ALHAJI ISIYAKU YAKUBU v. ADAMAWA STATE URBAN PLANNING AND DEVELOPMENT AUTHORITY & ORS (2013)

ALHAJI ISIYAKU YAKUBU v. ADAMAWA STATE URBAN PLANNING AND DEVELOPMENT AUTHORITY & ORS

(2013)LCN/6446(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of July, 2013

CA/YL/43/2011

RATIO

 DUTY OF COURT: WHETHER ATRIAL COURT HAS THE PRIMARY FUNCTION OF EVALUATING AND APPRAISING THE TOTALITY OF THE EVIDENCE OF WITNESS BEFORE IT

May I restate herein the time honoured and settled position of the law that it is the primary function of a Court of trial to evaluate and appraise the totality of the evidence of witnesses before it and to ascribe probative value to them. This is because that Court had the advantage of watching the demeanour and hearing the witness and this Court which is only seised of bare records of the Court below has no business interfering with findings of facts arrived at in the course of such an exercise by the Court below even if we would have come to a different finding and conclusion on the facts of the case. See Woluchem V. Gudi (1981) 5 SC 291 at 326, Ebba V. Ogodo 1 SCNLR 372; Ibodo V. Enarofia (1980) 5 S.C. 42 and Anyegwu V. Onuche (2009) 37 NSCQR 109 at 125 paras D – H, 126 paras. A – H, 127 paras A – H and 128 para. A; per I. T. Muhammad, JSC.

The law is also settled that once this Court has ascertained that the learned trial Judge carried out this primary duty satisfactorily, we shall be very wary to interfere and left with no option but to affirm the decision of the trial Court for to do otherwise would rather institutionalize miscarriage of justice which is the complaint of the learned Counsel for the Appellant’s in this Appeal. See Adeye V. Adesanya (2001) 6 NWLR (pt. 708) 1 S.C; Enang V. Adu (1981) 11 – 12 S.C. 25; Ojonu V. Ajao (1983) 2 SCNLR 156 and Fatoyinbo V. Williams (1956) SCNLR 274. PER IGNATIUS IGWE AGUBE, J.C.A.

CIRCUMSTANCES UNDER WHICH A COURT MAY DECLARE A JUDGMENT DELIVERED BEYOND THE THREE MONTHS STIPULATED BY THE CONSTITUTION

The circumstances under which this Court may declare a Judgment delivered beyond the three months stipulated by the Constitution have been laid down in a host of cases. See for instance the authorities of Nigerian Bottling Company PLC. V. Okejiminor (1998) 8 NWLR (pt.561); Ojokolobo V. Alamu (1987) 3 NWLR 377, Onagoruwo V. The State (1993) 7 NWLR 49 at 109 CA; and Ogundele V. Fasu (1999) 9 SCNJ 105 at 112. See generally the “(CIVIL PROCEDURE IN NIGERIA SECOND EDITION, by Fidelis Nwadialo, SAN at pages 727 to 733 and the recent case Zobams Co. Nig. Ltd, V. Tofa General Enterprises (2007) 2 WRN 65 at 73. PER IGNATIUS IGWE AGUBE, J.C.A.

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

ALHAJI ISIYAKU YAKUBU – Appellant(s)

AND

1. ADAMAWA STATE URBAN PLANNING AND DEVELOPMENT AUTHORITY

2. ALIYU B. TARFA, GENERAL MANAGER, ADAMAWA STATE URBAN PLANNING DEVELOPMENT AUTHORITY

3. MR. HUDSON M. ZUBAIRU DIRECTOR, URBAN PLANNING AND DEVELOPMENT AUTHORITY

4. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ADAMAWA STATE – Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal challenges the Judgment of the High Court of Justice, Adamawa State which Judgment was delivered by the Honourable Justice Bobbo Umar of the Yola Division on the 30th day of March, 2011 dismissing the Plaintiff/Appellant’s case and refusing the grant of all the Reliefs sought by him.

The Appellant had in both his 2nd Amended Writ of Summons and 2nd Amended Statement of Claim dated and filed on the 14th April, 2008 but deemed duly filed by order of Court on the 24th day of June, 2008 sought for the following Reliefs in paragraph 21 thereof:-

“21. Whereof the Plaintiff claims against the Defendants jointly and severally as follows:-

(a) A declaration that the refusal of the Defendants to grant the Plaintiffs tenant permission to erect a kiosk is unreasonable, null and void.

(b) A declaration that the building plan to the Plaintiff in 1980 by the 1st Defendant and the Adamawa State Ministry of Works is still valid and subsisting and covers the erection of any structure on Plaintiffs land OR an Order directing the 1st to 3rd Defendants of grant permission to the Plaintiff for the erection of structures on the aforesaid land of Plaintiff.

(c) A Perpetual injunction restraining the Defendants either by themselves, agents or privies from denying enjoyment of the Plaintiffs land or tempering with any of the Plaintiffs or Plaintiffs tenants properties, the Plaintiff being the title holder of the land per certificate or Occupancy No. GS/147 and having been granted building permit.

(d) An order directing the Defendants to publish an apology letter to the Plaintiff for the wrongful refusal in a National Newspaper.

(e) N15, 000.00 every six months as special damages on the rent paid but refunded consequent upon the refusal of permission from 1st March 2004 till final liquidation.

(f) N6, 000,000,00 (Six Million Naira) general damages.

(g) Cost of this Suit.”

Upon being served, the Defendants joined issue by filing their Joint Statement of Defence dated 18th April, 2005 same date. At the hearing of the case, the Appellant testified called a witness and tendered twenty one (21) documentary Exhibits marked A – KK (pages 44 – 56 and 55 – 79 of the Records refer) whereas the Defendants called a witness who was not cross-examined and the Court closed the Defendants’ case on the application of the Plaintiff’s Counsel and all efforts by the learned Counsel for the Defendants to persuade the Court below to reopen their case for their witness to be cross-examined proved abortive. The learned trial Judge delivered his Judgment on the 30th March, 2011 after the conclusion of the learned Counsel’s Addresses. It would be recalled also that the Court below visited the locus in quo before delivery of the Judgment. Dissatisfied with the Judgment of the learned trial Judge, the Plaintiff/Appellant appealed to this Court by a Notice of Appeal with Six Grounds dated and filed on 20th June, 2011.

In line with the Rules of this Honourable Court, the respective learned Counsel for the parties exchanged their Briefs of Argument, following the transmission of the Record of Proceedings of the lower Court to this Honourable Court. Before then, Chief L. D. Nzadon of Counsel to the Appellant was by a motion on notice dated 18th June, 2012 and filed on the 20th of June, 2012 granted leave to amend the Appellant’s Notice and Grounds of Appeal earlier filed in the lower Court and subsequently an Amended Notice of Appeal still with 6 (six) Grounds was filed in this court 27th of November, 2012.

In the Appellant’s Brief filed on the 20th June, 2012 but also deemed filed on the 27th of November, 2012 and settled by Chief L. D. Nzadon & Co. four issues couched in the following terms and hereunder reproduced were distilled from the six Grounds of Appeal thus:-

(i) Whether the judgment of the lower Court had not occasioned a miscarriage of justice and was a nullity having been delivered more than 3 months 294(1) & (5) of the 1999 Constitution? (Ground 6 of the Grounds of Appeal in the Amended Notice of Appeal);

(ii) Whether the Judgment of the trial Court has led to miscarriage of justice for failure of the trial Judge to record his findings and observations during the visit to the locus in quo? (Ground 5);

(iii) Whether the learned trial Judge evaluated or properly evaluated the evidence of the witnesses and gave probative value to them? (Grounds 1, 2 & 4);

(iv) Whether the evidence of DW1 which was not relied upon by the trial Judge to deliver Judgment in favour of the Respondent? (Ground 3).”

The Respondents in their Joint Brief of Argument settled by Chief M. A. Gangs Deputy Director Legal Drafting of the Adamawa State Ministry of Justice dated and filed on the 15th day of March, 2013 but deemed properly filed and served on the 16th of March, 2013, also adopted the four issues formulated by the Learned Counsel for the Appellant.

A synopsis of the facts of the case of the Appellants is that the Appellant is the owner all the piece and parcel of land lying and situate at No. 21, Gimba Road in the heart of Jimeta- Yola, Adamawa State within jurisdiction which land is covered by Adamawa State Certificate of Occupancy No. GS/147 dated 12th October, 1977 (tendered as Exhibit A) in the proceedings. The property is said to front Atiku Abubakar Way (then Mubi Road) and the Appellant had obtained a building and erected structures on the land (which permit is Exhibit B in the proceedings)

According to the Appellant, sometime in 1984, the defunct Gongola State Government decided to expand the Atiku Abubakar Way and earmarked and later demolished some portion of the Appellant’s property despite the Appellant’s protests in Exhibits KH and KK. Consequently the Appellant sued the Adamawa State Government in the High Court and Court of Appeal and won and the appeal to the Supreme Court is now pending only in relation to damages awarded the Appellant against the Government. (Pages 82 lines 34 – 37 and 83 lines 1 – 16 of the Records refer).

The Appellant as the undisputed owner of the land was said to have given a portion thereof to one Mr. Anthony Awuzieke and Mohammed Mai-Suya to erect sheds thereon, which Applications were initially queried by the 1st Defendant which eventually allowed the Appellant to proceed by Exhibits D, E, and F) between the months of September, 2003. However, when PW2 Mallam Abdulla 212 Ilu paid rent of N15, 000.00 for Six months and sought to erect a shed on the land to make, sell and wash caps, the 1st Defendant/Respondent refused to grant him permit despite the Appellant’s intervention consequently the Appellant instituted this action challenging the decision of 1st Respondent.

At the trial, while the PW1 was being cross-examined by Gangs Esq. then learned Senior State Counsel I he applied for a visit to the locus in quo which Odo Esq. who was appearing for the Appellant obliged the contention of the Appellant in this Appeal is that then was no record of any finding of the Court below or any observation of the Court during the visit to the locus in quo neither was any mention made by any of the Parties to the visit thereafter until the Court from the blues in the course of its judgment which was delivered on the 30th March, 2011 alluded to its observation at the locus in quo visited around the 13th June, 2006, to hold that, that observation supported the case of the Respondents that the structure proposed to be erected on the Appellant’s and would obstruct the view of the road to road users from Gemba Road into Atiku Abubakar Road.

Upon the above basis judgment was entered against the Appellant is that while the final Addresses of Counsel were concluded on the 3rd of August, 2010 and the case was adjourned to the 7th of October, 2010 for judgment, it was not until the 30th of March, 2011 that judgment was delivered 8 months after the final Addresses. Again in the judgment of the learned trial Judge which spanned thirteen (13) pages, only two (2) pages were devoted to make findings of facts and evaluation of the evidence of Parties finally, the Court below was said to have relied on the evidence of the DW1 whole sale as the basis of his decision in spite of the fact that the DW1 who had given incomplete testimony did not return to be cross examined in spite of all the opportunities afforded the said DW1 by the Court below granting the said DW1 several adjournments.

The case of the Respondents on the other hand is that the Appellant who own the land as claimed did obtain a building permit and erected structures there on in the 1970’s. In 1984 the defunct Gongola State Government decided to expand Mubi Road (now Atiku Abubakar Road and earmarked same and later demolished some part of the Appellant’s property. The Appellant the wrote letters (Exhibits KH and KK) to the State Government as a result of which the Government assessed the damage done to Appellant’s property and paid Appellant some compensation.

It is also the case of the Respondents that the Appellant concealed the fact of receipt of compensation until he was pushed to the wall under cross-examination before confessing to the collection of some compensation from Government paid to him in three instalments even-though he failed to disclose how much was paid to him (page 83 of the Records referred). On the judgment obtained in the High Court and Court of Appeal, the Respondents claim that those judgments were default judgments which are being challenged in the Supreme Court. The Respondents further claim that by Exhibit “KK” which the Appellant tendered in the lower Court clearly shows that the land in contention has encroached into the road reservation area. The said Exhibit “KK” which reads that the Appellant was advised to remove his stores and fence as they defaced the State Capital also, according to the Respondents, show that the demolition of the structures was done in line with the above Notice and the Appellant was duly compensated, for the demolished structure.

The Respondents also aver that the giving of part of the land to Mr. Anthony Awuzike and Mohammed Mai-Suya were opposed by the Town Planning and Urban and Development Authority, Yola and the Appellant had to resort to other means to obtain the said Permit in spite as demonstrated in Exhibit “D” where the Ministry of Environment wrote to the said Anthony Awuzike informing him that the structure was built on a Road Reservation Area. As for Abdullaziz Ilu, the Respondents regretted seeking Permit from the appropriate authority and that based on Exhibit “D” and communicated in Exhibit “KD” Respondents also assert that the Appellant had no reason whatsoever to take out the Writ of Summons against the Respondents in the first place because one of the conditions for the grant of the Certificate of Occupancy was that he should the right of occupancy or sell, assign, mortgage transfer of possession etc. whatsoever, without the consent of commissioner first had and obtained and to use the place for residential purpose only.

They claim that the Appellant breached all the above conditions by leasing it out to PW11 and other occupants. They agreed that in the course of the proceedings and when the PW1 testified, the learned Counsel representing the Defendants/Respondents called force visit to the locus in quo and the Honourable Court granted his prayer and visited the locus. At the locus, according to Respondents, the Court observed that the finding of DW1 agreed with what per any structure on the property at the portion described in the amended Statement of Claim of the Appellants would block traffic and this would be detrimental to the interest of the public and road users.

Further more, at the locus in quo, the Court below also saw the extent of encroachment into the road reservation area and rightly reached the conclusion that the building of any structure on the property would block visibility to motorists.

ARGUMENT OF ISSUES

ISSUE NUMBER 1 (ONE) WHETHER THE JUDGMENT OF THE LOWER COURT HAD NOT OCCASIONED A MISCARRIAGE OF JUSTICE AND THUS A NULLITY HAVING BEEN DELIVERED MORE THAN 3 MONTHS AFTER FINAL ADDRESS CONTRARY TO SECTION 294(1) & (5) OF THE 1999 CONSTITUTION? (GROUND 6 OF THE GROUNDS OF APPEAL IN THE AMENDED NOTICE OF APPEAL)

Arguing this first issue, the learned Counsel for the Appellant recalled that the learned trial Judge concluded taking evidence and the Addresses of Counsel in the matter on the 3rd of August, 2010 (pages 130 lines 13; 131 lines (sic) and 31 of the Records where the date was given as 2/8/10 refer). The case was adjourned to 7th October, 2010 (page 131 line 27) but the Judgment was not delivered until 30th of March, 2011 about 8 months after final Addresses which is in breach of Section 294(1) of the 1999 Constitution as reproduced in the Appellants Brief of Argument as being in pari materia with section 258(1) of the 1979 Constitution and which section was interpreted by the Supreme Court in a long line of beginning cases from Ifezue V. Mbaduha & Anor. (1984) NSCC Vol. 15, 314 at 330 per Aniagolu, JSC and subsequently in Odi V. Osafile (1985) 1 NWLR (pt.1) 17 Uttih V. Onnoyire (1991) 1 NWLR (pt.166) 166 and Obadiara V. Uvigue (1986) 17 NSCC (pt.1) 439.

The learned Counsel observed that the above position of the law was extant until the Military Administration intervened to mitigate the rigours of the provision by the introduction of the Constitution (suspension and Modification) Amendment Decree No. 17 of 1985 which saved judgment delivered outside the three months stipulated by the Constitution where the complainant cannot show that miscarriage of justice has thereby been occasioned which position has been preserved by section 294(5) of the Constitution of the FRN, 1999 (as amended).

As far as this case is concerned the learned counsel for the Appellant has posited that there is no dispute that the learned trial Judge delivered his judgment outside the statutory period provided by Section 294(1) of the Constitution as the Judge was very mindful of this fact when he remarked as he did at page 143 lines 27 – 30 of the Records. The learned Counsel has therefore submitted that the failure of the learned trial Judge to deliver the Judgment within the prescribed period had robbed him of the opportunity to fully assess and evaluate the evidence of the witnesses having evaluate the evidence of the witness having lost the perspective of the case especially when His Lordship fell back on his memory to recall and use his visit to the locus inquo which occurred over four years, before judgment. The use of the claims on the Original Writ of Summons as the basis of his judgment when the Writ and Statement of claim had been subsequently been amended on two occasions (pages 4, 19 and 20, 30 and 105 of the Records).

On another score the learned Counsel for the Appellant recalled that the learned trial Judge in a Judgment which spanned 13 (thirteen) pages took only two pages to evaluate and ascribed probative value to evidence of the witnesses which effort fell far short of the standard required in a matter of this nature because with the passage of time which the learned trial Judge acknowledged in his judgment, the Appellant has suffered a miscarriage of justice.

For this submission he placed reliance on the dictum of Ogbuniya, JCA in the case I.B.B. Industrial Ltd. V. Mutunci Co. Nig. (2012) 5 NWLR (pt.1297) 487 at 518

Furthermore, it is contended that the learned trial Judge turned blind eye to the evidence of the Appellant and his witnesses in relation to the Application for use of the premises in dispute by two other tenants. Mr. Anthony Awuzike who was granted permit in Exhibit “F” to construct a shed on the premises and Mallam Mohammed Mai-Soya who was also allowed to operate Kebarb shed after an initial disapproval by the 1st Respondent which pieces of evidence the learned trial Judge treated as irrelevant thus showing that with effluxion of time, he had lost his appreciation of the case. The learned Counsel has also posed the question as to why the 1st Respondent within the span of September, 2003 to February, 2004 the two persons are granted approval in relation to the adjoining premises but the Appellant was denied. Exhibits D, E, F, K, KA, and KD, were alluded to in submitting that the delay in the delivery of his Judgment robbed the learned trial Judge of his expected capacity to appreciate the case and evidence thereby handing over a perfunctory decision. He finally anchored his submission on this issue on the cases of I.B.B. Industrial Ltd. V. Mutunci Co. Nig. (supra) at page 516, B-C and Egbo V. Agbara (1997) 1 NWLR (pt.481) 293 at 315 paras. A, C and E.

Reacting to the above submissions the learned Director of Legal Drafting submits on the contrary that the Judgment of the lower Court had not occasioned a miscarriage of justice and a nullity having been delivered more than three months after the trial Addresses of Counsel, contrary to section 294(1) and (5) of the 1999 Constitution. According to him, miscarriage of justice has not been proven and referring to section 294(5) of the Constitution which he has also reproduced in the Respondents’ Brief of Argument, he has submitted that the Court was not robbed of the opportunity to fully assess and evaluate the evidence of the witnesses as the learned trial Judge painstakingly reproduced and assessed the evidence of the parties and particularly based his decision on the submissions of the learned Counsel for the Defendants/Respondents who cited and relied on the provisions of Section (c) of the Nigerian Urban and Regional Planning Decree No. 88 of 1992 and Section 3(1) of the same Decree.

Those provisions he maintained gives the power to inspect the site upon receipt of an Application for permit and to issue a Report to that effect to the Applicant which Report in respect of this was tendered by the Plaintiff/Appellant in Exhibit “KD” and discloses that the Appellant’s Application could not be granted in line with section 9(c) of the Nigerian Urban and Regional Planning Decree No. 88 of 1992.

On the contention by the Appellant’s learned Counsel that the learned trial Judge lost his memory of the events that took place four years before delivery of judgment, the learned Counsel for the Respondents has also argued per contra submitting that it was the Defendants (now Respondents) who at the trial Court called for a visit for the trial Judge to see for himself the area the Appellant wanted to rent out to Abdullaziz Ilu to construct a temporary shed to make and sell caps. Furthermore, the visit was to enable the Court and Counsel to see for themselves the protruding nature of the place in issue. References have been made to pages 83 and 93 of the Records to submit that the Court carried out the inspection of the locus in quo on the 31st of January, 2007 and further cross-examination of the PW1 on the visit to the locus in quo on the 10th July, 2007. Therefore, it is wrong and misleading for the Appellant to further contend that the learned trial Judge lost his perspective of the case by reproducing the original writ of summons that was amended on two occasions.

The learned Counsel for the Respondents has also referred us to page 132 of the Records (the beginning of the judgment of the trial Judge) which shows that he made use of the Amended Writ of Summons dated 14th April, 2008 at page 106 of the Records titled second Amended Statement of claim and not the initial Writ of the Appellant. He has argued us to discountenance the case of I.B.B. Industrial Ltd. V. Mutunci Co. Nig. (2012) 6 NWLR (pt.1297) 487 at 518; as it does not share the same facts with this case.

On the insistence of the learned Counsel for the Appellant that there was miscarriage of justice occasioned the Appellant by Court’s learned Counsel for the Respondents has submitted that there is no such miscarriage of Justice as the crux of the matter was the refusal of the Respondent, to permit him to erect a shop and that the Court below rightly evaluated the evidence and considered particularly Exhibit “KD” which was tendered by the Appellant which contains the reason why approval was refused by Respondents. He reproduced the portion of the said Exhibit which is in conformity with section 9(c) of the Nigerian Urban and Regional Planning Decree No.88 of the 1992 which the Respondents cited and relied upon as giving them the power to grant or refuse such permit based on investigation.

In the instant case he has reiterated, the Appellant testified the Respondents carried out such investigation on the area upon which the Appellant’s Application was based (for the construction a shed for washing and selling caps) and based on the findings of the Respondents refused to grant the permit pursuant to section 34(6) of the Nigerian Urban and Regional Planning Law which he (learned Counsel for the Respondents) reproduced. By the said Law the Respondents were required to give reason for refusing to grant the permit which reason they duly gave.

On the contention by the Appellants that the Respondents ought not to have refused the Appellant the Permit when within the same period two persons (his tenants) were granted theirs, it is the learned Counsel for the Respondents’ submission that no two cases are the same and that the subject matter of the permit granted the first two tenants of the Appellant were located differently from that of the 3rd Applicant. He added that even then the permits were granted conditionally and that in Exhibit “D” the permit granted Anthony Awuzieke was withdrawn for his building on a road reservation and the Appellant had to go and plead with the Respondents before they were allowed to erect the shed.

Also, by Exhibit “E” Mai Soya was served with stop work Notice until they had to go back to the Defendants/Respondents to plead before he was allowed to erect his shed and also the permit was temporary which was inscribed on its body. The learned Counsel to Respondents also pointed out that the Appellant almost fought with the 3rd Respondent before he was given the temporary permit and were therefore right in refusing to grant the Appellant the Permit for the reasons given in Exhibits “D” “E”, “F”, “KB” and “KC’, which do not support the case of the Appellant.

He explained the content of Exhibit “D” which is a Notice of Abatement of Nuisance issued to the Appellant’s tenant Mr. Anthony as the area in question was declared as a road reservation area as far back as 27th June, 1984 by the Yola Metro and Urban Development Board via Exhibit “KK” and the Appellant was paid compensation on the property which was demolished as he admitted under cross examination at page 83 line 7 of the Records yet he turned round to illegally rent out the place before seeking Permit with the rent receipt tendered as Exhibit “KA” and Exhibit “KB” which is the approval is also dated 23/2/2004 along with the Rent Receipt whereas the application for the Planning Permit is dated 24th February, 2004, Exhibit “KC”. He has finally contended that the Appellant could not have rented out a place first before seeking for permit and for all the above submissions; we are urged to hold and find out that there is no miscarriage of justice.

RESOLUTION OF ISSUE NUMBER ONE (1)

In the resolution of this issue it is necessary to have recourse to the provisions of the Constitution on delivery of judgments by the Courts, the facts of this case and the authorities cited by learned Counsel on both sides of the divide in order to determine whether the late delivery of the judgment of the lower Court had occasioned a miscarriage of justice and therefore a nullity. For the avoidance of doubt, section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) with the marginal note captioned “Determination of causes and matters,” stipulates thus:-

“Every Court established under the Constitution shall deliver its decision not later than ninety days after the conclusion of evidence and trial addresses and furnish all parties to the cause or matter determined with authenticated copies of the decision within seven days of the delivery thereof.”

There is no doubt that the above quoted section is in pari materia with Section 258(1) of the 1979 Constitution which was interpreted in a long line of cases beginning from Ifezue V. Mbadugha & Anor (1984) 15 NSCC 314. In that case the Supreme was called upon to determine:-

1. The purport of section 258(1) of the 1999 Constitution

2. Whether the words “Every Court established under this Constitution” in Section 258(1) i.e. the Supreme Court; Court of Appeal; Federal High Court, High Court; Customary Court of Appeal and Sharia Court of Appeal are caught by the three months limitation period contained in section 258(1) of the 1999 Constitution for delivery of Judgments after the conclusion of evidence and final addresses.

3. What is the effect of a Judgment delivered outside the mandatory period prescribed under Section 258(1) of the 1999 Constitution?

4. What is the correct interpretation of Section 258(1) of the 1979 Constitution is it mandatory or directory?

5. What are the legal implications or consequence of the breach of the first limb of Section 258(1) of the 1979 Constitution or what effect should be given to the Judgment of the Court of Appeal delivered outside the three months limit?

The apex Court per Aniagolu, JSC; in his lead Judgment with whom Irikefe, Bello; Obaseki; Esq.; Nnamani and Uwais; JJSC concurred, after a copious analytical exegeses of the position of the law particularly on the interpretation of statutes with similar provisions held then that the framers of Section 258(1) of 1999 Constitution intended the Section to be binding on our Courts by obvious reason, of the interminable delays which in the past years to the enactment of that Section, litigants were subjected to by Courts. Referring to their earlier decision in Abraham Ade Adesanya V. The Federal Republic of Nigeria (1981) 5 SC 112 at 134; His Lordship admonished the Courts on their duty to conflate all the provisions of the Constitution while in the interpretation process so as not to frustrate the “hopes and aspirations” of those who have made strenuous efforts to provide the Constitution for the good government and welfare of all persons in the Country on the principles of freedom, equality and justice.

From the foregoing premises he finally posited that:

“I am firmly of the view that on proper construction of the words of Sections 258(1) of the Constitution, having regard to the mischief intended to be prevented, the 1979 Constitution required that the Judgment of the Court of Appeal in this matter be delivered within three months of its being “reserved” by that Court, after hearing of the appeal and the failure to do so invalidated the so called judgment delivered after that period. The appeal must be allowed. The so called judgment is declared null and void and, for the avoidance of doubt, is hereby set aside. The appeal is remitted to the Court of Appeal, before a different Panel for hearing and determination, according to law.”

Similar positions were taken in Odi V. Osafile (1985) 1 NWLR (pt. 1) 18; Sodipo V. Lemmin Kainan OY (1985) 2 NWLR 547 and Kpema V. The State (1986) 1 NWLR 396 and in particular Obadiara V. Uyigua & Anor. (1986) 17 NSCC (pt. 1) 439 at 441; Obaseki JSC in his contribution to the lead Judgment of Irikefe JSC reiterated the position of the Supreme Court on this vexed issue of the provision of Section 258(1) of the 1999 Constitution on the effect of a judgment delivered beyond the stipulated three months period when he posited:-

“Therefore by calculation, the judgment which was delivered in contravention of section 258(1) of the Constitution is therefore a nullity. A judgment that is a nullity has no use to anyone. It is as if it never existed. We have the cases of Iferzue V. Mbadugha (1984) 1 SCNLR 427 and Paul Odi V. Osafile (1985) 1 NWLR 18; which held that any contravention of the Section 258(1) of the Constitution makes the judgment delivered o nullity, the appeal proceedings in the Court of Appeal also a nullity and the case is liable to be set aside for re-hearing.”

As rightly observed by the learned Counsel for the Appellant, the position of the law was as hash as that until the erstwhile Military Government in 1985 and subsequently in 1993 intervened to mitigate the harshness of the provision of section 258(1) of the 1979 Constitution when the regimes as they were promulgated the Constitution (Suspension and Modification) (Amendment Decree) No. 17 of 1985 and No. 107 of 1993 by saving a Judgment delivered outside the Constitutionally stipulated period of three months. That saving provision was expressly incorporated in Section 294(5) of the 1999 Constitution which states as follows:-

“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered miscarriage of justice by reason thereof”.

In this Appeal, a careful perusal of the Record of proceedings would indubitably reveal that the parties concluded their evidence on the 24th day of March, 2010 and the Court adjourned the matter to the 21st of April, 2010 for address but it was not until the 2nd day of August, 2010 that the Appellant’s Counsel concluded his Reply on points of law and the learned trial Judge adjourned the case to the 7th day of October, 2010 for judgment. However, Judgment was not delivered by the learned trial Judge until the 30th day of March, 2011 (five months after conclusion of evidence and final addresses and Judgment was reserved) clearly in breach of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999. That the Judgment was delivered beyond the mandatory Constitutional limitation period was given credence when the learned trial Judge at page 143 of the Records (page 12 of the Judgment); remarked thus in lines 28 – 31 thereof that:

“this judgment would have been delivered on 7th October, 2010, but for the fact that the Exhibits tendered were misplaced and it took me a considerable length of time to discover them (sic) my strictly.”

As I said elsewhere, (see Unity Bank PLC Vs. Aliyu Adamu & 2 ors. for themselves and on behalf of Abdullahi Holadu & 9 Ors. (Unreported Judgment of this Court in Suit No. CA/YL/44/2012 delivered on the 5th day of June, 2013 per Sankey, JCA; with Agube and Abba, JJCA concurring); ordinarily, going by the mandatory and compulsive provision of Section 294(1) of the 1999 Constitution, any judgment delivered in breach of the provision of the Section ought to be declared a nullity unless there are extenuating circumstances or reasons warranting us to hold otherwise or to invoke section 294(5) of the Constitution to save the Judgment.

The bottom line of the salutary provision of Section 294(5) of the 1999 Constitution and the current position of the law is that the failure to deliver a judgment within the three months limitation period after the conclusion of evidence and final addresses does not ipso facto and automatically render such a Judgment as well as the proceedings null and void as was held in the earlier cases of Ifezue V. Mbadugha (supra), Odi V. Osafile (supra), Akpor V. Iguoriguo (1973) 1 LRN 36; Ariori & Others V. Elemo & Ors (1983) 1 S.C. 13 etc.

To render the Judgment and proceedings a nullity the Appellant as in this case must demonstrate to the Appellate Court and the Court must be satisfied also that the delay in the delivery of the Judgment of lower Court as at when due has occasioned the Appellant a miscarriage of justice and not necessarily by reason of procedural irregularity in the course of the proceedings, otherwise the validity of the Judgment remains intact. See Ogundele V. Fasu (supra), Bottling Co. PLC. V. Okejiminor (supra) and Onagoruwa V. The State (supra).

How does the Appellate Court determine whether there has been a miscarriage of justice? We shall invite the Emeritus Judicial Oracle (Oputa, JSC; to provide us the answer as he lucidly and succinctly put it in the case of Dibiamaka V. Osakwe (1989) 3 NWLR (pt.107) 101 at 114 -115; which is not too dissimilar from the facts herein, thus:-

“Justice in our Courts is justice according to law. And the law is that if in ordinate delay between the trial and the writing of the judgment apparently and obviously affected the trial judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on length of time simpliciter but on the effect it produced in the mind of the trial judge”.

From foregoing dictum of His Lordship, it is beyond per adventure that the Appellant must show to this Court that the time lag between the close of the parties’ case, conclusion of addresses of Counsel and delivery of Judgment by the trial Court had led to the diming or loss of memory by the learned trial Judge of the facts of the case and the demeanour of witnesses particularly where the credibility of witnesses who testified before him is in issue. Also it is not enough to contend that the evidence was not properly evaluated the Appellant must go further to show that the facts of the case were not properly remembered or summarized correctly by the Court below. See Caroline Maersil V. Investment Ltd. (2000) 7 NWLR (pt. 666) 587 at 604.

In the case at hand, the contention of the learned Counsel for the Appellant is that the delay in delivering the judgment within the prescribed period robbed the Judge of the opportunity to fully assess and evaluate the evidence of the witnesses having lost perspective of the case especially when he fell back on his memory to recall his observation at the locus in quo which was visited 4 (four years) before the Judgment and brought same to bear in giving Judgment against the Appellant. He has also pointed out the fact that the learned trial Judge used the original Writ of Summons as the basis of his Judgment when the Writ and Statement had been amended on two occasions.

Now a look at pages 4, 19 and 20, 30 and 105 of the Record of proceedings of the lower Court to which the learned Counsel for the Appellant referred us would reveal as follows:-

1. At pages 3 – 4 of the Records which contain the Original Writ of Summons, the endorsement there on states that the Plaintiff claimed against the Respondents jointly and severally for declarations that the refusal of the Defendants/Respondents to grant the Plaintiff/Appellant’s tenant permission to erect a kiosk is unreasonable, null and void, that the building plan granted to the Plaintiff/Appellant in 1980 by the 1st Defendant/Respondent and Ministry of Works was still valid, subsisting and covers erection of any structure on the Plaintiff Appellant’s land.

As an alternative to the above declaratory claims, the Appellant sought for an order directing the 1st – 3rd Respondents to grant permission to the Plaintiff/Appellant for erection of structures on the Plaintiff’s/Appellant’s land. The Appellant further sought for a perpetual injunction restraining the Respondents either by themselves, agents and privies from stopping the Appellant from enjoyment of the land or tampering with any of the Appellant’s or his tenants’ property since the Appellant is the owner of the said land by Certificate of Occupancy No. GS/147 and he having been granted permit. Other orders sought from the Court are for the Respondents to be directed to publish an apology letter to the Plaintiff for wrongful refusal in national newspaper; N15,000.00 special damages on the rent paid but refunded consequent upon the refusal of permission; N6M (Six Million Naira) general damages and cost of the suit.

2. Page 20 of the Records which contains the first Statement of Claim filed pursuant to the above Writ of Summons shows a replication of the Reliefs Sought in the Writ of Summons

3. At page 26 of the Record there is a Motion on Notice dated 16th of June, 2005 and filed same date which sought for leave to the Appellant to amend his Statement of Claim and to deem the Amended Statement of Claim which appears at pages 28 -30 of the Records as properly filed and served. Pages 29 to 30 of the Records contain the Reliefs sought in the Amended Statement of Claim and all the Reliefs in the first Writ of Summons and Statement of Claim earlier highlighted were repeated verbatim.

4. At page 102 of the Records, the Appellant again, by another Motion on Notice dated and filed on the 14th of April, 2008 sought for further leave to amend his Writ of Summons and Statement of Claim and from the Reliefs claimed in paragraphs 1 to 7 of the endorsement on the Second Amended Writ and 21 (a) (g) of the Second Amended Statement of Claim; the Appellant amended the Reliefs in paragraphs 5 of the endorsement and 21(e) of the Statement of Claim to read “21 (e) N15,00.00 every six months as special damages on the rent paid but refunded consequent on the refusal of permission from 1st March, 2004 till final liquidation.” See pages 105 and 108 of the Records.

Upon a careful perusal of the Judgment of the learned trial Judge particularly at pages 132 – 133, it can be gleaned that he made use of only the Second Amended Writ of Summons dated and filed on the 14th day of April 2008 without reflecting the Relief claimed in paragraphs 5 and 21(e) of the said 2nd Amended Writ of Summons and Amended Statement of Claim. This scenario should ordinarily convince an Appellate Court to hold that the learned trial Judge had lost track of the case as fought by the parties at the trial and ordinarily his Judgment should not stand. I am not oblivious of the holding of my learned brother Ogbuinya, JCA (then of Kaduna Division) in the case of I. B. B. Industrial Ltd. V. Mutunci Co. Nig, (2012) 6 NWLR (pt.1297) 487 at 518; that where as in this case, the learned trial Judge in his Judgment used reliefs formulated in the Writ of Summons rather than those in the Amended Statement of Claim; “The act of abandonment of the relevant and opposite amended Statement of Claim amply demonstrate that the Court below could not see its way clear as to the proper process” and that to his mind “that clearly showed that the learned trial Judge, due to the longevity before the delivery of his judgment lost track of the matter.”

However, in my humble view, since every case should be considered on its peculiar facts and circumstances, the crux of this matter is whether the Appellant was entitled to be granted permission to erect a temporary kiosk on the portion of the land in question and not the claim for N15,000.00 every six months as special damages on the rent paid but refunded consequent on the refusal of permission from 1st March 2004 till final liquidation;” which is only and ancillary claim dependent on the main claim. Accordingly, if we hold that the learned trial Judge was right in dismissing the main claim of the Appellant because he did not lose focus on the main claim before him; in the course of evaluating the evidence, then the claim for damages ought to be dismissed along with the main claim.

The learned Counsel for the Appellant on another wicket has chastised the evaluation of evidence of the witnesses and ascription of probative value to them as falling short of the requirement of the standard of a matter of this nature because according to him, there was considerable time lag between the conclusion of hearing, addresses and delivery of judgment which the learned trial Judge by his Ipse dixit confessed to in his judgment. He has also anchored his grouse on the fact that out of a Judgment of thirteen pages the learned trial Judge only took two pages to evaluate the evidence of witnesses and ascribed probative value to them having paid blind eyes to the evidence of the Plaintiff and his witnesses in relation to the application for the use of the premises in dispute by two other tenants by treating these pieces of evidence as irrelevant.

In the instant case the learned trial Judge, as was conceded by the learned Counsel to the Appellant, copiously and painstakingly set out the evidence of parties and the addresses of Counsel on their behalf at pages 11 and 12 of the Judgment and had evaluated the evidence and came to the inevitable conclusion that the Defendants/Respondents acted in accordance with the law in refusing to grant the Appellant’s tenant the permit to erect a temporary structure. For the avoidance of doubt, the learned Counsel for the Appellant had submitted that the Court below paid blind eye to the fact that by Exhibit ‘F’ Mr. Anthony Awuzieke was granted permission together with another tenant Mallam Moh’d Mai Suya to build Kebarb/Sheds on the premises in question.

The learned Counsel has also questioned the rationale behind the grant of permission to the first two tenants of the Appellant between September, 2003 and February 2004, yet the 3rd Applicant was denied such permission. He has referred us to Exhibits D, E, F, K, KA, KB and KD, which supported the case of the Appellant but which the Court ignored in the course of the evaluation process. Putting ourselves in the shoes of the Court below since the documents tendered as Exhibits above speak for themselves and we can draw the necessary inferences from their contents; I have looked at Exhibit D and that document is even against the Appellant in that it is a “Notice to Abate Nuisance” issued by the Ministry of Environment Adamawa State under the Public Health Ordinance (A CAP. 56) Section 7; to Mr. Anthony of Atiku Abubakar/Target Junction instructing him to remove the kiosk erected on the road reservation area and attaching to a neighbouring House which is contrary to P.C.E. of 1998.

The said Anthony was warned to remove the kiosk and vacate the Government Reservation Area or face prosecution. The document was signed by the Chief Environmental Health Officer of the Ministry. Exhibit ‘E’ is a Stop Work Order addressed to Moh’d Mai Suya of Gimba Junction Jimeta -Yola dated 9th October, 2003 and signed by the General Manager of the Adamawa State Urban planning and Development Authority in that the said Mai Suya erected a temporary shed without Planning Permission from the State Urban Planning Authority Office.

Exhibit “F” dated 15th October, 2003 is captioned “TEMPORARY PERMISSION (REGISTRATION NO. 00389) issued in favour of Mrs. A. Awuzieke, Deans Office, School of Agric FUTY, Yola. The document reads that in accordance with section 34(1) of the Nigeria Urban and Regional Planning Laws, Decree No. 88, 1992 and Decree No. 18 of 1999 (Amendments), the said Mrs. Awuzieke’s application submitted to the authority for Temporary Permit on the Atiku/Gimba Junction Urban Area had been approved on the 15th day of October, 2003 according to the conditions binding on it and the above law. The conditions surrounding the temporary permission are stated thus:-

‘(i) ensure that the surrounding is kept clean always;

‘(ii) Permit is renewable every year and

‘(iii) You con be asked to vacate site without compensation.”

Exhibit “K” is a Memorandum of Settlement wherein the Appellant and the 3rd Respondent resolved their differences in respect of which the letters of demand dated 17/10/2003 and 9/12/2003 attached to the Memorandum were written to the effect that parties having conscientiously and consciously forgiven each other, they undertook that the faceoff between them would not re-occur. In the light of the above, the parties waived their rights as amenable from those differences. The letters dated 17th October, 2003 and 9th December, 2003 respectively, were a Petition Against the conduct of the Director Town planning (Mr. Zubairu) following the harassment and intimidation of the Appellant by Agents of the 3rd Respondent when the Appellant went to 3rd Respondent’s Office to sort out issues relating to a letter written to the Appellant by the Town Planning Authority dated 9th October, 2003; and a letter of Demand from Appellant’s Solicitors for apology from the 3rd Respondent for defaming intimidating the Appellant on the 10th day of October, 2003

As for Exhibit “KA”, it is Rent Receipt for Six (6) months issued by the Appellant in favour of Mallam Abdullaziz Ilu of 92 NEPA Road, Jimeta Yola in the sum of N15,000 (Fifteen Thousand Naira), only for space along Atiku Abubakar Road to use for selling and washing of caps and the rent began to run from 1st March, 2004 to 31st August, 2004. Exhibit “KB” on the other hand is an acknowledgement dated 23rd February, 2004 confirming that the Appellant had rented a space in his house along Atiku Abubakar Road Jimeta to Mallam Abdullaziz Ilu to erect a Kiosk for selling and washing caps.

As for Exhibit “KC”, it is an Application for permission to erect a kiosk for the purposes of sale and dry cleaning of caps, the Applicant-Abdullaziz Ilu – having sought and obtained the Appellant’s permission. The Application is dated 24th February, 2004 and addressed to the General Manager, Urban Planning Development Authority, Jimeta, Yola, Adamawa State. In response to the above Application, the 3rd Respondent in Exhibit “KD” referenced ASUPDA/SB.26/V/187 and dated 3rd March, 2004, wrote as follows:-

“Sir,

RE-APPLICATION FOR PERMISSION TO ERECT, A KIOSK AT NO. 79 ATIKU ABUBAKAR ROAD (GIMBA/ATIKU ABUBAKAR JUNCTION).

With reference to your letter dated 24th February, 2004 on the above subject matter I have been directed to write and inform you that the Authority cannot grant you Planning Permission because of the visual protrusion such structure will cause on Gimba/Atiku Abubakar junction, thereby obstructing visibility to motorist.

Thank you for patronage, please

Signed

HUDSON M, ZUBAIRU

FOR: GENERAL MANAGER”.

It would be recalled that following the refusal of the Respondents to grant the Appellant’s tenant the permission sought for the construction and location of a temporary kiosk on the land rented out to the tenant (Abdullaziz Ilu), the Appellant petitioned the General Manager of the 1st Respondent as per Exhibit “KE” for a rescind of the refusal to grant permission on the grounds that:

(a) His buildings which were demolished by the board sometime in 1984 for which he went to Court against the state Government have approved building plans by the Respondent’s Board and Ministry of Works;

(b) He succeeded in the case against the Adamawa State Government and some of the reliefs granted while those not granted are now before the Court of Appeal, Jos.

(c) The distance between his property i.e. the space let for which permission has been refused and the centre of the Road i.e. Atiku Abubakar Road is 23 meters.

(d) Funny enough the distance between the (9) Nine stores facing the Forestry along Gimba Road and the centre of the road is less than 7 metres yet they have been granted permission by the authority to build.

He therefore wondered whether from the facts stated in paragraphs 3(c) and (d) of the petition there was selective consideration of those to grant and refused permission to built. Consequently, he posited that the refusal to grant Abdullaziz permission, they refund of the rent paid by the tenant was an embarrassment to him and accordingly demanded the Respondents to withdraw the refusal of the permission and that the Urban Development Authority should pay him back the N15, 000.00 rent he refunded to Abdullaziz and tender a letter of apology. He threatened that if the demands were not met within seven days from the date of the letter of demand, he would seek legal redress which he subsequently did culminating in this Appeal.

It has also to be recalled as rightly argued by the learned Counsel to the Respondents that the Appellant testified under Cross-examination that what he told the Court and the content of Exhibit “KK” are the same. In the said Exhibit “KK” dated 27th June, 1984, Major D. Kurmi the Chairman Task Force Committee of Clean the State Capital had written to the Appellant upon receipt of the Appellant’s Petition on Removal of Stores and Fence Built on Road Reservation At the Junction of Mubi/Gimba Road (now Atiku Abubakar/Gimba Road) and intimated the Appellant that:

1. Appellant’s plots Number GS146 and GS148 are those left after the construction of Mubi Road, and the Appellant’s bakery is situated on plot No. GS145.

2. The stores of the Appellant were built after the construction of Mubi road and those stores were built on the dangerous junction of Gimba/Mubi Road.

The letter also discloses that the committee visited the site with the Town Planning Division of Ministry of Works and Transport and has confirmed that the Appellant’s house and the Bakery are in order but that it would be in the interest of justice and fair play to remove the stores and the fence in line with others as it defaced the State Capital. Appellant was therefore given up to the end of June, 1984 to pull down the stores.

After a summary of the evidence of the witnesses and submissions of Counsel, the learned trial Judge reflected on the pleadings of the Appellant in paragraphs 9-18 of his Amended Statement of Claim, the evidence led in support by the PW1 which he held was corroborated by the evidence of the PW2 and DW1 to the effect that the Appellant’s case is hinged on the refusal by the Respondents to grant Abdullaziz permission for construction of temporary structure to nun his business contrary to the terms in Exhibit “K”.

The learned trial Judge at page 142 also alluded to the evidence of DW1 on the reason for refusal to grant the permit which is stated in Exhibit “KD” as already reproduced and the fact that the Appellant had a running battle with similar Government Agency on the issue of erecting temporary structure as can be gleaned from Exhibits “KK”, “D” and “E”. He then held in the last paragraph of page 142 to page 143 line 1 – 16 thus:-

“In the instant case the Plaintiff heavily placed reliance on Exhibit “K” in prosecuting this matter can we say that Exhibit “K” can (sic) ouster the Statutory Powers of the 1st Defendant as cited by the learned Counsel to the Defendant provided under Section 9(c) of the Nigerian Urban and Regional Planning Laws Decree Number 88 and Decree Number 18 of 1999 as amended? I proceed to answer this question in the negative. The Plaintiff cannot therefore rely on this Exhibit to successfully prosecute his case against the defendants for refusing to grant of permit for the construction of a temporary structure to his tenant.

I am satisfied that from the totality of the evidence adduced before the Court the Defendants have acted in accordance within the provision, of the laws which give them powers to grant or refuse to grant permit to the applicants for the erection of the temporary structure. At the locus in quo, this Court observed that the findings of DW1 agreed with the intent (sic) it (cant) saw. A construction of any temporary structure at the property as described in the amended statement of claim of the plaintiff would block traffic and this would not be in the interest of the road users.”

Having perused all the documents tendered by the Appellant in support of his case, I am of the considered view that the learned trial Judge properly appreciated the case before him and did not lose the perspective of the case because of effluxion of time. Shun of the visit to the locus in quo, Exhibits “KD” and “KK” as well “D”, “E”, “F” nailed the Appellant and his case as it is clear that he had earlier been warned that the portion of land he rented to tenants who either were granted permit or refused the grant, was designated since 1984 as Road Reservation Area and the Authority (even when it granted Awuzieke and Mohammed Mai Suya Permit) did so on temporary basis subject to the grantees vacating the land at the pleasure of the authority and without compensation.

Besides, the Appellant has admitted that Government had paid him some compensation on his demolished property which hitherto stood on this area by the Major Kurmi Task Force. He cannot turn round to reclaim that land and rent same out to tenants. In the case of Abdullaziz, the Appellant went ahead to rent out the portion to him without permission from the Authority and this act was palpably and illegality in view of the provisions of the Nigerian Urban and Regional Planning Act Cap.138 (then Decree No.88 of 1992 and Decree No. 18 of 1999 (as amended).

Accordingly, he cannot hide under the cloak of Exhibit “K” which was a Memo between him and the 3rd Respondent to forbear hostilities and claim for damages or apology for defamation against each other of which there is nothing in the Exhibit which precluded the Authority from carrying out its statutory functions under the Act; to violate the provisions of the Nigerian Urban and Regional Planning Act Cap.138 (then Decree No.88 of 1992 and Decree No. 18 of 1999 (as amended).

More particularly Exhibit “KK” and “KD” had designated the place a Road Reservation Area and inspection by Agents of the 1st Respondent have investigated and found out that the structure sought to be constructed by the Appellant through his tenants or vice versa would cause visual protrasm on Gimba/Atiku Abubakar Junction there by obstructing visibility to motorists. The grant of permission by the Authority is at the discretion of the Respondents and once that discretion has been exercised judiciously and in the interest of public safety as in this case, then there was no miscarriage of justice.

The learned Counsel for the Respondents has rightly cited the relevant sections of the Nigerian Urban and Regional Planning Act (the Decree) which guided the actions of the Respondents in refusing to grant permission to the Appellant’s tenants to erect temporary structures. For instance section 11 of the Decree (now Act) vests the Authority with the responsibilities of preparing town, rural, local and subject plans; preparation of the National Physical Development Plan and State Regional Plan and particularly in respect of this case, the Authority shall undertake the development control within its area of jurisdiction.

Furthermore, Section 31 of the Act stipulates the conditions under which an application for development may be rejected which include the following:-

“(c) where in the opinion of the Control Department, the development is likely to have major impact upon the environment, facilities, or inhabitants of the community or contains such additional facilities which are not within the estimation of the Physical Development Plan for that community; or

“(d) in the opinion of the control Deportment, the development is likely to cause a nuisance to the inhabitants of the community or contains such additional facilities that are not within the estimation of the Physical Development Plan for that Community; or

“(e) the development is not in accordance with any other condition as may be specified under any regulation made pursuant to the Act.”

Under section 34 of the Act the Control Department/Authority has the discretion to approve or reject an application for development permission based on investigation. It was upon a combination of all the factors stipulated in the above provision that the Respondents refused the Appellant’s tenants the permission to erect the temporary shed. The Appellant must not be seen or allowed to hand-twist the Authority to grant him permit at all costs when the conditions for such grant do not exist. Accordingly, and in view of all the above provisions, the cases of I.B.B. Ltd. V. Muntuci Co. Nig. at page 516, BC and Egbo V. Agbara (supra) which were decided on sound legal principles definitely do not apply to the circumstances of this case. I am the candid opinion that the evaluation of the evidence by the trial Judge may have been terse but his findings were amply supported by the facts of the case particularly the documentary Exhibits tendered by the Appellant which rather supported the case of the Respondents.

I therefore hold that there was no miscarriage of justice and the Judge did not hand over a perfunctory judgment. Even if he did, this is a case that ought to have been decided basically on documentary evidence and the law and the demeanour of witnesses served little or no purpose in the determination of the crucial issue whether the Respondents were right or wrong in refusing to issue Development Permit to the Appellant’s tenants. This issue shall and is hereby resolved against the Appellant.

ISSUE NUMBER TWO (2)

WHETHER THE JUDGMENT OF THE TRIAL COURT HAS LED TO MISCARRIAGE OF JUSTICE FOR FAILURE OF THE TRIAL JUDGE TO RECORD HIS FINDINGS AND OBSERVATIONS DURING THE VISIT TO THE LOCUS IN QUO? (GROUND 5);

On this issue, the learned Counsel for the Appellant Chief Nzadon alluded to what transpired at page 83 lines 13 – 22 of the Records, on the 6th of June, 2005 while the PW1 was being cross-examined by the learned Counsel for the Respondents who called for a visit to the locus inquo which the Court obliged him and eventually visited the Locus on the 31st day of January, 2007. He reproduced the only record of the Court upon the visit to the locus as can be gleaned at page 88 lines 24 and 25 of the Record of proceedings; after which nothing was heard again of the visit until the tail end of the proceedings where the Court below, according to learned Counsel, purported to find corroboration of the 1st Respondent’s refusal to grant approval to the Appellant’s tenant at page 143 lines 12 -16 of the Records.

Learned Counsel for the Appellant has therefore submitted on the authorities of Bello V. Kassim (1959) NSCC Vol. 6 223 at 2228; per Coker, Ag. CJN; Awoyegbe V. Ogbeide (1988) 1 NWLR (pt. 73) S.C. per Craig, JSC; that it is imperative in the case of a visit to the locus in quo for the Judge to keep a record of what transpired in the locus; as a Court of record. The failure of the learned trial Judge to have kept records of his visit to the locus in quo and his subsequent reflection of it in the judgment from the blues four years later occasioned a miscarriage of justice to the Appellant, the learned Counsel for the Appellant insisted. According to him, the Judge conferred upon an unrecorded observation made by him over which the Parties had no opportunity to comment or cross-examine, the status of evidence when he relied upon same as corroboration of the untested evidence of the DW1.

In so doing, the learned Counsel posited that the Court below erred as the failure to record the proceedings of what transpired at the locus inquo where in the dispute between the parties the defence of the Respondents is that if the temporary structure is constructed it would obstruct road users, vitiated the proceedings. We are therefore urged to so hold.

In his response to the above submissions of the learned Counsel for the Appellant, Chief Gangs for the Respondent has argued that the Judgment of the trial Court has not occasioned a miscarriage of justice for failure of the learned trial Judge to record his findings at the locus inquo. He has further argued that the visit to the locus in quo was necessitated by the call by the learned Counsel for the Defendants/Respondents in order for the Court to see for itself whether Exhibit “KD” was properly issued or not. He added that after the visit, the Court agreed with the contents of Exhibit “KD” and the findings of the 3rd Defendant/Respondent/Dw1 agreed with what the Court saw, that a construction of any temporary structure on the property as described in the amended Statement of Claim of the Appellant would block traffic and this would be against the interest of the public and road users.

The learned Counsel for the Respondents has contended further that the learned trial Judge in the instant case admitted Exhibit “KD” which is in evidence and has formed part of the Court’s record and clearly stated the reason why Permit was not granted and the Appellant’s complaint in the lower Court was the refusal of the trial Court to grant the application for Permit as contained in Exhibit “KD”. At the locus inquo, according to the learned Counsel for the Respondents, the Court’s finding was in line with the contents of Exhibit “KD” and the learned trial Judge said so and there is nothing left that is not before the Court of Appeal.

On the contention of the learned Counsel to the Appellant that any material statement made in the course of the visit to the locus must be recorded and the opposing Party given the opportunity to test that Statement and that there was no record kept by the trial Judge in respect of the visit, Gangs Esq. referred us to page 83 of the Records, the proceedings of 31/1/2007 where upon the visit to the locus and the return to the Court Hall for further cross-examination of the PW1, the learned Counsel sought for adjournment because he was not ready to continue with the hearing. The learned Counsel for the Respondents also alluded to the page 93 of the Records where on the 10th of July, 2007 the PW1 was cross-examined on the visit to the locus in quo submitting that it is not true that upon the return from the locus in quo nothing was heard again about the visit.

As for the case of Chief Nwizuke V. Chief Eneyole & Anor (1953) 14 WACA 354; cited by the Appellants, it is the learned Counsel for the Respondents’ position that the Court in that case also held that absence of a record of the inspection is not necessarily fatal to the case and the Statements made by the Judge in solemn Judgment should be accepted as a correct account of what occurred. Thus, in his view, the statement made by the trial Judge in his solemn judgment was correct account of what occurred because Exhibit “KD” had given that evidence; the trial Judge saw the place and looked at Exhibit “KD” and came to the conclusion that what the 3rd Defendant wrote in Exhibit “KD” was in line with what he saw at the locus inquo that the construction of any structure there at will cause visual protrusion and thus cause visibility problem for motorists on that road. Exhibit “KD”, he therefore insists corroborates the observation made by the Judge at the site and the trial Judge did not rely on the evidence of DW1 to reach the conclusion he reached but relied on the letter written by the DW1 to the Plaintiff/Appellant which letter was tendered by the Appellant as Exhibit “KD”. We are then urged to hold that there is no miscarriage of justice.

RESOLUTION OF ISSUE NUMBER TWO (2)

WHETHER THE JUDGMENT OF THE TRIAL COURT HAS LED TO MISCARRIAGE OF JUSTICE FOR FAILURE OF THE TRIAL JUDGE TO RECORD HIS FINDINGS AND OBSERVATIONS DURING THE VISIT TO THE LOCUS IN QUO? (GROUND 5);

On this issue, the learned Counsel for the Appellant has alluded to page 83 lines 13 – 22 of the Records where the learned Counsel for the Respondents Mohammed Gangs Esq. in the course of cross-examining the Appellant applied to the Court that: “At this stage it would be proper for the Court to move to the locus in quo so that it can appreciate what the witness is saying.” Odo Esq. for the Appellant did not object to the Court moving to the locus in quo but called on Gangs Esq. to let the Court know whether the cross examination would continue at the locus or he will be through with the cross examination before moving to the focus; to which Gangs Esq. replied: “The cross examination should continue after the visit.” The matter was then adjourned to 13/6/2006 so that the Court could move to the locus in quo.

It would appear that on the 13th June, 2006 which the case was adjourned to, for the visit to the locus in quo, the Court neither sat nor was the visit effected and the case was again adjourned to 13/7/2006 and subsequently to the 13th September, 2005 for movement to the locus in quo and continuation of cross-examination of the PW1. The Court thereafter did not sit until 19th October, 2006. When it further adjourned the matter to 14th November, 2006 parties were in Court but as the Court was to move to the locus in quo it was discovered that the learned Counsel for the Appellant had disappeared. It was not until the 31st January, 2007 that the visit to the locus took place as the learned Counsel for the Respondents, Gangs Esq. appreciated the efforts of the Court by going out in the sun to visit the locus but since the learned Counsel for the Appellant (Mu’azu Esq.) was not ready for the continuation of the cross examination of the Appellant, the case was further adjourned to 22nd February, 2007 for further cross-examination of the PW1 and subsequently to the 10th day of July, 2007 when the PW1 was recalled and cross-examined.

True to the observation of the learned Counsel to the Appellant the only record of the visit to the locus in quo captured by the Court at page 88 of the Record of Proceedings is as follows: “Court – the Court went to the locus and returned to the Court Hall at 11am. Appearances as earlier recorded.” It is also true that thereafter nothing was heard again about the visit to the locus, as rightly submitted by the learned Counsel to the Appellant until at the tail end of his judgment when the learned trial Judge found corroboration of the reason for the 1st Respondent’s refusal to grant approval to the Appellant’s tenant to erect the shed when he held as he did at page 143 lines 12 – 16 of the Records.

In Bello V. Kassim (1969) NSCC (Vol. 6) 228 at 233, Coker C.J.N. delivering the lead Judgment of the Supreme Court, had held that reading through the Judgment of the learned trial Judge it was obvious that he visited the locus in quo but there appeared to be no records of any notes about the visit. The learned Law Lord then made the crucial point on the imperative of keeping record of what transpired on a visit to locus in quo by trial Judges, when he asserted:-

“An inspection of locus is as much a part of the entire proceedings in any suit and the rules of evidence apply equally to such inspection as to any other portion of the proceedings. In the instant case, findings of fact, apparently crucial in their effect, have been based on observation at the inspection and the records are conspicuously silent as to whether these resulted from visual or evidential inference. It is impossible for any Court of Appeal to determine the effect of the visit on the judgment of the learned trial Judge after such a failure to include the appropriate notes in the record.” See also Awoyegbe V. Ogbeide (1988) 1 NWLR (pt.73) 695, 707 paras. E-F and 709 paras. D-H.

Craig JSC; in the above case ably cited by the learned Counsel for the Appellant also reiterated the position taken in Bello V. Kassim (supra) where, in a similar situation as in our instant Appeal where the trial Judge granted the Application of the learned Counsel for the Respondent and visited the locus but unfortunately thereafter, the learned trial Judge did not record his observations thereat nor did he mention whether anybody gave evidence on site. The Court in the above cited as well as in this case did not also state whether any prominent features were shown to him or whether names which had been mentioned in Court like the stores located on the same area and the distances from the stores to the junction or main road which if the shed were erected would form the protrusion that would impact negatively on visibility and obstruct motorists at the Atiku Abubakar/Gimba Road or Target Junction.

According the learned and eminent jurist of blessed memory after emphasising on the import of Section 76 of the Evidence Act which is that the Court does not cease to be a Court merely because it is sitting in some other place than the its normal habitat posited that:-

“This means that any material statement made in the course of visit must be recorded and the opposing party given on opportunity of testing that statement, if need be, by cross-examination.

In the case of Chief A. Nwizuke V. Chief Waribo Eneyole & Anor. (1953) 14 WACA 354; it was held that the absence of record of the inspection is not necessarily fatal to the case and that statements made by the judge in a solemn judgment should be accepted as a correct account of what occurred. See also Musa V. Mallam S. Shafi (1956) NLR 33. In the instant case however, the Statement made by the learned trial judge in his “solemn” judgment was not a correct account of what transpired because no witness had given that evidence.

In effect what the trial Judge had done was to treat his view of the locus as findings in the case. In this respect, I am of the view that he erred in Law and the Court of Appeal was right to uphold the appeal before it on this ground.”

The learned Law Lord in the same judgment (Awoyegbe V. Ogbide (supra) invited the attention of the parties to the warning of the West African Court of Appeal in the case of Ejidike & Anor Vs. Christopher Obiora (1951) 13 WACA 270 at 274; where Sir John Verity, Ag. President of the Court said:

“In all cases in which a visit is paid by the Court to the locus in quo in a civil action (and likewise in criminal cases) the judge should be careful to avoid placing himself in the position of a witness and arriving at conclusion based upon his personal observation of which there is no evidence upon the record.

When there is conflicting evidence as to physical facts, I have no doubt that he may use his observations to resolve the conflict, but I do not think it is open to him to substitute the result of his own observation for the sworn testimony nor to react to conclusions upon something he has observed in the absence of testimony on Oath as to the existence of the facts he has observed. Should he do so he would in my view be usurping the position of the witness…….”

The contention of the learned Counsel in this Appeal is that the failure of the learned trial Judge to record his observation at the locus in quo and the subsequent reflection of it from the blues in his Judgment after four years of his visit thereto occasioned a miscarriage of justice. Moreover, in his view, the Judge conferred upon his unrecorded observation over which the parties had no opportunity of commenting or to cross-examine on, the status of evidence which he relied upon as corroboration of the untested evidence of DW1 and in so doing the learned trial Judge had erred. Upon a consideration of the totality of the facts of this case, I am tempted to agree with the submission of the learned Counsel for the Respondents that the failure of the learned trial Judge to record his observation at the visit to the locus inquo has not necessarily occasioned a miscarriage of justice in view of the peculiar circumstances that prevailed at the trial Court. In the first place (and this has been conceded by the learned Counsel for the Appellant), the visit was motivated by the learned Counsel for the Respondents who in the course of cross-examination of PW1 called on the Court to visit the scene to see for itself whether their refusal to grant the Appellant’s tenant Permit owing to the inspection and report as contained in Exhibit “KD”; was justified or not.

Besides, even though the Court did not record its observation at the locus, the Appellant admitted in the course of further cross-examination after returning from the locus at page 93 of the Records line 20 that: “I was at the locus in quo,” and all further cross-examinations by the learned Counsel for the Respondents were centred on the visit to the locus. See lines 21-32 of page 93 of the Records. Again as rightly observed by the learned Counsel for the Respondents, the PW1 tendered Exhibit “KD” which was admitted by the Court as evidence of the reason why the Respondents refused to grant to the Appellant’s tenant the Permission sought and the complaint of the Appellant in

the lower Court was the refusal of the Respondents to grant the application for permit as contained in Exhibit “KD”.

On the visit to the locus, the Court’s findings confirmed the contents of Exhibit “KD” which the learned trial Judge reflected in his judgment. It has to be noted that in the case of Bello V. Kassim (supra); one of the reasons why the judgment of the Court of trial was faulted was that the findings of facts were based on observation at the inspection and the records were conspicuously silent “as to whether these resulted from visual or evidential inference”.

However, in this case the findings of fact by the learned trial Judge on whether the Respondents were justified in refusing the Appellant’s tenant permission to erect temporary structure was based both on visual and evidential inference drawn from what he saw at the visit to the locus inquo and Exhibits “KD”,”KK” as well as the admission by the Appellant that he had earlier been paid compensation on the land which he seeks to reclaim and rent out to tenants apart from the area being designated Road Reservation Area by the Authority since 1984 which evidence was tendered by the Appellant before the learned trial Judge. Following the decision in Chief Nwizuke V. Chief Waribo Eneyole & Anor. (supra) which was cited in the Bello V. Kassim case; I hold the firm view that the remark made by the learned trial at page 143 lines 12 – 15 of the Records was made by him in a Solemn judgment and I accept same as a correct account of what transpired at the locus. Accordingly, he had confirmed that the findings of the DW1 nay the Respondents that a construction of the temporary structure on the property as described in the Amended Statement of Claim of the Appellant would block traffic and this would not be in the interest of road users.

Even without the observation of the learned trial Judge at the locus, there were enough documentary evidence as had earlier been highlighted and from the mouth of the Appellant that the portion of land he seeks permission to develop had long been designated a Road Reservation Area since 1984 by Exhibit “KK” and following the demolition of his property which hitherto was on the land and payment of compensation thereon, the land is now Government property.

PW2 had testified that when he sought for permission from the Authority, the Authority came to inspect the land where he was to erect his temporary structure and subsequently wrote to him informing him that they have not approved his application under cross-examination he had admitted that there was a road construction going on near the land even though it would not have affected his business if he was allowed to use it. He finally admitted that: “There are no shops down Atiku Abubakar Rood except the one I sought for and the ones existing there.”

Finally, on this issue, the learned Counsel for the Appellant had cited with relish the dictum of Sir John Verity, Ag. President of the West African Court of Appeal in Chief Ejideke & Anor V. Christopher Obiora (1951) 13 WACA 210 at 274; but in that case the eminent and learned President had approved the use of the Judge’s observation to resolve conflicting evidence as to physical facts which the learned trial Judge did in this case baring the conflict in the oral evidence of the PW1 and Exhibit “KD” on the reason for the refusal of the Respondents to grant the Appellant’s tenant Permission to erect the temporary structure. The Court/Judge below did not, with the greatest respect to the learned Counsel to the Appellant, substitute the result of his own observation for sworn testimony and in this case there were testimonies on Oath by the Appellant and the DW1 as well as Exhibit “KD” which was admitted in evidence to warrant the conclusion arrived at by the learned trial Judge.

Before rounding up on this issue, I wish also to invite our attention once more to the case of Ejidike & Ors. V. Obiora (supra) at page 274; where the learned President held in respect of the error committed by the learned trial Judge in that case and herein where the observations at the locus in quo were not recorded but the learned trial Judges nevertheless referred to certain facts observed by them on inspection that:-

“….. the learned trial Judge may have erred in that he may have referred in his Judgment to certain facts which there was no evidence on record, but which he observed on the occasion of his visit and has drawn certain conclusions there from, but I am not satisfied even if this is so that those conclusions materially affect the decision at which he arrived on the main issue before him or that if he had not made the observations his judgment would have been any different.”

Drawing inspiration from the position taken by Sir Verity in the above cited case and from the documents tendered by the Appellant himself, the facts of the case and the law which I had carefully analysed in issue Number one (1), I am of the considered view that the judgment of the trial Court would not have been different even if he did not visit the locus from where he made the observation that has prompted the grouse of the Appellant. I shall therefore discountenance the submission of the learned Counsel that failure to record what transpired at the locus vitiated the proceedings when the PW1 had been cross-examined on the visit which he admitted he was present thereat. Accordingly, Issue Number (two) 2 shall also be resolved against the Appellant.

ISSUES NUMBERS 3 (THREE) AND 4 (FOUR)

WHETHER THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE OF THE WITNESSES AND GAVE PROBATIVE VALUE TO THEM? (GROUNDS 1, 2 & 4) AND;

WHETHER THE EVIDENCE OF DW1 WHICH WAS NOT TESTED UPON BY CROSS-EXAMINATION WAS RIGHTLY RELIED UPON BY THE TRIAL JUDGE TO DELIVER JUDGEMENT IN FAVOUR OF THE RESPONDENT? (GROUND 3).”

On these issues which have been argued together, the learned Chief Nzadon for the Appellants asserts that the learned trial Judge failed to properly evaluate the evidence of the witnesses and thereby arrived at an erroneous decision and that the failure of the Court below to expunge the evidence of DW1 who only gave evidence and refused to turn up for his cross-examination amounted to commission of an error of Law and which similarly occasioned a miscarriage of justice.

The learned Counsel for the Appellant recalled once more what transpired at the lower Court where the Appellant called two witnesses who were cross-examined but the DW1 did not turn up for cross-examination. He has noted particularly the judgment of the learned trial Judge where at pages 132 – 144 of the Records he carefully and painstakingly reproduced the evidence of the three witness in eleven (11) pages out of the total thirteen (13) paged judgment but devoted only two pages to come to the decision which should have embodied the findings and evaluation of the evidence in giving probative value to same. This, in his view, fell short of the required standard of writing a judgment not because of the shortness of the decision but because of the absence of any evaluation or improper evaluation.

On the law that restatement and verbatim reproduction of the evidence of witnesses is not evaluation thereof, he cited and placed reliance on the cases Olatunji vs. Adesoye (2009) NWLR (pt. 1146) 225 at 226 paras. E-F, per Ogbuagu, JSC and Oyewole Vs. Akande (2009) 15 NWLR (pt.1163) 119 at 147 paras E-F; to submit that the learned trial Judge failed to evaluate the evidence of the Appellant and his witnesses otherwise he would have discovered that Appellant was not only the owner of the premises but had let out the same premises to two other tenants who had erected sheds on same within a period of two months i.e. September, and October, 2003 (Exhibits D, E, F). The Application of the PW2 which was also said to have been made within the same period as in Exhibits H, HA, HB, K, KA, KB, KC and KD) was alluded to in posing the question which the Respondents and the Court failed to answer as to why the Appellant was not granted permit when his tenants within the same period were so granted to put up theirs.

Furthermore, it is the contention of the learned Counsel to the Appellant that the learned trial Judge did not give effect to Exhibits “G” and “GA” the photograph and negative of the premises which clearly show that the reason given for refusal to grant approval was a ruse as all in coming vehicles into Atiku Abubakar Road from Gimba Road would look to the left at the junction for other vehicles would already have passed. Thus, he has posed the question as to where the obstruction that would be occasioned by Appellant’s erecting the structure would have emanated. The learned Counsel to the Appellant further posed the question whether it was not relevant for the Court below to reflect on the fact that the Appellant went to the offices of the 1st Respondent to complain about the refusal to grant approval to build a structure on the Appellant’s premises and the 3rd Respondent insulted him (the Appellant which led the Appellant to appeal to the to the 3rd Respondent’s superior (the 2nd Respondent) and when the 2nd Respondent did nothing, Appellant wrote a formal petition to the 2nd Respondent.

Again, when the Appellant followed up the matter and the 2nd Respondent alleged that the petition was missing (no doubt in a bid to frustrate the Appellant); the learned Counsel maintained, the Appellant briefed his lawyer to write a letter of demand in response to which the parties wrote Exhibit “K”. Upon the persistence of the negative attitude by the Respondents to the Appellant, in their refusal to issue the permit as per Exhibit KD, the learned Counsel further noted, the Appellant instituted this action. In this wise, he contends that the failure of the learned trial Judge to assess or give probative value to the evidence led by the Appellant occasioned him a miscarriage of justice and we are urged to so hold.

On another dimension the grouse of the Appellant is the refusal of the learned trial Judge to expunge the evidence of DW1 from the Records when the witness did not avail himself to be cross examined by the Appellant despite adjournments granted by the Court to enable him do. He has referred us to Sections 214 and 215 of the Evidence Act, 2011 which provides for compulsory cross-examination of witnesses except the opponent party chooses not to do so to buttress the above submission and to further argue that cross examination is a such a vital part of the process of determining the veracity of the evidence of witnesses called by a party to the extent that the process of testifying is incomplete without it. According to learned Counsel for the Appellant, if the cross-examination of a witness is denied by the Court, this infringes the party’s right to fair hearing as guaranteed him by section 35(1) of the 1999 Constitution. For the above submission he placed reliance on the dictum of Edozie, JCA (as he then was) in Iwuoha V. Okoroike (1996) 2 NWLR (pt. 106) 231, 250 paras. A – F and the cases of FCSC V. Laoye (1989) 2 NWLR (pt.106) 652 at 725 and Adigun V. A.G. (Oyo State) (1987) 1 NWLR (pt. 53) 678; which facts are distinguished from those in the present Appeal but nevertheless he argues, the results are ultimately the same and the learned trial Judge ought not to have used the said evidence in arriving at his decision and having done so, in his (learned Counsel’s view) the learned trial Judge erred.

Finally, the learned Counsel has posited that if the evidence of the DW1 is expunged as requested by him during the final Address at the lower Court (pages 127 lines 37 and 38 and page 127 lines 1 – 4 of the Records); only the challenged evidence of the Appellant and his witnesses would have been left before the lower Court. The learned trial Judge would have had no alternative, the learned Counsel has urged, but to enter judgment in favour of the Appellant. Anchoring his submission on the case Ogunyade vs. Oshunkeye & Anor (2007) 7 S. C. (pt. 11) 58 at 80 lines 15 – 40; per Tobi, JSC; we are urged to hold on the state of pleadings and the evidence lodged, that the Appellant’s case was not challenged or controverted and ought to have been granted. We are in conclusion urged to allow the Appeal; set aside the judgment of the lower Court; enter judgment in favour of the Appellant in terms of his Statement of claim in the lower Court; or 1 the alternative to relief (iii) above nullify the Judgment of the lower Court and order a retrial before another Judge.

Reacting to the arguments above proffered by the learned Counsel for the Appellant, the learned Counsel for the Respondents maintained per contra that the learned trial Judge properly evaluated the evidence of the witnesses and ascribed probative value to them and that the Appellant wanted judgment in the trial Court at all costs and having failed has come here with a complaint/Appeal that lack merit. The learned Counsel for the Respondents contends that it is not the duty of the learned Counsel to the Appellant to tell the Judge how to write his judgment. He reviewed the claim of the Appellant in the lower Court and how he testified and called witnesses thereat to prove same culminating in the tendering of Exhibit “KD” before the trial Court and the Court’s visit to the locus inquo where it observed that the contents of the said Exhibit “KD” was correct and gave judgment against the Appellant.

On the pertinent question before the Court which was whether the Respondents were right or not to have refused the Appellant permit and the Court’s finding that it was in the public interest to refuse the permit to the Appellant as same will cause visual protrusion on Gimba/Atiku Road thereby obstructing traffic, the learned Counsel for the Respondents argued that the learned trial Judge was right to have reached the conclusion that the refusal of the permit to the Plaintiff’s tenant was proper and we are urged to so hold. He has argued on another score that there was no conclusive evidence before the lower Court that the Appellant was the owner of the premises in question as Exhibit “D” tendered by the Appellant showed that the place is a road reservation area so has Exhibit “KK” also shown that the portion had long been declared as road reservation area since 1984 and none of the Exhibits tendered by the Appellant showed that he was the owner of the land.

He maintains that even the permit granted Anthony’s wife at page 56 of the Records as Exhibit “F” is a Temporary Permit and this resulted in Exhibit “KD”. He reiterates his earlier submission that the Appellant admitted having a running battle with Respondents to the extent of fighting and quarrelling with them over the issue which evidence together with the Exhibit “KD” and the Appellant’s evidence under Cross-examination at page 83 of the Records he has urged us to consider in declaring the area in contention a Road Reservation Area.

We are also urged to discountenance the assertion of the learned Counsel to the Appellant that the Appellant is the undisputed owner of the piece of land upon which he had obtained two permits for two of his tenants, maintaining that even those two Applicants/Tenants were not given permit as such but temporary ones with conditions attached. On the other hand, he continued, with reference to Exhibit “KK” declaring the area in question as a road reservation Area consequent upon which the Appellant’s property was demolished and compensation paid him, he (Appellant) cannot come back to reclaim the same portion of land as his.

As regards the photograph and Negative (Exhibits “G” and “GA” which the learned Counsel for the Appellant had quarrelled with the refusal of the Court to give effect to, the learned Counsel for the Respondents submits that they are inconsequential to this case, the learned trial Judge having visited the locus and would not need those Exhibits to guide him as it is a traffic rule that when joining a main road, one should look both left and right. Besides, a motorist is not the only person using the road and the use of the road is not one sided along Gimba/Atiku Abubakar Road as claimed by learned Counsel for the Appellant.

On the inconclusive nature of the evidence of the DW1, it is the contention of the learned Counsel for the Respondents that the evidence of the DW1, was not conclusive not because the DW1 refused to come to Court to conclude his evidence but the learned Counsel for the Appellant refused to allow the witness to go and complete his evidence because he wanted to make it an issue on appeal. Learned Counsel has explained that the DW1 testified on the 23rd April, 2009 and the matter was adjourned to 28th May, 2009 in between which were strikes by Court Registrars, NLC, and Public Holidays which could not allow the Court to sit. On the 28th May, 2009, according to the learned Counsel, the witness was in Court but the case could not go on (page 120 refers) and also on the 2nd day of July, 2009 the Defence Counsel and witnesses were in Court but Appellant’s Counsel was absent (page 121 of the Records refers) and the case suffered a long delay without date and when it came up on 2nd March, 2010 the Defence Counsel and his witness were not served with the Hearing Notice. It was rather on the 26th May (March?) while the learned Defence Counsel was in Court on a Criminal Matter (The State V. Julius Mathew) and noticed the Plaintiff in Court and his Counsel and upon checking the list, the learned Counsel for the Respondents added, that he discovered the case was on the Cause List and was slated for Address.

When the learned Counsel for the Respondents applied to reopen the case to enable DW1 to come and complete his evidence, the learned Counsel for the Appellant vehemently opposed the application on the ground that the Respondents were served with the hearing notice through the Registry of the Ministry of Justice even through the 3rd Respondent/Dw1 was not served with the Notice. In view of the above development, learned Counsel for the Respondents has submitted that we should hold that the learned Counsel for the Appellant refused to give the 3rd Respondent the opportunity to complete his testimony. Based on the above scenario we are urged to hold that a look at page 118 of the Records would reveal that the DW1 did not even complete his evidence on 23/4/2009 when the case was adjourned to 28/5/2009 for continuation of hearing and that the hearing notice which used to be served on the learned Counsel to the Respondents was said to have been served through the Registry of Ministry of Justice which was not good service. Moreover, the Appellant was never denied the opportunity to cross-examine the witness but instead decided not to cross examine when he vehemently opposed to application to reopen the Defence case to conclude their evidence and to be cross-examined.

On the authorities cited, the learned Counsel to the Respondents noted that the learned Counsel for the Appellant has distinguished them from the scenario created in this Appeal and we are urged to hold that if there was any miscarriage of justice, it was occasioned by the Plaintiff/Appellant’s Counsel who vehemently opposed the reopening of the Defence case to enable the DW1 be cross-examined.

On the contention by the learned Counsel for the Appellant that on the pleadings and the evidence led by the Appellant, his case was uncontroverted and unchallenged the learned Counsel for the Respondents argues otherwise submitting that even if the evidence is unchallenged they cannot ground judgment in his favour by virtue of Exhibit “KK” which declared the piece of land in contention a road reservation area apart from the Appellant having received compensation on the area for his property which hitherto stood there same having been demolished by the Major Kurmi Task Force on Urban Development.

From the foregoing, he has urged us to hold that it cannot be safely concluded that the Appellant had made out a case to warrant judgment being given in his favour. The Phipson on Evidence 12th Edition (page unstated) which according to learned Counsel to the Respondents states that the reason for cross-examination is twofold – to weaken, qualify or destroy the case of the opponent; and to establish the Party’s own case by means of his opponent’s witnesses was relied upon to buttress his submission. He has referred to Exhibit “KH” at page 77 of the Records and Exhibit “KK” which is the Reply from the Task Force declaring the area road reservation.

Turning to the call by learned Counsel for the Appellant on the Court to expunge the evidence of the DW1 he (Respondents’ Counsel) asserts that even if this is done, it will not affect the findings of the Court since according to him the learned trial Judge merely used the word DW1 in his judgment but the findings of the Court were based on the contents of Exhibit “KD”. Having not used any word from the testimony of the DW1 as the basis of his Judgment and with particular reference to page 142 of the Judgment of the lower Court where the learned trial Judge quoted from Exhibit “KD” on the reason for the refusal of the Respondents to grant the Appellant Permit, learned Counsel for the Respondents insisted that the Judgment, based on Exhibit “KD” and Section 9(c) of the Nigerian Urban and Regional Planning Law; cannot be faulted as having been based on evidence of the DW1.

In respect of the case of Ogunyade V. Oshunkeye & Anor. (2007) 7 SC (pt. 11) 58 at 80 lines 15 – 40, per Tobi, JSC; cited and relied upon by the learned Counsel for the Appellant, he contended that it does not relate to this case same being distinguished from the case cited and more particularly as the Appellant herein had filed pleadings testified and was cross-examined by the Respondents and he admitted having been paid compensation on the demolished property on the area in dispute which had since 27th June, 1984 been declared a road reservation area based on Exhibit “KK”. On the other hand he (Respondent’s Counsel) has further submitted that even if there was no defence made out by the Respondents before the trial Court, the Plaintiff/Appellant was to succeed on the strength of h is case and not on the weakness of the Defendants/Respondents’ case.

He then submits finally that the evidence led and the Exhibits tendered do not support the Plaintiff’s case enough to give him judgment particularly in the eyes of Exhibits “KK” and “KD” and Section 9(c) and 34(1) of the Nigerian Urban and Regional Planning Law, Decree No. 88 of 1992 (pages 128, 129 and 130 of the lower Court’s Records containing the Respondents’ Address thereat refer). We are therefore urged to hold that based on the state of pleadings and the evidence led the Appellant’s case was challenged and controverted and ought not to have been granted. We were accordingly prayed to dismiss this Appeal with cost.

RESOLUTION OF ISSUES NUMBERS 3 AND 4 TOGETHER

In the resolution of these issues, let me restate as I did on Issue Number 1 (one), that it is the primary duty of the trial court to appraise and evaluate the evidence placed before it and ascribe probative value thereto owing to its being seised with rare advantage of hearing and watching the demeanour of the witnesses and once that duty has been discharged satisfactorily, it is not the business of an Appellate Court which we are; to interfere except the findings or decision of the Court are perverse and not borne out of proved facts. See Omotayo V. Co-operative Supply Association (2010) ALL FWLR (pt. 537) 608, Ogbechie V. Onochie (1986) 2 NWLR (pt.23) 496; Fabaniyi V. Obeje (1968) 1 NWLR 242; Slac Transport Ltd. V. Oluwasegun (1973) 9 – 10 S.C. 17, Fashanu V. Adekoya (1974) 1 ALL NLR (pt. 1) 35.

This is irrespective of whether the Court of Appeal would have come to a different conclusion on the facts as long as the Judgment of the trial Court is supported by evidence which was rightly accepted by the trial Court. What should concern this Court in its appellate jurisdiction is whether substantial justice has been done by the learned trial Judge upon a holistic consideration of the proceedings of the trial Court; otherwise, we should not interfere with the Judgment of the trial Court. See Akpakpuna V. Nzeka II (1983) 2 S.C.N.L.R. 1, Obodo V. Ogba (1987) 3 S.C. 459; Ajayi V. Texaco Nig. Ltd. (1987) 3 NWLR (pt. 62) 577; Thomas V. Arowolo (2003) 4 SCNLR 20 and Agbaje V. Ajibola (2002) 2 NWLR (pt. 750) 127.

Going by the above authorities and having held earlier that the trial Court did and properly evaluate the evidence albeit briefly and came to the inevitable conclusion that the Plaintiff did not establish his case; it would appear that the learned Counsel for the Appellant is quarrelling with the learned trial Judge’s style of writing his judgment. Talking about judgment writing while placing reliance on English as well as Nigerian cases like R. V. Deputy Industrial Injuries Commissioner (1967) 1 Q. B. 456 at 476; Anisminic Ltd. V. Foreign Compensation Commission (1969) 2 A.C. 147 at 171 Regina V. Board of Control (1956) 2 Q. B. 109 at 124; Udofe V. Aquaisua & Ors. (1973) 1 ALL NLR (pt. 1) 87 at 94 and Ojogbue V. Nnubia & Ors. (1972) 1 ALL NLR (pt.2) 226; Nnaemeka-Agu, JSC of blessed memory; had reasoned in Ayinde Adeyemo V. Okunola Arokopo (1988) 6 SCNJ 1 at 16; that one of the cardinal rules of natural justice is that a tribunal unless otherwise empowered so to do, must base its decision on evidence of some probative value. In his view, a Judgment of a Court ought not to be, as it were, a rule of thumb but that where a judgment is bereft of good reason(s) or the reason(s) there for is/are defective or non-existing because all the issues have not been resolved, such a judgment lacks its very essence and is vulnerable for it is supposed to finally dispose of all the controversies as to any of the matters in issue between the parties.

In his words: …… “none of the issues raised in the action ought to stand over for further adjudication in future. And furthermore, the judgment must not only demonstrate in full a dispassionate consideration of all the issues properly raised and tried in the case but also flow logically from such exercise.”

On the guide lines for writing judgment, see per Oputa, JSC in Isaac Stephen V. The State (1986) 12 S.C. 450 at pages 504 – 506; and for purposes of this Appeal it is necessary to recall that the learned Emeritus judicial Icon identified four stages- Stages 3 and 4 which are very important to us since this is a civil matter. For instance, Stage 3 which he considers the most important and crucial stage; “deals with the perception of facts, evaluation of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial Court.” Then at stage 4: “Having exercised his prerogative to believe or disbelieve, having made his findings of fact the trial Court will then draw the necessary inference or conclusion from the facts as found. Finally the trial Court would then discuss the applicable Law against the background of the facts as found. And any judgment that follows the above pattern or something similar to it will be of invaluable help to the Courts of Appeal as well as to the parties to the Appeal.”

Speaking in the same vein also of what constitutes a good judgment Craig, JSC; in Theophilus Onuoha V. The State (1988) 7 S.C.N.J. (pt. 1) 20 at 20 & 24 – 25; posited that while most judgments start with a review of the case for the prosecution followed by that of the defence followed by a statement of the law and concluded by a finding on the facts, it is admitted that writing a judgment is an art in itself and there are more than one way of going about it. Accordingly, it is possible to have as many variations as there are Judges. “What is essential”, His Lordship concluded, “is that a Judge should show a clear understanding of the facts in the case, of the issues involved, of the law applicable; and from all these, he should be able to draw the right conclusions and make a correct finding on the evidence before him.”

Perhaps before rounding up on the question of good judgment, it is necessary to also allude to the dictum of Niki Tobi, JSC; in Usiobaifo V. Usiobaifo (2005) 3 NWLR (pt. 913) 655 at 692 paras. E – H; where he re-echoed the stance of his forebears of the apex Court by asserting that there is no Constitutional requirement as to the particular format in the writing of a judgment which is an art that needs the personal dexterity of the individual Judge. According to him; “Each Judge has his own peculiar style and once the judgment contains the major attributes of a good judgment, an appellate Court will not interfere. Once a judgment of a trial Judge States the claim or relief of the Plaintiff, the relevant facts and counter facts leading to the claim or relief, arguments of Counsel, if Counsel are in the matter, reactions of the Judge to the arguments and the final order, an appellate Court cannot hold that the judgment is not properly written.”

I venture to state that the judgment of the learned trial Judge met with the criteria set out by the eminent jurists of the apex Court in the above cited cases and this Court has no business interfering with that Judgment which determined the crucial issue at stake, on established facts from the evidence adduced even by the Appellant himself. In this case, I reiterate that the learned trial Judge properly evaluated the totality of the evidence and came to the conclusion that the claim of the Plaintiff must fail.

Part of the grouse of the Appellant is that the learned trial Judge refused to expunge the evidence of the DW1 who testified but refused to come back for cross-examination and that if the evidence of the Dw1 is expunged as requested during his address at the trial Court as he has urged on us herein; only the unchallenged evidence of the PW1 and PW2 would be left before the Court. Now a careful perusal of the entire Record of proceedings would reveal that the suit culminating in this Appeal was commenced in 2004 but judgment was not delivered until the 30th day of November, 2011. For those seven years the case suffered several adjournments at the instance of either the Appellant/Counsel or the Respondents and their Counsel. There is clear evidence also from the Records that the Respondents opened their defence through the DW1/3rd Respondent on the 23rd April, 2009 and half way Mr. Gangs for the Respondents applied for an adjournment. The Court obliged him and the matter was adjourned to the 28th day of May 2009 for continuation of hearing. On the next adjourned date the case was adjourned at the instance of the Respondents to the 2nd day of July, 2009.

On that 2nd day of July, 2009 the Defendants/Respondents and their Counsel were present in Court but the learned Counsel for the Appellant was absent. The matter was again adjourned to 16th of September, 2009 for continuation of defence. From that 16th of September, the Court did not sit until the 2nd day of March, 2010. On that day, the Defendants/Respondents were absent with their Counsel while the Appellant and his Counsel were in Court and the Respondents were obliged an adjournment to the 24th of March, 2010. On that next adjourned date the Respondents and their Counsel were yet absent even though the Record of Proceedings of that day has it that they were duly served with the hearing notice.

The Court having been satisfied that the Respondents were duly served with the hearing notice acceded to the learned Counsel for the Appellant’s application to close the case of the Respondents and adjourned for address to the 21st day of April, 2010. On that 21st day of April, 2010 the Defendants/Respondents and there Counsel were again absent and the learned Counsel for the Appellant obliged them another adjournment to the 26th of May, 2010 for address by the learned Counsel for the Appellant. Come that 26th day of May, 2010 and the learned Counsel for the Defendants/Respondent Mr. Gangs appeared and having been informed that the case was for address, he intimated the Court that he had lost touch with the developments in the case up to the stage of address and that the last hearing notice he received fell on a public Holiday and strike action. He further informed the Court that he came to Court for another case and was surprised to find the case had gone to address stage. In view of those facts, he craved the Court’s indulgence to reopen their defence so that the case might be heard and disposed of on the merit. He apologised for the inconvenience the application might cause the Court.

At that juncture Odo Esq. for the Plaintiff/Appellant vehemently opposed the application by the Mr. Gangs on the ground that a hearing notice was served on the Ministry of Justice for that day’s sitting since the 26th day of April, 2010. He urged the Court to discountenance the application because the case was a 2004 case and the Respondents were served with the hearing notice for the last hearing date but they failed to turn up. In spite of the fact that Gangs Esq. explained that the hearing notice which was served on one James Tera of the Litigation Registry, of the Ministry of Justice instead of on him personally which had hitherto been the practice from the inception of the case; and further that the said hearing notice had just been shown to him in Court, the Court nevertheless ruled against the reopening of the case for the Defence and accordingly Mr. Odo for the Plaintiff/Appellant proceeded to address the Court. Thereafter, the case was adjourned to the 23 of June, 2010 for Reply. See pages 125 – 127 of the Record of proceedings of the lower Court.

The learned Counsel for the Respondents subsequently replied on the 21st day of July, 2010 and the learned Counsel for the Appellant replied on points of law on the 2nd day of August, 2010 when the case was subsequently adjourned for Judgment on the 7th of October, 2010. Now, there is considerable substance in the submission of the learned Counsel for the Appellant who cited and relied on the cases of Iwuoha V. Okoroike (1996) 2 NWLR (pt.106) 231, 250 paras. A-F per Edozie, JCA (as he then was), FCSC V. Laoye (1989) 2 NWLR (pt.106) 652 at 725 and Adigun V. A. G. Oyo State (1987) 1 NWLR (pt.53) 678; and indeed the provisions of Sections 214 and 215 of the Evidence Act, 2011, that cross-examination of an opponent and/or his witness is a very important process of determining the veracity of the evidence of a witness. It is also compulsory on a party to exercise his right to cross examine his opponent by the provisions of the Evidence Act above cited except where such a party voluntarily waives his right not to so do.

Moreover, the learned Counsel to the Appellant was on very sound pedestal when he contended that where the Court deprives a party of the right to cross examine his opponent it is tantamount to an infringement of his constitutionally guaranteed right to fair hearing under Section 36(1) thereof. However, in this case, it was the Appellant’s Counsel who vehemently opposed the reopening of the Respondents’ case at least for purposes of cross-examining the DW1 despite the explanations offered by the learned Counsel for the Respondents. The Court again did not help matters when it ruled that the Respondents were indolent in the prosecution of their case and therefore refused the Respondents application to reopen their case. The Appellant’s were the architects of their own fortune as they cannot approbate and reprobate at the same time.

The learned Counsel for the Appellant has relied on the case of Ogunyade V. Oshunkeye & Anor (2007) 7 S.C. (pt. 11) 58 at 80 lines 15 – 40; to urge us to hold that the case of the Plaintiff/Appellant was not challenged. With the greatest respect I agree with the submission of the learned Counsel for the Respondent that if there was any miscarriage of justice at all in this case it was on the Respondents whose only witness was peremptorily shut out from leading evidence in defence of case brought against them by the Appellant. In any case after considering the totality of the evidence before him the Court below still dismissed the case of the Appellants. It is trite law that the burden of proof in civil cases like the one herein lies on the Plaintiff who desired the Court to give him judgment as to his legal right dependent on the existence of the facts which he asserted and ought to have proved that those facts existed. See section 131 (1) and (2) of Evidence Act, 2011. The burden was also on him to have proved his assertion because he was the one who would fail if no evidence were led at all in the proceeding before the lower Court. See Sections 132, 133(1) and (2) of the Evidence Act. See further section 134 of the Evidence Act which provides that the burden of proof in civil matters shall be discharged on the balance of probabilities.

Until and unless he discharged that burden by adducing sufficient evidence which ought reasonably to satisfy the court that the facts sought to be proved had been established, the burden did not shift to the Respondents’ see the case of Ojoh v. Kamalu (2005) 18 NWLR (pt.958) 523 at 560 paras. F-G and 565 para. F per Tobi, JSC; Okechukwu & Sons v. Ndah (1967) NWLR 368; Abiodun v. Adehin (1962) 2 SCNLR 305; George v. UBA Ltd. (1972) 8 – 9 S.C. 264 and the recent case of Ochochukwu v. A.G. Rivers State (2012) 6 NWLR (pt. 1295) 53 at 85 – 96; per Mukhtar, JSC (as he then was). In Jolayemi v. Alaoye (2004) 12 NWLR (pt 887) 322 at 348 paras. D-E; per Uwaifo JSC held that “a defendant need not prove anything if the Plaintiff has not succeeded in establishing his case, at least prima facie, in order that the necessity of the Defendants to confront the case so made may arise: see Aromire v. Awoyemi (1972) 2 SC 1 at 10 – 11; Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1 21-22.”

In the present case although the Appellant led evidence to establish his claim, that evidence fell short of expectation of the Law in that from Exhibits “KK” and “KD,” the land he purported belonged to him has been seen to be a Road Reservation Area which had been so designated since 1984 and the Authority which inspected the locus had come out with findings which warranted their refusal to grant the Appellant’s tenant the permit sought. Besides, the place sought to be let out for the building of temporary structures had long ceased to be the property of the Appellant as Government had paid him compensation for the property that hitherto stood thereat. Thus, am of the candid view and I agree completely with the submission of the learned counsel for the Respondents, that even if the evidence of the Dw1 is expunged from the Records it would not make any difference as the Appellant cannot be said to have made out a case sufficient enough to warrant judgment being given in his favour. See Sokwo v. Kpongbo (2008) 7 NWLR (pt.1086) 342 at 362 paras. C-E per Mukhtar, JSC (as he then was).

I agree also that the learned trial Judge did not make use of any testimony from the Dw1 and even if he did he was right in that the evidence of Dw1 stood unchallenged since the Appellant vehemently refused his being recalled to be cross-examined. In any case, the learned trial Judge had held that from the content of Exhibit “KD” the refusal to grant the Appellant’s tenant the permit sought was in conformity with section 9(c) of the Nigerian urban and Regional planning Act, 2004 some of the salient sections that support the act of the Respondents in refusing the grant of the permit to Appellant’s tenant, which I have also copiously quoted in my resolution of Issue Number one (1).

On the whole, I am unable to agree with the submissions of learned Counsel for the Appellant (which I must commend for its uncommon brilliance) that from the State of pleadings and the evidence led the Appellant’s case before the Court below was unchallenged. Even if it was not challenged, the Exhibits tendered by the Appellant did not support his case. Accordingly, these two issues shall also be resolved against the Appellant. The appeal is unmeritorious and it is accordingly dismissed in its entirety. The judgment of Honourable Justice Bobbo Umar delivered on the 30th day of March, 2011 is hereby affirmed and I make no order as to costs.

SOTONYE DENTON WEST, J.C.A.: I agree.

JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the Judgment just delivered by my learned brother, Agube, J.C.A., with which I entirely agree. In the aforesaid Judgment, his lordship has meticulously dealt with all the issues submitted for the determination of the Appeal. I accordingly dismiss the Appeal and abide by the orders made, including the order for costs proposed in the Judgment.

Appearances

Chief L. D. NzadonFor Appellant

AND

Chief M. A. GangsFor Respondent