was confirmed by DW3 during cross-examination who confirmed that 3rd and 8th Respondents who built on the land were allocated the land by (authority) the Appellant. He submits that not only does traditional evidence suffice the proof of possession of connecting or adjacent land also avail the Appellant. He also posits that a member of the Asalu family Hon. Mike Omoleye has an oil palm plantation next to the land in dispute. He contends that where the traditional evidence of the parties in a claim for declaration of title is conflicting the Court should examine the acts of ownership or possession done by either of the parties in relation to the land in dispute vide IRRI VS. ERHURHOBARA (1991) 2 NWLR (PT. 173) 254. OFUME VS. ISAAC NGBEKE
Learned counsel admits that there was conflict between both parties as to the origin of the land. That the recent act of possession was proved by the Appellant more than the Respondents.
He submits that on the issue of tenancy raised by the Respondents their said recent act of ownership are mere trespass on the said land. See the case of AKINLOYE VS. EYILOLA (1968) NMLR 12, EKPO VS. ITA (1932-1934) 117 NLR 68, OGUNDEPO VS. OLUMESAN (2012) ALL FWLR (PT 09) 113 at PG 1145-1146 Per FABIYI JSC state thus:
“In the instant case, where the trial Court failed to properly evaluate the evidence before it the Appellate Court can set it aside.”
Having failed to properly evaluate the evidence before it, this Court is empowered to set aside the decision of the Lower Court placing reliance in AYODEJI VS. OTITOLOJU (2017) ALL FWLR (PT 904) 1090 at evaluate the evidence before it.
ON ISSUE TWO – Whether a claim based on declaratory relief can be granted on the admission of a party. He submits that the Respondents by way of defence filed a counter-claim to the action of the Appellant. That a counter-claim is an independent action, separate and distinct from the original action. See F.B.N PLC VS. I.A.S.C.A (NIG) LTD (2015) 3 NWLR (PT 1445), P.l ODUNSI VS. BAMGBALA (1995) 1 NWLR (PT. 374) 641.
That the counter-claim of the Respondents contain a claim for declaration of title to the land in dispute.
He submits that a counter-claim must be properly pleaded and such pleading is governed by the same rules as for those for a statement of claim placing reliance in the cases of: LADUNNI VS. WEMA BANK (2011) 4 NWLR (PT. 1236) 44 (CA) and OKOLO VS. UBN LTD (1998) 2 NWLR (PT. 539) 618.
He posits both the Claimant and the Defendants have equal task in proving the main claim/counter-claim placing reliance in the case of OJO VS. AZAMA (2001) 4 NWLR (PT. 7021) 57 at 91 PARAS G-H.
He submits that the Appellant proved his case. This he did via Exhibit A and the evidence of CW4 but the trial Judge failed to give consideration to Exhibit ‘A’ and the evidence of the witnesses which he ought to have put side by side and weigh them on an imaginary scale to see which one weigh better. No reference was made to the evidence of the witnesses juxtaposing, them before arriving at his final decision. The trial Judge should have accorded Exhibit A more weight than Exhibit B tendered by the Respondents. He posits that general traverse has nothing to do with declaratory relief. See the cases of FABUNMI VS. AGBE (1985) 1 NSCC VOL. 16, 322 at 240 PARA 5, SHOSHAI GAMBO VS. INDUL TURDAM (1993) 6 NWLR (PT 300) 500 at 510 PARAS C-D R 3 and AIYEOLA VS. PEDRO (2014) 59 NSCQR 167 at PG 207. He urges us to so hold and reverse the Judgment of the trial Court by allowing the appeal.
RESPONDENTS’ ARGUMENT ON THE TWO NOMINATED ISSUES SERIATIM
ISSUE ONE (1)
Learned counsel sets out the five ways of proving title to land which have been reproduced elsewhere in the course of this judgment and I shall not reproduce them placing reliance in the cases of IDUNDUN VS. OKUMAGBA (SUPRA), THOMPSON VS. AROWOLE (2003) 7 NWLR (PT 818) P 163 at 208 (G), AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT 998) P. 628 at 652 A-D, MBANI VS. BOSI (2006) 11 NWLR (PT 991) P. 400, 412 D-H AND INWELEGBU VS. EZEAN (1999) 12 NWLR (PT 630) P 266 at 279 E-H.
He submits that there is no scintilla of evidence upon which the case of the Appellant rested and so it was proper, just, equitable, right, legal and lawful for the lower Court to have dismissed the Appellant’s claim. He posits the Appellant amended his writ of summons and statement of claim with leave of this Court on the 22/10/13 as contained on pages 59-74, 95-103 of the Record of Appeal, there is nothing in record to indicate that any written statement accompanied the amended statement of claim referred to above. The evidence adopted by the Appellant was the original statement of claim. See evidence of PW1 Victoria Apolowo on pages 22-33, 113-114 of the Record of Appeal. Evidence of PW2 Chief Asalu Abonsade Adasu on pages 11-15, 114-115 of the Record of Appeal. Evidence of PW3 Michael Omolayo on pages 16-21, 118-120 of the Record of Appeal. He submits that the written statement on oath of these witnesses were made on the 9th of July, 2013 whereas the amended statement of claim was filed on the 22/10/2013 while trial commenced on the 2nd of June, 2014. He posits that the amended process dates back to the time of filing and what stood before the amendment is no longer reliable, relevant, vital or material but useless. Placing reliance in the case of GREEN FINGERS LTD VS. MUSAWA (2017) 5 NWLR (PT. 1558) P. 308 at 331 D-G, SPDC VS. AMBAH (1999) 3 NWLR (PT 593) 1, ANAKWE & ANOR VS. AJANI OLADEJI (2007) LPELR 3837 (CA), JATAU VS. AHMED (2003) 4 NWLR (PT 811) 498, ENIGBOKAN VS. A.I.I CO. (NIG) (1994) 6 NWLR (PT 348) 1 at 15-16, EZINWA VS. EMMANUEL AGU & ANOR (2004) 3 NWLR (PT 861) 431, 457, WARMER VS. SAMPSON (1959) IWB 297, UYO LOCAL GOVERNMENT VS. AKWA IBOM STATE GOVT (2021) 11 NWLR (PT. 1780) P. 1 at 37 D-E: GRACE AMANABU VS. ALEXANDER OKAFOR SIMPSON (1959) 2 WLR 109 AND AGBABIAKA VS. SAIBU (1998) 7 SC (PT. 11) 167 at 180; (1998) 10 NWLR (PT. 571) 534.
He submits that the Appellant imported confusion and conflict into his own case. He reproduces the Appellant’s salient pleadings as contained in paragraphs 1, 4, 7, 9, 10, 12, 15, 16, 28, 30, 32, 33, 34 and 44. He posits that by the paragraphs aforesaid it was Asalu family who purportedly established Iloro Ekiti and that he is the 16th Asalu. He submits that the Appellant failed to prove his traditional history to the land by his failure, omission, refusal, default and neglect to mention the intervening owners from his progenitor placing reliance in the case of NWOKOROBIA VS. NWOGU (2009) 10 NWLR (PT 1150) P 553, 573 H.
Learned counsel to the Respondents further poses a question as to how the Appellant fare during cross-examination. He submits that the Appellant and his witnesses performed badly and ruined the case of the Appellant.
He posits that by the manifest and manifold conflict and confusion in the evidence of the Appellant his case properly suffered the sledge hammer of dismissal who held thus:
“I have considered both evidence, I believe that the evidence of the Defendants is more probable and believable. On the whole, it is my considered view that the action of the Claimant fails in its entirely and is hereby dismissed.”
He contends that such a judgment cannot be said to be perverse placing reliance in the cases of STATOIL (NIG) LTD VS. INDUCON (NIG) LTD (2014) 9 NWLR (PT. 1411) P. 43 at 98 A-D, ADEJOLA VS. BOLARINWA (2011) 12 NWLR (PT. 1261) P. 380 at 399, F.
Learned trial Judge made recourse to acts of long possession and enjoyment of the land and found properly in favour of the Respondents.
On issue two (2) granting Respondents counter-claim and justification thereof the Respondents filed a counter-claim claiming against the Appellant the reliefs I have earlier on set out in the course of this judgment and no need to repeat them. He refers us to the paragraphs pleaded by the Respondents i.e. 4, 5, 9, 12, 13, 14, 15, 23, 25 and 27. He posits that the evidence was led through the Respondents’ witnesses placing reliance in the case of BALOGUN VS. YUSUFF (2010) 9 NWLR (PT 1200) P. 515 at 537 F-G.
He further submits that the Appellant did not give evidence in respect of his reply to the statement of defence because PW1, PW2 and PW3 only referred to their written statement on oath of 9-7-2013 which statements had to do with the original statement of claim. He refers us to pages 113, 114 and 118 of the Record of Appeal.
He submits further that the rejection and expulsion of the evidence of DW1 by the learned trial Judge will still not affect the outcome of the decision of Court of first instance in that DW2 and DW3 also gave evidence completely in line with the statement of defence and counter-claim to which Appellant did not challenge after all the counter-claim also include the written deposition in respect thereof. He urges us to dismiss the appeal and affirm the judgment of the lower Court.
APPELLANT’S REPLY BRIEF
I have carefully gone through the Appellant’s reply brief of argument filed in response to the Respondents’ brief of argument and my take on it is that a reply brief is limited to finding answers to the questions raised in the Respondents’ brief, which the Appellant has not addressed or dealt with in the main brief. It is therefore not the forum for the Appellant to strengthen his main brief by repeating or expanding the arguments contained therein. In the instant case, there was nothing new in the Respondents’ brief that necessitated the manner of reply from the Appellant’s counsel. I find and hold that the reply brief was nothing more than a repeat of the Appellant’s argument in his brief of argument. This cannot be allowed in law. Accordingly, I hereby discountenance the reply brief so filed and the appeal shall be considered based on the Appellant’s brief of argument/Respondents’ brief of argument.
RESOLUTION OF THE TWO NOMINATED ISSUES OF THE RESPONDENTS
ON ISSUE ONE – Permit me my Lords to point out by way of prefatory remarks that the Apex Court has warehoused an impressive corpus of jurisprudence on the genre of the accepted mode of establishing title to land known as traditional evidence or traditional history. See the cases of OHIAERI AND ANOR VS. AKABUEE & ORS (1992) LPELR-2360 (SC) 39, ALADE VS. AWO (1975) 4 SC 215 , IDUNDUN VS. OKUMAGBA (1976) 1 NMLR 20.
Both the Appellant and the Respondents herein pegged their root of title on traditional evidence and long possession. The Appellant in his main claim per the amended statement of claim averred that he is the 16th Asalu and other Asalus who have headed the family have being in ownership and possession of the land in dispute without any encumbrance or disturbance. On the other hand, the Respondents/Defendants/Counter-Claimants are laying claim and averred that they became seized of the large tract of land through their forefather Oniba also known and addressed as Alapa by way of partitioning of the entire Iloro-Ekiti (former Oro) as a result of the confederation of the earlier settlers and tenants to Iloro-Ekiti.
Since the parties anchor their case on traditional evidence in proving ownership of the land in dispute, the duty of the lower Court was to weigh their evidence on the imaginary scale and determine which of the two is weightier as laid down in MOGAJI VS. ODOFIN (1978) 4 SC 91, ODOFIN VS. AYOOLA (1984) 11 SC 32, IBIKUNLE VS. LAWANI (2007) 3 NWLR (PT 1022) PG 580, OKOKO VS. DAKOLO (2006) 14 NWLR (PT 1000) PG 401. Based on the evidence adduced before the lower Court the learned Judge found out there was conflict in the traditional history of the parties.
Consequent to this he resorted to testing the traditional history by recent facts established by evidence with a view to determining which of the conflicting versions is more probable. See the case of KOJON VS. BONSIE (1957) 1 WLR 1223 at 1227.
Secondly, the law is equally well settled that it is not sufficient for a party who relies for proof of title to land on traditional evidence as in the present case to merely prove that he or his predecessor in title had owned and possessed the land from time immemorial such a party is bound to plead such facts as:
(1) Who founded the land
(2) How it was founded and
(3) Particulars of the intervening owners through whom he claim.
On the part of the Respondents who claim to be settlers, they are duty bound to satisfy the lower Court by the exercise of dominion over the land in dispute which on its own may be sufficient to establish title to land. See the cases of KUMA VS. KUMA 5 WACA 4, ALLI VS. ALESINLOYE (2000) 4 SCNJ 285.
The failure of both parties to prove their traditional evidence as a source of their title to the land in dispute prompted the lower Court to resort to acts of long possession. After consideration of the evidence adduced by the parties herein the Lower Court Judge accepted the Defendants/Respondents’ evidence as more probable and believable. He proceeded to dismiss the Claimant/Appellant’s suit and granted the Respondents/Defendants counter-claim.
Let me also point out that the Appellant/Claimant had no evidence before the lower Court. He was granted leave to amend his statement of claim by the lower Court but proceeded to utilize the written statements on oath of the witnesses he had earlier on filed together with the statement of claim amended.
All the witnesses that testified for the Appellant/Claimant gave their evidence based on the old statement of claim. The Appellant did not deem it pertinent to amend the written statements on oath of his witnesses to accompany the amended statement of claim. What then is the effect of this? Hear my Lord Tobi JSC in OJOH VS. KAMALU (2005) LPELR (2389) 1 at 43-44 stated thus:
“Pleadings, not being human beings have no mouth to speak in Court. And so they speak through witnesses. If witnesses do not narrate them in Court they remain moribund, if not dead at all times and for all times to the procedural disadvantage of the owner.”
See also OWNERS OF M/V GONGOLA HOPE VS. SMURFIT CASES (NIG) LTD (2007) LPELR (2849) 1 at 16, BONIFACE ANYIKA & COMPANY LAGOS (NIG) LTD VS. UZOR (2006) LPELR (790) 1 at 12.
On the settled state of the law, the failure of the Appellant to amend this witnesses written statement on oath to tally with the amended statement of claim meant that no flesh was engrafted by the Appellant on the skeletal bones of the averments in the amended statement of claim. Therefore, the amended statement of claim remained moribund as pleadings does not constitute evidence. The statement of claim filed earlier by the Appellant on the basis of which CW1-CW3 testified is incompetent. Having highlighted this I am of the view that issue one ought and is hereby resolved against the Appellant and in favour of the Respondents.
ON ISSUE TWO: Whether from the pleadings and available evidence on record, the learned trial Judge was right, correct and just in granting the counter-claim of the Respondent (Ground 5).
RESOLUTION
I have given an insightful and analytical consideration to the state of pleadings, evidence led, legion of judicial authorities rendered by the contending learned counsel to the parties. By all odds it is common sense that a counter-claim is an independent and separate action triable within the main claim for reason of convenience. Just as the main claim, it must be proved by the counter-claimant. See the cases of KOLADE VS. OGUNDOKUN (2017) 18 NWLR (PT 1596) 152 at 173, ATIBA IYALAMU SAVINGS & LOANS LTD VS. SUBERU (2018) 13 NWLR (PT.1637) 387 at 409-410.
Though a separate action the effect of the incompetence of a main action on the counter-claim would depend on the diacritical facts and circumstances of the case. This Court gave various decisions on the consequences of a counter-claim predicated on the main claim that had been struck out. In the case at hand, I had earlier stated that the amended statement of claim of the Appellant was not accompanied by the written statements on oath of his witnesses which left the pleadings bare (empty) without supporting evidence. However, the Respondents/Defendants/Counter-Claimants responded to the amended statement of claim by filing their reply to the Appellant/Claimant’s amended statement of claim. How far did the Respondents/Defendants/Counter-Claimants fare in proving their counter-claim. The learned lower Court Judge had this to say on the counter-claim:
“On the counter-claim not been specifically traversed it is a claim not specifically traversed is deemed admitted”. It is trite law that the burden of proof is always on the Plaintiff in an action for declaration of title. An evasive pleading or averments such as the Defendants are not in a position to deny or admit paragraph is of no moment at all in an action for declaration of title to land. See the case of MOTUNWASE VS. SORUNGBE (1988) 5 NWLR (PT 92) 90/92 when it held as follows:
“A fact which is admitted by the other side needs no proof. But in a case such as the one for declaration, an evasive averment such as the Defendant is not in a position to deny or admit paragraphs and will put the Plaintiffs to the strictest proof thereof does not remove the burden on the Plaintiff……”. See also SALIU VS. EGBEIBON (1994) 6 NWLR (PT. 348) at 44. I find and hold that the lower Court was wrong to have granted the Respondents/Defendants counter-claim for declaration of title based on the said failure of the Appellant/Claimant to specifically traverse the pleadings of the Respondents/Defendants/Counter-Claimants as still the onus of proof was on the Respondents/Defendants/Counter-Claimants. See the case of SHASI VS. SMITH (2009) 12 SCNJ 221.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
In the light of the above, the judgment of the lower Court cannot stand. Issue two stands resolved against them and in favour of the Appellant. Appeal succeeds in part. The concomitance of the manner of resolution of this issue number two is that the case is hereby remitted to be tried denovo to be conducted on evidence adduced on proper and valid pleadings contrary to what transpired in the first trial subject of this appeal.
The judgment of the lower Court delivered on the 3rd March, 2016 is hereby set aside. The case is remitted to the lower Court to be assigned by the Chief Judge of the High Court of Justice Ekiti to another Judge not being O.I.O. Ogunyemi (J).
The parties are ordered to bear their respective costs in this appeal.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, ABDUL-AZEEZ WAZIRI JCA. I am in full agreement with the reasoning and conclusion therein.
My learned brother has remitted the case to the lower Court after setting aside the judgment of the lower Court. It is in line with the justice of the case. It is what the justice of the case demands.
I have noted that the Claimant in his Amended Notice of Appeal he seek the following relief i.e. remitting of the case to lower Court.
“An order setting aside the judgment of the High Court delivered on the 31st day of March, 2016 and an Order granting the claims of the Claimant/Appellant.”
The relief seeking for an order granting the claims of the Claimants in the circumstances of this case is not grantable.
However, this Court can invoke the provision of ORDER 23 Rule 11(1) & (2) of the Court of Appeal Rules (2021) to give any judgment or make an order as the case may require including any order as to costs even when not prayed for. ORDER 23 Rules 11(1) & (2) of the 2021 reads as follows:
(1) The Court shall have power to give any judgment or make any order that ought to have been made and to make such further order(s) as the case may require including any order as to costs.
(2) The powers contained in Sub-rule (1) of this Rule may be exercised by the Court, notwithstanding that the Appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the Respondents or parties, although such Respondents or parties may not have appealed from or complained of the decision.
It is inpari materia with Order 23 Rules 1 & 2 of the old Court of Appeal Rules.
The Apex Court in ONUAGULUCHI v. NDU & ORS (2001) 7 NWLR PT. 712 p. 309 interpreted this order as follows:
“In the present ruling, I do not consider it necessary to comment on the respective reliefs sought before the Court of Appeal other than to say that ORDER 3, Rule 23 of the Court of Appeal Rules gives that Court the liberty to give appropriate reliefs on hearing an appeal and will not therefore be bound by the reliefs sought in the notice of appeal. The rules read:
“The Court shall have power to give any judgment or make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs (2) The powers contained in paragraph (1) of this Rule may be exercised by the Court, notwithstanding that the appellant may have asked that part of a decision may be reversed or varied and may also be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have appealed from or complained of the decision “This power may be exercised by the Court of Appeal as the justice of the case demands to make orders which the trial Court could have made.” Per UWAIFO JSC.
For the above reasons and the fuller reasons in the leading judgment of my learned brother, I agree fully with the reasoning and conclusion therein, and abide by the consequential orders (including costs).
Appearances:
Olakanmi Falade, Esq. For Appellant(s)
Taiwo Ogunmoroti,Esq. For Respondent(s)
