AHMED v. FISHERS NIG LTD & ORS (2020)

AHMED v. FISHERS NIG LTD & ORS

(2020)LCN/14104(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/K/496/2017

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

WING COMMANDER MUSA AHMED APPELANT(S)

And

1. FISHERS NIGERIA LIMITED 2. NIGERIA AIRFORCE 3. FLYING OFFICER A. RAYANU RESPONDENT(S)

RATIO

THE AIM OF PLEADINGS

The aim of pleadings is to put the opposing party on notice of the case he is to meet at trial, to avoid the springing of surprises. It is to delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases. Neither they nor the Court can go outside the pleadings to introduce extraneous facts. See Kyari v. Alkali (2001) 11 NWLR Part 724 Page 412 at 433-434, Para H-A, per Iguh JSC; Bunge v. Governor of Rivers State (2006) 12 NWLR Part 995 Page 573 SC at 598-599 Para H-B per Oguntade JSC. PER ADEFOPE-OKOJIE, J.C.A.

WAYS OF PROVING OWNERSHIP OF LAND IN AN ACTION FOR DECLARATION OF TITLE TO LAND

The five ways of proof of ownership of land are the following:
It is now settled that there are five ways to which ownership of land may be proved:
FIRSTLY, ownership of land may be proved by traditional evidence;
SECONDLY ownership of land may be proved by production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
THIRDLY acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
FOURTHLY acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
FINALLY proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land. See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343-344 Para C-A; per Fabiyi JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE DOCTRINE OF FAIR HEARING

Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides:
“In the determination of his civil rights and obligation, including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner to secure its independence and impartiality.”
This Constitutional right is founded upon the twin pillars of natural justice: i.e. audi alteram partem (hear the other side) and nemo judex in causa sua (no one should be a judge in his own cause). It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See Abah v. Monday (2015) 14 NWLR Part 1480 Page 569 at 595 Para F-H per Kekere-Ekun JSC; Darma v Ecobank (Nig) Ltd (2017) 9 NWLR Part 1571 Page 480 at 501 Para C-E per Sanusi JSC.
It has however been held that fair hearing is not a technical doctrine but one of substance. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned to any party due to want of fair hearing but rather whether any opportunity of hearing was afforded to parties entitled to be heard. See Registered Trustees of the Presbyterian Church of Nigera v Etim (2017) 13 NWLR Part 1581 Page 1 at 49 Para B-C Nweze JSC.
Whenever a party, who is aware of proceedings against him, is given ample opportunity to ventilate his grievances in a Court of law but chooses not to do so, he cannot be heard to complain of lack of fair hearing. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 554 Para A-D; (2015) All FWLR Part 824 Page 148 at 166 Para B-D per M.D. Muhammad JSC; Chami v UBA Plc (2010) 6 NWLR Part 1191 Page 474 at 497 Para E per Onnoghen JSC (as he then was). PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Kaduna State High Court delivered on the 5th day of December, 2016 in Suit No. KDH/KAD/85/2015 by Hon. Justice G. I. Kurada.

The 1st Respondent (Plaintiff in the lower Court) instituted this suit against the Appellant and the 2nd and 3rd Respondents jointly, seeking, as contained in the judgment of the Court, the following reliefs:
“a. A declaration that the Plaintiff is the bona fide allottee of the piece of land behind fishers Nigeria Limited as contained (sic) the allocation letter dated July 21, 2014.
b. A declaration that the forceful entry, demarcation of the allocations of July 21, 2014 with a fence wall by the 3rd Defendant without the prior consent, approval of the 1st, 2nd (sic) Defendants and neither was the consent of the Commander 335 NAF Base, Kaduna and or the Plaintiff amount to willful disobedience of rule of law and mala fide encroachment, trespass of the Plaintiff (sic) piece of land.
c. A declaration that the 1st, 2nd and 3rd Defendants were aware of the construction, improvement and fencing

of the piece of land behind Fishers Nigeria Limited thereby waiving their right (if any) of the said plot of land (lashes (sic) and acquiescence).
d. A declaration that the Plaintiff followed the strict clauses as contained in the allocation letter of July 21, 2014 before commencing all form of improvement carried on at its business premises and the piece of land behind Fishers Nigeria Limited.
e. An Order directing the 3rd Defendant to remove the fence wall demarcating Fishers Nigeria Limited and the piece of land contained in the allocation letter dated July 21, 2014.
f. An Order directing the 3rd Defendant to construct the fence wall, right hand side, demarcating the boundary of the land behind Fishers Nigeria Limited as contained in the allocation letter dated July 21, 2014.
g. An Order of injunction restraining the Defendants, their servants, agents, privies, and or functionaries, officers or men whosoever and howsoever otherwise from further trespassing unto and unlawful or illegal (sic) revoking the allocation or interfering with the Plaintiff’s interest in, right of use, occupation, possession and or transferring to anyone the

premises known as Block A (shop 1-10) Phase 111, NAF Base Mini Market/Shopping Complex, Kaduna and or the and behind Fishers Nigeria Limited.
h. Special Damages in the sum of One Million Nine Hundred Thousand Naira (N1,900,000.00) covering the professional fees, appearance fees of A.K. Usman & Co.
i. Four Million Five Hundred and Fifty Thousand Naira (N4,550,000.00) general damages for the malicious trespass, intimidation, psychological damages, loss of customers, and emotional trauma suffered by the Plaintiff, and members of his staff.
j. Cost of filling (sic) the case.
IN THE ALTERNATIVE
i. An Order directing the 1st and 2nd Defendants to pay/ refund the Plaintiff the sum of Six Million Six Hundred and Fifty Five Thousand Naira (6,655,000.00) being special damages for the construction and improvement of the piece of land allocated to the plaintiff behind Fishers Nigeria Limited and the procedural payment for the allocation of the land behind Fishers Nigeria Limited and the professional and appearance fess of A.K Usman & Co.
ii. An Order directing the 1st and 2nd Defendants to pay the plaintiff the sum of Four Million

Five Hundred and Fifty Hundred and Fifty Thousand Naira (N4,550,000.00) general damages for the malicious trespass, intimidation, psychological damages, loss of customers, and emotional trauma suffered by the plaintiff and members of his staff.
iii. Cost of filling (sic) this case.”

The 1st Respondent, in proof of its claim, called one witness, Akin Adelekun, its Manager, who tendered a number of documents. The witness was not cross examined by the Defendants, who were absent in Court and presented no evidence. The lower Court subsequently, following the adoption by the 1st Respondent’s Counsel of his Written Address, gave judgment in favour of the 1st Respondent.

Dissatisfied, the Appellant, who was the 3rd Defendant at the lower Court, filed a Notice of Appeal on 3/3/17. This Notice was amended with leave of this Court on 25/6/18 and the Amended Notice of Appeal, filed on 30/4/18 was deemed properly filed on 25/6/18.

In prosecution of the appeal, the Appellant filed a Brief of Arguments on 8/8/18, settled by A. Albert Acheqbudu Esq in which three (3) issues were formulated for determination, as follow:
1. Whether the 1st Respondent

has the locus standi to institute this action against the Appellant for declaration of title to the piece of land behind Fishers Nigeria Limited not being Alh. Bello Barau, the alleged allottee?
2. Whether the 1st Respondent has established its title to land behind Fishers Nigeria Limited as required by law and evidence to be entitled to a declaration that it is the bona fide allottee?
3. Whether the Appellant’s right to fair hearing was breached by the failure of the lower trial Court to grant him an opportunity to address the Court and cross – examine the 1st Respondent’s witness?

In opposition, the 1st Respondent’s Counsel, Kimi Livingstone Appah Esq of A.K. Usman & Co. in the 1st Respondent’s Amended Brief of Arguments filed on 20/3/19 but deemed properly filed on 8/5/19, formulated a sole issue for determination, to wit:
Whether or not the learned trial Court judge was right in law when the Court held ”The Plaintiff’s case supported by credible documentary evidence and there is nothing discrediting it an any legal ground. It must therefore be considered on its merits. I believe

the evidence of the PW1 and I hold that the plaintiff has proved his case on the strength of its own case and is entitled to judgment?”

I shall adopt the issues for determination formulated by the Appellant as those which rise for determination, with modifications for succinctness, namely:
1. Whether the 1st Respondent, has the locus standi to institute this action against the Appellant for declaration of title to the piece of land behind Fishers Nigeria Limited, not being Alh. Bello Barau?
2. Whether the 1st Respondent has established its title to the land behind Fishers Nigeria Limited as required by law and evidence to be entitled to a declaration that it is the bona fide allottee?
3. Whether the Appellant’s right to fair hearing was breached?
The 1st issue is:
Whether the 1st Respondent, has the locus standi to institute this action against the Appellant for declaration of title to the piece of land behind Fishers Nigeria Limited, not being Alh. Bello Barau?

Learned Counsel to the Appellant prefaced his arguments by notifying the Court that the Appellant sought and obtained leave of this Court on the 25th of June, 2018

to raise and argue for the first time, the issue of locus standi of the 1st Respondent to institute the suit. Locus standi, he submitted, affects the jurisdiction of the Court and can be raised at any time in the proceeding or an Appeal, citing the cases of A.G Federation vs. A.G of Lagos State (2017) 8 NWLR (Part 1566) 20 at 55 Para D; Ayodeji Olusanya MetIlelu vs. Chief Lasisi Olowo-Ope-jo (2007)5 WRN 152 at 169 at 169 and Christiana Ateluku vs. Nigeria Bottling Co. Plc (2015) ALL FWLR(Part 261)353 at 377, Paras A-C.

Referring to the Records, the claim of the 1st Respondent to the res, he said, is based on the letter of Approval for allocation of land dated 21st July, 2014, as contained on page 26 of the records, clearly showing that the land was allocated to Alh. Bello Barau in his personal capacity and not to the 1st Respondent. The 1st Respondent thus has no locus standi and is a busybody, with no special legal interest in the subject matter of the suit. Even assuming that Alhaji Bello Barau is a member of the 1st Respondent or related in any way, the Statement of Claim failed to show or establish any relationship between them.

The learned Counsel to the 1st Respondent, in his response, contended that this denial of capacity of the 1st Respondent was not pleaded in the Appellant’s Statement of Defence, neither was it a contention that was raised before the lower Court. He also denied that leave of this Court was sought to raise this fresh issue. He cited Omnia (Nig) Ltd v Dyktrade Ltd (2007) 15 NWLR Part 1058 Page 576 and Eze Eronini v Lady Eronini (2013) LPELR-2065. He submitted further that the Appellant is not Alhaji Bello Bara’u and has no locus to complain on the behalf of a person who has suffered no injury, citing the case of Mabogunje v Odutola (2002) LPELR-6051. Furthermore, a company acts through its officers, citing STB Ltd v Interdrill Nig Ltd (2007) All FWLR Part 366 Page 757.

In his Reply Brief, the Appellant’s Counsel pointed to leave of this Court obtained on 25th June, 2018 to raise this new issue.

Locus standi, I agree, and as rightly submitted by the Appellant’s Counsel, is a threshold issue, as when a person has no standing to sue, the question whether other issues in the case had been rightly decided or not, will not arise. Where a Plaintiff

has no locus standi to maintain his action, the finding goes to the jurisdiction of the Court, depriving it of same. See Okwu v. Umeh (2016) 4 NWLR Part 1501 Page 120 at 144 Para E-G; (2016) All FWLR Part 825 Page 232 at 250 Para A-B, per Okoro JSC Liba v Koko (2017) 11 NWLR Part 1576 335 at 356 Para A-C Awotoye JCA; Independent National Electoral Commission v. Ogbadibo Local Government (2016) 3 NWLR Part 1498 Page 167 at 202 Para F; (2015) All FWLR Part 812 Page 1586 at 1618 Para B-C per Kekere-Ekun JSC.

In the instant case, the letters referred to by the Appellant are Exhibits 4 and 5. Exhibit 4 is an application for allocation of land, addressed to “335 BSH Cooperative, Scheme, NAF Base Kaduna”. The sender of the letter is “Alh. Bllo (sic) Bara’u, Fishers Nig Ltd, Mando Road, Kaduna”. The letter was signed by “Alh Bello Bara’u”.

Exhibit 5 is an ’Approval for Allocation of Space Behind Fishers Nig Ltd Mando Road Kaduna” dated 21/7/14 on the letter head of “335 BSG Cooperatives, Nigeria Air Force Base Kaduna.” It is addressed to “Alh. Bello Barau, Fishers Nig Ltd, Mando

Road, Kaduna” and signed by “A.A. Rayyanu, Flying Officer, Sec for Chairman”.

PW1 also tendered in evidence the Certificate of Incorporation of the 1st Respondent (Exhibit 1).

From the foregoing, it is clear that the approval for allocation was requested for by the company and granted to the company through Alh. Bello Barau, presumably the alter ego.

It is settled law that companies are legal abstractions and act only through their officers, such as the Board of Directors, employees and agents. The act of such officer is thus the act of and binding on the company. See Interdrill (Nig) Ltd v United Bank for Africa PLC (2017) 13 NWLR Part 1581 Page 52 at 74-75 Para F-A per Rhodes-Vivour JSC; Saleh v. Bank of the North Ltd (2006) 6 NWLR Part 976 Page 316 at 326-327 Para H-C per Musdapher JSC (as he then was).

The fact that the letter was addressed as it was, does not detract from the fact that the allocation was to the company, Fishers Nig Ltd, I hold.

Furthermore, as pointed out by the 1st Respondent’s Counsel, this issue was never raised by the Appellant in their Statement of Defence, which would have put the 1st

Respondent on its guard as to what to prove in its case.

It was not the Appellant’s case at trial that it was not the Respondent’s company that the letters of allocation were issued to. The fact that the Appellant was granted leave by this Court to raise the fresh issue of locus standi, does not obviate the need for the Appellant to comply with the rules of pleadings.

I accordingly hold that the 1st Respondent company was the entity that applied for and was issued the Letter of Allotment and that it had locus standi to institute the action. I accordingly resolve the 1st

issue for determination against the Appellant.

The 2nd issue for determination is:
Whether the 1st Respondent has established its title to the land behind Fishers Nigeria Limited as required by law and evidence to be entitled to a declaration that it is the bona fide allottee?

Learned Counsel to the Appellant, citing Idundun v Okumagba (1975) 9-10 SC 246 and a number of other cases on the five ways of proof of ownership of land, submitted that the burden of proof is on a party seeking a declaration of title to land to prove the same on the strength of his own case and not on the weakness or absence of the defence. He cited the case of Orlu vs. Gogo-Abite (2010) LPELR-2769 (SC), Addah vs Ubandawaki (2015) LPELR 24266 (SC), NAF vs. Adamu (2018) LPELR-44369 CA and Fakoya vs. Ijelu (2014) LPELR -23196 (CA). There is no burden, he said, on the Defendant to establish title to land.

He contended that the learned trial Judge fell into a grave error of law when he relied on Exhibits 4 and 5, as, in the absence of evidence before the Court establishing a nexus between the 1st Respondent and the documentary evidence before it, the lower Court

could not proceed to declare the 1st Respondent as the bonafide allottee of the piece of land in issue. He finally urged the Court to hold that the 1st Respondent failed to discharge the onus placed on him by law.

Responding, the learned Counsel to the 1st Respondent contended that once there exists no defence or Statement of Defence to a Statement of Claim, the Court is at liberty to believe what has been presented to it. He referred the Court to the cases of Chief Augustine Ndulue & Anor vs. Igwe Michael O. Ojiakor & Ors. (2013) LPELR – 19889 (SC) and Asafa food factory ltd vs. Alraine Nig. Ltd. & Anor (2002) LPELR-570(SC).

Counsel pointed to paragraphs 24-26 of the 1st Respondent’s Statement of Claim in respect of proof of long possession and enjoyment of land and citing the case of Chukwudozie AnyAbunsi vs. Emmanuel Ugwunze (1995) LPELR-503. He submitted, referring to Paragraphs 6 and 7 of the 1st Respondent’s Statement of Claim of the pleaded fact that they were the ones that applied for the land, which averments were not disputed. Undisputed pleadings, he argued, are deemed true and correct and every Court is at

liberty to accept and hold the same as true and correct, citing Gabriel Ogunleye v. Jaiyeoba (2010) LPELR-4170.

Furthermore, the onus of proving that Alhaji Bello Bara’u is not and was not acting for the 1st Respondent is on the Appellant and the Appellant not having discharged this burden at trial, cannot do so on appeal.

In his Reply Brief, Appellant’s Counsel submitted that this burden was on the 1st Respondent and not on the Appellant. The 1st Respondent, he contended, is attempting to contradict documentary evidence in Exhibits 4 and 5 by arguing that the maker of the document and alleged grantee of the res, Alhaji Bello Bara’u is the 1st Respondent.

Having determined under issue 1 above that all acts by Alhaji Bara’u are acts of the 1st Respondent company, it is no longer open for argument, I hold.

With regard to question whether the 1st Respondent proved its case to be entitled to the grant of the reliefs sought, it’s case, presented through its sole witness, Akin Adelekun, the Manager, is that the 1st Respondent is a dealer in frozen foods, cars and petroleum products. On January, 23rd 2001, it was

allocated Block A (1-10) at the Base Mini Market Shopping Complex (Exhibit’’’), sequel to its application and had been abiding by the legal and institutional framework of the Rules and Regulations governing the operation of shops at the complex.

Sometime in 2014, he was approached by the 3rd Respondent, being the principal supervisor and manager of the NAF Mini Market, to apply for the empty virgin land directly behind its (the 1st Respondent’s) place of business. The 1st Respondent made a search and found no prior title. The 1st Respondent consequently applied by Exhibit 4, and after payment N255,000, an allocation letter for ten corner shops was handed to him (Exhibit 5) and a receipt for N30,000 from BSG Cooperative Welfare Scheme (Exhibit 6). He was subsequently issued a receipt for N255,000 following a number of complaints by him of the discrepancy.

The 1st Respondent was directed to swiftly develop the empty virgin land since it was in possession thereof. It therefore pulled down the back fence of the 1st Respondent’s shops, which separated both allocations and constructed a fence joining both plots, which

construction was carried on under the strict supervision of the 3rd Respondent. However in February 2015 the Appellant was said to have come to the premises with heavily armed Air Force personnel alleging encroachment of his land and threatening to kill anybody found trespassing on the land. The 1st Respondent wrote several letters of complaint to the Chief of Air Staff and the Air Officer Commanding Nigeria Air Force, Jaji. No action was taken. Instead, the Appellant pulled down the 1st Respondent’s fence, which, together with the price for the allocation, had cost him N4,5000,000.00 (Four Million Five Hundred thousand Naira).

He (Appellant) constructed a wall between the land covered by the 1st and 2nd allocations to the 1st Respondent, claiming prior ownership of the 2nd parcel of land. When letters of protest yielded no success, he briefed Counsel, whose letter to the Commander of the Base resulted in a meeting called by the latter. The Commander confirmed that prior to the allocation to the 1st Respondent, there was no record of any prior allocation to the Appellant or anybody. The 3rd Respondent also confirmed that the allocation to the 1st

Respondent followed due process. The Appellant was prevailed upon to leave the 1st Respondent with the allocation of the land promising to give the Appellant another piece of land. The Appellant however refused on the ground that as a serving Air Force personnel the Commander ought to resolve the dispute in his favour.

The witness complained that the Appellant regularly visits the 1st Respondent’s place of business with armed personnel, putting fears in the hearts of the staffers and customers, leading to the removal of important items and shutting down of business activities for fear of possible attack. This suit was filed in consequence.

The Court observed, in its Judgment, that the Writ of Summons and Statement of Claim, together with the 1st Respondent’s witness deposition were served on the Defendants therein but who filed no defence within time. The Motion filed by the defence for extension of time to file their defence was not also moved.

The Court continued:
“They later stopped coming to Court, including their Counsel. The suit was eventually fixed for proof on 27/10/16 and the Defendants were served but they never

appeared. Upon application by Counsel to the Plaintiff, the Defendant’s Motion was struck out and the Plaintiff proceeded to testify in proof of its case.”

The Court thereafter referred to the exhibits tendered by the 1st Respondent’s witnesses and the evidence of its witness, followed by the written address of its Counsel. It thereupon held as follows:
Learned counsel also submitted, and I agree with him, that unchallenged evidence is deemed admitted. In KARIMU OLUJINLE V. BELLO ADEAGBO (1988) 4 S.C.N.J. 1 at 14-15, the Supreme Court held that it is trite law that unchallenged evidence must be accepted by the Court and the Court has no alternative but to accept it unless it is of such quality that it is not worthy of belief. See also A.R. MOGAJI & ORS. VS. RABIATU ODOFIN (1978) 1 L.R.M. 212 at 213. The plaintiff’s case is supported by both oral and documentary evidence which I find credible and I believe the evidence. I therefore have no alternative but to accept and act on it. As I have pointed out earlier in this judgment, the Statement of claim and they even appeared and filed a Motion for leave to file their defence

out of time but they later stopped coming to Court. Even the Motion to regularize their position was abandoned and had to be struck out. The law is settled that where after both parties to a dispute have been duly notified of the pendency of a suit and of the hearing date and a party for no justifiable reason decides to opt out the proceedings, the case presented by the other party, once it is not discredited in any legal way, should be the case to be considered by the Court on its merits. See OBMIAMI BRICKS & STONE NIG. LTD V. N.A.C.B. LTD. (1992)3 NWLR (Part 229) 260 at 296. The Plaintiff’s case is supported by credible documentary evidence and there is nothing discrediting it on any legal ground. It must therefore be considered on its merits, I believe the evidence of the PW1 and I hold that the plaintiff has proved its case on the strength of its own case and it entitled to judgment.
The plaintiff is entitled to all the reliefs numbered (a) to (h) in his statement of claim and those claims are hereby granted. Accordingly, I make the following orders:
1. I declare that the plaintiff is the bona fide allottee of the piece of land behind

Fishers Nigeria Limited as contained in the allocation letter dated July 21, 2014.
2. I declare that the forceful entry and demarcation of the piece of land with a wall fence by the 3rd Defendant without the prior consent and approval of the 1st and 2nd Defendants and the Commander 335 NAF Base Kaduna and the plaintiff amounted to trespass on the plaintiff’s piece of land.
3. I declare that the 1st, 2nd and 3rd Defendants were aware of the construction, improvement and fencing of the land behind Fishers Nigeria Limited and thereby waived their rights (if any) over the said piece of land.
4. I declare that the plaintiff strictly followed the clauses contained in the allocation letter of July 21, 2014, before commencing all form of improvement carried out at its business premises and the piece of land behind Fishers Nigeria Limited.
5. I order that the 3rd Defendant shall remove the fence wall demarcating Fishers Nigeria Limited and the piece of land contained in the allocation letter dated July 21, 2014.
6. I order that the 3rd Defendant shall construct the fence wall, right hand side, demarcating the boundary of the land behind

Fishers Nigeria Limited as contained in the allocation letter dated July 21, 2014
7. An order of injunction is hereby made restraining the Defendants, their servants, agent, privies and or functionaries, officers or men whosoever and howsoever otherwise from further trespassing unto and unlawfully or illegally revoking the allocation or interfering with the plaintiff’s interest in, right of use, occupation, possession and or transferring to anyone the premises know as Block A (Shop1-10) PHASE 111, NAF Base Mini Market/Shopping Complex, Kaduna and or the land behind Fishers Nigeria Limited.
8. I award special damages in the sum One Million Nine Hundred Thousand Naira (1,900,000.00) only being the professional fees of A.K. Usman & Co.
9. I assess general damages in the sum of Five Hundred Thousand Naira (N500,000.00) only and award same in favour of the Plaintiff against the Defendants jointly and severally.
10. I award the sum of N12,300.00 only being the filing fees as evidenced by the receipt of filing as the cost of this action.”

I have no reason to depart from the reasoning of the lower Court. The records show that

in spite of the Statement of Defence filed by the Appellant and the 2nd and 3rd Respondents, no witness was called by them. The law is that averments in pleadings which are not given support to by evidence are deemed abandoned, as pleadings are not evidence. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 280 Para D-E; (2015) All FWLR Part 813 Page 1673 at 1735 Para F, per Nweze JSC; Adejumo v. Olawaiye (2014) 12 NWLR Part 1421 Page 252 at 272 Para F-H per Rhodes-Vivour JSC.

Furthermore, the Statement of Defence was filed out of time. The motion filed to regularise the same was never moved, in consequence of which there is no Statement of Defence before the Court. As submitted by the 1st Respondent’s Counsel, where a case is undefended, the burden of proof is discharged on minimal proof.

Nevertheless, the 1st Respondent gave evidence and tendered documents of title in Court.

The five ways of proof of ownership of land are the following:
It is now settled that there are five ways to which ownership of land may be proved:
FIRSTLY, ownership of land may be proved by traditional evidence;
SECONDLY ownership of land

may be proved by production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
THIRDLY acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
FOURTHLY acts of long possession and enjoyment of land which may be prima facie evidence of ownership of the particular piece or parcel of land or quantity of land;
FINALLY proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land. See Idundun v. Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 329-330 Para H-A per Peter-Odili JSC; Addah v. Ubandawaki (2015) 7 NWLR Part 1458 Page 325 at 343-344 Para C-A; per Fabiyi JSC.
It is indeed correct, as submitted by the Appellant’s Counsel that the 1st Respondent must succeed on

the strength of his case and not on the weakness or absence of a defence.

In the instant case, however, the 1st Respondent proved the 2nd mode of title, by production of documents of title, believed by the lower Court and not challenged by the Appellant who failed to cross examine the witness.

The lower Court believed the evidence of the 1st Respondent’s witness which evidence it found credible. I have no reason to disagree with the lower Court whose duty is to receive and ascribe probable value to the evidence before it. See Ukeje v. Ukeje (2014) 11 NWLR Part 1418 Page 384 at 405 Para H per Rhodes-Vivour JSC; Civil Design Construction (Nig) Ltd v. SCOA (Nig) Ltd. (2007) 6 NWLR Part 1030 Page 300 at 339-340 Para H-B per Onnoghen JSC (as he then was).

I hold that the claim of the 1st Respondent was rightly upheld. I again resolve the 2nd issue for determination against the Appellant.

The 3rd issue for determination is:
Whether the Appellant’s right to fair hearing was breached?

Arguing this issue, the Appellant contended that the right to fair hearing is very important in Nigeria and is constitutionally guaranteed by

Section 36(1) of the 1999 Constitution as amended, citing the cases of Saleh vs. Monguno (2003) NWLR (Part 801) 221 at 246; (2002) ALL FWLR (Part 87) 671 and the case of Pam & Anor vs Mohammed & Anor (2008) LPELR 2895.

He contended that the proceeding of the 27th October, 2016 was too hastily conducted, as the trial judge ought to have granted an adjournment after examination in-chief of PW1 to enable the Defendants cross examine PW1 if they so desire, before adjourning for filing of final written address, in view of the fact that their right to cross-examine PW1 was not foreclosed by the trial Court. He contended also that the filing and adoption of final written address of the 1st Respondent was contrary to Order 31, Rule 8 of the High Court of Kaduna State (Civil Procedure) Rules, 2007 urging the Court to resolve this issue in favour of the Appellant and set aside the proceedings of the lower Court leading to the judgment of the 5th of December, 2016.

In response, the learned Counsel to the 1st Respondent submitted that on 16th February, 2016, the defence was represented by Flying officer U.A. Muhammad and the case was adjourned to 14th March, 2016

for report of settlement and on the said date, the Defendants were not in Court.

Counsel contended that the lower Court did not deny the Appellant fair hearing but that the Appellant and the other Respondents failed to utilize the opportunity given to them and urged the Court to so hold.

Kekere-Ekun JSC; Darma v Ecobank (Nig) Ltd (2017) 9 NWLR Part 1571 Page 480 at 501 Para C-E per Sanusi JSC.
It has however been held that fair hearing is not a technical doctrine but one of substance. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned to any party due to want of fair hearing but rather whether any opportunity of hearing was afforded to parties entitled to be heard. See Registered Trustees of the Presbyterian Church of Nigera v Etim (2017) 13 NWLR Part 1581 Page 1 at 49 Para B-C Nweze JSC.
Whenever a party, who is aware of proceedings against him, is given ample opportunity to ventilate his grievances in a Court of law but chooses not to do so, he cannot be heard to complain of lack of fair hearing. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 554 Para A-D; (2015) All FWLR Part 824 Page 148 at 166 Para B-D per M.D. Muhammad JSC; Chami v UBA Plc (2010) 6 NWLR Part 1191 Page 474 at 497 Para E per Onnoghen JSC (as he then was).
In the instant case, the Record of Appeal shows at Page 111, that one “A. Abubakar” appeared27

for the “Defendants”. The case was adjourned to 16/2/16 for Report of Settlement. On 16/2/16 the Defendants were represented in Court by one Flying Officer U.A. Mohammed, Legal Officer, 335 Base Service Group”. There was no Counsel representing the Defendants however. Flying Officer Mohammed requested two weeks to contact their Head Office and to return with signed terms of settlement, whereupon the suit was adjourned to 14/3/16 for Report of Settlement. On the said date, the Defendants were neither in Court nor represented. The 1st Respondent’s Counsel expressed that “it appears Defendants are not prepared for settlement. In the circumstances, we want a date for proof”. The Court in consequence adjourned to 18/4/16 for proof, ordering that service be effected on the Defendants.
The case was again adjourned to 18/4/16. On the next adjourned date, while the 1st Respondent’s Counsel was in Court, there was no appearance for the defence. The Court was however not satisfied with the proof of service and again adjourned to 27/10/16 for proof, ordering that the Defendants be served. On the next adjourned date, the

Defendants were again absent and not represented while the 1st Respondent was represented and its witness in Court.
Upon proof of proper service, the 1st Respondent sought that the motion filed by the defence (for extension of time to regularize their defence) be struck out. Acceding to this request the Court struck out the Defendant’s motion for want of prosecution. The sole witness of the 1st Respondent was allowed to proceed and give evidence.
A further adjournment of three weeks was given for adoption of written addresses. On the date scheduled, only the 1st Respondent’s Counsel was in Court. He duly adopted his written address and the case was reserved for judgment. Judgment was consequently given in favour of the 1st Respondent on 21/11/16.
From the proceedings in the lower Court, it cannot be said that sufficient time was not given to the defence to present itself. It can also not be contended that the case should have been adjourned by the lower Court for the defence Counsel to cross examine the 1st Respondent’s witness. The Appellant was not recorded to have attended the Court. A party who does not attend Court and is

not represented by Counsel, cannot fault the Court which proceeds to discharge itself diligently. The Court was also not obliged to adjourn for cross examination, as it was clear that the defence had abandoned the case, which was the reason the Court adjourned for the 1st Respondent to prove its case.
Counsel has also contended that the Court erred in its order for the filing of written addresses, presumably that the defence that called no evidence should have been ordered to go first.
The Court, however, made no pronouncement on the order for filing written addresses, merely stated “Suit is adjourned to 21/11/16 for adoption of written address”. Had the defence wished to file any written address, it was perfectly at liberty to do so but took no such step. The Appellant, it is clear, is merely clutching at straws. There was no denial by the Court of the Appellant’s right to fair hearing, I hold. I yet again resolve this issue for determination against the Appellant.

Having so done, this appeal fails and is accordingly dismissed. The judgment of the lower Court is accordingly affirmed. The parties shall bear their respective costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment by my Lord Oludotun Adebola Adefope-Okojie JCA and I agree with the reasoning and conclusions reached by my lord in the said judgment. The appeal has no merit and is dismissed. The judgment of the lower Court is affirmed.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA.
I agree with reasoning and conclusion reached in the judgment. I too dismiss this appeal, same being unmeritorious.

Appearances:

A. Achegbulu Esq. For Appellant(s)

Respondent served but unrepresented. For Respondent(s)