BAYO AREMU v. DANIEL GEORGE CHUKWU
(2011)LCN/4594(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of June, 2011
CA/L/807/2007
RATIO
PLEADINGS: WHETHER THE COURT CAN ONLY ADJUDICATE UPON THE SPECIFIC MATTERS OR ISSUES IN DISPUTE RAISED BY THE PARTIES THEMSELVES IN THEIR RESPECTIVE PLEADINGS
Indeed, it’s a trite general principle, as rightly submitted by the Appellants, learned counsel, that the court, as much as the parties before it, are bound by the pleadings of the parties. It is equally trite that it’s not the duty or function of the court to embark upon a voyage of discovery or an inquiry into the case before it. Most undoubtedly, the function of the court is to adjudicate upon specific matters or issues in dispute raised by the parties themselves in their respective pleadings. See AFRICAN CONTINETAL SEAWAYS LTD v. NIGERIAN DREDGINE ROAD & GENERAL WORKS LTD (1977) 5 SC at 250; LIPEDE v. SONEKAN (1995) 1 NWLR (pt.374) 668; IKENYA v. OFUNNE (1985) 2 NWLR (pt.5) 1. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
PROOF OF AN UNDATED DOCUMENT: WHETHER PAROLE EVIDENCE CAN BE ADMITTED TO PROVE THE DATE AN UNDATED DOCUMENT WAS WRITTEN AND FROM WHAT DATE WHEN IT WAS INTENDED TO OPERATE
It is correct that a document such as exhibit DI which bears no date of execution or date when it comes into operation is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date when it was intended to operate. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
EVALUATION OF EVIDENCE: WHETHER THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE THERETO ARE THE BASIC CHARACTERISTICS OF THE JURISDICTIONAL COMPETENCE AND FUNCTION OF A TRIAL COURT
And indeed, the principle has been well settled, that the evaluation of evidence and ascription of probative value thereto are the basic characteristics of the jurisdictional competence and function of a trial court. This is absolutely so, because the trial court has the exclusive jurisdiction competence to see, hear and assess the witnesses that appear before it. Thus, where a trial court unquestionably evaluates the evidence of witnesses, and creditably appraises the facts pleaded, an appellate court has no business whatsoever to substitute its own views for that of the trial court. See MAFINISEBI V. EHUWA & ORS (2007) 1 SC (PT.11) 73 AT 122 – 123; AGBEJI V. AJIBOLA (2002) 1 SC 1 AT 16. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
PROOF OF TITLE TO LAND BY PRODUCTION OF DOCUMENT: FACTORS THAT MUST BE TAKEN INTO CONSIDERATION ONCE A DOCUMENT THAT IS RELIED UPON AS AN INSTRUMENT OF GRANT OF TITLE IS PRESENTED BEFORE THE COURT
There is a need to reiterate the trite fundamental principle, that the production and a reliance on a document as an instrument of grant of title makes it imperative for the court to inquire into some pertinent questions or factors/viz: (i) whether the document is genuine and valid. (ii) whether it has been duly executed, stamped and registered. (iii) whether the grantor had the authority and capacity to make the grant. (iv) whether, as a matter of fact, the grantor had what he purported to grand and (v) whether it has the effect claimed by the holder of the document. See AKINDURO v. ALAYA (2007) 6 SC (Pt.11) 120 at 134 – 135, wherein the apex held inter alia, thus – In other words, mere production of even a valid document of title of a grant does not necessarily carry with it automatic relief for grant of declaration relating to such grant without taking into consideration, the factors adumbrated above. See also: OLIYINCE v. ADEAGBO (1988) 2 NWLR (Pt.78) 238 at 254; ROMANCE v. ROMANCE (1992) 4 NWLR (Pt.238) 650 at 662; ADENIRAN v. ALAO (2001) 12 SC (pt.11) 59 at 91. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
PROOF OF TITLE TO LAND: WAYS BY WHICH OWNERSHIP OF LAND IN NIGERIA CAN BE PROVED
It’s a trite general principle, that a trial court has an onerous duty of determining whether or not a party claiming ownership to land in dispute proves that he has a valid title there to. See NWAOFOR VS. ONWUSURIGBO (1996) 3 NWLR (pt.434) 111; ALECHENU v. OSAHOKE (2002) 9 NWLR (pt.773) 571; KANKEA v. MAIGEMU (2003) 6 NWLR (pt.817) 496. Indeed, it’s equally a trite principle, that ownership of land in Nigeria can be proved in a number of ways, viz: (a) By a credible evidence of traditional history (b) By duly authenticated documents of title; (c) By acts of ownership so numerous and positive enough to warrant the inference that the party was the true owner of the land; (d) By acts of long possession and enjoyment of the land; (e) By proof of possession of adjacent or connected land in such circumstances rendering it probable that the owner thereof would be the owner of the land in dispute. See ADEBO v. OMISOLA (2005) 2 NWLR (pt.909) 149; ADEWAYI v. ODUKWE (2005) 14 NWLR (pt.945) 473; MBANI v. BOSI (2006) 11 NWLR (pt.991) 400, respectively. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
RAPHEAL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
BAYO AREMU Appellant(s)
AND
DANIEL GEORGE CHUKWU Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court, Lagos Judicial Division, holden at Lagos it was delivered by the Hon. Justice H.A.O. Abiru on January 16, 2007 in suit No. LD/1746/04. By the judgment in question, the lower court (i) dismissed the Respondent’s claim for a declaration that he is entitled to the right of occupancy over the land in dispute; (ii) awarded N50, 000 as damages for act of trespass on the land committed by the Appellant; (iii) made an order of perpetual injunction restraining the Appellant from disturbing the Respondent on the land in dispute; and (iv) dismissed the Appellant’s counter claim in its entirety. Thus, dissatisfied with the said judgment, the Appellant filed the original notice and grounds of appeal thereof in the lower court’s registry on April 13, 2007.
FACTS AND CIRCUMSTANCES GIVING RISE TO THE APPEAL
The facts and circumstances surrounding the appeal are discernible from the record of appeal. On October 8, 2004, the Respondent filed in the court below both a writ of summons and a statement of claim against the Appellant claiming ownership of parcel of land, known as plot 28 in Block XXV on Ojomo Chieftaincy family land, lgbo-Efon Lekki Peninsula, Lagos. By the amended statement of claim thereof, dated and filed in the lower court on January 25, 2406, the Respondent claimed against the Appellant the following reliefs –
1. AN ORDER of perpetual injunction against the Defendant, his servants, agent and or privies from assaulting, harassing, trespassing or in any way whatsoever from interfering and or disrupting the claimants peaceable enjoyment of the landed property known as plot 28 in Block XXV lying and situated at Igho-Efon, Lekki peninsula, Lagos and particularly described in survey plan No.
2. A Declaration that the claimant is entitled to the Right of occupancy over all that property known as plot 28 in block XXV lying and situated at Igbo Efon and more particularly described in survey plan No. AL/637/2001.
3. Damages in the sum of N1,000,000.00 for trespass against the Defendant.
On the other hand, the Appellant filed his statement of defence, wherein he denied the claim in its entirety. He also counter-claimed against the Respondent. By the counter claim incorporated in the statement of defence thereof, dated December 6, 2004, the Appellant (counter-claimant) sought the following reliefs:
1. A Declaration that the claimant is the person entitled to the statutory right of occupancy and possession of the parcel of land situate at Block XXV, plot 28, Igbo-Efon village Lekki, in Eti-Osa Local Government Area of Lagos State more particularly described in survey plan No. LAL/438/96 measuring 767749 square metres, drawn by L.A/ Animashaun, Licensed Surveyor.
2. An order of perpetual injunction restraining the Claimant, his agents and privies from further committing any act of trespass by erecting, constructing any building on the land in dispute or otherwise in any way disturb or interfere with the Defendant’s right over the land in dispute.
3. The sum of N1, 000,000.00 (One Million Naira only) being special and general damages against the Defendant/ Respondent his agents, servant and privies on the Defendant’s land.
Pleadings having been filed and served by the respective parties, the suit eventually proceeded to trial. At the conclusion of which, judgment was delivered by the learned trial judge on January 16, 2007, to the following effect –
In conclusion, judgment is hereby entered in this suit as follows:
i. The claimant’s claim for a declaration that he is entitled to the right of occupancy over that property known as plot 28 in Block XW tying and situated at Igbo-Efon, Lekki peninsula, Lagos and more particularly described in survey plan NO ALS/637/2001. fails and it is hereby dismissed.
ii. The Claimant is awarded the sum of N50, 000.00 as damages for the acts of trespass committed by the Defendant on the land in dispute.
iii. An order of perpetual injunction is hereby made retraining the Defendant, his servants agents and/or privies from assaulting, harassing or in any way whatsoever interfering and/or disrupting the Claimant’s peaceable enjoyment of the landed property known as plot 28 In Block XW lying and situated at Igbo-Efon, Lekki peninsula, Lagos.
iv. The counterclaims of the Defendant fail in their entirety and they are hereby dismissed.
v. The claimant is awarded the cost of this action assessed at N10, 000.00.
These shall be the orders of this Court.
Thus, as alluded to above, the instant appeal is a direct fall-out of the judgment of the lower court in question. The original notice and grounds of appeal filed on April 13, 2007, are contained at pages 236-246 of the Record of appeal. In the course of the pendency of this appeal, parties had filed and served their respective briefs of argument. The Appellant’s brief was initially filed on June 23, 2008 but deemed properly filed and served on November 11, 2009. The Respondent’s brief, on the other hand, was filed, apparently within the statutory time limit, on December 10, 2009. In response to the Respondent’s brief, the Appellant filed a reply brief on December 31, 2009 apparently out of time.
SUBMISSIONS OF LEARNED COUNSEL:
The Appellant’s brief spans a total of 35 pages. Essentially, the threshold of the appeal is centered on the dismissal of the Appellant’s counter-claim by the lower court. A total of three issues have been formulated at page 9 of the Appellant’s brief, viz:
(i) Whether the defendant’s Reply on point of law ought to have not been relied upon by Honourable Justice H.A.O. Abiru (Ground 1).
(ii) Whether it was within the competence of the learned trial court to have investigated Exhibit D1 of the counter Claimant/Appellant adjudged by the same not have been impugned at trial (Ground 4).
(iii) Whether Honourable Justice H.A.O. Abiru was right to have dismissed the Counter Claims of the appellants in their entirety as he did. This issue arises from Grounds 2, 3, 5, 6, 7, 8, and 9 of the Notice of Appeal dated 13th day of April, 2007.
On issue No 1, the submission of the Appellant’s learned counsel is to the effect, inter alia, that the defendant’s right to file a Reply on points of law is a statutory privilege, which the learned trial judge lacks the power to deny the defendant from exercising. See Order 30 Rule 16 of the Lagos State High Court (Civil Procedure) Rules, 2004.
It was contended that the Reply on points of law filed by the defendant formed part of the defendant’s case. As such, the non-giving of consideration it deserves by the lower court has, without doubt, caused a miscarriage of justice to the defendant’s case.
According to the learned counsel, this court is empowered to correct the learned trial judge on this point by re-hearing the defendant’s reply address. See CAPTAIN AMANDI v. NNPC (2000)112 NWLR (pt. 782) 575 at 606 – 607; ATTORNEY GENERAL OF ANAMBRA STATE & ORS v. OKEKE & ORS (2002) 5 SCNJ 31.
On issue No 2, it was submitted that the issue joined by the parties before the trial court had nothing to do with the basis upon which the learned trial judge treated the Appellant’s exhibit D1. It was contended that the lower court was wrong on the state of pleadings to have imported, or implied, that the Appellant ought to offer explanation for a date attested on exhibit D1 by a magistrate, when there was no dispute on exhibit D1 at the trial. According to the learned counsel, it’s not part of the duty or function of the court to enter into enquiry in the case before it, other than to adjudicate upon specific matters in dispute raised by parties in the pleadings. see AFRICAN Continental SEAWAYS LTD v. NIGERIAN DREDGING ROAD & GENERAL WORKS LTD (1977) 5 SC at 250: LIPEDE v. SONEKAN (1995) 1 NWLR (Pt.374) 668; IKENYA v. OFUNNE (1985) 2 NWLR (Pt.5) 1; QUEEN v. WILCOX (1961) SCNLR 296; ONIBUDO v. AKIBU (1982) 7 SC 60 et al.
It was further contended, that having proved a better root of title, it was not left for the court to enquire into the Deed of Assignment (Exhibit D1), which was strictly between the Appellant and his vendor. That, the Appellant having proved that the land (in dispute) was sold to him by the Ojomu chieftaincy family, by producing exhibit D1, the decision of the lower court ought to have been that he had discharged the onus to establish his title by reliance on exhibit D1, a document of title.
On issue No 3, it was submitted that the Appellant had effectively established the identity of the land in dispute, by tendering in evidence a layout survey plan, Exhibit D6, of the ojomu chieftaincy family and Exhibit D2, the Appellant’s survey plan for the land in dispute.
Reference was made to pages 224 and 239 – 240 of the Record of appeal, regarding the alleged contradictory decision made by the lower court on Exhibit D2. It was contended, that it was not open for the lower court to make the Appellant’s failure to particularize specific matters the basis of adverse findings.
That, the land depicted on Exhibit D1 was actually at a different location from the land in dispute. See order 15 Rule 3 (1) of the High Court of Lagos state (Civil Procedure) Rules, 2004. The court has been urged upon to reverse the finding of the lower court, as same was allegedly erroneous and perverse for the following reasons:
Firstly, it was contended that a cursory look at the pleadings would reveal that Exhibit C5 was an unpleaded document. And that the Record of proceedings of the lower court does not bear out the finding of the trial court at pages 239 – 240. See MOHAMMED v. KLAGESTER (2002) 50 WNR 9.
Secondly, it was contended that the lower court misapplied the case of AYANWALE v. ATANDA (1988) 1 NWLR (Pt.68) 22. It was also argued that it’s trite law, that it is unlawful and incompetent for a judge to decide on evidence heard by another judge. see EGBOBIAMIEN vs. FMBN (2002) 40 WRN 4. In the instant case, the trial judge was neither the pretrial conference judge, nor did he see or hear DW1 testify. It was wrong for the learned trial judge to have acted and relied on the “silent, cold and printed records of the pre-trial judge to believe the DW1”. See EGBOBIAMIEN vs. FMBN (2002) 40 WRN 4.
Thirdly, it was submitted that the record does not bear out that DW1 was taken on oath at the pre-trial conference, as to justify the correctness of the lower court that he gave evidence. See section 180 of the Evidence Act, Laws of the Federation, 2004.
Fourthly, it was argued that the trial court ought to have applied the principle of law (enunciated) in ADEPOJU AYANWALE v. BABLOLA ATANDA & ANR (1988) 1 NWLR (Pt.68) at 22. The Supreme Court held in that case, that where a witness has two materially inconsistent pieces of evidence on oath by him on record, he neither nor deserves to be described as truthful, nor is he entitled to the honour of credibility. That, it’s a trite law that a court has jurisdiction to expunge from the record of appeal and judgment, document wrongly admitted by the lower court. See OGUNMAKINDE v. AKINSOLA (2002) WRN 103.
According to the Appellant’s learned counsel, the Appellant (counter claimant) having discharged the burden of proof placed on him (by law), the burden had then shifted to the Respondent (claimant). See section 36 (1) of the Evidence Act (supra); OKHUARHOBO v. AIGBE (2002) 31 WRN 35; IDUNDUN v. OKUMAGBA (2002) 20 WRN 127 at 129.
At the conclusion of the submission thereof, the Appellants’ learned counsel has urged the court to allow the appeal, and accordingly grant all the reliefs sought in the counter-claim by the Appellant.
On his part, the Respondent’s learned counsel has raised a sole issue in the brief thereof for determination, to wit –
“whether the lower court was right in its assessment and evaluation of the evidence proffered by the parties, when it come to the irresistible conclusion that the Appellants had no credible claim to the land in dispute.”
Curiously, however, the sole issue in question was subdivided into (a), (b) & (c), respectively, thus:
(a) Evaluation/Assessment of the addresses of the parties with regards to the reply address by the Appellant.
(b) Evaluation of evidence as regards the identity of the land in dispute.
(c) Evaluation of the exhibits tendered by the parties.
On sub issue (a), it was submitted by the learned counsel that the lower court was right in holding, at page 223 paragraphs 3 of the record, that the Appellant’s reply address did not comply with order 30 Rule 16 of the Lagos High Court (Civil Procedure) Rules, 2004. It was contended, that by the provisions of order 30 Rule 16 (supra) in question, the right of a reply to a party is limited to points of law only. The said reply address was a complete re-argument of the Appellant’s case, thus not in conformity with the rules of court. And the lower court was right in not placing any reliance thereon. Allegedly, the lower court’s failure to put a reliance on the reply address has not led to a miscarriage (of justice). See GBADAMOSI VS. DAIRO (2007) 1 SC (Pt.11) 151.
Regarding sub-issue (b), the finding of the trial court at page 230 of the record, paragraph 2 of the Respondent’s Amended Reply and Defence to Appellants counter claim, the evidence of CW 3, an Assistant Surveyor-General of Lagos State, and the statement on oath thereof contained at pages 230, 32 – 33, & 76 of the record of appeal, were referred to by the learned counsel. It was submitted, that in the light of the clear and unambiguous finding of the trial at page 230, the court’s finding at page 13 of the record would appear to be perverse and not supported by the evidence and materials placed before the court. See. IWUAHIA v. NIPOST (2003) 4 SC (pt. 11) 37 at 61.
It is contended, that the Appellant had a duty, as a counter claimant, to establish the identity of the land he was claiming. See THOMPSON v. AROWOLO (2003) 4 SC (pt.11) 106 at 130; KALU ONWUCHEKWA v. B. I.D. EZEOGU (2002) 18 NWLR (pt.799) 33 at 346 paras A- B.
According to the Respondent’s counsel, the lower court was correct to have found that the properties in dispute were not the same, based on the composite plan filed before it. See JACOB BANKOLA & ORS v. AMODU TIJANI DADA & ORS (2003) 11 NWLR (pt. 830) 174 at 224 -225 F – E.
The submission of the counsel on sub issue (c) is to the effect, inter alia, that a trial court has a duty to examine documentary evidence before it to ascertain their geniusness. See OLIYINCE v. ADEGBO (1988) 2 NWLR (pt.75) 238 at 254.
That, the lower court was therefore correct for not attaching weight whatsoever to the document it found to be “very suspect and unreliable.”
It was argued that the Appellant did not tender the purchase receipt evidencing payment for the land. Thus, he was caught by the provision of section 149 (d) of the Evidence ACT. The assumption being that if he had tendered it, it would have been against him. See ADENIRAN v. ALAO (2001) 12 SC (Pt.11) 59 at 91.
Exhibit D1 was allegedly never pleaded as a receipt, but as evidence of document of title to land. See AKINDURO VS. ALAYA (supra) (2007) 6 SC (Pt.11) 120 at 132 Exhibit D1, layout plan, ought to have been registered in accordance with section 15 of the Lands Registration Act and approval given without registration. Exhibit D6 is said to be a worthless document, if the aim was to tender it as an evidence of interest on land. See OGUNBANBI vs. ABOWABA 13 WACA 222 at 224.
In conclusion, the Respondent’s learned counsel urged on the court to uphold the findings of the lower court, to the effect that the Respondent had made out a case for possession, trespass and damages against the Appellant. And that the Appellant failed to show that he purchased the land from ojomo Chieftaincy family, since no purchase receipt was tendered. The Respondent’s learned counsel urged on the court to accordingly dismiss the appeal.
In response to the Respondent’s argument in the brief thereof, the Appellant filed a reply brief on 31/12/09. It should be recalled, that on 08/3/11, when the appeal first came up for hearing, I personally asked the Appellant’s learned counsel the date on which he was served the Respondent’s brief. His reply was to the effect thus:
“We filed a reply brief on 31/12/09. We adopt that brief. We were served the Respondent’s brief on 10/12/09. I urge the court to allow the appeal.”
It should be pointed out, at this point in time, that under order 17 Rule 5 of the Court of Appeal Rules, 2007 (which is in pari materia with order 18 Rule 5 of the current Court of Appeal Rules, 2011), the Appellant had the onerous duty of filing the said reply brief within a period of 14 days only. See order 18 Rules 5 (supra) thus:
4. The Appellant may also, if necessary, within fourteen days of the service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal wilt all need points arising from the Respondent’s brief.
In the instant case, the Appellant had in his own words told the court that he was served the Respondent’s brief on 10/12/09. Thus, the 14 days within which he should have filed the brief thereof would have expired on 24/12/0.
Having been filed on 31/12/09, the Appellant’s purported reply brief was filed out of the mandatory period of 14 days prescribed by order 18 Rule 5 (supra). There is no doubt that the said reply brief is rendered incompetent, thus ought to be discountenanced. And I so hold.
Accordingly, the appeal shall be determined on the Appellant’s and Respondent’s briefs of argument alone. The three issues formulated in the Appellant’s brief have each been indicated to be distilled from the grounds of appeal of the Appellant. On the other hand, the method adopted by the Respondent in sub-dividing the sole issue formulated in the brief thereof is novel, say the least. What’s more, neither the sole issue, nor the sub-issues in question were indicated to have been distilled from any of the grounds of appeal, in the circumstance, I think it would not only be appropriate, but also fair to adopt the Appellant’s three issues for the determination of the appeal. After all, it’s his own appeal.
ISSUE NO. 1:
The first issue raises the vexed question of whether the Defendant’s Reply on point of law ought to have been relied upon by the learned trial judge. This was stated to have been distilled from ground 1 of the grounds of appeal. I have accorded an ample regard upon the submissions of the learned counsel, the authorities referred to therein vis-a-vis the record of appeal, as a whole. Instructively, by virtue of the provisions of order 30 Rule 16 of the Lagos State High Court (Civil Procedure) Rules, 2004, the party who is first in filing in court the [written] address thereof shall have the right to file a reply on points of law’ And such a reply shall by be filed within 7 days after service of the address thereupon. The finding of the trial court on the issue of reply address, as complained against in ground 1, could be found at page 223 lines 20 – 36 of the record of appeal. Most especially, the court held at page 223, lines 31 – 36 thus:
The reply address herein was a complete re-argument of the case of the Defendant. With respects (sic) to counsel, that is not the purpose of reply address. The repress address was totally inappropriate and not in conformity with the provisions of the Rules. This court would not place any reliance on it. The court shall refer to the relevant portions of the appropriate of the written addresses in the course of this judgment.
The said reply address could be found at pages 198 to 208 of the record, thus spanning a total of 10 pages. The claimant’s written address, to which the reply address refers, is contained at pages 184 to 197 of the record. The Defendant’s (counter claimant’s) final address is contained at pages 163 to 183 of the record.
In the reply address, the two issues raised in the Respondents address referred to were captioned thus:
“1.0. On issue No. 1 raised by the Claimant/Respondent . . .
3.0. On issue No.2 raised by the learned counsel for the claimant,”
Ironically, however, no particular issue or point raised in the claimant’s address was specifically referred to in the [purported] reply address. All that the learned counsel tried, albeit in vain, to achieve in the reply address was to amplify the argument in the address thereof.
It must be reiterated, at this point in time, that the whole essence of filing a reply address, pursuant to the well set out provisions of order 30 Rule 16 of the Lagos State High Court (Civil Procedure) Rules, 2004, is to accord the party the much needed opportunity to address or deal with any new point arising from the other party’s address. Thus, the reply, if any, must be restricted to points of law only. And the [new] points raised in the other party’s address must be clearly highlighted and addressed in the reply address.
In the instant case, it’s rather evident that the Appellant had failed to clearly highlight and address the [new] legal points allegedly raised in the Respondent’s address to justify the filing of the purported reply address. There is every reason for me to hold, that the learned trial judge was right in finding that the reply address was a complete re-argument of the Defendant’s case, thus totally inappropriate and not in conformity with the rules of court. Thus, issue No. 1 is hereby resolved against the Appellant.
ISSUES NO.2
The second issue raises the question of whether it’s within the competence of the trial court to investigate Exhibit D1 of the counter claimant adjudged not to have been impugned at the trial. The second issue was stated to have been predicated on ground 4 of the grounds of appeal. It is a trite and well settled doctrine, that civil cases are normally decided upon the balance of probabilities. Thus, where a party to a case is unable to adduce a credible evidence to tilt the [pendulum of] the scale of justice to the side thereof, the court is under a duty to enter judgment against that party. see. OWOSHO v. DADA (1984) 7 SC 14 at 167; LIPEDE v. SONEKAN (1995) 1 NWLR (pt.37) 668 at 689 paragraphs D-E.
The finding of the trial court upon which the Appellants’ grouse in issue 2 (ground 4) is based is at pages 231, lines 36 – 45 and 233, lines 1 – 2, respectively.
On the face thereof, Exhibit D1 was not dated at all. It was however evidently signed by the aforementioned persons except the 5th (Chief Tiniyu Mustafa Oluge) who thumb printed against his name. At the foot of the names of the signatories, there are a stamp and signature of magistrate of Chief Magistrate’s Court Igbosere, one J.A. Ola, presumably for illiterate jurat. The illiterate jurat was dated 16/12/99. That’s the only date so far available on the face of Exhibit D1.
Indeed, it’s a trite general principle, as rightly submitted by the Appellants, learned counsel, that the court, as much as the parties before it, are bound by the pleadings of the parties. It is equally trite that it’s not the duty or function of the court to embark upon a voyage of discovery or an inquiry into the case before it.
Most undoubtedly, the function of the court is to adjudicate upon specific matters or issues in dispute raised by the parties themselves in their respective pleadings. See AFRICAN CONTINETAL SEAWAYS LTD v. NIGERIAN DREDGINE ROAD & GENERAL WORKS LTD (1977) 5 SC at 250; LIPEDE v. SONEKAN (1995) 1 NWLR (pt.374) 668; IKENYA v. OFUNNE (1985) 2 NWLR (pt.5) 1.
In the instant case, there is every reason for me to believe, that the trial court was right in evaluating the evidence adduced by parties at the trial with a view to properly determining the actual date on which Exhibit D1 was executed.
It is evident from the record, especially at page 231, that the trial court had found, rightly in my view, that the Respondent (claimant) had vigorously challenged the veracity of Exhibit Dr.. According to the trial court:
It is correct that a document such as exhibit DI which bears no date of execution or date when it comes into operation is ordinarily invalid and unenforceable but parole evidence is admissible to show when the document was written and from what date when it was intended to operate.
Under cross examination, the Appellant (DW2) was recorded to have been drilled by the Respondent’s counsel as follows:
Duru: when did you buy the land in dispute?
DW2: 1994.
Duru: what happened after you were shown the land?
DW2: I paid for the land. I was given a Deed of Assignment (Exh. D1).
Duru: How long did it take from when you paid the money and when they gave you the deed of assignment?
DW2: it took me one or two years to obtain the deed of assignment as I did not go there on time,
Duru: what you are saying is that the deed was ready but you did not pick it on time?
DWZ: Yes, That was what happened,
Duru: Do you have idea when it was ready?
DW2: I don’t have an idea.
Duru: who do you pay the money to?
DW2: Alhaji Yekini Olaware Bakare in the pressence of the present Oba who was not then crowned.
DW2: that was in 1994?
DW2: Yes. 1994.
Duru: Did Alhaji Bakare issue you a receipt evidencing your payment?
DW2: Yes.
DW2: Yes. I was given a receipt.
Duru: Who signed the receipt?
DWZ: Alhoji Bakore.
Duru: Do you have the receipt with you?
DW2: No. I don’t have it with me.
Duru: Are you sure you bought this land in 1994?
DW2: I was taken to the land in 1994 and I made payment thereafter.
Duru: why did you tell the police that you bought the land in 1990?
DW2: His probably a mistake
court: Your telling the police that you bought the land in1990 was a mistake?
DW2: It is a mistake.
DW2: My writing of 1990 was a mistake because I bought the land in 1994,
Duru: I will be correct if I say that you gave false information to the police.
DW2: That is not correct.
Duru: would you be surprised if I told you that your surveyor told this court that you bought the land in 1996?
DW2: He prepared the survey 1996 but bought the land in 1994.
From the above scenario, as recorded at pages 141, 142, 143, 144 & 145 of record, it has become rather obvious the date of purchase of the land in dispute was material. Thus, the trial court was right in evaluating the evidence adduced by the Dw2, with particular regard to the actual date of purchase of the land in question vis-a-vis exhibit D1. There is every justification for me to hold, that the trial court’s finding on exhibit D1 was no more than a mere evaluation of evidence and ascription of probative value thereupon. And indeed, the principle has been well settled, that the evaluation of evidence and ascription of probative value thereto are the basic characteristics of the jurisdictional competence and function of a trial court. This is absolutely so, because the trial court has the exclusive jurisdiction competence to see, hear and assess the witnesses that appear before it. Thus, where a trial court unquestionably evaluates the evidence of witnesses, and creditably appraises the facts pleaded, an appellate court has no business whatsoever to substitute its own views for that of the trial court. See MAFINISEBI V. EHUWA & ORS (2007) 1 SC (PT.11) 73 AT 122 – 123; AGBEJI V. AJIBOLA (2002) 1 SC 1 AT 16.
In the instant case, while Exhibit D4 was to the effect that the Defendant bought the land in dispute in 1990, Exhibit D1 on the other hand bears no date of purchase at all. Under cross-examination by the Respondent’s counsel, the Appellant gave evidence to the effect that he bought the land in 1994, and that Exhibit D1 was executed in 1996. However, under cross examination, the DW1, stated that the Appellant actually bought the land in 1996.
Thus, in the light of the aforementioned contradictions regarding the actual date of purchase of the land in dispute, et al, the only reasonable option left to the trial court was to evaluate the evidence so far adduced at the trial, and accordingly ascribe a probative value thereto, if any at all.
There is a need to reiterate the trite fundamental principle, that the production and a reliance on a document as an instrument of grant of title makes it imperative for the court to inquire into some pertinent questions or factors/viz:
(i) whether the document is genuine and valid.
(ii) whether it has been duly executed, stamped and registered.
(iii) whether the grantor had the authority and capacity to make the grant.
(iv) whether, as a matter of fact, the grantor had what he purported to grand and
(v) whether it has the effect claimed by the holder of the document.
See AKINDURO v. ALAYA (2007) 6 SC (Pt.11) 120 at 134 – 135, wherein the apex held inter alia, thus –
In other words, mere production of even a valid document of title of a grant does not necessarily carry with it automatic relief for grant of declaration relating to such grant without taking into consideration, the factors adumbrated above. See also: OLIYINCE v. ADEAGBO (1988) 2 NWLR (Pt.78) 238 at 254; ROMANCE v. ROMANCE (1992) 4 NWLR (Pt.238) 650 at 662; ADENIRAN v. ALAO (2001) 12 SC (pt.11) 59 at 91.
Exhibit D1 was indeed pleaded by the Appellant as a document of title to the land in dispute. Therefore, it (Exhibit D1) ought to have been registered in accordance with section 15 of the Lands Registration Act. Since it was not duly registered as required by law, Exhibit D1 is neither admissible, nor capable of conferring any title on the land in dispute, or any land for that matter. However, the said Exhibit D1 having already been erroneously, albeit inadvertently, admitted by the lower court it behoves upon the court to expunge same and attaché no weight thereupon. And I so hold.
In the light of the above postulations, the answer to issue No. 2 is in the affirmative, and same is accordingly resolved against the Appellant.
ISSUE NO.3:
The 3rd issue raises the vexed question of whether the trial court was right to have dismissed the counter claim of the Appellant in its entirety. That issue was distilled from grounds 2,3, 5,6, 7, 8, & 9 of the nine grounds of appeal. I have had a cause to hereinabove out-line the submissions of the learned counsel, as contained in the respective briefs thereof. By virtue of the provision of order 17, Rule 6 of the Lagos State High Court (Civil Procedure) Rules, 2004, where a defendant in an action seeks to rely on any ground supporting a right of set-off or counter-claim, he shall specifically state in his defence that he does so by either set-off or counter-claim.
Undoubtedly, it was pursuant to the above provisions of order 17, Rule 6 (supra), that the Appellant’s counter claim was incorporated in the statement of Defence thereof, dated 06/12/04. The three reliefs sought in the plaintiff’s statement of Defence/counter-claim have been copiously alluded to above. As a response to the Plaintiff’s Amended statement of claim, dated 25/01/06 the Appellant curiously filed in the trial court a ‘Further Defence/counter-claim’, dated 23/02/06.
It is instructive, that the plaintiff has in the sole Amended Reply and Defence to the counter-claim, dated 23/0l/06, prayed the court for the following relief:
“5. WHEREOF the claimant states, that the Defendants counter claim should be dismissed with substantial costs.” ironically, however, the ‘Further Defence/counter claim’, contained at pages 35- 38 of the Record, is bereft of any relief at all. what’s more, by virtue of the provision of order 24 of the Lagos state High court (Civil Procedure) Rules, 2004.
the Appellant as Defendant/counter-claimant was required to have amended his statement of Defence/counter claim, dated 06/12/04, in response to the claimant’s Amended statement, dated 23/01/06, in question. See order 24, Rules 5 & 6 of the High Court Rules (supra). Thus, it was wrong for the Appellant to have filed the ‘Further Defence/counter-claim’, instead of an amended statement of defence/counter-claim as required by order 24 Rules 5 & 6 (supra).
It is indeed trite, that the term ‘counter-claim’ denotes a claim for a relief asserted against an opposing party after an original claim has been made. Most especially, a counter claim serves as a defendant’s claim in opposition to, or as a set-off against, the plaintiff’s claim. It is also known as counter action, countersuit, cross-demand, et al.
As a matter of general principle, a counter claim is essentially and substantially a cross-action, thus not merely a defence to the plaintiff’s claim. See IGE v. FARINDE (1994) 98 SCNJ (pt.2) 284 at 305; ORAGBADE v. ONITIJU (1962) 1 ALL NLR 33 at 36, per Bairamain, JSC. Thus, instead of filing a separate suit, the defendant may insert in the statement of defence his claim in the suit under the label of counter-claim. See OYEGBOLA v. ESSO W.A. INCORPORATED (1966) 1 ALL NLR 170 at 171; OGBONNA v. AG IMO STATE (1992) 1 NWLR 647 at 672; ODUNSI v. BAMGBOLA (1995) 5 SCNJ 277 at 286; DABUP v. KOLO (1993) 12 SCNJ.
It was the contention of the Appellant’s learned counsel, that the Appellant has effectively established the identity of the land in dispute by tendering Exhibit 6, the layout plan of the Ojomu Chieftaincy Family and exhibit D2, the survey plan regarding the land in dispute. It is pertinent to reiterate the fact that at the trial court, various documents were tendered and admitted as exhibits. See pages 45 of the Record thus:
“court: Documents of the claimant ore hereby admitted in evidence and marked as follows:
1. Purchase Receipt issued by Chief Rasheed Abogun to Diamond Group Ltd doted the 11th of April, 2002 is Exhibit.
2. Deed of conveyance in favour of Diamond Group dated 12th of April, 2002 is Exhibit C2.
3. Two survey plans of Diamond 6roup, survey plans No, LAL/158A/97 dated 8th of May, 1997 and survey plan No. LAL/629A/2001 dated 27th of December, 2001 are Exhibits C3 (i) & (ii).
4. Survey plan No. LAL/6372001 doted 30th of December, 2007 in favour of Claimant is Exhibit C4.
5. Photocopy of Report of surveyor General dated the 14th of July, 2005 is Exhibit C5.
6. certified true copy of the Gazette Na. 24 vol. 27 dated 23rd of June, 1994 is Exhibit C6.
This court will admit the documents of the Defendant not objected to by the claimant and deal with the admissibility of the survey plan objected to in the course of trial.
1. Deed of assignment between the Ojomu Family and Defendant in Exhibit D1.
2. survey plan No. LAL/438/96 doted the 11th of October, 1996 is Exhibit D2.
3. Land Form 1C executed by the Ojomu Family in favour of the Defendant is Exhibit D3.
4. Letter from the defendant to Area commander, Lion Building dated the 19th of March, 2004 is Exhibit D4.
5. Legal Advise issued by Ministry of Justice dated 11th of February, 2005 is Exhibit D5.
6. Layout plan No. LAL/MISC005/97 is Exhibit D6.
It is evident at page 230 of the Record that the lower court alluded to the evidence of the claimant given at the pretrial conference. According to the lower court –
At the pretrial he (the first defence witness) admitted that there was a disparity of about three hundred feet between the land in dispute and the land depicted on Exhibit D2 and he explained that this was as d result of the difference in the accuracy of the clatum used. The first defence witness gave inconsistent testimonies and the courts have held that where a witness has two material inconsistent pieces of evidence on oath by him on record, he does not deserve to be described as truthful and is not entitled to the honour of credibility – See AYANWALE v. ATANDA (1988) 1 NWLR (pt.68) 22 and MONOPRIX (NIG) LTD v. OKONWA (1995) 3 NWLR (pt.383) 325. This court wilt thus discountenance the evidence of the first witness on this issue.
without much ado, I uphold the argument of the Appellant’s learned counsel, to the effect that it’s incompetent for a judge to decide on an evidence heard by another judge. And that it was wrong for the lower court to have relied on the evidence taken by another judge in the pretrial conference.
Undoubtedly, it’s on record that the pretrial conference was conducted by the Hon. Justice O.A. Taiwo.
It is a trite doctrine, that evidence given in a previous case is not admissible by the court trying a later case, except where section 34(1) of the Evidence Act CAP. E. 14, Laws of the Federation of Nigeria, 2004. See AYANWALE v. ATANDA (1988) 1 NWLR (pt.68) 22 at 29 paragraph D-E, per Wali, JSC.
In the case of AYANWALE vs. ATANDA (supra), the supreme court emphatically reiterated that the best use of what could be made of such an evidence given in a previous case is for cross-examination, with the aim of discrediting a witness called to testify in the later case. see also SHONEKAN vs. SMITH (1964) 1 ALL NLR 168; AJALA v. AWODELE & ANR (1971) 1 NWLR 127; MORADE v. ISKHUEMEN (1988) 2 SC 87; ALADE v. ABORISHADE (1960) 5 FSC 167.
It is not in doubt, as rightly submitted by the Appellant’s learned counsel, that the lower court has definitely misapplied the principle enunciated in Ayandele’s case (supra). It is a well settled principle, that where it’s established, as in the instant case, that a trial court has wrongly admitted an evidence, an appellate court has the competence and duty to expunge or exclude that evidence, and deal with the case on the remaining legally admitted evidence. See OWOYIN v. OMOTOSHO (1961) 1 ALL NLR 304; AYANWALE v. ATANDA (supra) at 29 paragraph E; EGBOBIAMEN v. FMBN (2002) 40 WRN 4.
Thus, the finding of the trial court at page 230, lines 10 – 19, of the Record, regarding the pretrial conference ought to be, and same is hereby, expunged by me.
It’s instructive, that the Appellant gave evidence at the trial as DW2. The totality of his case regarding ownership of the land in dispute by the Ojomu Chieftaincy family was predicated upon Exhibits C6, D1, D5 & D6, respectively.
The trial court found that the Appellant’s evidence in that regard as neither incredible, nor unbelievable. see page 229, lines 1o – 19 and 31 – 33 of the Record.
However, the finding of the court regarding the ownership of the land in dispute having been originally vested in the Ojomu chieftaincy family in question, notwithstanding. The Appellant has the burden of proving that the plot of land in dispute was actually sold to him by the said Ojomu chieftaincy family or an accredited representative thereof.
It’s a trite general principle, that a trial court has an onerous duty of determining whether or not a party claiming ownership to land in dispute proves that he has a valid title there to. See NWAOFOR VS. ONWUSURIGBO (1996) 3 NWLR (pt.434) 111; ALECHENU v. OSAHOKE (2002) 9 NWLR (pt.773) 571; KANKEA v. MAIGEMU (2003) 6 NWLR (pt.817) 496.
Indeed, it’s equally a trite principle, that ownership of land in Nigeria can be proved in a number of ways, viz:
(a) By a credible evidence of traditional history
(b) By duly authenticated documents of title;
(c) By acts of ownership so numerous and positive enough to warrant the inference that the party was the true owner of the land;
(d) By acts of long possession and enjoyment of the land;
(e) By proof of possession of adjacent or connected land in such circumstances rendering it probable that the owner thereof would be the owner of the land in dispute.
See ADEBO v. OMISOLA (2005) 2 NWLR (pt.909) 149; ADEWAYI v. ODUKWE (2005) 14 NWLR (pt.945) 473; MBANI v. BOSI (2006) 11 NWLR (pt.991) 400, respectively.
As alluded to above under issue No. 2, Exhibit D1, the Deed of Assignment in question, was found by the trial court, rightly in my view, to have been not only undated, but also unregistered. Not surprisingly, the trial court came to the conclusion that Exhibit D1 was “very suspect and unreliable”. It thus declined to place any reliance or weight thereon.
Both Exhibit D2, the Appellant’s survey plan for the land in dispute, and Exhibit D6, parcel A of the Ojomu chieftaincy layout plan in question were drawn by surveyor L.A. Animashaun, the DW1. The case of the claimant at the trial was that the land depicted on Exhibit D2 was about 300 meters away from the land in dispute’ The trial court found inter alia, at page 230, lines 20 – 23 of the Record that –
“The testimony of the third claimant witness as well as the contents of Exhibit C5 credible and the court holds that the land depicted on Exhibit D2 was at a different location from the land in dispute.”
As rightly postulated by the trial court, the essence of a survey plan is to merely identify a parcel of land. This is definitely so, because a survey plan does not, and cannot by itself, constitute a root of title to land. See LANLEHIN v. JAMES (1986) 2 NWLR (pt.6) 262; OBORO v. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY (1997) 9 NWLR (pt.521) 425. EJIMELE v. OPARA (1998) 9 NWLR (pt.567) 587.
The ipse dixit of the Appellant is to the effect that Oba Tijani Adetunji Akinluyi instructed one Alhaji Yekini Bakare to show him the land. He paid for the land and the said Alhaji Bakare issued him a receipt evidencing the payment for the land in dispute. When Mr. Duru asked the Appellant whether he had the receipt evidencing payment for the land in dispute, the Appellant answered thus:
“DW2: No I don’t have it with me”.
See pages 142- 143 of the Record.
It is trite that for a trial court to allow itself to be guided by a documentary evidence, that document in issue must be properly placed before it. See FIRST BANK OF NIGERIA PLC v. TSOKWA (2004) 5 NWLR (pt.866) 271.
Most unfortunately, for the Appellant, he failed to call the said Alhaji Bakare, or any accredited member of the ojomu chieftaincy family, to corroborate his claim that he actually paid for the land in dispute. Thus, prompting the lower court to hold, rightly in my view, that –
“Defendant did not read credible evidence of payment of purchase price for the land, in dispute.”
In the circumstance, there is every justification for me to hold, as rightly postulated by the Respondent’s learned counsel, that the Appellant was caught up by the provision of section 149(d) of the Evidence Act (supra).
what’s more, the issue of possession, as rightly found by the lower court, was even much more pathetic [than that of title]. The Appellant failed to specifically plead that he was in possession of the land in dispute. He merely pleaded and led evidence that he was shown and allocated the land in dispute by the Ojomu Chieftaincy Family. Curiously, however, he led no evidence on the acts of possession he carried out on the land from the time of the alleged purchase thereof in 1994 to April, 2004. The lower court was therefore justified in coming to the conclusion at page 232 of the Record that –
“The Defendant did not plead sufficient facts or lead credible evidence to sustain his claim of ownership of the land in dispute; his claim to the land in dispute, He did not lead any evidence of possession of the land, He admitted under cross-examination that he did not fence the land but that there was a high wall fence on the land. From the preponderance of the evidence of the parties, it is apparent that the claimant was in possession of the land at the material time to this suit and this court so holds. It is thus the claimant that can maintain an action in trespass. The Defendant’s claims in trespass fail and they would be dismissed, see page 233, lines 29 – 35 of the Record.
As alluded to above, the evidence of the Appellant (DW2) was that he bought the land in dispute in 1994. Under cross-examination, he stated that in February, 2004 he discovered that his land had been trespassed. According to the Appellant –
After I discovered that my land had been trespassed, I left a notice on the wall that the land belonged to Bayo Aremu.
Thereafter somebody telephone me that if am sure the land belonged to me that I should bring my documents to the land. I made photocopies of the documents and sent my Driver to the land. My Driver came back and informed me that he was beaten by Mr. Shamusi and some thugs and they also collected the documents from him.
The trial court was of the view that the Appellant having –
“admitted these actions in support of his claim for title to the land in dispute but with the failure of his claim title, the law is that these acts became no longer acts of possession but acts of trespass.”
In the case of OKHUAROBO vs. AIGBE (supra), relied upon by the lower court, the finding of the trial court was to the effect, inter alia, that the 1st, 2nd and 3rd Defendants interfered with the plaintiff’s possession of the house in dispute.
The said defendants evidently – decided to use force by removing the roofing sheets, door frames and window frames of the house, I believe 6th PW absolutely that he saw the three of them engage in the act. Exhibit A and A1 (the photograph and negative) confirm the havoc that was done to the house. I am not impressed by the evidence given in denial by the 2nd and 3rd defendants. They gave no satisfactory explanation as to why 6th PW should pick on them as the perpetrators of the act, In other words, I am satisfied that plaintiff has proved his case for trespass
while 1st and 2nd defendants have failed to prove their counter claim for trespass. See page 50 paragraphs F – H.
Not surprisingly, the supreme court per Iguh, JSC, came to the conclusion that –
‘These findings of the learned trial judge in favour of the plaintiff on the issue of possession hove not been faulted and were in fact affirmed by the court below. I think both courts below are right on the Issue…”
However, in the instant case, there was no definite finding by the lower court that the Appellant actually –
“appeared in the company of thugs and miscreants and (that) he entered into the plot of land, broke the padlock used to secured (sic) the gate and he threatened to viciously deal with any workmen found on the land.”
It is evident from the record of appeal, that no specific evidence was led on the plaintiff’s claim for trespass. As a matter of fact, the plaintiff did not at all testify at the trial. The three witnesses that testified for the plaintiff were in the persons of (i) Chief Semiu Alimi Abogun, the Baale of Igbo-Efon; (ii) Ken Obiora Nwabuoku the person who allegedly sold the land in dispute to the plaintiff; and (iii) surveyor Joseph Olorunjuwon Agbenla, the Assistant chief surveyor General of Lagos State.
None of the said plaintiff’s witnesses gave a direct evidence regarding the issue of trespass. Yet, the lower court came to the conclusion thus:
“The Defendant admitted these actions in support of his claim for title to the land in dispute but with the failure of his claim for title, the law is that these acts become no longer acts of possession but acts of trespass.”
Indeed, it’s a well settled principle, that where in a claim for a declaration of title both the plaintiff’s and Defendant’s titles appear to be defective, the plaintiff can rightly maintain an action in trespass if he’s adjudged to be in possession of the land in dispute. That’s to say, the fact that a plaintiff’s action for a declaration of title to the land in dispute fails, does not necessarily mean that his action on damages for trespass on the same property must automatically also fail. See ADESHOYE v. SHIWONIKU, 14 WACA 86; OLUGBENRO v. AJAGUNGBADE III (1990) 3 NWLR (pt.141) 661; ADEGBITE v. OGUNFAOLA (1990) 4 NWLR (pt. 196) 578: OJABAH v. OJIBAH (1991) 5 NWLR (pt. 191) 296; OKHUAROBO v. AIGBE (supra) at 51 paragraphs D – F, per Iguh, JSC.
However, in the instant case, it’s rather obvious that the finding of the lower court on the issue of trespass is not supported by credible evidence adduced at the trial, and therefore perverse. It ought to be set aside by this court.
Thus, the issue No. 3 is resolved in part in favour of the Appellant.
Instructively, it’s a well settled principle that findings of a trial court or tribunal that are obviously borne out of credible evidence and laid down rule of law must not be interfered with by an appellate court unless such findings are established to be either perverse or unsupportable by credible evidence. See ANPP v. R.E.C. AKWA IBOM (2008) 8 NWLR (pt.1090) 453 at 528 paragraphs A-B;
Before proceeding to put the final dot to this judgment, I have deemed it not only expedient but also imperative to lend a credence to the learned trial judge’s exhortation to learned counsel. At page 234 of the record of appeal, the learned judge was recorded to have seriously lamented on –
“a common error often made by parties in the conduct of land litigations and this error was very apparent in this case.”
It is trite, that a legal practitioner is an advocate and a minister in the temple of justice. By virtue of such a professional standing, he’s accorded with the unique privilege of monopoly of appearance and audience in the awesome temples of justice (courts). No one save a counsel can address the court, unless it be a litigant appearing in person.
Undoubtedly, this unique privilege carries with it an onerous corresponding responsibility. He has a duty to his client. He equally owes a duty to the court, which is most paramount. He is bound to uphold his allegiance to the cause of truth and justice. It is said that such being the extent of a counsel’s duty to court, he must discharge it with a reasonable degree of commitment, faithfulness, and fearlessness. See RONDEL v. WORSLEY (1967) 1 QB 443; HEDLEY BYRNE & CO. LTD (1969) 1 AC 191; SAIL ALI v. SIDNEY NNTCHEEL (1978) 3 WLR 849; DORSET YACHTOO VS. HOME OF FICE (1969) 2 QB 412.
In the instant case, it’s so obvious from the record that the attitudinal disposition of most especially the Appellant’s counsel to the trial court was intimidating, to say the least. Yet, it’s a truism that by virtue of the provisions of Rule 35 of the Rules of professional conduct for Legal practitioners, which was made pursuant to the Legal practitioners Act CAP. 20, Laws of the Federation of Nigeria, 2004, a counsel has a duty to dispose himself with utmost respect, courtesy and dignity to the court. See ANPP VS. REC AKWA IBOM STATE (2008) 8 NWLR (pt.1090) 453 at 526 paras. E – G & 528 paragraphs E – H. wherein this court aptly remarked, inter alia, thus:
A lawyer has an onerous duty to uphold and observe the rule of law, promote and foster the cause of justice, maintain a high standard of professional conduct, and thus shall not engage in any conduct which is un becoming of a legal practitioner…
“It is trite, that the learned counsel as officers in the temple of justice have a duty to accord the tribunal’s chairman and members due respect, courtesy, and dignity. see Rule 35 of the Rules of Professional Conduct for Legal Practitioners (supra). In my considered view, the counsel’s duty to treat the tribunal with respect courtesy and dignity does not begin and end in the precinct of the four walls of the Tribunal’s building only. The counsel has an obligation to imbibe those sterling qualities even in his written submissions and other processes including notice and grounds of appeal and brief of argument.
Hence, in the light of the foregoing postulations the appeal is hereby allowed in part.
CONSEQUENTIAL ORDERS:
Consequently, it’s hereby ordered as follows:
(i) The lower court’s order dismissing the claimant’s claim for a declaration that he’s entitled to the right of occupancy over all that property known as plot 28 in Block xxv lying and situated at Igbo-Efon, Lekki Penisula, Lagos and more particularly described as survey No. AL/637/2001, is hereby affirmed.
(ii) The lower court’s order awarding the sum of N50,000.00 as damages for the acts of trespass committed by the Defendant on the dispute, is hereby set aside.
(iii) The lower court’s order of perpetual injunction restraining the Defendant, his servants, agents and/or privies from assaulting, harassing or in any way whatsoever interfering and/or disrupting the claimant’s peaceable enjoyment of the landed property known as Plot 28 in Block xxv and situated at Igbo-Efon Lekki Peninsula, Lagos, is hereby set aside.
(iv) The lower court’s order dismissing the Defendant’s counter claims in their entirety is hereby affirmed.
(v) The lower court’s order awarding the claimant N10, 000.00 as cost is hereby affirmed.
RAPHAEL CHIKWE AGBO, J.C.A.: I have read before now the Judgment just delivered by my learned brother Saufawa, JCA and I agree with both the reasoning and conclusions. The lead judgment is very detailed and each issue meticulously dealt with. I abide by all the consequential orders contained therein.
ADAMU JAURO, J.C.A.: I have been afforded an opportunity of reading in advance the leading judgment of my learned brother, I.M.M. SAULAWA, JCA. His lordship has meticulously considered all the issues raised for determination in this appeal. I am in agreement with the reasoning and conclusion expressed in the judgment which I also adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal succeeds in part. I join my brother in partially allowing the appeal.
I also abide by the consequential orders made in the lead judgment.
Appearances
Adelaja Oguntimirin Esq. with Muhammed Jimoh Esq.For Appellant
AND
John Duru Esq. with C.O. Ogbonna Esq.For Respondent
