ALHAJI MUTAIRU OWOEYE & ORS v. OBA SOLOMON ADEBIYI ISIYEMI & ORS
(2019)LCN/13560(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/IB/48/2016
RATIO
APPEAL: POWERS OF AN APPELLATE COURT: HAS THE POWER TO REJECT, MODIFY OR REFRAME ANY OR ALL ISSUES FORMULATED BY PARTIES
It is settled principle of law that for a just determination of an appeal an Appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issues(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the Appellants briefs of argument or that of the Respondent in the determination of an appeal. See AIB Ltd v. I.D.S Ltd (2012) 17 NWLR (pt. 1328) 1 at 31 and Sha (Jnr) v. Kwan (2000) 8 NWLR (pt. 670) 685. PER ABUBAKAR MAHMUD TALBA, J.C.A.
COURTS: POWER OF COURTS: COURTS CAN FRAME OR FORMULATE ISSUES FOR DETERMINATION IN A SUIT OR APPEAL
It is also trite that a Court can frame or formulate issues for determination in a suit or appeal.
In the case of Peterside v. Fabara (2013 6 NWLR (pt. 1349) 156 at 172 the Court held that an issue for determination may be framed by the Appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal.PER ABUBAKAR MAHMUD TALBA, J.C.A.
ANY COURT PROCESS MUST BE SIGNED BY A NAMED AND IDENTIFIABLE LEGAL PRACTITIONER
A Court process, whether writ of summons or notice of appeal or statement of claim or statement of defence must be signed by a named and identifiable legal practitioner. Any Court process not signed by a named and identifiable legal practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per Rhodes Viviour J.S.C, has spelt out how it is to be signed in the case of SLB consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1253) 317 at 327 thus:
Once it cannot be said who signed a process it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e Act) All the processes filed in Court are to be signed as follows:
First the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
Thirdly name and address of legal firm. In this suit, the originating summons was signed but there was no name of counsel.PER ABUBAKAR MAHMUD TALBA, J.C.A.
WHETHER THERE CAN BE A SIGNATURE ON ANY COURT PROCESS WITHOUT THE NAME OF THE LEGAL PRACTITIONER
The position is that there must be strict compliance with the law. In this case there is signature of counsel but no name of counsel. A signature without name is incurably bad.?
In Melaye & Anor. V. Tajudeen & Ors. (2012) 15 NWLR (pt. 1323) 315 at 338 this Court enunciated that:
Any person signing process on behalf of a principal in chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case the identity of the signatory was not disclosed on the face of the process, rather it was sought to be explained in an Affidavit of status after an objection to the process was raised.PER ABUBAKAR MAHMUD TALBA, J.C.A.
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI MUTAIRU OWOEYE
2. MR. PHILIP OLUBANWO
3. CHIEF FAGBOHUN JOSIAH
4. PRINCE SEGUN FASHINA Appellant(s)
AND
1. OBA SOLOMON ADEBIYI ISIYEMI
2. CHIEF AKINYEMI ISIYEMI
3. CHIEF MUFUTAU LAWAL BAMISEBI
4. CHIEF TOYIN ABOBADE ISIYEMI
(for themselves and on behalf of Isiyemi Family, Atan Ota) Respondent(s)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court sitting in Agbara, delivered by O.S. Olusanya J on the 5th October, 2015 in suit No: HCT/245/2004.
By a Writ of Summons and 4th Amended Statement of Claim dated and filed on 17th February, 2014, the Respondents who were Claimants sought the following reliefs:
a. A Statutory right of Occupancy over and in respect of all that piece or parcel of land situate lying and being at Atan Verged RED and more particularly described and delineated in plan No: AKN/OG/007/LD/2005 drawn by S.O. Akinade, Registered surveyor.
b. A sum of Fifty Thousand Naira Only (N50,000:00) being damages for trespass committed by the Defendants theirs agents, servants and privies on the said land when they forcibly encroached on same
c. Perpetual injunction restraining the Defendants whether by themselves their servants or privies from carrying out any form of trespass from the Claimants land at the aforesaid location.
?The Claimants/Respondents at the lower Court traced their root of title to the land to their progenitor
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Isiyemi who founded the entire land of Atan. Isiyemi begat TogunDada Ogbolu, Kosifeye and Abobade. Isiyemi established shrines for the idols, Ogun Obatala and Oso Osi. Isiyemi later became the Olota of Ota in 1882 and then he left the land for his children. Isiyemi had boundary men to his land who were Bala Banjoko family, Ajayi Egan family, Ekiru fami, Kooko Village and Egando family. Isiyemi granted portions of the land to people including Ajuwon and dekanbi. And also to institutions such as local Government Secondary School/Atan, St. James Church, Christ Apostolic Church and C & S Church all at Atan. In the year 2004, the Defendants/Appellants through their agents trespassed on the land by selling the land to unsuspecting buyers.
The Defendants/Appellants denied the Claimants/Respondents Claim and contended that the land in dispute contrary to the case of the Respondents is at Olokopupo Village which is part of Kooko as opposed to Atan. And that their progenitor, one Oyegun granted a porton of the land to Isiyemi at the instance of one Ekiru. Isiyemi came from Ijemo quarters at Ota to look for land to farm and Ekuru took Isiyemi to Oyegun who gave
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him land to farm, at the end of the Junction of a road. Isiyemi later brought his relations to settle with him on the land.
At the trial the Claimants/Respondents called six (6) witnesses while the Defendants/Appellants called two (2) witnesses. Several Exhibits to wit Exhibits 001 ? 007 were tendered and admitted in evidence.
At the conclusion of trial, counsel filed and adopted their written address. In a considered Judgment delivered on the 5th day of October, 2015, the learned trial Judge granted the Claims of the Respondents/Claimants in its entirely. Being aggrieved by the decision, the Appellant filed this appeal.
The notice of appeal was filed on the 8th October, 2015, it is at pages 638 ? 640 of the records. The amended notice of appeal was filed on 21st February, 2018 and it was deemed properly filed on 20th September, 2018. The amended notice of appeal contain ten (10) grounds of appeal. In compliance with the rules of this Court parties filed their briefs of Argument. The Appellants brief of argument dated 20th February, 2018 was filed on the 21st February, 2018 but deemed properly filed on the 20th September, 2018. In
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the Appellants brief five (5) issues were distilled for determination as follows:
(i) Whether the Claimants Originating process is not incompetent which incompetence deprived the trial Court of jurisdiction and ultimately rendering the Judgment delivered a nullity? Ground 9.
(ii) Whether a Claimant who pleaded settlement as his root of tile but gave evidence of grant is entitled to declaration of title to land? Ground 3.
(iii) Whether the Claimant who did not prove definite boundaries of the land in dispute is entitled to declaration of title to land? Grounds 7 & 8.
(iv) Whether a declaration of title to land can be rightly granted over a land on which there exist customary tenancies which have not been forfeited? Ground 6 and
(v) Whether having regard to the evidence proffered, particularly the fact of contradictions in the evidence and inappropriate evaluation. Claimants are entitled to succeed on their claim before the trial Court? Grounds 4 & 5.
The Respondents brief of argument was dated the 7th day of January, 2019 and filed same date, but it was deemed properly filed on the 24th January, 2019.
?The Respondents
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adopted the five issues distilled by the Appellants. The Appellants filed a reply brief on the 22nd January, 2019 but was deemed properly filed on 24th January, 2019.
It is settled principle of law that for a just determination of an appeal an Appellate Court possesses the power to reject, modify or reframe any or all the issues formulated by the parties so long as the issues(s) so reframed or modified are predicated on the grounds of appeal. The Court is not under duty to prefer the issues in the Appellants briefs of argument or that of the Respondent in the determination of an appeal. See AIB Ltd v. I.D.S Ltd (2012) 17 NWLR (pt. 1328) 1 at 31 and Sha (Jnr) v. Kwan (2000) 8 NWLR (pt. 670) 685. It is also trite that a Court can frame or formulate issues for determination in a suit or appeal.
In the case of Peterside v. Fabara (2013 6 NWLR (pt. 1349) 156 at 172 the Court held that an issue for determination may be framed by the Appellant or respondent or by the Court itself which issue must be in conformity with the grounds of appeal.
?
In this instant case except for the first issue in the Appellants brief of argument which can be resolved alone.
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Each of the other four issues can be resolved at the same time. For this reason the 2nd, 3rd, 4th and 5th issues in the Appellants brief of argument are hereunder compressed and restructured thus:
1. Whether the Claimants Originating process is incompetent thereby depriving the trial Court of jurisdiction to entertain the suit?
2. Whether from the totality of the evidence before the trial Court, the learned trial Judge was right in granting the claims of the Claimants?
The issues enumerated supra would be taken and resolved seriatim.
On issue one, thus whether the Claimants Originating process is incompetent thereby depriving the trial Court of jurisdiction to entertain the suit. I must say that both parties have made a great issue in this appeal, which in my humble view is a very narrow issue of law. Therefore the volumes of verbiage loaded into the submissions of learned counsel are not necessary. I therefore go straight to the real issue.
The Appellants counsel argued and submitted that for a Court to poses jurisdiction in a suit brought before it, such a suit must have been initiated by due process of law. He cited the case of
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Madukolu v. Nkemdilim (1962) 2 SCNLR 341 to buttress his argument.
He said an originating process must not suffer any defect as to render it incompetent in the eyes of the law. See Fatoki v. Baruwa (2012) 14 NWLR (pt. 1319) 1 at 15. He said an originating process must be signed by a legal practitioner as required by Section 2 of the Legal Practitioners Act Cap 207 LFN 1990. The learned counsel submitted that the signature on the writ of summons herein was appended by an unknown person for or on behalf of O.K. Awowole Esq. therefore the originating process was signed by an individual whose identity is shrouded in misery on behalf of O.K. Awowole Esq. learned counsel relied on the case of SDPCN Ltd v. Ekosi (2016) 2 NWLR (pt. 1496) 278 at 287 where this Court held that .. when a signature is appended on a document and it is followed by a preposition ?for? it certainly means that the signature is for someone other than the person listed on the document?.
Learned counsel relied on the following cases P.M.B Ltd v. NDIC (2011) 12 NWLR (pt. 1261) 253 at 260 ? 262, Okafor & Ors. v. Nweke & Ors. (2007) 10 NWLR
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(pt. 1043) 521 at 531 ? 532 and Ogundele & Anor v. Agiri & Anor. (2009) 18 NWLR (pt. 1173) 219.
Learned counsel submitted further that it is permissible under the law for a legal practitioner to sign document on behalf of another legal practitioner i.e his principal, for such document to be valid the legal practitioner signing must inscribe his name below the signature so as to make his identity verifiable. The learned counsel relied on the case of Mr. Akinfunde Aromire & Ors. v. Mr. Ibrahim Taiwo Ajomagberin & Ors. (2011) LPELR 3809 at 24 ? 25 where this Court held thus:
?Indeed, its an established principle, that any person signing, endorsing or franking a Court process be it a notice of appeal, motion e.t.c on behalf of a principle partner in chambers, is required to clearly state his name and designation to show that he is a legal practitioner. And the wisdom behind in the above dictum is not farfetched ? this is to avoid a situation where a clerk, messenger or secretary would sign processes filed in Court on behalf of
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principal partners in chambers?.
Learned counsel further submitted that the signature in the originating process is not that of O.K. Awowole Esq. And he referred the Court to other processes duly signed by O.K. Awowole Esq. at pages 29A, 32 34, 38, 45 and 50 of the record, wherein the signature of O. K. Awowole Esq. were consistently appended. He urged the Court to take judicial notice of the record. See Estisione H (Nig.) Ltd v. Osun State Govt. (2012) 14 NWLR (pt. 13 12) 540 at 564 ? 565.
Learned counsel submitted that the amended writ of summons that was duly and properly signed does not cure the defect that afflicted the original writ of summons, hence it is a nullity. See Ministry of Works & Transport Adamawa State v. Yakubu Isiyemi Alhaji (2013) 6 NWLR (pt. 1351) 481. Learned counsel urged the Court to strike out the Plaintiffs suit and to allow the appeal on this solitary issue of jurisdiction.
?
While responding to this issue the Respondents argued that the act of signing for O.K. Awowole Esq. has been cured by the timeous amendment made to the writ of summons. The Respondent counsel argued that the Appellants have waived
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their rights to complain at this stage having participated fully at the trial. He relied on the case of Heritage Bank Ltd. v. Bentworth Finance (Nigeria) limited (2018) 9 NWLR (pt. 1625) 420.
In his reply brief the Appellants counsel submitted that in Heritage Bank Ltd v. Benthwoth Finance (Nig) Ltd (supra) the afflicted process was the statement of claim as opposed to the writ of summons under consideration herein. An irregularity affecting an originating process is a fundamental irregularity that goes to the roots. The statement of claim is not an originating process. Learned counsel further submitted that an invalid originating process cannot be amended, hence you cannot put something on nothing and expect it to stand, he relied on the case of State Universal Basic Education Board of Oyo State v. Mr. G.O. Morenikeji unreported Appeal No: CA/I/288/2008 delivered on the 21st day of May, 2015.
S.C.C. (Nig.) Ltd. v. Ekenma (2009) 27 WRN vol. 1 pg. 70 at 94 and Ministry of Works & Transport Adamawa State v. Yakubu (2013) 6 NWLR (pt. 1351) 481 at 496.
On the issue of Waiver learned counsel relied on the case of FBN Plc. v. Maiwada (2013) 5 NWLR
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(pt. 1348) 44 at 494 where the Supreme Court thus:
?The provisions of Sections 2 (1) and 24 of the legal practitioners Act, affect the jurisdiction of the Court as a matter of substantive law and not as a matter of procedural law. Therefore in certain cases they cannot be waived?.
See also R.A. Oliyide & Sons Ltd v. O.A.U Ile Ife unreported delivered on 9th February, 2018 page 17 ? 18 (SC.)
Learned counsel urged the Court to hold that the issue of improper signing of originating process i.e writ of summons is one that borders on substantive jurisdiction which can be raised at any time and it cannot be waived.
The starting point is Section 2(1) of the Legal Practitioners Act which provides thus:
?2 (1) subject to the provisions of this Act a person shall be entitled to practice as a barrister and Solicitor if, and only if, his name is on the roll?.
?Section 24 of the legal practitioners Act further provides that:
?24 in this Act unless the con otherwise requires, the following expressions have the meanings hereby assigned to them respectively that is to say-
Legal practitioner
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means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor either generally or for the purpose of any particular office or proceedings?.
A Court process, whether writ of summons or notice of appeal or statement of claim or statement of defence must be signed by a named and identifiable legal practitioner. Any Court process not signed by a named and identifiable legal practitioner is incompetent, null and void. As to how a Court process is to be signed, the Supreme Court, per Rhodes Viviour J.S.C, has spelt out how it is to be signed in the case of SLB consortium Ltd. v. NNPC (2011) 9 NWLR (pt. 1253) 317 at 327 thus:
?Once it cannot be said who signed a process it is incurably bad and rules of Court that seem to provide a remedy are of no use as a rule of Court cannot override the law (i.e Act) All the processes filed in Court are to be signed as follows:
First the signature of counsel, which may be any contraption.
Secondly, the name of counsel clearly written.
?Thirdly name and address of legal firm. In this suit, the originating summons was signed but
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there was no name of counsel.
The position is that there must be strict compliance with the law. In this case there is signature of counsel but no name of counsel. A signature without name is incurably bad.?
In Melaye & Anor. V. Tajudeen & Ors. (2012) 15 NWLR (pt. 1323) 315 at 338 this Court enunciated that:
?Any person signing process on behalf of a principal in chambers must state his name and designation to show that he is a legal practitioner whose name is ascertainable in the roll of legal practitioners. In the instant case the identity of the signatory was not disclosed on the face of the process, rather it was sought to be explained in an Affidavit of status after an objection to the process was raised.?
A careful look at the original writ of summons at page one of the record, the signature portion is at the reversed page there is a contraption of an alphabet ?F? beside the name of the Plaintiffs? counsel O.K. Awowole Esq. it is without any doubt that in franking a document the use of ?F? before a signature indicates that the document is signed for or on behalf of a named person,
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while the identity of the signatory was not disclosed.
The originating process i.e the writ of summons was amended on 1st of June 2005, it is on pages 29 ? 30 of the record. Beneath signature the name of O.K. Awowole Esq, Plaintiffs? counsel. It is settled law that an incompetent process is null and void ab intio. It cannot be amended.
The position of the law was reinforced in the case of Ministry of Works & transport, Adamawa State v. Yakubu (Supra) where the Court held thus:
? the originating process as in this case is fundamentally defective and incompetent. It is inchoate, legally non-existent and can therefore not be cured by way of an amendment. See N.N.B Plc. v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549?.
Where an originating process initiating a suit has been found to be incompetent, Court of law would not have the jurisdiction to adjudicate on it. In Kida v. Ogunmola (2006) All FWLR (pt. 327) 402 at 412 Mohammed JSC enunciated that:
?The validity of the originating process in a proceeding before a Court is fundamental, as the competence of the
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proceedings is a condition sin qua non to the legitimacy of any suit. Therefore the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity.?
Based on the principle of law enunciated supra, the lower Court had no jurisdiction in adjudicating suit No: HCT/245/2004 for it was not initiated or commenced by a valid and competent originating process. The Judgment of the lower Court in the said suit No: HCT/245/2004 delivered on the 5th day of October, 2015, has been delivered without jurisdiction same is liable to be set aside. It is hereby set aside. I resolve issue one in favour of the Appellant.
?
I shall however proceed to consider the second issue in view of the settled principle of law that the Court of Appeal should pronounce on all issues placed before it. It should not restrict its decision to one or more issues which in its opinion may dispose of the matter. This is to give the Supreme Court the benefit of its views in the matter should there be the need to consider other issues not determined by the
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intermediate Court. See Ikpekpe v. W.R & P. Co. Ltd (2018) 17 NWLR (pt. 1648) 280, Adegbuyi v. A.P.C (2015) 2 NWLR (Pt. 1442) 1, Xtoudos Services (Nig.) Ltd. v. Taisei N.A. Ltd. (2006) 15 NWLR (pt. 1003) 533 and Edem v. Canon Balls Ltd. (2005) 12 NWLR (pt. 938) 27.
While arguing this appeal, the Appellants counsel submitted that by their amended statement of claim, the Claimants relied on settlement as their root of title. He referred to page 231 of the record where the Claimants pleaded as follows:
9. Isiyemi the ancestor of the Plaintiffs and progenitor of Isiyemi family, founded what is know today as Atan, Ota.
10. Isiyemi is the son of Ikoriju the first king of Ota from Ijemo Ruling House.
11. It was during the reign of his father in Ota that Isiyemi founded Atan which was a virgin forest and established his farm and hunting tent there.
?
Learned Counsel submitted that from the above the Claimants have a duty of proving their case by leading evidence to support a root of title grounded in settlement. He said the Claimants failed to do so rather they led evidence which support a title based on grant. He also referred to the
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evidence of CW3 under cross examination
Q= who got to the area first your family or the Isiyemi?
A= my family got to Obere before Isiyemi was brought they belong to the same father.
Q= It was own ancestor who brought the Isiyemi to the land.
A= Yes
See pages 614 ? 615 of the record.
The learned counsel submitted that CW3 was not re-examined on the evidence he gave under cross examination. And that the evidence of CW3 is that his father first got to the land before bringing the Claimants father on the land, therefore the Claimants father was not the first founder of the land hence their claim of settlement is not made out. What is on record is the evidence of a grant by a previous occupier of the land in dispute. He referred to the case of Kode v. Yussuf (2001) 4 NWLR (Pt. 703) 392 at 409 on the distinction between a grant and settlement.
Learned counsel submitted further that as there is no evidence to support the root of title of the Respondents and their evidence is at variance with their pleadings, the Court should dismiss the case of the Respondents. He relied on the case of Inwelegbu v. Ezeani (1999)12 NWLR
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(Pt. 630) 266 at 279 and Olubodun v. Lawal (2008) 17 NWLR (pt. 115) 1 at 36.
The learned counsel submitted that the learned trial Judge held that what was in issue was not Obere but Atan and there is nowhere CW3 gave evidence that Ekuru brought Isiyemi to Atan.
He said the above holden of his lordship was borne out of a very restricted view of the evidence of CW3 without further review of his evidence during cross examination. Learned counsel again referred to the evidence of CW3 under cross examination at pages 614 ? 615 of the record.
On the identity of the land in dispute the Appellants counsel submitted that on the face of the pleadings filed by the parties facts abound showing that the parties are not ad idem as to the identity of the land. Claimant in a case that borders on declaration of title to prove his claim with exact precision especially in relation to the scope of the land. See Adeniran v. Ashabi (2004) 2 NWLR (Pt. 857) 375 at 407 ? 408. Learned counsel referred to the Respondents Statement of Claim as Claimants at the lower Court wherein they described the land as being at Atan Ota. See page 231 of the record. While
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the Appellants as Defendants in their Statement of Defence, the land was described as being at Olokupupo Village. Both parties filed their dispute plans which on the face of it shows that the identity of the land Claimed by the parties are not the same.
Learned counsel submitted that the Respondent have failed to discharge the onus of proving with exactitude the boundaries of the land in respect of which they sought declarative relief. He said CW1 who Claimed to be one of the boundary men of the Respondents made illusion to the presence of peregun tree and a path that demarcated the boundary between his family land and the Respondents family land. But that there is nowhere on the face of the plan tendered as Exhibit 001, shows that there are Peregun tress or a path. And that CW4 who is the surveyor who prepared Exhibit 001 under cross examination he claimed to have put out everything he found on the ground when he went to the land in dispute. learned counsel submitted that the law is settled that documentary evidence is the hanger by which oral evidence are assessed. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75)238 at 254. He also submitted that where
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oral testimonies of a witness are not in tendem with documentary evidence, the evidence of such witness ought not to be ascribed with any credibility, hence the Court will not be in a position to pick and choose which evidence to believe. See Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297 at 322 -323.
Learned counsel further submitted that where both parties rely on different survey plans as to the identity of the land in dispute, the Claimants must prove the identity of the land on which they are claiming for a declaration of title. See Ige v. Adegbola (1998) 10 NWLR (Pt. 571) 651 at 659 ? 660.
Learned counsel referred to paragraph 23 of the Amended Statement of Claim filed on 17th February, 2014 where the Claimants pleaded their boundary men thus;
?The boundary men to Isiyemi on his land at Tan are (1) Bala Banjoko family of Ijemo, Isolosi of Ota who founded Ketu Oluyomi and Onigbongbo Village, (2)Ajayi Egab family (3) Ekiru family (4)Kooko Village and (5) Egando family form Idaogun Quarters Ota?.
See page 443 of the record.
?Learned counsel submitted that the Claimants pleaded five (5) boundary men but only two testify,
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CW1 and CW3. He said having not called the remaining boundary men the Claimants had abandoned their pleadings on the other boundaries concerned. And it is trite that pleadings not supported by evidence is deemed abandoned. See Ujam v. I.M.T. (2007) 2 NWLR (Pt. 1019) 470 at 492 ? 493.
Learned counsel submitted that from the Respondents pleadings it was stated that there exist several grantees on the land whose grants have not been forfeited. The Respondents also made allusion in their pleadings and evidence particularly Exhibit 001 to the effect that there exist several customary tenants on the land. He said it is settled law that a customary tenant subject to good behaviour is entitled to the enjoyment of his tenancy. See Umoru v. Akinyede (2006) 10 NWLR (pt. 988) 362 at 375 ? 376.
Learned counsel argued and contended that in the face of the presence of grantees and customary tenants on the land in dispute whose tenancies have not been forfeited the Respondents cannot claim for declaration of title to the land on which customary tenants enjoy perpetuity of tenor. He cited the case of Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 422-423.
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Learned counsel submitted that a party seeking for declaration of title to land must amongst other ingredients establish that he is in exclusive possession of the land being claimed. He cited the case of Olisa v. Asojo (2002) 1 NWLR (Pt. 747) 13 at 17 and Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337. Learned counsel argued further that the Respondents are joint owners of the land with some other parties whose interest have not been forfeited. Therefore declaration of title cannot be granted in favour of the Claimants during the subsistence of the customary tenancy of those tenants.
?
Learned counsel finally submitted that there is nothing to show that the Respondents forefathers made grants of portions of the land in dispute to customary tenants in exercise of their proprietary right over the land. He said since the Respondents failed to demonstrate that in exercise of their right over the land, grants were made to third parties their case ought to be dismissed. Learned counsel submitted that the evidence of CW5 particularly the Exhibit 001 tendered by him was clearly at variance with the evidence of CW1 in relation to the features on
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the land. And in addition to that the damaging confusion created by CW1 in relation to the root of title of the Respondent which supports a claim grounded on grant as opposed to the one given by CW6 which relates to settlement. Learned counsel submitted that the quality of evidence led by the Respondents witness in prove of the Respondents case lacks the potency to prove the case of the Respondents before the lower Court. He urged the Court to resolve the issue against the Respondent and allow this appeal.
In conclusion the Appellants counsel gives notice of their abandonment of grounds 1, 2 & 10 of the amended notice of appeal and pray the Court to strike out same.
Before taking any further step, having abandoned grounds 1, 2 & 10 of the amended notice of appeal same are accordingly struck out.
?
In response to the submissions of the Appellants counsel, the Respondents counsel in his brief of argument he submitted that the Appellants counsel is misconceived in his argument that even though the root of title upon which the Claimants based their claim is that of settlement the evidence brought forward at the trial was that of grant. He
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said paragraph 11 of the Respondents amended statement of claim clearly stated that Isiyemi the progenitor of the Respondent first settled on the land in dispute. And this averment was supported by the evidence of CW6 who stated in his evidence in Chief that Isiyemi founded the land at Atan including the land in dispute by settlement.
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He submitted that the evidence of CW3 does not establish a title based grant. The evidence of CW3 was in addition to the primary evidence given by CW6 who is a principal member of Isiyemi family, that Isiyemi was the first settler of the land at Atan including the land in dispute. And that CW3 was called to give evidence and establish that he is a boundary man of the Respondents land at Atan including the land in dispute, which CW3 clearly established and not evidence of title by way of grant. He submitted that the land in dispute is at Atan and not Obere and the confusion now being raised is to the figment of imagination of the Appellants. CW3 was very clear that his father first got to Obere and not Atan. CW3 stated clearly that he is the Head of Ekiru family Obere and that his land shares boundary with the Claimants land
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to the North. CW3 never said he is member of Isiyemi family. Learned counsel submitted that the evidence of the Respondent at the lower Court was not at variance with the pleadings. On the five was of proving title to land by traditional evidence, the learned counsel cited the following cases: Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 394 and Idundun v. Okumagba (1976) 9 ? 10 SC 227.
Flowing from the above decisions he submitted that the evidence of traditional history given by the Respondents at the lower Court was found by the learned trial Judge to be probable, having had the opportunity to listen to the demenour of the witnesses. Learned counsel referred to the findings of the learned trial Judge at pages 629 ? 630 of the record.
On the issue of definite boundaries learned counsel submitted that contrary to the argument of the Appellants counsel a look at the pleadings of the Respondents juxtaposed with their evidence at the lower Court both oral and documentary show no contradiction or inconsistencies. The evidence of CW1 who was boundary man of the Respondents was very clear on page 611 of the record that Peregun tress demarcated
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the boundary between his family land and the Respondents family land. The law is trite that not all features on the land must be contained in the survey plan CW1 stated in his statement on oath dated 14th February, 2009 that he is the head of Bala Banjoko family of Onigbongbo and that his family land shares boundary with the Claimants land at Atan at the southern part. And that this piece of evidence of CW1 is clearly reflected in Exhibit 001, as Onigbongbo is shown in Exhibit 001 to share boundary with the Respondents family in the southern part. Learned counsel submitted that the Appellants counsel failed to mention other features alluded to by CW1 in his evidence on oath dated 14th February, 2009, which are as follows:
i. That his family land is bounded by Odo Ore, Kokoo and Egando family.
ii. That Atan market is the central market where people in and around Atan including the Claimants boundary men trade.
iii. That my forefather founded Ketu Oluyomi Village.
iv. That there is a natural footpath separating my family land from Isiyemi family land at Atan.
?Learned counsel submitted that all these features are clearly contained in
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Exhibit 001. But the Appellant counsel only referred to the Peregun tree as the only feature that is not contained in Exhibit 001. Learned counsel submitted that on identity of the land in dispute the law requires the Claimant to produce sufficient evidence to ascertain the definite and precise boundary of the land claimed. He said the path mentioned by CW1 which separate his family land from that of the Respondents land is clearly shown in Exhibit 001 which ended with the arrow to Onigbongbo, contrary to the submission of the Appellants counsel. Learned counsel relied on the following cases: Mr. Michael Aiyeola v. Mrs. Ramota Yekini Pedro (2014) LPELR 22915 SC, Arabe v. Asanlu (1980) 5 ? 7 SC 78, Okedare v. Adebara (1994) 6 NWLR (Pt. 349) 157 and Emiri v. Imieyeh (1999) 4 NWLR (Pt. 599) 442 at 463.
?
Learned counsel submitted that in paragraph 23 of the Amended Statement of Claim the Respondents pleaded five boundary men.CW1, CW2 and CW3 were able to mention clearly the boundary men. CW1 and CW3 mentioned clearly the boundary men of the Respondents which were in line with the pleadings. The Respondents have discharged the burden placed on them.
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Therefore not calling other boundary men is not fatal to the case of the Respondents. He relied on the case of Babatola v. Adewumi (2011) LPELR ? 3945 (CA) where Tsammani JCA held thus:
?. In proving his case therefore a party in a civil case has the unfettered discretion to decide the witnesses he will call and he is not bound to call a particular witness or a legion of witness. Thus, if the testimony of a single witness satisfies the Court, the Court will undoubtedly act on such evidence, however where the Court is not satisfied with such evidence it will certainly be fatal to such a party, it is therefore not the quantity but the quality of the evidence garnered from the testimony of such a single witness or even a host of witnesses that counts towards the success or failure of a party in a particular matter. See Wuam & Ors. v. Ako (1999) 5 NWLR (Pt. 601) P 150, A.G. Kwara State v. Alao (2000) 9 NWLR (Pt. 671) p. 84 and Agih v. Ejinkeonye & Brothers Ltd. & Anor. (1992) 3 NWLR (Pt. 228) p 200 at 211 ? 212 per Mustapha JCA?. (as he then was).
?
Learned counsel
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submitted that the failure of the Respondents to call three other boundary men at the trial was not fatal to their case as they were able to prove the boundaries of the land in respect of which they are claiming declaration of title.
Learned counsel argued and submitted that the Appellants missed the point by arguing that since the Respondents have several grantees and customary tenants on the land in dispute they are not in possession of the land in dispute.
He said the Appellants in their evidence at the trial failed to show that the Respondents have divested themselves of all their parcel of land taking into consideration as shown in Exhibit 001 that the total land of the Respondents is 442. 988 Hectares (1094. 67 Acres).
Secondly he submitted that even if the Respondents have several grantees and customary tenants on the land in dispute, they are still in possession of the land indirectly through those grantees and customary tenants and that will not prevent them from claiming for declaration of title to the parcel of land. He cited the following cases Euo Salami & Anor. V. Alhaji Adetoro Lawal (2008) 14 NWLR (Pt. 1108) 546, Ekpan v. Uyo
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(1986) NWLR (Pt. 26) 63, Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169 and Bamgbose v. Oshoko (1988) NWLR (Pt. 78) 509.
After reviewing the evidence of the Claimants witnesses the learned counsel submitted that the learned trial judge who had the opportunity of listening to the evidence of the witnesses and their demeanour confirmed all the features mentioned in the evidence of CW2, CW3, CW4, CW5 and CW6 while reviewing their evidence in his Judgment and came to the following conclusions:
?In the final analysis I hold that the evidence adduced and the documents tendered in Exhibits preponderate in favour of the Claimants in the suit. I find that Claimants are entitled to the relief sought in their statement of claim and that the Defendants have no state or property in the land the subject matter of this suit.?
The Appellant counsel filed a reply brief. The purpose of filing a brief reply was stated by the eminent jurist Tobi JSC (of blessed memory) in F.R.N v. Anache (2004) 1 SCNJ 27, where he said:
?The main purpose of a reply brief is to answer points arising from the Respondents brief. See Okpala v. Ibeme (Supra). A
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reply brief is filed when an issue of law or argument raised in the Respondents briefs calls for a reply. See Nwali v. The State, where a reply brief is necessary it should be limited to answering any new point arising from the Respondents brief. A new point is a fresh point which was raised by the Respondents in his brief. A reply brief cannot be used to strengthen the Appellants brief by way of repeating the argument made in the Appellants brief. A reply brief is not a recitation of the Appellants brief. Where there are no new points in a Respondents brief a reply brief is Otiose?.
Clearly it is trite that a reply brief is not a repair kit to put right any lacuna or error in the Appellants brief nor an opportunity to reargue the Appellants case by way of repeating the arguments in the Appellants brief. In this instant case except for issue No. 1, the reply brief is a re-argument of the Appellants brief and same is discountenanced.
On this note it is apt to observe that either the Appellants counsel did not fully comprehend the evidence adduced at the lower Court in support of the Respondents case or may be the Appellants counsel intends to
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mislead this Court in his Appellants brief of argument. The reason why I said so is not far-fetch. Firstly, the Appellants counsel submitted that the Claimants failed totally to lead any evidence in support of settlement rather the evidence that was led is at best one that can support a title based on grant. The argument of the Appellants counsel is premised on the evidence of CW3 elicited during cross examination particularly where CW3 was asked who got to the area first your family or the Isiyemi. And CW3 answered; my family got to Obere first before Isiyemi was brought, they belong to the same father. CW3 was also asked; it was your ancestor who brought the Isiyemi to the land. And CW3 answered Yes.
?
While reviewing this piece of evidence the learned trial Judge held rightly so that:
. Contrary to the submission of the learned counsel for the Defendants, there was no where, where CW3 gave evidence that Ekiru brought Isiyemi to Atan. The evidence of the witness under cross examination is to the effect that his family Ekiru got to Obere first before Isiyemi was brought. The Claimant never pleaded and led evidence to the fact that
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Isiyemi founded Obere or that the Claimant is claiming Obere, therefore the evidence as to who got to Obere first is not relevant to the issue at stake?.?.
The learned trial Judge further held thus:
it is trite that a party?s case is set out in the pleadings and proved by evidence so any evidence which is contrary to the pleadings whether extracted in chief or under cross examination goes to no issue and ought to be disregarded. See Nwawuba & Ors. v. Enemuo & Ors. (1988) NWLR (Pt. 78) 581 and Emegokwue v. James Okadigbo (1973) 4 SC 113 at 117?.
?
The findings of the learned trial Judge was based on the evidence of the respondents witnesses which is precise and in line with their pleadings that Isiyemi was the first person to settle on Atan land. The learned trial Judge was right when he held that what was in issue was not Obere but Atan and there is no where CW3 gave evidence that Ekuru brought Isiyemi to Atan. See page 629 of the record. The second point is that the Appellants counsel paused a question thus; whether a party who himself acknowledges the fact that there exist
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un-extinguished right in the property can himself claim for title of the property?
Learned counsel submitted that on the face of the Respondents pleadings it was expressly stated that there exist several grantees on the land whose grants have not been forfeited. He referred to page 443 of the record. He then submitted that the Respondents also made illusion both in their pleadings and evidence particularly Exhibit 001 to the effect that there exist several customary tenants on the land.
Now in another breath the Appellants counsel submitted that the substance of the case put forward by the Respondents is to the effect that in exercise of their proprietary rights over the land in dispute their forefathers made grants of portions of the land in dispute to customary tenants. He submitted that apart from the bare averments contained in the statement of claim and may be the ipxit dicit of the witnesses on trial there is nothing to show that such grants were actually made. He said the Respondents? have failed to prove the ingredients required to establish a grant under customary law; and since he Respondents failed woefully to demonstrate that in
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exercise of their rights over the land grants were made to third parties their case ought to be dismissed. It is well settled principle of law that counsel should not approbate and reprobate. A
