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 AKANI & ORS v. AMACHREE & ORS (2022)

       AKANI & ORS v. AMACHREE & ORS

(2022)LCN/16144(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, June 06, 2022

CA/PH/671/2013

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. IBE AKANI 2. JULIUS AKANI 3. SYLVESTER AKANI 4. NNENNA EKE ODEKA 5. KINGSLEY ONWUGBUKA 6. SUNDAY DURUOHA APPELANT(S)

And

1. STELLA SELE AMACHREE 2. CHAMBERLAIN AMADI 3. GEORGE AMADI 4. WONODI AMADI 5. ADIELE AMADI RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON A VALID JUDGMENT

​It is trite law that when a judgment is given, such a judgment is valid and shall so remain except and unless it is duly set aside by a superior Court, and that such a judgment takes effect from the very day the pronouncement of the Court was made.
None of the interested parties in Suit No: OCC/7/91 appealed the judgment of the Obio Customary Court, and as earlier stated this sustains the finality and validity of the said judgment, and it indeed by law remains binding on the parties and their privies.
Consequently, the judgment of the Customary Court in Suit No: OCC/7/91 rendered utterly void and completely obliterated and or cancelled every act or transaction of the Ikechi led land allocation committee in respect to the entire or any part of “Apa Ohia Oda”, and I so hold.
See the decision in case of S.C.C (NIG.) LTD. & ANOR v. CHINYERE ANYA & ORS (2012) 9 NWLR (PT.1305) 213 at 222 G-H. In my view, it’s virtually axiomatic that when something has been rendered a nullity, it ceases to bear any legal consequence.
This presupposes that a void act is totally incapable of conferring any right, title or benefit on a party that claims to derive such benefits from it. It is as though such an act never happened. See again the decision in LABOUR PARTY v. INEC (2009) 6 NWLR (PT.1137) 315 at 347; WAZIRI v. ALI (2009) 4 NWLR (PT. 1130) 178 at 227 C-G.
​It is also trite law, that the judgment of Court is valid until set aside and takes effect immediately upon pronouncement by the Court, and that as soon as the Court makes the order, that order takes immediate effect. See the Supreme Court’s decision in MOBIL OIL NIG. V. ASSAN (1995) 8 NWLR (Pt. 412) S. C. 129 at 143.
PER KOLAWOLE, J.C.A.

WHETHER OR NOT A JDUGEMENT IN REM BINDS ONLY THE PARTIES TO A SUIT

Being a judgment in rem, it binds the world at large and not only the parties to the suit. The Supreme Court held in OGBORU & ANOR V. UDUAGHAN & ORS (2011) LPELR-8236 (SC) thus;
“A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title.… The feature of a judgment in rem is that it binds all persons whether a party to the proceedings or not. It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such Judgment declared or made it to be.”
See also the decisions in OKPALUGO VS. ADESHOYE (1996) 10 NWLR (Pt. 476) Page 77; FOINTRADES LTD. VS UNI ASSOCIATION CO. LTD. (2002) 8 NWLR (Pt. 770) page 699; OGBAHON VS. REG. TRUSTEES CCCG (2002) 1 NWLR (Pt. 749) Page 675, OLANIYAN VS FATOKI (2003) 13 NWLR (Pt. 837) Page 273.
PER KOLAWOLE, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THEIR PLEADINGS

Parties are bound by their pleadings. A party cannot be heard outside that which has already been pleaded. Likewise, the Court is bound by the pleadings on which a case is contested and no Court has the power to suo motu import facts that any party has failed to plead. Any such fact must be deliberately be discountenanced by the Court, no matter how crucial it may seem to the determination of the case.
It was held by the Supreme Court in the case of UMOFFIA v. NDEM (1973) LPELR-3372(SC), thus:
“We have also consistently held that any evidence led in the course of any trial as to any fact not pleaded goes to no issue and must be ignored. If such evidence is wrongly admitted in the proceedings in the High Court, this Court will always ignore such evidence, and, as it were, cause it to be expunged from the record. Parties to a suit must be held to their pleadings.”
PER KOLAWOLE, J.C.A.

WHETHER OR NOT INDIVIDUAL MEMBERS OF A AMILY CAN DEAL WITH FAMILY PROPERTY WITHOUT THE CONSENT OF THE FAMILY HEADING AND OTHER FAMILY MEMBERS

On the fourth issue, it is trite that individual member(s) of a family cannot deal with family property without the consent of the family head acting in concert with the principal members of the family.
Failure to do so invariably renders any such dealing null and void. It’s my view that what occurred between the 1st Respondent and her vendors at the material time in which the transaction took place, was sadly, the alienation of family land to the 1st Respondent, by ordinary family members without the consent or foreknowledge of the family head and principal members of the family.
Such a sale in law is void ab initio. See the decision in the case of EKPENDU v. ERIKA (1959) 4 FSC 79; (1959) SCNLR 186.  PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This appeal emanates from the Judgment of Honourable Justice B. A. Georgewill (as he then was, now, Justice, Court of Appeal) of the High Court of Rivers State delivered on 26th November, 2012, in Suit No. PHC/633/2001 wherein the 1st Respondent, who was the Claimant before the High Court sought the following reliefs against the Defendants:
1. A declaration that the plaintiffs’ vendors, Chamberlain Amadi, George Amadi, Wonodi Amadi, Adiele Amadi and the people of Rumueveorlu community are joint owners of the land in dispute Apa Ohia Oda.
2. A declaration that plaintiff’s assignors being co-owners of Apa Ohia Oda and (sic) passed their interest in the said land to the plaintiff the people of Rumueveorlu rectified the sale to the plaintiff and as such did not reallocate nor allocate any other plots of land to plaintiffs (sic) assignors in Apa Ohia Oda.
​3. A declaration that the plaintiff is the person entitled to right of occupancy of the land in dispute, the Rumueveorlu community having rectified her purchase of the said land so that a certificate of occupancy registered as No. 6 page 6 in volume 256 was issued in favour of the plaintiff by the then Military Administrator of Rivers State on the 20th of August 1998 is valid.
4. A declaration that the purported sale of the land in dispute by the 1st to 3rd defendants to the 4th, 9th and 10th defendants or any other person is unlawful, inequitable, null and void and of no effect.
5. The sum of Five Million Naira (5,000,000.00) only, as general damages against the 1st, 2nd, 3rd, 4th, 9th, and 10th defendants for trespass.
6. An order of perpetual injunction restraining the defendants their agents’ privies and/or servants from committing further acts of trespass.”

The Appellants/Defendants upon being served with the originating processes, filed an amended statement of defence dated and filed 2nd March, 2012.

​The lower Court delivered its judgment and ordered as follows:
1. I declare that the Claimant’s Vendors, Chamberlain Amadi, George Amadi, Wonodi, Adiele Amadi and the people of Rumueveorlu community were joint owners of the land in dispute Apa Ohia Oda.
2. I declare that the Claimant’s Assignors being co-owners of Apa Ohia Oda and passed their interest in the said land to the Claimant the people of Rumueveorlu ratified the sale to the Claimant and as such did not re-allocate any other plots of land to the Claimant’s Assignors in Apa Ohia Oda.
3. I declare that the Claimant is the person entitled to right of occupancy of the land in dispute, the Rumueveorlu community having ratified her purchase of the said land so that the certificate of occupancy registered as No 6. Page 6 in Volume 250 issued in favour of the Claimant by the then Military Administrator of Rivers State on the 20th of August 1998 is valid.
4. I declare that the purported sale of the land in dispute by the 1st to 3rd Defendants to the 4th, 9th and 10th Defendants or any other persons is unlawful, inequitable, null and void and of no effect.
5. I award the sum of N4,000,000.00 as general damages against the 1st, 2nd, 3rd, 4th and 10th Defendants jointly and severally as damages for trespass.
6. An order of perpetual injunction be and is hereby issued restraining all the Defendants, their agents, privies and/or servants from committing further acts of trespass on the said land of the Claimant put in dispute by the Defendants.
7. There shall be cost of N50,000.00 against the Defendants in favour of the Claimant.

It was the Appellant’s discontentment with the said decision of the lower Court that made them to appeal to this Court in order to express their grievances. The appellate jurisdiction of this Court was invoked via an amended Notice of Appeal filed on 4th November, 2016 and deemed as properly filed on the 12th January, 2022. It contains twelve grounds of appeal with detailed particulars.

The judgment of the lower Court can be found at pages 322 to 362 of the record of appeal.

In adherence with the Rules of this Court, parties filed and exchanged their respective briefs of argument. Appellants’ brief of argument deemed properly filed on the 12th January, 2022 was settled by J.C. Ezekwu Esq., whilst the 1st Respondent’s brief of argument filed on 10th February, 2022 was settled by Chioma A. Wogu, Esq.

In the Appellant’s Brief of Argument, six issues were formulated for the determination of this appeal thus:
1. Whether in view of Exhibits A and B, the learned trial Court was correct to hold that the interests of the 5th–8th Defendants (2nd–5th Respondents) arose earlier in time than the interests of the 1st–3rd Defendants/Appellants when a Court of competent jurisdiction had by Exhibit B voided and nullified the rights and interests vested in the 5th–8th Defendants (2nd–5th Respondents)?
OR
Whether by virtue of Exhibits A and B, the purported Ikechi Chiorlu led land allocation committee validly vested any titles or interests on the 5th–8th Defendants (2nd–5th Respondents) on the land in dispute such as could entitle the 2nd–5th Respondents pass their title to the 1st Respondent or any third party?
2. Whether the proceedings and the judgment of the Rivers State Customary Court, Obio, in OCC/7/1991 was binding on the 1st Respondent and her vendors and if, on the clear admissions by the 1st Respondent, she and her vendors did not have real, actual, constructive or imputed knowledge of the pendency and subsequent judgment in OCC/7/1991?
3. Whether the learned trial Judge was right to rely on facts that were never pleaded by the parties as part of their case and base its judgment thereon?
4. Whether the land in dispute was not a communal/family land and as such subject to native law and custom?
5. Whether a family member can be divested of his share of partitioned family land by another family member who was excluded from participation?
6. Whether the provisions of Section 167 (b) (sic) of the Evidence Act, 2011 as amended, can be invoked against a party for failure to tender his title document, when issues were not joined on that fact?

The 1st Respondent’s Counsel formulated and canvassed two issues for determination to wit;
A. Whether the Learned Trial Judge was wrong in holding that the 1st Respondent’s interest in the land in dispute was not adversely affected or vitiated by Suit No. OCC/7/1991?
B. Whether having regard to the pleadings and the evidence before it, the Trial Court was wrong in giving judgment in favour of the 1st Respondent?

BRIEF STATEMENT OF FACTS
From the pleadings of the parties, a summary of the relevant facts of this case as outlined by the learned trial Judge in pages 324-326 of his judgment are as follows:
The gist of the 1st Respondent’s facts at trial was that, she purchased the land in dispute from her Vendors, the 2nd–5th Respondents who received the land as part of their share by the Community Land Allocation Committee headed by Ike Chiorlu in 1991.

In 1992, the 1st Respondent upon her return to Port Harcourt to bury her late father, she observed that portions of her land now in dispute had been sold to some persons by some of the Defendants, and these subsequent purchasers had partly developed part of the land in dispute.

The 1st Respondent proceeded to quickly fence the land in dispute and erect a gate thereon but her quiet possession was consistently disturbed by one Benson Akani whom she later sued to Court in Suit No. PHC/103/1993 but when he died, she abandoned the suit. The 1st Respondent later discovered that her gate and fence earlier erected, had been destroyed and the blocks and sand on her site carted away and also that her land had been sold by the 1st, 2nd, and 3rd Defendants to the 4th, 9th and 10th Defendants.

​She reported the destruction of her gate and fence and stealing of her blocks and sand to the police and sued one Appolos Amadi to Court in PHC/219/1995 who consequently left her land and she had to abandon the suit which was later struck out. The 1st–3rd Defendants are relations to her vendors from whom she bought the land in dispute without any notice of any case pending at the Customary Court over the land in dispute at the time of her purchase.

It is also the case of the Claimant that the subsequent sale of the land in dispute with the notice of her interest but without her consent by the 1st–3rd Defendants to the 4th, 9th and 10th Defendants was without any validity and is thus null and void and of no effect and that the 4th, 9th, and 10th Defendants are thus trespassers on the land in dispute belonging to the 1st Respondent.

On the contrary, the gist of the facts of Defendants/Appellants’ case as contested at the trial is that sometime in January 1991, some Youths of Ehiewurem family of Rumueveorlu in Mgbuoba led by Ikechi Chourlu, Wali Chiorlu and Friday Akani trespassed into the community land situate at Ohia Oda along the NTA Road and without the consent of the Owhor holders and Elders of the community partitioned and shared the land of the community for the purpose of allocating and selling to the parties.

In order to checkmate this unauthorized action of these misguided youths of the community, some representatives of the Community sued the Youths before the customary Court Obio and secured an order of interim injunction restraining the Youths from partitioning, sharing and entering the Ohia Oda land. The Customary Court gave judgment on the 28th day of July, 1991, in favour of the community against the youths, declaring all their actions on the Ohia Oda land of the community as null and void and cancelling every transaction on the Ohia Oda land by the youths.

The community subsequently set up a land allocation committee made up of Chief Benson Akani, Elder John Chiorlu, Elder James Akani, Alfred Akani to re-share the said Ohia Oda land and the father of the 1st–3rd Appellants one Benson Akani was given the land now in dispute by the Elder of the family and they were issued with a Deed of Gift.
However, in 1993, the 1st–3rd Appellants saw some workers working on the land in dispute and destroying the crops of the 1st–3rd Appellants and on confronting them they stated that they were stated that they were sent by the 1st Respondent. The 1st–3rd Appellants promptly wrote to the 1st Respondent through their solicitors but the 1st Respondent ignored their letter hence the Appellants filed Suit No. PHC/38/1993 against the 1st Respondent who subsequently filed this suit against the Appellants at the lower Court. The 1st–3rd Appellants upon being allocated the land in dispute had sold same to the 4th, 5th and 6th Appellants who have since built their houses and are in possession of the land in dispute.

SUBMISSIONS OF COUNSEL
On the first issue, learned Counsel for the Appellants submitted that since the parties in OCC/7/91 failed to appeal the judgment of the Obio Customary Court, it therefore means that the finality and validity of the said judgment remains sacrosanct, inviolable, intact and binding on the parties and their privies.

​The Appellants’ counsel further contended that this meant that the acts of the Ikechi led land allocation committee in respect to the entire or any part of “Apa Ohia Oda” were illegal and cancelled by the Court. Our attention was invited to the decisions in S.C.C (NIG.) LTD. & ANOR v. CHINYERE ANYA & ORS (2012) 9 NWLR (pt.1305) 213 at 222 G-H; AKERE v. GOVERNOR OF OYO STATE (2012) NWLR (pt.1314) 240 at 278 F.

The Appellants’ learned Counsel submitted that an act that is a nullity is a void act, an act which has no legal consequence. He argued further that where a competent Court/Tribunal declares an act to be void, such an act cannot confer any benefit whatsoever on the party who purports to claim from it and cited to this Court the decisions in the cases of LABOUR PARTY v. INEC (2009) 6 NWLR (PT.1137) 315 at 347; WAZIRI v. ALI (2009) 4 NWLR (PT. 1130) 178 at 227 C-G.

Learned Counsel for the Appellants submitted that the 1st Respondent’s claim that the community as a whole “ratified” the sale of land in dispute made by the 2nd–5th Respondents, her vendors, was not pleaded in her statement of claim, and none of the elders or representatives of the community were called to give evidence of any such ratification.

​Appellants’ counsel argued that an irregular act may be ratified, but not a void and null act. He submitted further, that what does not exist or had never existed in the eyes of the law cannot be a subject of ratification. Adding that the Ikechi Chiorlu committee of 1990, having never existed in the eyes of the law and not having vested no titles on the 2nd–5th Respondents, there was nothing for the community to ratify. In reliance on this proposition, the Appellants’ counsel cited the case of AYISA v. AKANJI (1995) 7 NWLR (PT. 406) 129 at 142.

It was argued further, that the oral testimony DW1, cannot exclude or contradict the contents of the judgment of Court in form of documentary evidence. We were referred to the provision of SECTION 128 OF THE EVIDENCE ACT, 2011 and the decision in EGHAREVBA v. OSAGIE (2009) 18 NWLR (PT. 1173) 299.

The Appellants’ learned counsel urged this Court to resolve issue 1 in favour of the Appellants and against the Respondents.

On issue two, learned Counsel for the Appellant opined that the judgment of the Obio Customary Court in Suit No: OCC/7/91 was a judgment in rem in that it declared the status of the Ikechi led committee of 1990 in relation to the community land.

​He added that the judgment declared all the transactions, deeds, or transfers by beneficiaries of the illegal committee to third person void.

The Appellants’ Counsel argued that the judgment by necessary implication binds the whole world, including the Respondents even though they claim not to be parties to the suit. In relying on OGBORU v. UDUAGHAN (2011) 17 NWLR (PT. 1277) 727 at 764 D-E, the Appellants’ counsel submitted that when a Court had in its judgment declared the status of a person or thing vis-a-vis the ‘res’ which declaration, status, or title, such a Judgment is a judgment in rem.

He further submitted, that the judgment of the Obio Customary Court, having been shown to be a judgment in rem, the learned trial Judge was therefore wrong to hold that the Respondents were not bound by it.

The Appellants’ Counsel further contended that the judgment of a Court binds both the parties that are actually before the Court and their privies, whether in blood, estate or contract who are not actually named in the processes of Court, but by virtue of the relationship existing between parties, they become bound.

​He submitted that the Respondents are privies of the Ikechi led committee and the judgment and orders in Suit No: OCC/7/91 made by Obio Customary Court are binding on the Respondents.

It was further argued that from the evidence of DW1, that it could be safely inferred that the Respondents, especially the 1st Respondent was well aware of the judgment of the Obio Customary Court when she purchased the land in dispute on the 14th of August, 1991, but yet decided to stand by and watch.

He argued that in law, where a party stands by and watches proceedings affecting his interest and refuses to be joined, at his own instance, he will be bound by the outcome of the proceedings. In reliance on this proposition, he cited the decision in AUGUSTINE OBINECHE & ORS v. HUMPHREY AKUSOBI (2010) 12 NWLR (PT. 1208) 383 at 405-406 G-E, 418E-F.
We were urged to resolve issue two in favour of the Appellants and against the Respondents.

​On issue three, learned Appellant’s Counsel submitted that it is the pleadings that define the scope and extent of a party’s case, and that where a litigant omits a particular aspect of his case in his pleadings or pleads something else, the Court cannot on its own rely on such fact that was not pleaded, no matter how material it appears to the case. The learned Appellants’ counsel submitted that the Court is bound to ignore it.

It was further contended that where a fact was not pleaded, any evidence given on such fact cannot be admitted by the Court, no matter how such evidence appears to be compelling and expressed the view that throughout the pleadings of parties and particularly the 1st Respondent never pleaded in any of the paragraphs of the amended statement of claim/amended statement of defense in the consolidated suits the issue of ratification by elders of the community of the portion of the land she allegedly claimed was partitioned and allocated to her vendors – 2nd-5th Respondents.

In reliance on this submission, the Appellants’ counsel cited the decisions in the cases of OHOCHUKWU v. A. G. RIVERS STATE (2012) 6 NWLR (PT. 1295) 53 at 84B-D; GEORGE v. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 (1963) 1 SCNLR 117.

​It was further observed, that the use of the word “ratify” by the 1st Respondent cannot be said to be an accidental slip, mistake or an oversight since it was repeatedly and consistently used about five (5) times and throughout the reliefs sought and in her evidence. He further argued that even if the use of the word was an accidental slip, oversight or mistake, the trial Court did not have the jurisdiction to correct the error. In reliance on this proposition, the Appellants’ counsel cited the case of NNADI v. GEORGE OKEGBE (2000) 12 NWLR (PT. 681) 274 at 294F-A.

On the fourth issue, learned Appellants’ Counsel submitted that in dealing with family land, the principle of law is sacrosanct and established that individual member of a family cannot deal with family property without the consent of the family head in concurrence with the principal members.

It was argued that where anyone deals with family property without the authorization of the family head in concurrence with the principal members, such dealing will be null and void and relied on the decision in the case of ODEKILEKUN v. HASSAN (supra) at 74.

​It was further submitted that the status of the alienation of the land in dispute to the 1st Respondent, in law, takes the status of a family land sold to the 1st Respondent by mere family members, without the consent or knowledge of the family head and principal members, hence making such sale void ab initio. Our attention was invited to the decision in the case of EKPENDU v. ERIKA (1959) 4 FSC 79; (1959) SCNLR 186.

The Appellants’ counsel further submitted that in Customary law, oral partitioning is valid and that the testimony of PW1, PW2 and PW3, is sufficient proof of the partitioning of the land in dispute, hence the tendering of EXHIBIT E in proof of the fact of partitioning of the land was a mere surplusage. The Appellants’ counsel cited the decision in TAIWO v. TAIWO 1 NSCC 46, 50; (1958) SCNLR 244 to support this submission.

It was contended that the Court below misdirected itself and was in error when it proceeded to expunge EXHIBIT E which it had earlier rightly admitted as evidence of the transaction and not as a title document, and urged this Court to so hold.

On issue 5, learned Appellant’s Counsel argued that if the 2nd-5th Respondents think they were unlawfully excluded from participating in the family property, which they are ordinarily entitled to, it is their duty to challenge their wrongful exclusion in Court. This, he reasoned, that they failed to do and cited the case of MOZIE v. MBAMALU (2006) 15 NWLR (PT. 1003) 466 at 493 in support of this contention.

He then argued that any act or exercise of judicial powers that tends to dispossess the 1st-3rd Appellants of their shares of the land, to award same to the 1st Respondent’s vendors on the ground that the community and its land committee failed to allocate land to the 1st Respondent’s vendors will be unjust, unfair and perverse. He argued that the lower Court was in error when it so held.

The Appellants’ learned counsel submitted that it was an undisputed and established fact that the 4th, 5th and 6th Appellants purchased the land in dispute from the 1st-3rd Appellants, as the 1st Respondent herself averred to that fact in paragraph 2 of her pleadings, paragraph 1 of her witness deposition on oath and paragraph 18 of her amended statement of claim/amended statement of Defence in the consolidated suit. The learned counsel argued that there was therefore no need to prove such settled and admitted facts.

​It was further submitted that the issue not being in dispute, the lower Court had no jurisdiction to make any inquiry, finding or pronouncement on it as its jurisdiction is limited by SECTION 6 (6) (b) of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, AS AMENDED.

Our attention was also drawn to the provision of SECTION 123 OF THE EVIDENCE ACT, 2011 and the decision in the case of ADEKEYE v. ADESINA (2010) 18 NWLR (PT. 1225) 449 at 473.

The Appellants’ counsel submitted finally that the lower Court misconceived and misapplied the provision of SECTION 167 (d) of the EVIDENCE ACT, 2011 AS AMENDED, and urged this Court to so hold.

He urged this Court to resolve all the issues formulated in favour of the Appellants and against the Respondents and urged this Court to allow the appeal and set aside the judgment of the learned trial Judge dated and delivered on the 26th November, 2012.

Pursuant to the provision of Section 15 of the Court of Appeal Act, he urged this Court to exercise its jurisdiction to dismiss Suit No: PHC/633/2001 in its entirety and enter judgment in favour of the Appellants.

​In her response to the issues canvassed and argued in the Appellants’ brief, the 1st Respondent’s learned counsel argued the two issues donated for consideration for the determination of the appeal.

The first issue is distilled from Grounds 1, 2, 3 and 4 of the amended Notice of Appeal and answers Issues 1 and 2 in the Appellant’s Brief of Argument.

Learned Counsel for the 1st Respondent submitted that the learned trial Judge was not wrong in holding that the 1st Respondent’s interest in the land in dispute was not adversely affected or vitiated by Suit No: OCC/7/1991.

Learned Counsel for the 1st Respondent submitted that the Appellants’ attack on the finding of the trial Court on the issue of priority is unfounded because, as the trial Court noted, the title of the 1st Respondent’s vendors was not affected by the judgment of the Customary Court since they were not made by parties nor do they fall under the category of persons who could be regarded as privies to the Defendant in the previous suit.

The 1st Respondent’s learned counsel submitted that under Sections 173 and 174 of the Evidence Act, 2011, previous judgments may be pleaded as proof of facts in issue decided in the previous case as against parties and their privies, thus Exhibit B heavily relied upon by the Appellants was irrelevant to the proceedings at the trial Court because, the 1st Respondent and/or her vendors were not shown to be the Defendants or privies to the Defendants in the said suit.

Relying on the decision in the case of DIKE v. NZEKA II (1986) LPELR–945 SC PP.12-13 (also reported in (1986) NWLR (Part 34) 144), it was submitted that the judgment of the Customary Court in Suit No. OCC/7/1991 was a judgment in personam.

Learned Counsel for the 1st Respondent submitted that the trial Court was right when it held that it was only the parties in the previous suit and their privies that were bound or affected by the judgment of the Customary Court.

She submitted that the Appellants seemed to have conceded that the said judgment is actually in personam when they turned round in their Briefs to raise the issue of privity of estate.

​The 1st Respondent’s counsel further argued that the doctrine of privity of estate does not avail the Appellants as members of the Ikechi Chiorlu Land Allocation Committee acted as agents of the Family in partitioning and allocating Ohia Oda land.

Learned Counsel for the 1st Respondent submitted that whether they were appointed or not is a different matter entirely; more so as the allocations made by the Committee were later “ratified” or ”regularized” by the Family upon payment of additional money.

The 1st Respondent’s learned counsel submitted that the Ikechi Chiorlu Land Allocation Committee does not qualify as vendors or lessors of the family land in relation to 1st Respondent’s vendors and the 1st Respondent. It was argued that the 1st Respondent’s vendors derived their title to the land in dispute from the family and not the Ikechi Chiorlu Land Allocation Committee which acted merely as an intermediary.

It was further contended by the 1st Respondent’s counsel that the Appellants also brought in the doctrine of estoppel by standing by in order to as it were, bolster the effect of the judgment of the Customary Court on non-parties to the suit.

​Learned Counsel for the 1st Respondent submitted that the Appellants were silent on the categorical answers by the 1st Respondent wherein she stated that she did not know that the Community sued the Ikechi Chiorlu Committee in 1991.

Whilst relying on the decision in the case of OKEREKE V. NWANKWO (2003) 9 NWLR (PART 826) 592 OR (2003) LPELR–2445 (SC) AT PAGE 20, learned Counsel for the 1st Respondent submitted that it is only a person who has knowledge of the pendency of a suit that would potentially affect his interest but who chose to do nothing that could be deemed to have stood by. It was argued that the judgment of a Court of competent jurisdiction binds parties to the suit and not third parties or persons who were not made parties by the Plaintiff or Claimant and that the Defendants in the Customary Court’s proceedings (Suit No: OCC/7/1991) were Ikechi Chiorlu, Wali Chiorlu, and Friday Akani (the said judgment is reproduced on pages 43-53 of the Record of Appeal and that they are the persons affected by the judgment of the Customary Court.

​The learned Counsel for the 1st Respondent submitted that the Order of Nullification by the Customary Court in Suit No: OCC/7/1991 only had binding effect on the Defendants to that suit. The 1st Respondent’s learned Counsel argued that the judgment of the Customary Court did not adversely affect the proprietary interests of the 1st Respondent’s vendors on the parcel of land in dispute. It was further argued that the 1st Respondent’s vendors could only have been divested of the personal proprietary rights and interests that become vested in them over the said parcel of land if they were made parties to the proceedings in the suit in the Customary Court.

Learned 1st Respondent’s Counsel submitted that the issue of ratification is of no moment since the Customary Court judgment has no effect on the title acquired by the 1st Respondent’s vendors and that notwithstanding, there was enough evidence of regularization or ratification of the Ikechi Chiorlu Committee’s partitioning and allocation of the Family land.

​The 1st Respondent’s learned counsel submitted that the 1st Respondent’s unchallenged evidence in support of the ratification is that many beneficiaries of the partition done on behalf of the family are occupying their parcels of land without let or hindrance from the family and that even PW1, the Appellant’s witness testified that the family “regularized” the interests of many who acquired the family land by the Ikechi Chiorlu Committee.

It was argued that the family by allowing some people to hold on their grant from the Ikechi Chiorlu Committee for free and in some cases demanding for and accepting more money had impliedly ratified the whole partitioning of the land done on its behalf.

Learned Counsel for the 1st Respondent urged this Honourable Court to resolve this issue in favour of the 1st Respondent and hold that the trial Court was right in holding that the 1st Respondent’s interest in the land in dispute was not adversely affected or vitiated by Suit No: OCC/7/1991.

On the second issue, the 1st Respondent’s learned counsel submitted that having regard to the pleadings and the evidence before it, the trial Court was right in giving judgment in favour of the 1st Respondent.

The 1st Respondent’s counsel drew our attention to the Supreme Court’s decision in IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227, where the apex Court laid down the five ways of proving title to land, and it was contended by the learned Counsel for the 1st Respondent that the 1st Respondent clearly proved her title to the parcel of land in dispute by the documents of title.

The 1st Respondent’s counsel submitted that 1st Respondent proved better title to the parcel of land in dispute by documents of title being one of the five ways laid down in IDUNDUN V OKUMAGBA (supra).

It was argued by the 1st Respondent’s counsel that the trial Court was right in upholding the 1st Respondent’s Right of Occupancy over the parcel of land in dispute as evidenced by her Certificate of Occupancy.

The 1st Respondent’s counsel submitted that the trial Court was right when it held that upon partitioning, family ownership of the land is dissolved as this position was held in the recent decision in the case of ALAFIA V. GBODE VENTURES (NIG.) LTD (2016) 7 NWLR (PT.1510) 116 AT 147–149.

The 1st Respondent argued that in the instant case, there was partitioning of the family land known as Ohia Oda by the Ikechi Chiorlu Committee acting on behalf of the family and that the parcel of land in dispute was allocated to the 2nd to 5th Respondents who in turn sold the same to the 1st Respondent.

Learned Counsel for the 1st Respondent argued that the family had not sought and obtained declaration of title in respect of the said parcel of land against the 1st Respondent or her vendors and therefore, the title of the 1st Respondent still subsists and that the family was not in a position to re allocate the same parcel of land to the Appellants.

It was further argued for the 1st Respondent that the Appellants seemed to be approbating and reprobating on the issue of whether partitioning/allocation of the land in dispute was pleaded.

Learned Counsel for the 1st Respondent submitted that the 1st Respondent pleaded partitioning of the family land in paragraphs 3-9 of her Amended Statement of Claim/Amended Statement of Defence in the consolidated suits. It was argued that it was always part of the 1st Respondent’s case in the lower Court that the family accepted and made right or ratified the partitioning/allocations made by the Ikechi Chiorlu Committee.

​The 1st Respondent’s counsel further submitted that the substance of the above averments is a rectification or ratification of the earlier allocation made to the 1st Respondent’s vendors by the family and that rectification or ratification of the allocation to her vendors is by extension, rectification or ratification of the sale to the 1st Respondent.

The Learned Counsel for the 1st Respondent further argued that the Appellants appear to be making heavy weather of the presence of the word “rectification” and absence of the word “ratification” in the 1st Respondent’s pleading and that it makes no difference if the word used was rectification or ratification.

The 1st Respondent’s counsel further contended that the important thing is that the family or community made right or corrected the allocation to the 1st Respondent’s vendors and the sale to the 1st Respondent and that was the reason behind the non-allocation of any other plots of land to the 1st Respondent’s vendors.

​Learned Counsel further argued that given the peculiar facts of the case before it, the trial Court rightly expunged Exhibit E (Deed of Gift) from its records and that decision of the trial Court was founded upon the fact that the said Exhibit was tendered as a document of title not as receipt or evidence of transaction.

The 1st Respondent submitted that having regard to the circumstance before it, the trial Court was justified in invoking the presumption of withholding evidence under the provision of SECTION 167 OF THE EVIDENCE ACT, 2011 (FORMERLY SECTION 149 (D) against the 4th, 9th and 10th Defendants (that is, 4th to 6th Defendants).

The 1st Respondent’s counsel submitted that given the circumstance of the instant case, the failure of the 4th to 6th Appellants to tender their purported documents of title raised more questions than answers and justified the trial Court’s invocation of the presumption under SECTION 167 OF THE EVIDENCE ACT.

The learned Counsel for the 1st Respondent submitted that in the instant case, the findings of the trial Court were neither perverse nor inconsistent with evidence led.

We were urged by the 1st Respondent’s counsel to resolve this issue in favour of the 1st Respondent and to hold that having regard to the pleadings and the evidence before it, the trial Court was right in giving judgment in favour of the Respondent.

​In his reply brief of argument, the learned Appellants’ Counsel submitted that it is trite law that every judgment or ruling delivered by a competent Court is presumed to be right. He added that the law is also trite that the judgment of the Court is valid until set aside and takes effect immediately upon pronouncement by the Court, and that as soon as the Court makes the order, that order takes immediate effect. He cited the decisions in the cases of SUNDERSONS LTD v. CRUISER SHIPPING PTE LTD (2015) 17 NWLR (1488) 357 at 372; HOLBORN (NIG.) LTD v. O. C. CHRIS ENTERPRISES LTD (2015) 11 NWLR (PT.1471) 451 at 474 D.

He argued that by the voiding and nullification of the Ikechi led land committee and the titles or interests vested or derived from or through them by the Obio Customary Court, in July 1991, the 1st Respondent was not vested with any title in August, 1991 by her vendors, the 2nd – 5th Respondents.

He submitted that by law, the orders of Court in OCC/7/1991 became effective from 22nd of March, 1991 and 26th of July, 1991 respectively and not from the 28th of November, 1991 when the said publication was made in the newspapers.

​The Appellants’ counsel further controverted the argument of the 1st Respondent in paragraph 2.22 (I & ii) of their brief of argument, by submitting that the argument is bereft of any legal backing.

He submitted that it is trite law that where a suit is commenced or defended in a representative capacity, all the class of persons whose interest is represented either as claimants or defendants are parties to the suit. Adding that parties in a representative capacity, he submitted are not just the named plaintiffs or defendants on the writ of process of Court, but every one of the classes claimed to be represented or sued though their names do not appear on the Court process.

In reliance on this proposition, the Appellants’ counsel cited the case of LADEJOBI v. OGUNTAYO (2004) 18 NWLR (PT. 904) 149 and further queried the argument of the 1st Respondent in paragraph 2.22 (iv & v) and paragraph 2.23 of the 1st Respondent’s brief of argument.

​It was submitted that the identity of the land, the subject matter of the dispute was not a fact in issue, as the identity of the land in issue was never denied nor contested by any party and issues were not joined on that fact.

The Appellants’ Counsel further argued that in law, the identity of the land will be in issue only if the defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the Plaintiff’s plan or as described in the statement of claim.

He added that where parties are in accord as to the identity of the land in dispute, the issue of the identity of the land is said to be settled.

In reliance on this proposition, the Appellants’ counsel cited the decisions in the cases of JAMES SONGO v. TERHEMEN AKURE (2015) 1 NWLR (PT.141) 535 at 559 B-D; and PASTOR SAMUEL KARIMU v. LAGOS STATE GOVERNMENT (2012) 5 NWLR (PT. 1294) 620 at 641 E-F.

Again, the learned Appellant’s Counsel in response to the argument of the 1st Respondent in paragraphs 4.9, 4.10 & 4.11 of the 1st Respondent’s brief of arguments, submitted that the judgment of the Obio Customary Court is not a judgment in personam but a judgment in rem and therefore binding on all concerned. He cited the decision in the case of IKEYEN DIKE & ORS. v. OBI NZEKA II (1986) 4 NWLR (PT. 34) 144 at 153 E – G.

The Appellants’ Counsel in response to the argument of the 1st Respondent in paragraphs 4.21& 4.36 of the 1st Respondent’s brief of argument, argued that the 1st Respondent never pleaded the fact of agency relationship of Ikechi Chiorlu in the lower Court and that it is an entirely new issue which cannot be raised here on appeal except with leave of this Court. He added that where a party seeks to raise a fresh issue on appeal, they must seek the leave of Court and that the 1st Respondent has failed to so do. He placed strong reliance on the case of WEMA SECURITIES AND FINANCE PLC v. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 16 NWLR (PT. 1484) 93.

He urged upon this Court to strike out this issue of agency relationship raised herein by the 1st Respondent as such fact never arose in the Court below and there is no ground of appeal relating to that.

​On this wise, the Appellants’ counsel further argued that no agency relationship was created or existed expressly or by necessary implication and opined that agency is the relationship that exists between two persons, one of whom expressly or impliedly consents that the other should represent him or act on his behalf. The Appellants’ counsel relied on the decisions in the cases of MIKANO INTERNATIONAL LTD v. MR. RAWLINGS EHUMADU (2014) 1 NWLR (PT. 1387) 100 at 132 E; GOLDEN CONSTRUCTION COMPANY LTD. v. STATECO NIG. LTD. (2014) 8 NWLR (PT. 1408) 171 at 198.

In response to the averments in paragraphs 4.14 of 1st Respondent’s brief of argument, he submitted that the Eliewurem family never sold any land to the 1st Respondent and that the 1st Respondent could not have derived any title from the said family.

It was further argued, that assuming the purported partitioning was effective, the law is trite that upon the partitioning of a family land, such partitioned land ceases to be family land but the becomes vested in the individual member of the family to whom it is allocated and can rightly be dealt with as personal land. He added that where such land is conveyed by that individual, he does so in his absolute right as the beneficial owner thereof.

He relied on the decision in GBADAMOSI SANUSI OLORUNFEMI & ORS v. CHIEF RAFIU EYINLE ASHO & ORS (2000) 2 NWLR (PT. 643) 143 at 156.

​In response to the 2nd issue raised by the 1st Respondent, the Appellants’ counsel submitted that the issue no 2 does not arise from the Notice of Appeal. He argued that the 1st Respondent did not cross-appeal the judgment, therefore they are bound to formulate issues from the notice of appeal filed by the Appellants. He submitted that it is trite law, that issues formulated outside the notice and grounds of appeal cannot be considered by the Court and they are liable to be struck out. He relied on the decision in ALHAJA RALIAT LAWAL v. MR. BABATUNDE SHOLANKE (2015) 13 NWLR (PT. 1477) 489 at 498 A-B. QP.

However, Appellants went ahead to respond to the arguments on issue 2 as a precautionary measure.

He submitted that a certificate of occupancy is not conclusive evidence of title to land and it can be nullified, in deserving situations at the instance of a party with a better title. The Appellants’ learned counsel cited the decision in the case of ROMAINE V. ROMAINE (1992) 4 NWLR (PT.238) 650.

​Appellants further submitted, that it is not the law, that a claimant must establish all the ways of proving title to land before a declaration is made in their favour, but that it suffices if a claimant establishes any one of the methods of proving title to land and cited the decision in the case of DUDU ADDAH v. HASSAN SAHI UBANDAWAKI (2015) 7 NWLR (PT. 1458) 325 PAGES 343-344 C-B; 354-355 H-B, & 357 G-F.

He argued that the Appellants as claimants in the Court below, fully established traditional evidence of partition and allocation by the elders of the family, as found by the learned trial Court and argued that this suffices and entitles to them a declaration in their favour.

It was further submitted, that the arguments of the 1st Respondent’s Counsel and the authorities cited in support of their argument are not applicable in this appeal, considering the facts and circumstances of the instant appeal.

Appellants’ Counsel urged upon this Court to discountenance all the authorities cited and referred to by Counsel to the 1st Respondent as they are not applicable in the peculiar circumstances of this case. He further urged us to allow the appeal and set aside the judgment of the learned trial Court which led to this appeal.

​RESOLUTION OF THE ISSUES
I have carefully considered the grounds contained in the notice of appeal filed by the Appellants, the issues formulated for determination of the present appeal by counsel to both parties, the arguments canvassed by the respective parties and the decisions reached by the lower Court as contained in its judgment.

For the sake of clarity and tidiness, I will adopt and resolve individually, the six issues raised by the Appellant in his brief of argument.

On the first issue of whether in view of Exhibits A and B, the learned trial Court was correct to hold that the interests of the 5th–8th Defendants (2nd–5th Respondents) arose earlier in time than the interests of the 1st–3rd Defendants/Appellants when a Court of competent jurisdiction had by Exhibit B voided and nullified the rights and interests vested in the 5th–8th Defendants (2nd–5th Respondents), the law is clear on the point.

​It is trite law that when a judgment is given, such a judgment is valid and shall so remain except and unless it is duly set aside by a superior Court, and that such a judgment takes effect from the very day the pronouncement of the Court was made.
None of the interested parties in Suit No: OCC/7/91 appealed the judgment of the Obio Customary Court, and as earlier stated this sustains the finality and validity of the said judgment, and it indeed by law remains binding on the parties and their privies.
Consequently, the judgment of the Customary Court in Suit No: OCC/7/91 rendered utterly void and completely obliterated and or cancelled every act or transaction of the Ikechi led land allocation committee in respect to the entire or any part of “Apa Ohia Oda”, and I so hold.
See the decision in case of S.C.C (NIG.) LTD. & ANOR v. CHINYERE ANYA & ORS (2012) 9 NWLR (PT.1305) 213 at 222 G-H. In my view, it’s virtually axiomatic that when something has been rendered a nullity, it ceases to bear any legal consequence.
This presupposes that a void act is totally incapable of conferring any right, title or benefit on a party that claims to derive such benefits from it. It is as though such an act never happened. See again the decision in LABOUR PARTY v. INEC (2009) 6 NWLR (PT.1137) 315 at 347; WAZIRI v. ALI (2009) 4 NWLR (PT. 1130) 178 at 227 C-G.
​It is also trite law, that the judgment of Court is valid until set aside and takes effect immediately upon pronouncement by the Court, and that as soon as the Court makes the order, that order takes immediate effect. See the Supreme Court’s decision in MOBIL OIL NIG. V. ASSAN (1995) 8 NWLR (Pt. 412) S. C. 129 at 143.
It is important to note that by law the orders of the Customary Court in Suit No: OCC/7/1991 voiding and nullifying the Ikechi led land committee became effective from 22nd of March, 1991 and 26th of July, 1991 respectively and not from the 28th November, 1991 when the publication was made in the newspapers.
This means that at the point the 1st Respondent received the so-called title to the land in dispute from her vendors and executed same, they had no valid title to transfer to her. See also the decisions in SUNDERSONS LTD v. CRUISER SHIPPING PTE LTD (2015) 17 NWLR (1488) 357 at 372; HOLBORN (NIG.) LTD v. O. C. CHRIS ENTERPRISES LTD (2015) 11 NWLR (PT.1471) 451 at 474 D.

That being the case, I hereby resolve issue 1 against the 1st Respondent in favour of the Appellants.

​On issue two, it is my finding that the judgment of the Obio Customary Court in Suit No: OCC/7/91 was a Judgment in rem.

This is so because the judgment declared the status of the Ikechi led committee of 1990 in relation to the community land.

Being a judgment in rem, it binds the world at large and not only the parties to the suit. The Supreme Court held in OGBORU & ANOR V. UDUAGHAN & ORS (2011) LPELR-8236 (SC) thus;
“A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title.… The feature of a judgment in rem is that it binds all persons whether a party to the proceedings or not. It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such Judgment declared or made it to be.”
See also the decisions in OKPALUGO VS. ADESHOYE (1996) 10 NWLR (Pt. 476) Page 77; FOINTRADES LTD. VS UNI ASSOCIATION CO. LTD. (2002) 8 NWLR (Pt. 770) page 699; OGBAHON VS. REG. TRUSTEES CCCG (2002) 1 NWLR (Pt. 749) Page 675, OLANIYAN VS FATOKI (2003) 13 NWLR (Pt. 837) Page 273.
From the foregoing, the 1st Respondent pursuant to the valid and subsisting judgment of the Customary Court is bound by the said judgment as it is a judgment that affects all persons whether parties to the proceedings or not, and I so hold.
Issue 2 is thus resolved in favour of the Appellants, against the 1st Respondent.

On issue three, the law is clear that it is the pleadings of parties in a suit that define the scope and indeed extent of a party’s case.

Parties are bound by their pleadings. A party cannot be heard outside that which has already been pleaded. Likewise, the Court is bound by the pleadings on which a case is contested and no Court has the power to suo motu import facts that any party has failed to plead. Any such fact must be deliberately be discountenanced by the Court, no matter how crucial it may seem to the determination of the case.
It was held by the Supreme Court in the case of UMOFFIA v. NDEM (1973) LPELR-3372(SC), thus:
“We have also consistently held that any evidence led in the course of any trial as to any fact not pleaded goes to no issue and must be ignored. If such evidence is wrongly admitted in the proceedings in the High Court, this Court will always ignore such evidence, and, as it were, cause it to be expunged from the record. Parties to a suit must be held to their pleadings.”

From the instant appeal, it can be observed that throughout the pleadings of parties and the 1st Respondent never pleaded in any of the paragraphs of the amended statement of claim/amended statement of defense in the consolidated suits the issue of ratification by elders of the community of the portion of the land she allegedly claimed was partitioned and allocated to her vendors – 2nd-5th Respondents.

​This can only mean that such a purported fact ought to have been ignored by the lower Court as it did not flow from the pleadings, and it is destined to go to no issue, and I so hold.
Issue 3 is hereby resolved in favour of the Appellants, against the Respondents.

On the fourth issue, it is trite that individual member(s) of a family cannot deal with family property without the consent of the family head acting in concert with the principal members of the family.
Failure to do so invariably renders any such dealing null and void. It’s my view that what occurred between the 1st Respondent and her vendors at the material time in which the transaction took place, was sadly, the alienation of family land to the 1st Respondent, by ordinary family members without the consent or foreknowledge of the family head and principal members of the family.
Such a sale in law is void ab initio. See the decision in the case of EKPENDU v. ERIKA (1959) 4 FSC 79; (1959) SCNLR 186.
​At the time of the alleged sale, the land in dispute was still family land as it had not yet been duly partitioned and shared amongst those entitled to receive a share of it, hence such a sale is unrecognizable in customary law.
Issue 4 is consequently resolved against the Respondents in favour of the Appellants, and I so hold.

On issue 5, the learned trial Judge rightly established that the 1st Respondent’s vendors are male members of the community and are by right entitled to their share of the ohia Ada land whenever it is shared.

No evidence was ever led by the vendors that they were excluded from the general sharing of the land, which they ought to have been entitled to as found by the Court below.

That notwithstanding, if the 2nd-5th Respondents by any unfortunate happening think they were unlawfully and unfairly excluded from sharing in their family property, which they are duly entitled to, they ought to challenge their wrongful and unfair exclusion in Court, as it is well within their rights to do so.

This however, was not done in this case. See the decision in the case of MOZIE v. MBAMALU (2006) 15 NWLR (pt. 1003) 466 at 493.

The lower Court therefore erred to substitute by dispossession the portion of land duly allocated to the 1st–3rd Appellants, and conferring the same on the 1st Respondent’s vendors.

​It was the community and its legitimately constituted land committee that failed to allocate land to the 1st Respondent’s vendors and not the 1st–3rd Appellants, thus Court below gravely erred when it so held.
Consequently, issue 5 is also hereby resolved in favour of the Appellants against the Respondents.

Finally, in resolving issue 6, it is important to point out that the sale of the land in dispute to the 4th, 5th and 6th Appellants by the 1st–3rd Appellants is undisputed and established even by the 1st Respondent herself, hence facts that are admitted need no further proof thereof.
My noble law Lords, I align myself with the argument of the learned Appellants’ Counsel when he submitted that the Court below had no jurisdiction to make any inquiry, finding or pronouncement on it since the issue is not in dispute and its jurisdiction is limited by SECTION 6(6)(b) of the 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, AS AMENDED.
See also SECTION 123 OF THE EVIDENCE ACT, 2011 and the case of ADEKEYE v. ADESINA (2010) 18 NWLR (pt. 1225) 449 at 473.

​It is now obvious, that the Court below misapply the provisions of SECTION 167 (d) of the EVIDENCE ACT, 2011, as it relates to this case and I so hold.
Issue 6 as all other issues is hereby resolved in favour of the Appellants and against the Respondents.

It is my respectful view, that this appeal has merit and it is consequently allowed.

The judgment of the learned trial Judge, Honourable Justice B. A. Georgewill (as he then was, now JCA) and delivered on the 26th November, 2012 in suit No PHC/633/2001 is hereby set aside. Both parties shall bear the respective costs of the appeal.

TANI YUSUF HASSAN, J.C.A.: I read in draft, the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. I agree with the reasoning and conclusion reached therein. I also allow the appeal and abide by the consequential order made. No order as to costs.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I agree.

Appearances:

J. C. EZEKWU, ESQ. with him, V. C. ONYECHE, ESQ. For Appellant(s)

MRS. C. A. WOGU, with him, J. E. JAMES, ESQ. and E. C. OKOLO, ESQ. – for 1st Respondents For Respondent(s)