AKPER ININMAH v. RICHARD KYAASHIMA & ORS (2019)

AKPER ININMAH v. RICHARD KYAASHIMA & ORS

(2019)LCN/13649(CA)

In The Court of Appeal of Nigeria

On Monday, the 15th day of July, 2019

CA/MK/229/2014

RATIO

LAND: BURDEN OF PROOF IN DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land the burden is on the plaintiff to establish his title on the strength of his own case and not on the weakness of the defendant?s case although the weakness of the defence may in some cases assist the plaintiff?s case. The onus on the plaintiff does not shift until the plaintiff completely and successfully discharges the onus on him. Furthermore the Court, in a claim for declaration of title, is concerned with;
(a) the precise nature of title claimed, for example, whether the title is claimed by virtue of conveyance, purchase, long possession or original ownership
(b) the existence of evidence to establish the title of the nature claimed. See Onwugbufor V Okoye (1996) 1 SC NJ 1, 5, Dim V Enemuo (2009) 10 NWLR (Pt. 1149) 353, 377 and Eleran V Aderonpe (2008) 12 NWLR (Pt. 1097) 50, 74.
The standard of proof set by the law is proof on a balance of probabilities. PER JOSEPH EYO EKANEM, J.C.A.

LAND: 5 WAYS OF PROVING TITLE TO LAND IN NIGERIA

It is established that there are five ways of proving title to land in Nigeria, viz;
(1) By traditional evidence
(2) By production of documents of title duly authenticated
(3) By acts of long possession and enjoyment of the land in dispute.
(4) By acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference of ownership.
(5) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owners of the land in dispute. See Idundun V Okumagba (1976) NMLR 209, and Piaro V Tenalo (1976) 12 SC 31. PER JOSEPH EYO EKANEM, J.C.A.

PLEADINGS: FACTS NOT CLEARLY PLEADED SHOULD NOT BE GIVEN IN EVIDENCE
In the case of Abubakar v Waziri (2008) 14 NWLR (Pt. 1108) 507, 525 it was held that facts not clearly pleaded should not be given in evidence. See also Ibikunle v Lawani (2007) 3 NWLR (Pt. 1022) 581, 591 and Abubakar v Yar?Adua (2009) 166 LRCN 1, 115 where the Supreme Court held that facts pleaded must be exact, precise and should not give room for speculation and conjecture. PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: WHAT HAPPENS WHEN AN APPELLANT FAILS TO PROVE HIS ROOT OF TITLE AND SALE

Since the appellant failed to prove the root of his title and the sale, the learned trial judge rightly held that no amount of acts of possession would avail him. This is because in an action for declaration of title, where the plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he is not entitled to the declaration sought. He cannot also fall back on long possession and acts of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession. Indeed upon failure to prove root of title, acts of ownership or long possession are considered as acts of trespass. See Odofin v Ayoola supra, Balogun v Akanji (1988) 1 NWLR (Pt. 76) 63, Obioha v Duru (1994) 8 NWLR (Pt. 365) 263 and Owhonda v Ekpechi (2003) 113 LRCN 2254, 2540 2541. PER JOSEPH EYO EKANEM, J.C.A.

LAND LAW: PLAINTIFFS TITLE TO LAND MUST BE CONSIDERED AND DECIDED UPON BEFORE CONSIDERING THE CASE OF THE DEFENDANT

The short answer to the complaint is to be found in the case of Dim v Enemuo (2009) 10 NWLR (Pt. 1149) 353 381 Chukwuma ? Eneh, JSC, stated that:
it is settled law that the plaintiff?s title to a land in dispute must first be considered and decided upon before a consideration of the case of the defendant; so that where the plaintiff initially has failed to prove his title, his case must be dismissed without a recourse to the defendant?s case. PER JOSEPH EYO EKANEM, J.C.A.

WHEN A MATTER WILL BE DISMISSED

The law is that where full hearing of a case is taken to its conclusion, where the claim or reliefs are found to be lacking in merit, the consequential order that follows is that of the dismissal of the claim or reliefs ? Olagbemiro v Ajagungbade (1990) 5 SCNJI, Omomeji v Kolawole (2008) 14 NWLR (Pt. 1106) 180, 198 and Idoko v Ogbeikwu (2003) 7 NWLR (Pt. 819) 275, 292. In such circumstance, the proper order cannot be a striking out order as that keeps the claim alive with the right in the parties to relitigate the matter because there has been no proper determination of the matter. That would be contrary to the salutary public policy that there must be an end to litigation. See Oronti v Onigbanjo (2004) 7 NWLR (Pt. 903) 601, 613.
The trial Court had inherent power to rectify the slip or vary the order to read dismissal instead of striking out upon application by the respondents in order to give effect to the judgment. It follows therefore that this Court has the power to do what the trial Court could have done. See Atuchukwu v Adindu (2012) 6 NWLR (Pt. 1297) 534 and Alhaji Isiyaku Yakubu Enterprises v Omolaboje (2006) 3 NWLR (Pt. 966) 195. PER JOSEPH EYO EKANEM, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

AKPER ININMAH Appellant(s)

AND

1. RICHARD KYAASHIMA
2. MINISTRY OF LANDS AND SURVEY BENUE STATE
3. BENUE STATE URBAN DEV. BOARD Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Benue State, sitting in Makurdi (the trial Court) coram Ijohor, J, in Suit No. MHC/143/2011 delivered on 2nd day of August, 2013. In the judgment, the trial Court found that the appellant (as plaintiff) had failed to establish his case and it struck out the same. Aggrieved by the decision, the appellant has appealed to this Court by means of a notice of appeal filed on 31st day of October, 2013.

The case of the appellant at the trial Court, as set out in his pleadings, was that he acquired the land in dispute in 1979 from one Mr Sylvester Apugba who was the first settler in the area now known as Behind NITEL Headquarters, Makurdi. The consideration was 3,000 burnt bricks which he (appellant) gave the said vendor. Upon acquisition of the land, the appellant developed the same in 1979 and completed a two room block and three huts into which he moved in April, 1981. Sometime in January, 2011, he received a notice to quit from the 1st respondent, who was given a plot of land behind his plot by his vendor several years after

he acquired and developed his land. He subsequently received an abatement/demolition notice.

Consequent upon the above, the appellant sued the respondents at the trial Court, claiming the following reliefs, jointly and severally, against the respondents:
?a. Declaration of title to the plot located behind NITEL Headquarters, Makurdi measuring about 30m x 15m.
b. A perpetual injunction restraining the Defendants, their servants, privies and or agents from entering the land in dispute and in any manner whatsoever in interfering with the said land without the prior consent of the Plaintiff.
c. An Order restraining the 3rd Defendant from demolishing the Plaintiff?s two (2) rooms block and three round huts.
d. An Order restraining the Defendants from tempering with Plaintiff?s quite enjoyment and possession of the said plot of land.
e. An Order revoking any Certificate of Occupancy granted to the 1st Defendant covering the plot of land of the Plaintiff.
f. General damages of N5,000,000 for trespass and cost of prosecuting this suit at N300,000?.
?
The respondents filed their statement of defence

joining issues with the appellant and denying the claim. The case of the 1st respondent was that he acquired title to the land by virtue of a certificate of occupancy from the Benue State Government over the land in dispute.

At the trial, the appellant called four witnesses including himself and tendered three exhibits. The 1st respondent testified for himself and called no other witness. He tendered one exhibit (certificate of occupancy). The 2nd appellant testified through one witness and tendered on exhibit. One witness testified for the 3rd respondent, bringing the number of defence witnesses to three. The trial Court visited the locus in quo. After taking final addresses, the trial Court found against the appellant and struck out his case.

At the hearing of the appeal on 22/5/2019, A.A. Akaa, Esq. (holding the brief of Chief (Mrs) C. Mbafan Ekpendu) in urging the Court to allow the appeal adopted and relied on appellant?s briefs of argument, to wit; the brief filed on 30/12/2014 and the reply brief filed on 7/5/2018.
?
I.S. Gere, Esq. for 1st respondent adopted and relied on 1st respondent?s brief of argument that was filed on

23/4/2018 and deemed duly filed and served on 22/5/2019 in urging the Court to dismiss the appeal. He also relied on his respondent?s notice filed on 23/4/2018 and deemed duly filed and served on 22/5/2019.

M.I. Fiase, Esq. (Principal State Counsel ? Ministry of Justice, Benue State) for 2nd and 3rd respondents adopted and relied on their brief of argument filed on 26/1/2017 and deemed duly filed and served on 22/5/2019 in urging the Court to dismiss the appeal.

In the appellant?s brief of argument, the following issues are formulated for the determination of the appeal:
?2.1 Did the Plaintiff/Appellant not sufficiently prove his root of title in his case before the Lower Court to be entitled to Judgment in his favour? (Grounds 1 and 3 of the Notice of Appeal).
2.2 Was the Learned Trial Court right in law in rejecting the entire evidence of acts of ownership and long possession proffered by the Plaintiff/Appellant in proof of his title to the land in dispute? (Grounds 2 and 4 of the Notice of Appeal).
2.3 Is it proper in law to strike out a case when evidence had been adduced by all the parties to a case and

when the matter had been tried on the merits? (Ground 6 of the Notice of Appeal).
2.4 Did the Plaintiff/Appellant not prove his case on a balance of probabilities to be entitled to Judgment in his favour and against the Respondents? (Ground 5 of the Notice of Appeal)?.

In the 1st respondent?s brief of argument, the following issues are presented for the determination of the appeal:
?(1) Whether having regards to the pleadings and evidence adduced before the lower Court, the trial Judge was wrong in refusing to grant the reliefs claimed by the appellant.
(2) Whether the Court of Appeal has the jurisdiction to correct accidental slips, mistakes and omissions committed by a lower Court whose judgment an appeal lies before it.?

In the 2nd and 3rd respondents? brief of argument, the four issues formulated by appellant?s counsel are adopted for the determination of the appeal.

It is my view that two issues are sufficient to determine this appeal. They are:
(1) Was the trial Court wrong in refusing to grant the reliefs claimed by the appellant?
(2) Was the trial Court right in striking out

instead of dismissing the case of the appellant?
Issue 1 covers issues 1, 2 and 4 of the appellant which are drawn from grounds 1, 2, 3, 4 and 5 of the grounds of appeal. Issue 2 shall be considered under the 1st respondent?s notice, if necessary.

Issue 1 ? Was the trial Court wrong in
refusing to grant the reliefs claimed by the appellant?

Appellant?s counsel referred to paragraphs 5 and 7 of the statement of claim which contains averments on the root of title of the appellant. She submitted that the averments were duly proved and that the respondents did not controvert or debunk those facts, or cross ? examine the appellant on them. She contended that the trial Court ought to have relied on them. She submitted further that where title is derived by grant, traditional history of the land ought to be proved. This, she contended, the appellant did. She further contended that first settlement is a recognised way of proving how a person came to own land.
?
Counsel argued that it was fallacious for the 1st respondent to contend that the land being within Makurdi town could not be owned by his grantor, a Shangev

? Ya man. Since, it was further argued, the 1st respondent did not plead or prove traditional history, there was only one version of traditional history to act on, viz; the appellant?s traditional history. She submitted, in essence, that the trial Court erred in holding that the failure of the appellant to call his predecessor ? in ? title as a witness was fatal. This, she said, is because a party is not bound to call any particular witness and that the evidence of a single witness who is credible is sufficient to sustain a claim.

Referring to Section 143 of the Evidence Act, 2011, she contended that the trial Court erred by rejecting evidence of acts of ownership and long possession presented by the appellant. She conceded that the law is that if a party fails to prove his root of title, he cannot turn round to rely on acts of possession or acts of ownership which are derivable from the radical title pleaded. However, she asserted, the appellant duly proved his root of title and so the acts of possession and ownership became relevant in proof of appellant?s case.
?
Counsel posited that the learned trial Judge evaluated

only the evidence called by the appellant and did not evaluate respondents? evidence. It was her further complaint that the trial Court put the standard of proof on the appellant as being beyond reasonable doubt. Citing Mogaji V Odofin (1978) 4 SC 91, counsel submitted that the trial Court was bound to evaluate the entire evidence before it. She set out in summary the case that she asserted that the appellant pleaded and proved. She noted that though the 1st respondent was issued a certificate of occupancy in 1989, he did not plead and prove when and how he came to be on the land.
?
For the 1st respondent, it was argued by his counsel that in land matters, it is the responsibility of a plaintiff to prove his entitlement to the declaration that he seeks; and that he is not allowed to rely on the weakness of the defendant?s case except to take advantage of evidence of defence that may support his case. It was his position that the appellant failed to prove the grant pleaded by him as required by law. He contended that the 1st respondent rebutted the case presented by the appellant. He noted that all the witnesses called by the appellant did not

testify to the fact that they witnessed the grant to the appellant. It was his assertion that the finding of the trial Court on this failure has not been made the subject of any ground of appeal and so it stands.

Continuing, counsel asserted that the averment in the statement of claim as to the root of title of the appellant falls short of the requirement of the law on pleading root of title based on traditional evidence. He pointed out that throughout the length and breadth of the pleadings of the appellant, it is not averred by the appellant that his grantor founded the land in dispute; that the particulars of intervening owners are not stated and that the names of the witnesses of the grant are not stated. He posited that proof of title by grant must be by evidence of living witnesses except where the fact of the grant is beyond living memory, which would admit proof by traditional history. It was his argument that the year 1979, when the grant was said to have been made, is too recent to be beyond living memory. It was therefore his position that the trial Court was right in holding that failure to call appellant?s grantor, who was still alive,

as a witness was fatal to appellant?s case.

Counsel argued that since the appellant failed to prove his root of title, his acts of possession and ownership are unhelpful to him and they become acts of trespass. It was his further argument that the transaction between the appellant and his grantor is contrary to Section 37(4) of the Land Use Act as the consent of the Governor to the transaction was not obtained.

Counsel posited that evaluation of evidence by the trial Court is not one of the grounds of appeal filed by the appellant. He therefore urged the Court to discountenance appellant?s counsel?s submission thereon. In any event, he stated, leave ought to be obtained to raise such a ground. It was his further position that it was incumbent on the learned trial Judge to look into the case of the appellant to ascertain if he had proved his case before shifting the burden to the respondents who did not counter ? claim. He stated that the trial Court did not adopt proof beyond reasonable doubt as the standard of proof in this matter. He thereafter referred to the certificate of occupancy issued to the 1st respondent and submitted

that there was a presumption of regularity in its favour.

For the 2nd and 3rd respondents, it was argued that the appellant did not lead evidence to support his claim. It was further argued by counsel for 2nd and 3rd respondents that the failure to call appellant?s vendor was fatal and raised the presumption in Section 167(d) of the Evidence Act. It was counsel?s contention that the appellant did not lead evidence to show acts of fraud on the part of the 2nd and 3rd respondents in processing and granting a certificate of occupancy to the 1st respondent.

In his reply, appellant?s counsel referred to ground 2 of the grounds of appeal and posited that it raises the issue of rejection of evidence of appellant?s witnesses. It was his contention that a first settler on a piece of land is the founder of the land. He referred to Awojugbagbe Light Industries Ltd V Chinukwe (1993) NWLR (Pt. 270) 435 among other cases and submitted that the absence of Governor?s consent did not make the transaction between the appellant and his vendor illegal. Again, she contended that the appellant did not need leave to raise issue of evaluation

of evidence.

Resolution
The appellant, as earlier stated in this judgment, claimed, inter alia, for a declaration of title to the land in dispute. The 1st respondent did not counter ? claim for a declaration of title to the land. He merely defended the suit. He was not under any obligation of law to counter ? claim. In a claim for declaration of title to land the burden is on the plaintiff to establish his title on the strength of his own case and not on the weakness of the defendant?s case although the weakness of the defence may in some cases assist the plaintiff?s case. The onus on the plaintiff does not shift until the plaintiff completely and successfully discharges the onus on him. Furthermore the Court, in a claim for declaration of title, is concerned with;
(a) the precise nature of title claimed, for example, whether the title is claimed by virtue of conveyance, purchase, long possession or original ownership
(b) the existence of evidence to establish the title of the nature claimed. See Onwugbufor V Okoye (1996) 1 SC NJ 1, 5, Dim V Enemuo (2009) 10 NWLR (Pt. 1149) 353, 377 and Eleran V Aderonpe (2008) 12

NWLR (Pt. 1097) 50, 74.
The standard of proof set by the law is proof on a balance of probabilities.

The learned trial Judge at page 255 of the record of appeal reasoned as follows:
?In the pleadings the plaintiff traced his root of title to the grant of the land to him by Sylvester Apugba. I want to stress that it is this grant that is the foundation of the case of the plaintiff and he must prove it strictly and successfully before there can be question of the defence

being called upon to justify any of their acts on the land?.
I agree with his lordship as several cases vindicate his postulation. See Odofin V Ayoola (1984) 11 SC 72 and Kalio V Woluchem (1985) 1 NWLR (Pt. 4) 572.
In paragraphs 5, 7 and 16 of the statement of claim, the appellant averred thus:
?5. The plaintiff sometime in 1979 acquired a plot of land measuring about 30m x 15m from one Mr Sylvester Apugba who was the first settler in the area now known as Behind NITEL Headquarters, Makurdi.
7. Plaintiff shall contend that the said Mr Sylvester Apugba who now resides at Shangev ? Ya in Kwande Local Government gave him the said plot of land in exchange for 3,000 burnt bricks ?
16. Plaintiff shall further contend that his donor Mr Sylvester Apugba as the first settler in the area
The averments above are specifically denied in paragraphs 2, 3 and 7 of the 1st respondent?s statement of defence. In paragraph 7, it is averred as follows:
?The 1st defendant contends further that Sylvester Apugba did not sell the land to the plaintiff at any point in time nor had he any title

thereto to transfer to any individual, under whatever guise of sale.?
Since both the sale transaction and the title of the appellant?s vendor had been denied the burden was on the appellant to prove both his title and that of his vendor. See Otanma v Youdubagha (2006) 134 LRCN 362, 388 and Mogaji v Cadbury Fry (Export Ltd) (1985) 2 NWLR (Pt. 7) 393.
The learned trial judge considered the averments in paragraphs 5 and 7 of the statement of claim set out above and held that,
?The pleading in my view falls short of stating the persons that founded the land and exercised the original acts of possession nor did it aver how the founders of the land came to be on the land? page 256 of the record.
?I agree with the learned trial judge. The averment of the appellant is that Mr. Sylvester Apugba who sold the land in dispute to him was the ?first settler in the area now known as Behind Nitel Headquarters, Makurdi.? The plea that Mr. Sylvester Apugba was the first settler ?in the area is not the same thing as his being the first settler or founder of the land in dispute. The dispute between the

parties is about the land in dispute and not ?the area.? If the appellant had intended to plead that the land in dispute was founded by Mr. Sylvester Apugba, he should have clearly, unambiguously and precisely stated so, ? and not leave the same to conjecture or speculation.
In Odom v People?s Democratic Party (2015) 6 NWLR (Pt. 1456) 527, 565 M. D. Muhammed, JSC, stated the law on pleading in the following words:
?The need for facts in pleadings to be concise and unambiguous cannot be overemphasized. Pleadings are averred facts numbered in paragraphs which parties rely on to present their case. Their essence is to forestall surprises thrust on the adverse party. The facts in pleadings, if this element of surprise in litigation is to be avoided, therefore, must be unequivocal.?
In the case of Abubakar v Waziri (2008) 14 NWLR (Pt. 1108) 507, 525 it was held that facts not clearly pleaded should not be given in evidence. See also Ibikunle v Lawani (2007) 3 NWLR (Pt. 1022) 581, 591 and Abubakar v Yar?Adua (2009) 166 LRCN 1, 115 where the Supreme Court held that facts pleaded must be exact, precise and

should not give room for speculation and conjecture.
It must be re-stated that the case of the appellant was that his vendor sold the land to him in 1979. Since the respondent denied the averment, the burden was on the appellant to prove the same. The learned trial judge at page 257 of the record observed as follows:
?It is pertinent to state here that all the witnesses called by the plaintiff did not testify to the fact that they witnessed the grant of the land and the handing over of possession of the land to him. The evidence of these three witnesses in my view is not of any assistance to the plaintiff? It is also unfortunate that the plaintiff could not produce Sylvester Apugba to testify on his behalf despite the fact that he is still alive and living in his village in Shangev ? ya in Kwande Local Government.?
?The appellant was duty ? bound to call witnesses to the sale since it was not in writing. None of the witnesses called by him was present at or witnessed the transaction. His vendor, according to him and his witnesses, was still alive and so in that circumstance he should have called him to testify. The

transaction was said to have taken place in 1979 which is a period within living memory. See Adisa v Oyinwola (2002) 2 SCNQR (Pt. 2) 1295.
Going back to the founding of the land, it is pertinent to state that it is not pleaded and no evidence was led as to when Mr. Sylvester Apugba ?first settled in the area.? Since he was said to be still alive and sold the land to the appellant in 1979, it cannot be rightly said that he first settled in the area at a time out of living memory. Therefore the idea of traditional history or evidence canvassed by both parties does not arise. In the case Salisu v Mobolaji (2016) 15 NWLR (Pt. 1535) 242, 272 ? 273, Ogunbiyi, JSC, opined thus:
?It is pertinent to state that what is meant by traditional history is evidence derived from tradition or reputation or the statement formally made by person since deceased in regard to question of pedigree, ancient boundaries and the like, where no living witness can be produced having knowledge of the facts.
The term ?traditional evidence? and ?traditional history? are often used interchangeably or synonymously to mean the same

thing. This Court has defined the terms in the following pronouncement in Ewo v Ani (2004) 3 NWLR (Pt. 861) 611 per Uwaifo and Edozie, JSC, as follows:
P. 637. Par. F per Edozie, JSC:
?evidence as to rights alleged to have existed beyond time of living memory and proved by? or other members of the various tribes concerned.
P. 635, paras. A ? B per Uwaifo, JSC:
?Traditional history by concept, deals with an event beyond human memory; or is ancient through recollection beyond record, or is what happened at a time out of mind and therefore qualifies to be immemorial.? See also Ojoh v Kamalu (2006) 136 LRCN 1130, 1175 ? 1176.
Since Mr. Sylvester Apugba, the alleged first settler in the area was/ is still alive, it cannot be said that the alleged first settlement occurred at a time beyond living memory nor can it be said to be ancient. In the case of Okonkwo v Okonkwo (2010) 14 NWLR (Pt. 1213) 228, 254, Adekeye, JSC, opined that:
?Facts which are within living memory are properly to be proved by evidence of living witnesses to the event and not by evidence of tradition

It follows therefore that appellant?s counsel?s assertion that there was only one version of traditional history, namely; appellant?s traditional history, before the Court is not correct. The appellant had no traditional history. What he had was an alleged event within living memory which he failed to prove by calling living witnesses including the alleged first settler in the area.

(1994) 8 NWLR (Pt. 365) 263 and Owhonda v Ekpechi (2003) 113 LRCN 2254, 2540 ? 2541.
The above stated position of the law gives a quietus to the contention of the appellant that since he was in possession of the land, there is a presumption of ownership in his favour. This is more so that the 1st respondent was granted a right of occupancy over the land in dispute evidenced in the certificate of occupancy issued to him by the Governor of Benue State ? Exhibit E. It raises a presumption that the holder is the owner in exclusive possession of the land and that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is rebuttable and the burden of rebutting the presumption, in this instance, was on the appellant. See Madu v Madu (2008) 6 NWLR (Pt. 1083) 296, 320.
The Appellant?s counsel complained that the trial Court evaluated only the evidence called by the appellant and did not evaluate respondent?s evidence. It was her contention that if the trial Court had weighed evidence of the respondents against that of the appellant, it would have reached a different

conclusion. The short answer to the complaint is to be found in the case of Dim v Enemuo (2009) 10 NWLR (Pt. 1149) 353 381 Chukwuma ? Eneh, JSC, stated that:
it is settled law that the plaintiff?s title to a land in dispute must first be considered and decided upon before a consideration of the case of the defendant; so that where the plaintiff initially has failed to prove his title, his case must be dismissed without a recourse to the defendant?s case?.
The learned trial judge therefore had no obligation to assess or evaluate the case presented by the respondents since the appellant had failed to discharge the burden of proving his case.

In view of what I have stated thus far, I enter a negative answer to issue one (1) and resolve it against the appellant.

ISSUE TWO – Was the trial Court right in striking out instead of dismissing the case of the appellant?

1st respondent?s counsel argued under his respondent?s notice that the order of the trial Court striking out the suit after evidence had been taken and the suit determined on its merit was a slip on the part of the lower Court.

He posited that the intention of the judgment was an order of dismissal. He defined a slip as a clerical mistake in a judgment; an error in expressing the manifest intention of the Court, the correction of which would give the desired effect to the judgment without any miscarriage of justice. He urged this Court to amend the order of the trial Court to read that the case of the appellant is dismissed.

On her part, appellant?s counsel submitted that the issue raised by 1st respondent is incompetent as there is no competent respondent?s notice filed before this Court; rather the 1st respondent purported to raise a respondent?s notice in his brief of argument. She referred to and relied on Order 9 Rule 1 of the Court of Appeal Rules, 2016, in support of her contention. She urged the court to strike out the purported respondent?s notice and issue 2 formulated by 1st respondent.

RESOLUTION
Order 9 Rule 1 of the Court of Appeal Rules, 2016 provides that:
?A respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of the Court should be varied, either

in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make or to make in that event, as the case may be.?
A respondent who has not appealed from the decision of a lower Court but desires the decision to be varied is required to give notice to that effect. In other words, he is required to file a notice to that effect. The notice must be served on the appellant and all other parties to the proceedings in the lower Court who are directly affected by respondent?s contention within the time specified in rule 4 (a) and (b) of Order 9 of the rules of this Court.

In this instance, the 1st respondent first gave notice of his respondent?s contention to vary in his brief of argument. Upon the service of the appellant?s reply on him raising the point of the incompetence of the respondent?s notice, the 1st respondent filed a motion on notice praying for:
1. Extension of time to file respondent?s brief of argument and respondent?s notice.
2. A

deeming order.

The application was granted on 22/5/2019 in terms of the reliefs sought. The effect of a deeming order is that it regularises the relevant process. See Dick v Our and Oil Company Limited (2018) 14 NWLR (Pt. 1638) 1 19. Thus the objection of appellant?s counsel to the respondent?s notice has been overtaken by event and I therefore discountenance it.

The learned trial judge at page 260 of the record concluded his consideration of the case as follows:
?The sum total of all I have said is that the plaintiff has failed to establish his title to the land in dispute. He is not entitled to any of the orders sought.
The case fails in it?s entirety and it is accordingly struck out.?

The order striking out the case was obviously a slip on the part of the learned trial judge. The law is that where full hearing of a case is taken to its conclusion, where the claim or reliefs are found to be lacking in merit, the consequential order that follows is that of the dismissal of the claim or reliefs ? Olagbemiro v Ajagungbade (1990) 5 SCNJI, Omomeji v Kolawole (2008) 14 NWLR (Pt. 1106) 180, 198 and

Idoko v Ogbeikwu (2003) 7 NWLR (Pt. 819) 275, 292. In such circumstance, the proper order cannot be a striking out order as that keeps the claim alive with the right in the parties to relitigate the matter because there has been no proper determination of the matter. That would be contrary to the salutary public policy that there must be an end to litigation. See Oronti v Onigbanjo (2004) 7 NWLR (Pt. 903) 601, 613.
The trial Court had inherent power to rectify the slip or vary the order to read dismissal instead of striking out upon application by the respondents in order to give effect to the judgment. It follows therefore that this Court has the power to do what the trial Court could have done. See Atuchukwu v Adindu (2012) 6 NWLR (Pt. 1297) 534 and Alhaji Isiyaku Yakubu Enterprises v Omolaboje (2006) 3 NWLR (Pt. 966) 195.

Consequent upon the foregoing, I enter a negative answer to issue 2 and resolve it in favour of the 1st respondent.
?
Before drawing the curtains on this judgment I will take the liberty to comment on an aspect of this appeal that is disturbing to me. At page 13 paragraph 6. 3 of the appellant?s brief of argument, it is stated

that the trial Court occasioned,
a vicious miscarriage of justice.?
1st respondent?s counsel complained about the nature of the language above. The response of the appellant?s counsel was that:
?The 1st Respondent cannot lecture the Appellant on the choice of words or adjectives in writing his brief. Besides, what is wrong in submitting that a decision or finding of a lower Court led to ?a vicious miscarriage of justice
The word ?vicious? is defined as follows:
?1.Violent and cruel ?
2. Aggressive and dangerous ?
3.(of an attack, criticism etc.) full of hatred and anger.
4. (Informal) very bad or severe ? Oxford Advanced Learner?s Dictionary 7th edition, page 1639.
With the greatest respect to the counsel for appellant, it is my view that the language used by her in describing the finding or decision of the learned trial judge is rather harsh and intemperate. It has been admonished in several cases that counsel have a duty to maintain an unreserved respect for Court. Counsel should not make remarks that

could lower the integrity of the Court. The profession abhors disrespect to the Court under any guise and so counsel should learn to use sober and temperate language in disagreeing with the Court. See Amaechi v Omehia (2013) 16 NWLR (Pt. 13811) 417, 434 and Ikumonihan v State (2014) 2 NWLR (Pt. 1392) 564, 594. In the more recent case of Osareren v Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 221, 237 Eko, JSC, stated that:
?Courts of justice are also not theaters where lawyers enjoy the luxury of maligning Judges
It must be remembered that judges and counsel are ministers in the temple of justice and that rude or intemperate language by any of the ministers desecrates and devalues the temple. That portends no good for either side or even the public. There must be mutual respect for each other. Counsel can express his disagreement with a judge?s position without being harsh in his language. The same position also applies to the judge. I think I should stop at this point so that I do not become harsh.
?
On the whole, the appeal is devoid of merit. It therefore fails and I accordindly dismiss the same. I affirm

the decision of the trial Court.
The parties shall bear their costs

JUMMAI HANNATU SANKEY, J.C.A.: My learned brother, Ekanem, J.C.A., obliged me a draft of the lead Judgment just delivered. I agree with the reasoning leading to the conclusion dismissing the Appeal.

I also dismiss the Appeal and abide by the consequential orders therein, including the Order as to costs.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read in advance a draft copy of the Judgment just delivered by my Learned Brother, Joseph E. Ekanem, J.C.A. in which this appeal has been dismissed.

?The issues arising for determination have been ably and comprehensively resolved. I agree with that this appeal is without merit. I also dismiss the appeal and abide by the orders made in the lead Judgment.

Appearances:

A.A. Akaa, Esq. (holding the brief of Chief (Mrs) C. Mbafan-Ekpendu)For Appellant(s)

I.S. Gere, Esq. for 1st respondent.

M. I. Fiase Esq. (Principal State Counsel, Ministry of Justice, Benue
State) for 2nd and 3rd respondents.For Respondent(s)

Appearances

A.A. Akaa, Esq. (holding the brief of Chief (Mrs) C. Mbafan-Ekpendu)For Appellant

AND

I.S. Gere, Esq. for 1st respondent.

M. I. Fiase Esq. (Principal State Counsel, Ministry of Justice, Benue
State) for 2nd and 3rd respondents.For Respondent

LawCare Nigeria

AKPER ININMAH v. RICHARD KYAASHIMA & ORS (2019)

general

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

general

Related Story

YOU MAY HAVE MISSED