DANJUMA FENU & ORS v. ALHAJI MOHAAMED BELLO & ORS
(2019)LCN/12566(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/J/185/1999
RATIO
LAND LAW: HOLDER OF RIGHT OF OCCUPANCY
“A holder mean in relation to a right of occupancy, a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee under Section 51(1) of the Land Use Act, 1978. These conditions precedent were not pleaded by the appellants nor admissible evidence adduced to prove their title or interests to the land in dispute at the hearing.” PER JOSEPH TINE TUR, J.C.A.
LAND LAW: MEANING OF EASEMENT
“Easement means a right annexed to land to utilize other land in different holding in a particular manner (not involving the taking of any part of the natural produce of that land or of any part of its soil) or to prevent the holder of the other land from utilizing his land in a particular manner; grazing purposes includes only such agricultural operations as are required for growing fodder for livestock on the grazing area; holder means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not includes any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sublessee or sub-underlessee; improvements or unexhausted improvements means anything of any quality permanently attached to the land, directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf, and increasing the productive capacity, the utility or the amenity thereof and includes buildings, plantations of long-lived crops or trees, fencing, wells, roads and irrigation or reclamation works, but does not include the results of ordinary cultivation other than growing produce; Minister means the Minister charged with responsibility for land maters; mortgage shall include a second and subsequent mortgage and an equitable mortgage.” PER JOSEPH TINE TUR, J.C.A.
INTERPRETATION: THE BLUE PENCIL RULE
“The “Blue Pencil Rule” is explained in Blacks Law Dictionary (supra) at page 196 to wit:- Blue Pencil Test A judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words The Blue Pencil Rule has been applied in a plethora of the decisions of the Supreme Court. See Ezekpelechi & Ors. vs. Ugoji (1991) 7 SCNJ (Pt.2) 196 at page 258; Onifade vs. Olayiwola (1990) 11 SCNJ 10 at page 22 and Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156 at page 163 Ugo vs. Obiekwe (1989) 2 SCNJ 95 at pages 103-104.” PER JOSEPH TINE TUR, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. DANJUMA FENU
2. DANLADI KWATNABWA
3. JEJI ADOGO
4. BAWA ADOGO
5. KUSHENI NAGAI
6. JEJIYA ZAYA BOSAMA
7. VUNDABA IYA
8. ZAKARIA IYA
9. MAMMAN TURAKI
10. DANJUMA CHATAZHI – Appellant(s)
AND
1. ALHAJI MOHAAMED BELLO
2. DIRECTOR-GENERAL, BUREAU FOR LANDS AND SURVEY, NASARAWA STATE
3. HON. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, NASARAWA STATE – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):
I shall commence the determination of this dispute with reference to the provisions of Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows:-
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3)A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
(4)For the purposes of delivering its decision under this section, the Supreme Court or the Court of Appeal or the National Court shall be deemed to be duly constituted if at least one member of that Court sits for the purpose.
318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires:-
Decision means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.”
A combined reading of the above provisions will show that any determination of the Court of Appeal or the Supreme Court is a decision or an opinion, hence I have tagged this determination a decision rather than the traditional method of heading appeals as judgment. In Chief Andrew Thomas vs. Local Government Service Board (1965) NMLR 310, Brett, JSC held at page 315 that, the greater includes the less Heading or titling any determination, dispute, or controversy in the Court of Appeal and Supreme Court as a decision or an opinion is the express intention of the legislature since the Constitution of the Federal Republic of Nigeria, 1999 as altered, came into effect on 29th May, 1999. A determination of a controversy or a dispute is usually undertaken by litigants before a Court or other Tribunal established by law under Section 36(1)-(2) of the Constitution which provides as follows:-
36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2)Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law –
(a) provides for an opportunity for the persons whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person; and
(b) contains no provision making the determination of the administering authority final and conclusive.
In Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 226, Alexander, CJN, held at pages 243-244 as follows:-
More light is thrown on the meaning of the words decision and determination in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or (the mental action of coming to a decision, or the resolving of a question).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word determination therein meaning ending of the matter.”
Contrast the above dictum with Baba vs. Civil Aviation (1991) 7 SCNJ (Pt.1) 1 per Karibi-Whyte, JSC at page 25:
The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.
The dispute between the appellants (Danjuma Fenu & 9 Ors.) and the Respondents (Alhaji Mohaamed Bello & 2 Ors.) was initiated before the High Court of Justice, Nasarawa State, holden at Keffi in Nasarawa State by a Motion Exparte supported by affidavit and documentary exhibits, the initiators of proceedings being Danjuma Fenu & Ors. They sought and were granted leave by the Court below to serve the Respondents with the Writ of Summons and other processes outside the jurisdiction of the Court of trial. The reasons proffered were that the defendants resided at Kaduna City in Kaduna State. Page 7 of the record of proceedings shows the subject-matter in dispute to be land lying and situate at Abuja Road, Mararaba Gurku, Karu Local Government Council of Plateau State covered by Certificate of Occupancy No.PL13604 issued by the 2nd defendant in favour of the 1st defendant/respondent. The initiators of the proceedings wanted the Court below to declare same null, void and of no effect. The initiator of the proceeding sought injunctive reliefs against further trespass by the defendants or their agents and servants, etc. I shall call the initiators of the suit the plaintiffs and the respondents the defendants. The plaintiffs filed a written Joint Statement of Claim which was amended in the course of proceedings titled Further Amended Joint Statement of Claim. See (pages 50-53 of the printed record). Another Amended Joint Statement of Claim is at pages 103-106 of the printed record. The third Amended Joint Statement of Claim is at pages 111-114 of the printed record.
The 1st defendants statement of defence is at pages 31-36 of the printed record. This was amended and headed First Defendants Further Amended Statement of Defence. See pages 58-62, 67-72 and 82-86 of the printed record. Pages 77-78 of the printed record contains the Joint Statement of Defence of 2nd and 3rd Defendants. The plaintiffs filed a Reply to 1st defendants statement of defence. See pages 151-154 of the printed record. The decision of the learned trial Judge relied on the Writ of Summons and the Amended Statement of Claim filed on 21st July, 1997 to found in favour of the respondents. See page 243 of the printed record.
I scanned the printed record but could not see or fathom which statement of defence or amended defence the parties, their legal practitioners and the learned trial Judge relied upon in arriving at a decision in favour of the respondents.
Page 244 lines 16-19 of the printed record has the following entries by the learned trial Judge:-
Pleadings were filed and exchanged with the defendants denying the plaintiffs claim. In proof of their case, led by Musa Muhammad, Esq. of Suleja, a legal practitioner of Counsel to all the plaintiffs called eight witnesses.
Amended pleadings take effect from the date of filing the original document that was amended: In Archbishop Peter Ariyok Jatau vs. Alhaji Mansur Ahmed & Ors. (2003) FWLR (Pt.151) 1887, Kalgo, JSC held at page 1895 paragraph H to page 1896 paragraphs A-F thus:
It is apparent and crystal clear that the effect of this order of the Court was to amend the pleadings of the appellant and the writ of summons by putting the proper name of appellant with the words The Registered Trustee of the Archdiocese of Kaduna of the Roman Catholic Church as disclosed in Exhibit A attached to the application. The only point in this issue therefore is what is the legal effect of this amendment?
It is now well settled and trite law that any amendment of the pleadings in a case, made or ordered at any stage of the proceedings before judgment or even made in an appeal, dates back to the date when the pleadings were originally filed. This means that once pleadings are amended, what stood before amendment is no longer material before the Court and no longer defines the issues to be tried. See Enigbokan vs. A.I.I. Co. (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15-16; Warner vs. Sampson (1959) 1 Q.B. 297 at 321 cited by the learned Counsel for the appellant in his brief. And since the affidavit in support of the application averred in paragraphs 2-5 set out earlier in this judgment that amendment was sought, not to introduce new dimension to the action, but to enable the Court to properly hear and determine the real question in controversy between the parties, and there was no counter-affidavit challenging these averments, the amendments were properly made and took effect on the same date.
Learned Counsel for the appellant submitted and I agree with him, that the exercise by the Court of Appeal of its discretion to grant the application for amendment, is a decision within the meaning of Section 277(1) of 1979 Constitution applicable to this case, (See Dike vs. Aduba (2000) FWLR (Pt.6) 1044, (2000) 3 NWLR (Pt.647) 1 at 10) and that it cannot review or set it aside unless it is proved to be a nullity. It was not proved to be a nullity in this case, and so the Court of Appeal was wrong to reopen it after its determination as it is functus officio. See John Andy & Sons Co. Ltd. vs. N.C.R.I. (1997) 3 NWLR (Pt.491) 1. The Court of Appeal is therefore bound by its own decision in granting the amendments as prayed for by the appellant in his application and it was wrong for them to refuse to give effect to the said decision in this appeal. I therefore answer issue 2 also in the negative.
See also Wayne vs. Ekwunife (1989) 12 SCNJ 99 at 110 and Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598.
Litigants and the Court are bound by the amended pleadings:Seidu vs. Attorney-General of Lagos (1986) 2 NWLR (Pt.21) 165 at 170 and Enigbokan vs. A.I.I. Co. (Nig.) Ltd. (1994) 6 NWLR (Pt.348) 1 at 15-16. The decision of a learned trial Judge has to show in clear terms the statement of claim or defence which the litigants amended and relied upon at the hearing of the cause or matter in dispute. Secondly, in the process of compilation of the records the Registry of the Court below ought to have regard to the provisions of Order 8 Rules 8 of the Court of Appeal Rules, 2016 in order to endeavour to exclude from the record all documents (more particularly such as are merely formal) that are not relevant to the subject matter of the appeal and generally to reduce the bulk of the record as far as practicable, taking special care to avoid duplications of documents and unnecessary repetition of headings and other merely formal parts of documents; but the documents omitted to be copied shall be enumerated in a list at the end of the record, but where part or parts of any lengthy document are directly relevant to the subject matter of the appeal it shall be permissible to omit to copy such part of the document as are irrelevant to the subject matter of the appeal nor necessary for the proper understanding of the part or parts that are so relevant.
Order 8 Rule 9 of the Rules is very instructive that Every record or additional Record of Appeal compiled by a party to an appeal must be certified by the Registrar of the lower Court. Provided that it shall not be necessary for copies of individual documents to be separately certified but the Registrar of the Court below shall certify as correct each copy of the record transmitted in accordance with these Rules.
There is no indication which of the many amended statements of defence filed by the defendants in the Court below the learned trial Judge considered to find against the plaintiffs/appellants so as to render a decision in favour of the defendants/respondents at the close of hearing. However, the parties adduced oral and documentary evidence. The Registry of the Court below should have excluded from compilation the pleadings that were no longer material for the determination of the dispute nor which defined the issues in controversy. See Seidu vs. Attorney-General of Lagos (ante) page 170. The failure of the Registry to be guided by the provisions of Order 8 Rules 8-9 of the Court of Appeal Rules, 2016 in the compilation of the records included pleadings which no longer defined the issues in controversy nor were they material for the determination of the real questions in controversy in this appeal.
At the close of evidence the learned trial Judge used documentary exhibits to assess the oral evidence to arrive at a decision in favour of the respondents. See Fashanu vs. Adekoya (1974) 1 All NLR (Pt.1) 32 at 37; Oscar Reynard vs. William Allan (1934) 2 WACA 52 at 53; Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473 and Olujinle vs. Adeagbo (1989) 2 NWLR (Pt.75) 238 at 253.
I shall call the plaintiffs the appellants. They filed a Notice of Appeal containing at pages 289-292 of the printed record. This was amended in a Further Amended Notice of Appeal and re-filed on 17th September, 2015. A deeming order by the Court of Appeal, Jos Division, Plateau State was made on 11th April, 2016. The appellants original brief of argument was filed on 10th October, 2016 and deemed proper on 17th June, 2014. The 1st respondent filed a brief on 2nd October, 2014 and the Court of Appeal deemed same as proper on 9th December, 2014. The 2nd and 3rd respondents relied on a Joint Brief that was filed on 22nd October, 2014 and deemed proper on 9th December, 2014. The brief was amended on 23rd May, 2018 with a deeming order of 5th December, 2018. The learned Counsel to the appellants filed an Appellants Reply Brief to 1st Respondents Brief of Argument on 19th December, 2014 followed by the Appellants Reply Brief to 2nd and 3rd Respondents Brief of Argument on 22nd October, 2014 with a deeming order of 9th December, 2014.
Order 19 Rules 1-3(1)-(4) of the Court of Appeal Rules, 2016 governs the procedure for brief writing by the appellants as follows:-
1.This Order shall apply to all appeals coming from any Court or Tribunal from which an appeal lies to this Court.
2.The appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in the Court a written brief, being a succinct statement of his argument in appeal.
3(1)The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are in the appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.
My humble opinion is that it is the appellants who were not satisfied with the decision of the learned trial Judge that filed a Notice of Appeal accompanied with grounds showing why the Court of Appeal should interfere with the decision of the Court by rehearing the controversy under Order 7 Rules 1-5 of the Rules (supra).
The appellants formulated the issues which, in the appellants view, arose in the appeal as well as amended or additional grounds of appeal under Order 19 Rule 3(1) of the Rules (ante). The duty of the Respondents was to .answer all material points of substance contained in the appellants brief and contain all points raised therein which the Respondent(s) wishes to concede as well as reasons why the appeal should be dismissed. It shall mutatis mutandis also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order. See Order 19 Rule 4(2) of the Court of Appeal Rules, 2016.
I shall consider the issues that the appellants have distilled that, if determined, may tilt the decision in their favour or show why the appeal should be dismissed by this Court in favour of the respondents. The appellants have to satisfy this Court that some substantial wrong or miscarriage of justice has been thereby occasioned under Order 4 Rule 9(1) of the Rules (supra) before this Court will interfere with the decision of the learned trial Judge.
I shall refer to the issues formulated for determination to see if they arise from the Further Amended Notice of Appeal filed on 17th September, 2015 and deemed proper on 11th April, 2018. It is trite law that issues formulated for determination of an appeal that overlaps or the grounds of appeal can be merged or condensed for the sake of convenience. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 at 16 paragraph G and page 17 paragraph G; Apampa vs. The State (1982) 6 SC 47 at 55.
The Further Amended Grounds of appeal are as follows:-
3.GROUNDS OF APPEAL
1. The decision of the lower Court is against the weight of Evidence.
2. The lower Court erred in law when it held that failure by some of the plaintiffs to call their fathers to testify was fatal to their case by virtue of Section 149(d) now Section 167(d) of the Evidence Act and this has occasioned a grave miscarriage of justice.
PARTICULARS:
(a) The Court relied on the principle in Section 149(d) (now Section 167(d) of the Evidence Act.
(b) The principle in Section 149(d) (now Section 167(d) of the Evidence Act applies to the non-production of evidence and not calling of witnesses.
3. The lower Court erred in law when it held that the plaintiffs must establish with certainty the boundaries of the land in dispute but failed to do so.
PARTICULARS:
(a) The parties never joined issues on the identity of the land, rather they all agreed on its name, boundaries and size, being 64 hectares.
(b) The issue of identity of the disputed land was only raised at address and judgment stages for the first time during the trial.
(c) The 1st defendant now 1st respondent had in his affidavit of 18th March, 1996, in support of his application to dismiss the case on ground of res judicata, his Counter Affidavit of 20th March, 1997 and his Counter Affidavit to the Motion for Injunction brought by the plaintiffs now appellants sworn that he knows and understands the boundaries of the land in dispute perfectly.
4. The trial Court erred in law when it held that the plaintiffs did not adduce sufficient evidence for a declaration of title in their favour.
PARTICULARS:
(a) The plaintiffs established their root of title and their evidence on their mode of acquisition of disputed land was admitted by 1st defendants only witness who led evidence of traditional history.
(b) The totality of evidence led by 1st defendant and his witnesses is hearsay evidence.
(c) The 1st defendant had throughout the proceedings contended that the plaintiffs and One Alhaji Zakwoi are owners of the disputed land but slept over their rights, a view which found favour with the lower Court.
(d) The plaintiffs on the preponderance of evidence proved a better title and were thus entitled to judgment.
5.The trial Court erred in law when it held that the sale from Bawa Magaji to the 1st defendant is valid even though the consent of neither the State Governor nor the Local Government was obtained because the consent of Etsu Karu is sufficient pending when the Governors consent is obtained.
PARTICULARS:
(a) For an alienation of land to be valid, the consent of either the Governor or the Local Government, depending on where the land is situated, must be obtained.
(b) The transaction between Bawa Magaji and 1st defendant evidenced by Exhibit 2 followed by letting of 1st defendant into possession is a complete alienation of land and not mere agreement to sell, and without the required consent, the purported alienation is still null and void.
(c) The consent of either the Governor or the Local Government as the case may be, depending on where the land is situate is required for a valid transfer of land.
(d) The onus was on 1st defendant who asserted sale to prove a valid sale and the fact that the required consent was obtained but these he never proved.
6. The lower Court erred in law when it determined the case without affording the plaintiffs a fair hearing as required by Section 33(1) and (3) of the 1979 Constitution of the Federal Republic of Nigeria.
PARTICULARS:
(a) When 1st defendant closed his case, he through his Counsel addressed the Court orally on the 28th July, 1998, from which date the case was further adjourned to 18th August, 1998 for the oral address of plaintiffs Counsel.
(b) When the case came up on the 10th August, 1998, plaintiffs Counsel was not in Court but Counsel to 2nd and 3rd defendants who adopted the oral address of the 1st defendants Counsel and elected not to address the Court applied that plaintiffs Counsel be directed to submit written address and the Court ordered plaintiffs Counsel to submit written address within 2 weeks.
(c) The plaintiffs had no opportunity of being heard in open Court as in the case of the defendants with regards to oral address.
(d) The whole of August was a vacation period.
(e) The Chief Judge of Nasarawa State did not order that the case be hearing during vacation.
(f) Plaintiffs were not afforded a fair hearing as guaranteed by the Constitution.
7. Relief(s) sought from the Court of Appeal.
(a) Set aside the decision of the lower Court and enter judgment for the plaintiffs or
(b) Set aside the decision of the lower Court and order a retrial.
The duty of the respondents in brief writing is provided in Order 19 Rules 4-7 of the Court of Appeal Rules, 2016 to wit:-
4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4), (5) and (6) of this Order.
5(1) 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 with all new points arising from the respondent’s brief.
(2) Except where the Court directs otherwise, every reply brief to be filed in Court shall not exceed 15 (fifteen) pages, and shall conformed with Rule 3(2), (4), (5), (6)(b) and (c) of this Order.
6. All parties whose interests are identical or joint shall file joint briefs, and separate briefs may be filed only by those parties whose interests are separate or are in conflict.
7. A respondent may, without leave, include arguments in respect of a cross-appeal or a respondent’s notice in his brief for the original appeal and the cross-appeal or respondent’s notice.
The respondents duty is to answer all material points of substance contained in the appellants brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed See Order 19 Rule 4(1) and (2) of the Rules. If no material points of substance are contained in the appellants brief, I do not see what the respondents should answer. The Court of Appeal has no duty to consider all points raised in the respondents brief which he wishes to concede nor the reasons why the appeal is to be dismissed. If no material points of substance have been raised by the appellants in their Joint Brief of Argument.
The question is whether the appellants have raised in their Joint Brief of Argument any material/points of substance, if not there will be no need to consider the reasons or points raised by the respondents why the appeal should be dismissed. The appeal shall be determined and dismissed on the issues distilled for determination by the appellants on the grounds they are not material points of substance regarding all points raised therein in the appellants brief of argument. The issues formulated from the Further Amended Notice of Appeal are couched as follows:-
The appellants formulated the following issues for determination in their Joint Brief of Argument at page 2:-
3(a) Whether failure by plaintiffs to call their fathers to give evidence in the case is a contravention of Section 149(d) of the Evidence Act such that the failure is fatal to the case of plaintiffs for which it can be said that they have for that reason failed to prove their case.
3(b) Whether the parties joined issues on the identity of the disputed land such that the plaintiffs had the onus of proving the boundaries of the land.
3(c) Whether the sale from Bawa Magaji to the 1st respondent is valid in the absence of the consent of either the State Governor or the Local Government depending on where the land is situate.
3(d) Whether the plaintiffs were given a fair hearing and if not whether the decision of the trial Court in suit No.PLD/K.11/1995 can be sustained.
3(e) Whether the plaintiffs proved their case against the defendants and are therefore entitled to judgment as per their claims in paragraph 18 of the further amended joint statement of claim.
The 1st respondent distilled issues for determination at pages 8-9 of the brief as follows:-
(a) Whether the failure of the appellants to call vital witnesses including their fathers who were alive amounted to withholding of evidence and fatal to the appellants case before the trial High Court. (Distilled from Ground 2 of the Amended Notice of Appeal).
(b) Whether the parties joined issues on the identity of the disputed land such that the appellants had the onus of proving the boundaries of the land during trial. (Distilled from Ground 3 of the Amended Notice of Appeal).
(c) Whether the sale for Bawa Magaji to the 1st respondent was valid in the absence of the consent of either the State Governor or the Local Government where the land is situate. (Distilled from Ground 5 of the Amended Notice of Appeal).
(d) Whether the appellants were given fair hearing and whether the decision of the trial High Court in suit No.PLD/K.11/1995 can be sustained. (Distilled from Ground 6 of the Amended Notice of Appeal).
(e) Whether the appellants have proved their case against the respondents and therefore entitled to judgment as per their claims in paragraph 18 of their further amended statement of claim. (Distilled from Grounds 1 and 4 of the Amended Notice of Appeal).
The 2nd and 3rd respondents issues for determination are at pages 2-3 of their joint brief reads:-
(a) Whether the failure of the appellants to call vital witnesses including their fathers who were alive amounted to withholding of evidence and fatal to the appellants case before the trial Court. (Distilled form Ground 2).
(b) Whether the appellants were given fair hearing and whether the decision of the trial Court can be sustained. (Distilled from Ground 6).
For the sake of convenience, I shall merge issues 3(a), 3(e) together for determination. They relate to absence of vital admissible evidence from the appellants to prove their claims to the land in dispute. I shall thereafter consider issues 3(b), (c) and (d) separately. Though the 1st respondent answered seriatim the appellants argument as formulated in their Joint Brief, the 2nd 3rd respondents wrote at page 2-3 paragraph 3.0-3.3 of their Joint Brief as follows:-
ISSUES FOR DETERMINATION
My Lords, unlike the appellants and the first respondent, the 2nd and 3rd respondents my Lords are of opinion that this appeal can be determined on one or two issues. For that reason my Lords, we adopt all the argument of the first respondent on their issues and for the sake of emphasis, we would further adopt issues 1 and 4 as formulated by the first respondent for argument to wit:-
(a) Whether the failure of the appellants to call vital witnesses including their fathers who were alive amounted to withholding of evidence and fatal to the appellants case before the trial High Court.
(b) Whether the appellants were given fair hearing and whether the decision of the trial Court in suit No.PLD/K.11/1995 can be sustained.
My Lords, we take this stands because the appellants did not establish their case before the trial Court, to warrant an order nullifying the first respondents C of O and the 2nd issue is a constitutional matter.
ISSUE 3(a) and 3(e):
Issues 3(a), 3(e) and five in the appellants brief are at page 2 paragraph 3.0. The learned Counsel representing the appellants argued issues 3(a) and 3(e) as Issue No. One at pages 4-5 of the appellants brief as follows:-
ISSUE NO ONE: Whether failure by the plaintiffs to call their fathers to give evidence in the case is a contravention of Section 149(d) of the Evidence Act such that the failure is fatal to the case of the plaintiffs for which it can be said that they have for that reason failed to prove their case. This issue is covered by Ground 2 of the Amended Notice and Grounds of Appeal.
On page 278 lines 2-11, the learned trial Judge held that the evidence of the fathers of the plaintiffs is very vital to their case but because they failed to call these their fathers to give evidence, this failure amounted to withholding evidence contrary to Section 149(d) of the Evidence Act and is fatal to the plaintiffs case. However, I submit with due respect that Section 149(d) of the Evidence Act deals with non-production of evidence and not non-production of witnesses. It deals with failure to call evidence and not failure to call a particular witness. I refer the Court to the case of Musa vs. Yerima (1997) 7 NWLR (Pt. 511) 27 at 50 paragraphs E. A party is not bound to call a particular witness if he can prove his case otherwise. Where a plaintiff adduces oral evidence which establishes his claim against the defendant, such a plaintiff is entitle to judgment. It is not mandatory that he calls a particular witness or particular witnesses. From the evidence before the Court, the plaintiffs proved their respective claims irrespective of the fact that their fathers did not give evidence. The trial Court therefore misapplied the provisions of Section 149(d) of the Evidence Act against the plaintiffs and this occasioned a great miscarriage of justice.
The 1st respondent replied at paragraph 4.2 page 9 to paragraph 4.8 page 11 of his brief in the following manner:-
My Lords we submit that our issue one which is distilled from Ground 2, of the amended Notice of Appeal is: Whether the failure of the appellants to call vital witnesses including their fathers who were alive amounted to withholding of evidence and fatal to the appellants case before the trial High Court.
My Lords we submit that the fount of our issue one which is similar with the appellants issue one is predicated upon the holding of the trial Court contained at page 163 of the records wherein the trial Court stated that:-
Even though the PWIV Vundabo told the Court that some of their parents were still alive. Worst still the PWIV said Kwantnabawa, the father of Danladi (PWIV) and Nagai the father of Kushenu (PWIII) and Tabai the father of them was not called to say how himself or themselves on the land which now devolves to the plaintiffs. In law, their evidence would have been vital to the plaintiffs case and failure to call them is very fatal to their case. See the case of Bamgbose vs. Jiaza (1991) 3 NWLR (Pt.177) 64. See also Section 149(d) of the Evidence Act which provides
My Lords, the above quoted holding of the trial High Court formed the basis of Ground 2 of the appellants amended Notice of Appeal and consequently the appellants issue one for determination.
My Lords, the appellants have by their brief of argument particularly at pages 4-5 of the said brief of argument made heavy weather of what they conceived to be improper appreciation of the import of Section 149(d) of the former Evidence Act, currently Section 167(d) of the Evidence Act, 2011 by the trial Court. The appellants by their contention referred this Honourable Court to the case of Musa vs. Yerima (1997) 7 NWLR (Pt.511) 27 at 50 paragraph E. My Lords, we agree that a party to a case does not need a particular number of witnesses in order to succeed with his claim, but our situation is clearly different from the principle established in the case of Musa vs. Yerima (supra) cited and relied upon by the appellant at page 5 of their brief of argument.
My Lords, we submit further that the contention of the appellants is a clear mis-appreciation of the position of Section 149(d) of the former Evidence Act which is currently Section 167(d) of the Evidence Act, 2011. This is because contrary to the contention of the appellants Section 149(d) of the former Evidence Act which is in pari-materia with Section 167(d) of the extant Evidence Act, 2011 actually contemplates withholding the evidence of every vital evidence, including withholding or refusing to call a witness. Good enough the appellants are not disputing that they actually called the witnesses whom they were said to have withheld, but their contention is that they needed not to call particular number of witnesses.
It is our submission that the case of Agbi vs. Ogbe (2006) All FWLR (Pt.329) page 941 at 978 paragraphs F-G confirmed the position of the trial Court that refusal to call vital witnesses could amount to withholding of evidence. The Supreme Court in Agbi vs. Ogbe (supra) held per Akintan, JSC thus:-
In the instant case, the appellants as plaintiffs were by their pleadings expected to call a number of witnesses whose evidence would clearly identify James Onanefe Ibori, the sub-contractor to Spitbat Nig. Ltd., the police officers involved in the investigation and prosecution of the case, the Court registrars and the judges before whom the trial took place. But they chose to call only one of the two judges before whom the trial took place and chose to keep away the others mentioned above. Their decision to withhold the evidence from those vital witnesses gave room for a situation whereby the Court could invoke the provisions of Section 149(d) of the Evidence Act which provide inter alia that the Court may presume that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it
My Lords, the above quoted situation is apt and similar to the situation in our instant appeal. This is because in this appeal during trial as stated by the trial Court, the appellants particularly the 7th appellant who was testifying as DWIV attested to the fact that some of their parents whom they were claiming ownership of the said land through them were still alive yet they deliberately chose not to call them to testify whether they were the owners of the land or not and how they came about the land moreover that their claim was based on traditional history, hence the trial Court appropriately held that the failure to call them to testify amounted to withholding of evidence. We urge your Lordships to so hold and to affirm the position of the law most especially in view of the importance of the claims of the appellants that their parents, whom some are still alive are the original owners of the land and or the appellants derived their title from them.
We therefore urge your Lordships to resolve our issue one in our favour and against the appellants.
The 2nd 3rd respondents response is at pages 3-6 of their brief to wit:-
ISSUE ONE: My Lords, we submit that a proper analysis of our issue one as in above can determine this appeal hence it is our main issue. To this end my Lords, we would further sub-divide issue one into three
(3) sub-issues to wit:
(a) Whether the failure of the appellant to call their fathers amounted to withholding evidence.
(b) Whether the failure of the appellants to call their fathers to testify in the trial made their evidence before the trial Court hearsay evidence.
(c) Whether the failure of the appellants to call their fathers to testify (who were alive at that material time) made the appellants not to have inherited any land at the time.
ISSUE 1(a): My Lords, on our issue 1(a) as formulated above, we adopt the argument of the first respondent on their issue and submit then that the appellants refused to call their fathers (whom they testified were alive) to testify because they know that if the dare to do so, their fathers would deny their claims.
My Lords, what is so clear from the claims and the evidence of the appellants before the trial Court were as follows:-
(a) That it was their grandfather that founded the disputed land.
(b) That their fathers inherited the land from their grandfather.
(c) That they too inherited the land from their fathers.
(d) That their fathers were not called as witnesses.
(e) That at the time of their evidence, in the trial Court, their fathers were still alive.
My Lords, from the above points, it is clear that the appellants are claiming the land through inheritance which in law can only be proved through traditional evidence. Traditional evidence my Lords, we submit is an exception to the hearsay rule. See Section 66 of the Evidence Act, 2011. But ironically my Lords, this rule does not cover the evidence of the appellants before the trial Court, as their evidence amounted to hearsay evidence and the trial Court cannot use it.
In their evidence, my Lords, the appellants told the Court that they inherited the land from their fathers and not their grandfathers, which of course they cannot inherit their grandfather. The implication my Lords, is that their fathers that told them the story they told the trial Court in their evidence and interestingly my Lords, their fathers were alive at that time. It them means my Lords, that their evidence in Court were statements of those fathers that were not called as witnesses and the essence of their evidence, was for the trial Court to believe in the truth of what they were told by their fathers, that not even one of them was called as a witness. My Lords, we submit that the evidence of the appellants before the trial Court were hearsay. See the case of Aminu vs. Ogunyebi (2004) 10 NWLR (Pt.882) 457 at 481 paragraphs D-G ratio 17.
My Lords, the fathers of the Appellants were not only vital witness but necessary witnesses owning to the fact that the appellants derived their right from them and by implication the history of the land and since they were alive then, none of the appellants is even a competent witness in the case at the trial Court, as what they said is hearsay and my Lords, hearsay evidence is not admissible in land cases. See the case of INEC vs. Ray (2004) 14 NWLR (Pt.872) 92.
My Lords, since the evidence of the appellants in the lower Court were hearsay, and hearsay evidence are not admissible in law, we submit that the trial Court was right when it held that the failure of the appellants to call their fathers as witnesses is every vital to their case. And we would add that to the extent that their (appellants) evidence was not even admissible in law we urge my Lords to so hold.
My Lords, the evidence of the appellants at the trial Court were hearsay because they were not there when their grandfathers deforested the land (as they did not say so) and even their fathers were not there (as in their evidence, they said the land was founded by their grandfathers) not with their fathers. It means the fact they (appellants) told the trial Court as to how the land was founded were told to them by their fathers, as told by their grandfathers and since their grandfather was not alive a the time of the trial in the lower Court, the fathers of the appellants (since alive then), were the only people allow by law to tell the Court what their father told them, but for the appellants to say so in the life time of their fathers my Lord it is hearsay.
SUB-ISSUE 1(c):
My Lords, on this issue we submit that at the time of the trial before the lower Court, the appellants had no land to call their own to have even gone to the Court to be declared as the owners of the disputed land.
My Lords, it was in evidence before the trial Court, that at the time of the trial, the fathers of the appellants who the appellants claimed to have inherited the land from were still alive. My Lords, there is no Court in Nigeria that has taken judicial notice of any tradition in Nigeria that a person can inherit someone who is still alive and even in this case, the appellants did not tell the trial Court, that under their (appellants) native law and custom, they can inherit their fathers that were still alive.
My Lords, since there is no judicial notice of a culture in Nigeria where a living person can be inherited by someone, and the appellants did not establish that of their own culture. The appellants would have called their fathers or any of them to testify to the ownership of the land and since that was not done, the failure of the appellants to call their father(s) to testify is vital.
My Lords, the appellants evidence is hearsay which in law is, not admissible as their source of knowledge of the facts that they told the Court were still alive, and since they cannot inherit their fathers who were alive at the time of the trial, and they failed to call any of them to testify as witness in the trial Court my Lords, we agree with the trial Judge that their failure to call their fathers who were alive at the time of the trial is vital to their case, and we add that it indeed goes to the root of their claim, we urge my Lords to so hold.
To resolve issues 3(a) and 3(e), I shall remind the litigants and their legal representatives that the dispute has to be proved by legally admissible evidence. What is evidence
The New Encyclopedia, Britannica Macropedia, Vol. 7 defines evidence at page 1 as follows:-
Evidence Law To the end that Court decisions are to be based on truth founded on evidence, a primary duty of Courts is to conduct proper proceedings so as to hear and consider evidence. The so-called law of evidence is made up largely of procedural regulations concerning the proof and presentation of facts, whether involving the testimony of witnesses, the presentation of documents or physical objects, or the assertion of a foreign law. The many rules of evidence that have evolved under different legal systems have, in the main, been founded on experience and shaped by varying legal requirements of what constitutes admissible and sufficient proof. Although evidence, in this sense, has both legal and technical characteristics, judicial evidence has always been a human rather than a technical problem. During different periods and at different cultural stages, problems concerning evidence have been resolved by widely different methods. Since the means of acquiring evidence are clearly variable and delimited, they can result only in a degree of probability and not in an absolute truth in the philosophic sense. Only Soviet doctrine, under the influence of philosophical materialism, expresses a belief that absolute, objective truth can be attained through evidence. In common law countries, civil cases require only preponderant probability and criminal cases, probability beyond reasonable doubt. In civil-law countries so much probability is required that reasonable doubts are excluded.
In Phipson on Evidence, 12th Edition evidence is defined and classified at pages 2-3 paragraphs 3-5 in the following language:
Evidence, as used in judicial proceedings, has several meanings. The two main senses of the word are: first, the means, apart from argument and inference, whereby the Court is informed as to the issues of fact as ascertained by the pleadings; secondly, the subject-matter of such means. The word is also used to denote that some fact may be admitted as proof and also in some cases that some fact has relevance to the issues of fact. In a real sense evidence is that which may be placed before the Court in order that it may decide the issues of fact. There also are other shades of meaning that it is not necessary to discuss here. Thus it has been held that evidence in the Inheritance (Family Provision) Act, 1938 covers all the material that persons outside a Court of law take into consideration when deciding how to act. Evidence, in the first sense, means the testimony, whether oral, documentary or real, which may be legally received in order to prove or disprove some fact in dispute.
Facts: No satisfactory definition of the term fact has been or perhaps can be given. Broadly it applies to whatever is the subject of perception or consciousness. But juridically it has generally to be distinguished from law, sometimes from opinion, and sometimes from testimony and documents. It is not possible always to apply these distinctions consistently.
CLASSIFICATIONS
The subject of evidence is not one which lends itself readily either to definitions or divisions. Few of its terms have acquired settled or unambiguous meanings, and no to writers adopt the same classification. The following divisions or distinctions, however, which are commonly observed in practice or by writers, comprise all that are really essential to be noticed:
Direct, indirect and real evidence: By direct evidence is meant that the existence of a given thing or fact is proved either by its actual production, or by the testimony or admissible declaration of someone who has himself perceived it. By indirect or presumptive evidence is meant that other facts are thus proved, from which the existence of the given fact may be logically inferred. The two forms are equally admissible, and the testimony, whether to the factum probandum or the facta probantia, is equally direct; but the superiority of the former is that it contains at most only one source of error, fallibility of assertion, while the latter has, in addition, fallibility of inference. Little is to be gained from a comparison of their weight, since, save in the case of actual production, both forms admit of every degree of cogency from the lowest to the highest.
Real Evidence:- Material objects other than documents, produced for inspection of the Court, are commonly called real evidence. This, when available, is probably he most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon. Unless its genuineness is in dispute, the thing speaks for itself.
Unfortunately, however, the term real evidence is itself both indefinite and ambiguous, having been used in three divergent senses:
(1) Evidence from things as distinct from persons.
(2) Material objects produced fro the inspection of the Court.
This is the second and most widely accepted meaning of real evidence. It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing.
The best evidence rule stipulates that admissible evidence to prove any fact or relevant fact in dispute is to come from vital witnesses or documentary exhibits depending on the nature of the proceedings. The New Encyclopedia, Britannica, Vol.7, page 3 reads as follows:-
THE CLASSIC MEANS OF PROOF:- According to Anglo-American law, the classic means of proof are witnesses, documents, and real evidence (derived from the actual inspection of objects). As a result of historical development, the status of witness was accorded to experts and to the parties in a civil lawsuit, and even to the accused in criminal proceedings. The development of continental European law has taken a different course. Parties cannot be witnesses, and evidence by experts is subject to special procedural rules. Consequently, there are essentially five separate sources of evidence: witnesses, parties, experts, documents, and real evidence.
Evidence is not to be pleaded but all the essential facts upon which a party intends to prove the claim or to obtain a decision must be pleaded and proved at the trial. See Ekretsu vs. Oyobebere & Ors. (1992) 11-12 SCNJ (Pt.2) 189 at 205-206 and 213-214.
The calling of vital witnesses will depend on the nature of the controversy or dispute between the parties. But the nature of the proceedings may need a party to call a vital witness or a number of vital witnesses to testify. Evidence has to be led on pleaded facts at the hearing. See Arabambi vs. Advance Beverages Industries Ltd. (2005) 12 SC (Pt.1) 60 and Durosaro vs. Ayorinde (2005) 3-4 SC 14. Section 175(1)-(2), 180(a)-(g)(i)-(iii) of the Evidence Act, 2011 provides who are competent and vital witnesses to testify in Court in civil or criminal proceedings:-
175(1) All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, any other cause of the same kind.
(2) A person of unsound mind is not incompetent to testify, unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.
180. Every person charged with an offence shall be a competent witness for the defence at every stage of the proceeding whether the person so charged is charged solely or jointly with any other person.
Provided that:-
(a) A person so charged shall not be called as a witness in pursuance of this section except upon his own application;
(b) A person charged and being a witness in pursuance of this section may be asked any question in cross-examination notwithstanding that it would tend to incriminate him as to the offence charged.
(c) When the only witness to the facts of the case called by the defence is the person charged he shall be called as a witness immediately after the close of the evidence for the prosecution;
(d) Every defendant called as a witness in pursuance of this section shall unless otherwise ordered by the Court, give his evidence from the witness box or other place from which the other witnesses give their evidence;
(e) Nothing in this section shall affect the right of the person charged to make a statement without being sworn;
(f) In cases where the right of reply depends upon the question, whether evidence has been called for the defence, the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply; and
(g) A person charged and called as a witness in pursuance of this section shall not be asked, and if asked, shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that with which he is then charged; or is of bad character unless:-
(i) The proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence with which he is then charged, or
(ii) he has personally or by his legal practitioner asked questions of the witnesses for the prosecution with a view to establish his own good character or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the prosecutor or the witnesses for the prosecution, or
(iii) he has given evidence against any other person charged with the same offence.?
Sections 124-127 of the Act (supra) further provides that:-
124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-
(a) Common knowledge in the locality in which the proceeding is being held, or generally; or
(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this section refers, and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.
125. All facts, except the contents of documents, may be proved by oral evidence.
126. Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to:-
(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact.
(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner.
d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds:
provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
127(1) If oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it deems fit:-
(a) Require the production of such material thing for its inspection, or
(b) Inspect any movable or immovable property the inspection of which may be material to the proper determination of the question in dispute.
(2) When an inspection of property under this section is required to be held at a place outside the courtroom, the Court shall either:-
(a) Be adjourned to the place where the subject-matter of the said inspection may be and the proceeding shall continue at that place until the Court further adjourns back to its original place of sitting, or to some other place of sitting; or
(b) Attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in Court afterwards, and in either case the defendant: if any, shall be present.
Who is a vital witness in land cases and matters
In land causes and matters, it is advisable for the parties and the learned trial Judge to examine the pleadings to determine whether the claimant is anchoring his case on customary law, custom, documentary evidence, or traditional evidence, etc, to determine the vital witnesses to be called to testify in support of the pleaded root of title. Sections 68-70 of the Evidence Act, 2011 provides as follows:-
68(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law, or custom or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in Subsection (1) of this section are called experts.
69. Where there is a question as to foreign law, the opinions of experts who in their profession are acquainted with such law are admissible evidence of it, though such experts may produce to the Court books which they declare to be works of authority upon the foreign law in question, which books the Court, having received all necessary explanation from the experts, may construe for itself.
70. In deciding question of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies, are admissible.
The word and is superimposed between customary law and custom and any book or manuscript in Section 70 of the Evidence Act, 2011. In Maxwell on the Interpretation of Statutes, 12th edition by P. St. J. Langan the learned author wrote what the legislature meant by the use of the word and at pages 232-234 to wit:
Two instances of substitution are particularly important; they concern the conjunctions and and or, and the verbs may and must.
And and Or
In ordinary usage, and is conjunctive and or disjunctive. But to carry out the intention of the legislature it may be necessary to read and in place of the conjunction or, and vice versa.
The Disabled Soldiers Act, 1601, for example, in speaking of property to be employed for the maintenance of sick and maimed soldiers, referred to soldiers who were either sick or maimed, and not only to those who were both.
The expression local and publoritiesic auth in Section 4(2) of the Prevention of Corruption Act, 1916 has been held by Winn, J. not to mean authorities which are both local and public (but) authorities which are either local or public.
By Section 48(1) of the Mines and Quarries Act, 1954: It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure. Lord Reid said that he could not suppose that it was intended that in every case the manager must both attempt to control movement of the strata and provide supportThe natural meaning of the words of the section is that one or other of the prescribed methods must be adopted in every case.
Conversely, the Court may substitute and for or. An example is provided by the Bankrupts Act, 1603, which made it an act of bankruptcy for a trader to leave his dwelling-house to the intent, or whereby his creditors shall or may be defeated or delayed. If construed literally, this would have exposed to bankruptcy every trader who left his home, even for an hour, if a creditor called during his absence for payment. This absurd consequence was avoided by reading or as and so that an absence from home was an act of bankruptcy only when coupled with the design of delaying or defeating creditors.
By Section 26(2) of the Bankruptcy Act, 1914, which deals with an application for an order of discharge: where the bankrupt has committed any misdemeanour under this Act the Court shall either or (ii) suspend the discharge for such period s the Court thinks proper or (iv) require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the official receiver or trustee for debts provable under the Bankruptcy and remaining unsatisfied. The Divisional Court of the Chancery Division held in Re Mills (1967) 1 WLR 580 that under this provision a country Court judge had jurisdiction to suspend a bankrupts discharge for three years subject to a condition that the bankrupt should consent to judgment being entered against him for 400pounds: in other words, he was not limited to acting either under paragraph (ii) or under paragraph (iv), but could apply both together.
The fact that an enactment is penal does not, it appears from R. vs. Oakes (1959) 2 Q.B. 350, necessarily prevent the statute from reading one conjunction in place of another even though this produces a result which is unfavourable to an accused person. In that case, or was substituted for and in the words of Section 7 of the Official Secrets Act, 1920: Any person who aids or abets and does any act preparatory to the commission of an offence shall be guilty of a felony.
Sections 2 and 16-19 of the Evidence Act, 2011 as follows:-
2. For the avoidance of doubt, all evidence given in accordance with Section 1 shall, unless excluded in accordance with this or any other Act, or any other legislation validly in force in Nigeria, be admissible in judicial proceedings to which this Act applies.
Provided that admissibility of such evidence shall be subject to all such conditions as may be specified in each case by or under this Act.
16(1)A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.
(2) The burden of proving a custom shall lie upon the person alleging its existence.
17. A custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record.
18(1) Where a custom cannot be established as one judicially noticed, it shall be proved as a fact.
(2) Where the existence or the nature of a custom applicable to a given case is in issue, there may be given in evidence the opinions of persons who would be likely to know of its existence in accordance with Section 73.
(3) In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not accordance with natural justice, equity and good conscience.
19. Every fact is deemed to be relevant which tends to show how in particular instances a matter alleged to be a custom was understood and acted upon by persons then interested.
See Police vs. Addae 11 WACA 42 and; Gusau vs. Commissioner of Police (1968) NMLR 32 and Noma vs. Zaria Native Authority (1963) NRNLR 97.
Paragraph 5 of the Amended Joint Statement of Claim pleaded the appellants root of title as being founded on a deemed customary/statutory holders of those pieces of farmland being situated and lying at Abuja Road, Mararaba Gurku in Karu Local Government Area of Plateau State. The appellants gave notice in paragraph 6 of their Joint Claim that they had for over 70 years without challenge, interference or adverse claim over their respective pieces of land, (sic) (performing various act of ownership over their respective farmlands. Evidence of history, user, possession and custom shall be led to establish their respective titles/interests and inheritance. The appellants sought relief in paragraph 16(a)-(c) of their Amended Joint Statement of Claim as follows:-
16. Whereof the plaintiffs jointly and severally claim and seek as follows:-
(a) A DECLARATION that they are deemed customary statutory of their respective lands.
(b) A DECLARATION that the certificate of occupancy No.PL13604 issued the 1st defendant by the Governor of Plateau vide the recommendation of the 2nd defendant is null, void and of no effect whatsoever.
(c) An order of perpetual injunction restraining the 1st defendant by himself, his agents, servants, privies and assigns from in anyway whatsoever trespassing or interfering with the plaintiffs respective titles to the land in dispute.
In Phipson on Evidence (supra) pages 33-34 paragraph 71-72 appears the following passage:-
EVIDENCE MUST BE CONFINED TO THE ISSUES:
The rule here is that evidence must be directed and confined to the proof or disproof of the issues as settled by the pleadings, Esso Petroleum Co. Ltd. vs. Southport Corp. (1956) A.C. 218, or statements equivalent thereto, and supplemented by the particulars, where any have been delivered. In criminal trials, the indictment or charge takes the place of pleadings. Even defendants in criminal cases are not permitted to introduce material which does not go to the issues and which can only confuse the tribunal, R. vs. Gebreel, The Times, June 8, 1974.
PLEADINGS:
Civil cases: In actions in the High Court the pleadings must contain, and contain only, a statement in a summary form of the material facts on which the case is to be proved. A party need not plead any fact if it is presumed by law to be true or if the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleadings. As to county Courts, see the County Court Rules, 1936.
A careful examination of the Amended Joint Statement of Claim pleads the root of title to be (i) custom (ii) customary law, (iii) acts of ownership and possession extending over a period of 70 years, perhaps calculated from the day the Writ of Summons was filed in the Court below on 3rd May, 1995. The onus of proving the claims was on the appellants. The appellants had the onus of calling vital witnesses to prove the customary law or custom prevailing where the land in dispute was lying and situated. The appellants duty was to call evidence of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognized as legal authority by people indigenous to the locality in which such law or custom applies (See Section 70-71 of the Act (supra)).
The appellants also pleaded in paragraphs 7-8 of their Amended Joint Statement of Claim that they are entitled to the land in dispute because their respective ancestors were the first to deforest the land in dispute and named same as AKPULUYAKWO FARM and since they settled thereon, nobody has ever challenged their title. They have no (sic) sold nor in any way alienate (sic) their respective titles to anybody or person.
The claimants had to plead and prove the names of the first ancestors that acquired the land over 70 years ago and from whom the claimants inherited same. In Akinloye & Ors. vs. Eyiyola & Ors. (1968) NMLR 92 at page 95 per Coker, JSC to wit:-
The defendants did not plead the names or the histories of the several ancestors mentioned by them or on their behalf in evidence. Such evidence should not have been allowed without an amendment of the pleadings. Again, the defendants testified to a partition but did not tell or show the Court any plan of the land alleged to have been partitioned let alone the extent of such land. The plaintiffs claimed to be owners of an area of over 98 acres as shown on the plan Exhibit F and that the land in Exhibit G formed part of that land. The defendants neither appreciated nor attempted to discharge the onus which then shifted to them of establishing how, within the very large area of land demonstrated to belong to the plaintiffs, the defendants should posses such a small area as is shown in the plan Exhibit G. The possession of the 2nd defendant, as indeed that of his ancestors, is not inconsistent with the title of the plaintiffs since such holding found by the Judge and under Native Law and Custom will not divest the plaintiffs of their ownership of the land. The plaintiffs claimed, and the Judge accepted it, that their progenitors had allowed the ancestors of the 2nd defendant and the 2nd defendant himself to use the land as customary tenants under Yoruba Native Law and Custom. As stated before, such possession will not ripen into ownership howsoever long it may be and title by prescription is not known to Yoruba Native Law and Custom.
The argument on behalf of the defendants needs no further consideration as we are of the view that the Judge clearly comprehended the entire case and came to a conclusion which is abundantly supported by the evidence. Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court. This appeal therefore fails.
SeeOwoade vs. Omitola (1988) 5 SCNJ 1 at 11 and Total Nig. Ltd. vs. Nwako & Ors. (1978) 5 SC 1.
The appellants did not plead the names of their ancestors that first deforested the land in dispute to settle on it over 70 years ago in any paragraphs of the Amended Joint Statement of Claim. On acts of ownership and possession, Section 35 and 143 of the Evidence Act, 2011 provides as follows:-
35. Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected with it by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
143.When the question is whether any person is owner of anything of which he is shown to be at possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
The learned trial Judge found the acts of possession pleaded by the appellants in their Amended Joint Statement of Claim not proved. His Lordship held at page 276 lines 8 to page 288 lines 1-5 of the printed record as follows:-
IDUNDUN V. OKUMAGBA (1976) 9-10 SC 146, nevertheless in the case of NKADO V OBIANO (1997) 5 SCNJ 33 at 36. It was held that proof of any one the five different ways of establishing title to land is the minimum the law requires.
Here I postulate two issues for determination as stated by the learned plaintiffs counsel.
(1) Whether the plaintiffs have proved their case on the balance of probability.
(2) Whether the vendor had a good title to transfer to the 1st defendant in other words whether the 1st defendant acquired a good title.
On the first issue of proof and in line with the decisions in the case of OLE V EKEDE (supra) and NKADO V OBIANO (SUPRA).
The plaintiff, have adopted the proof of title by traditional history.
I have mention here that only eight of the ten plaintiffs gave evidence on their various behalf as observed by the learned defense counsel. Nevertheless as rightly point out by the plaintiffs counsel it is not always necessary that a party to the case must give evidence, it is sufficient if the case is established by any other means of evidence, as rightly pointed out by the learned 1st in defendants counsel that each of the plaintiffs who testified, did so on his own behalf and apart from their sporache mention that they share boundary with one another none gave evidence for the other as to the very root of title.
Each of the plaintiffs said he acquired title through his father who in turn got same from their fathers i.e. plaintiff grandfathers.
All the plaintiffs said their forebears came down from the hills and acquired the farmlands. In the case of MADUBUONWU V NNALUE (1992) 8 NWLR (pt.) 260. It was held that a plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the rest of his title, and this includes how his ancestors had come to own the land in the first place and how the land descended over the years to the claimants family until it got to the claimant
In the evidence of the plaintiffs it is very clear if their ancestors were the first settlers on the land or they acquired it through request or by traditional boundaries with others.
They did not say if their parent were living in the same place before they all descended from the hills and found those farmlands. None of them could say if any of their fathers was still on the land when the said Bawa Magaji (1st defendants vendor) told them to vacate the land, even though the P.W.IV, vundabo, told the Court that some of their parents were still alive. Worst still the P.W.IV said Kwatnabwa, the father of Danladi (P.W.VI) and Nagai the father of them was called to say how himself or themselves got the land which now devolves to the plaintiffs.
In law, their evidence would have been vital to the plaintiffs case and failure to call them is very fatal to their case. See the case of BAMGBOSE V JIAZA (1991) 3 NWLR (pt. 177) 64. See also Section 149 (d) of the Evidence Act which provides:-
The Court may presume…..That evidence which could be produced and is not produced would if produced be unfavorable to the person who withholds it.
I need state further that it is a requirement of the law that a plaintiff claiming for a declaration of title is required to established with certainty and precession the area of land to which his claim relates. In the case of a ODICHE V CHIBOGWU (1994)7-8 SCNJ 317 at 328. It was held that in a claim for a declaration of ownership or exclusive possession of a piece a land, the first and foremost duty of the claimant is to describe the land in dispute with such reasonable degree of certainty and needed accuracy that its identity will no longer be in doubt.
It was further held that the more mention of the name of the land in dispute (as in this case Apuluyakwo) without stating clearly the area of the land to which the claim is related is not enough as such claim fail and be dismissed.
Moreso if he fails to prove the bounderis and identity of the land. See the cases of OKEDARE V ADEBARA (1994) 6 SCNJ (pt.11) 254; EIGBEJALE V OKE (1996)5MAC 51.
It is also stated in the case of ADEKUNLE V ADEGBOYE (1992)2 NWLR (pt. 228) 306 that in land in suit where the exact boundary or the extent of the land in dispute is not admitted the onus of proof is on the plaintiff against who judgment would be given if no evidence were produced.
It is trite law that the burden is on the plaintiffs in an action for declaration of title to land to prove clearly which boundaries of the land he claims, see the case of IBEMERE V UKABEBU (1992) 4 NWLR (pt.) 390. Also in the case of ABOYEJI V MOMOH (1994) 4 SCNJ (pt. 11) 302, it was held that a party failing to give evidence of boundaries of the land in dispute which he claims is not entitled to succeed.
The position in law as was held in the case of RHASIGBA V EVIH DSCC Vol.ix page 264 is that it will be unfair to dismiss a case for not being well defined nevertheless, if the none definition of the land is coupled with the absence of sufficient evidence and other defects as contradictions in the case of the plaintiff, the Court will have no alternative but to dismiss the suit as Courts are not charitable homes. In his evidence Mamman Turaki the P.W.I said his boundary men are Jiyaba on the north, Kuyenbo on the ease, Yamusa on the south and Jiba on the west, never said he shares boundry with Vundabo Iya (P.W. IV) or Adogo(PWVII) who both said they share common boundries with him.
Further while the P.W.IV Vundabo Iya never said he shares common boundary with Bawa Adogo (PW V) the letter said he shares boundary with the farmers.
In the case of the P.W.II, Danjuma Fenu who is an enlightened civil servant, he so much contradicted himself, and was so contradicted himself, and was so confused to the extent that his counsel (the plaintiffs) Mr. Musa Muhammad Esq,. called on the attention of the Court to take note of the confused witness.
All these are contradictions to the averments at paragraph 9 of their joint statement of claim dated the 22nd February, 1996 where they claim the land is bounded on the east with Jiyaba, on the west with Zhiba while on the north with Bagyi and on the south with Yamusa.
In law a party failing to give evidence of boundaries of the land in dispute which he claims is not entitled to succeed. See the case of ABOYEJI V MOMOH (supra).
On the part of the defence the 1st defendant described the land as sharing boundary with Guffanti Company non the west, Keffi Abuja road on the north some farmlands on the east and old Karu road on the south. This description was corroborating by the evidence of the D.W.II.
It is trite law that the plaintiff can only succeed the strength of his case and not on the weakness of the defence. See the cases of ADENIRAN V ALAO (1992) 2 NWLR (PT.223) 350 EBOADE V ATOMESIN (1997) 5 SCNJ 13 AT 14.
By the plaintiffs not clearly stating the clear identification of the land they cannot rely on the weakness of defence if any to in establishing the identity of the land. Even if a mention of Apuluyakwo is made, is a vast land and the plaintiffs admitted in their evidences that other people have farms at Apuluyakwo. The only conclusion is that the land they are claiming is not the same as the one described by the 1st defendant.
It is also the evidence of the plaintiff that they were farming there when one Bawa told them that the government was to acquire their farmlands and they all vacated, none of them could say what he was farming there nor did they say of their parents even though they said their grandparents were there before them.
Yet the unchallenged and uncontradicted evidence of the D.Q.II, was that no one was farming there and that when the 1st defendant purchased the land and put it in his care, he reared his cows in it and used to give people places to farm there, yet no one even challenged him for all the over ten years before the litigation, even though the plaintiffs do not live far away from the land in question.
A further defect in the case of the plaintiff is that they could not say with any certainty when they vacated the land as when they first saw a signboard.
On the part of deference and the content of Exhibit 2, the sale transaction took place in 1979, the evidence of the DW IV. HIS Royal Highness, the Esu Karu however was that the plaintiffs did not complain of the sale by Bawa to the 1st defendant until after the death of Bawa and the only written communication on the land was exhibit 1 dated the 14th day of January 1991, that is about twelve years after the sales transaction.
Though the 9th plaintiff, Mamman Turaki tried to prevaciate, evidence are bound that he was aware of the sale he even protested that his own part of the farmland was included in the sale by Bawa and that on his protest to the DW IV, Esu Karu, his own portion of land was excised from the sold and given to him. This was the uncontradicted evidences of the DWII,IV and V.
The question one asks is if the 9th plaintiff Mamman Turaki honestly believed that the rest of the plaintiff land had been sold out of the 1st defendant why he not intimated them until after the death of Bawa and over ten years after the sale transaction.
Worst still, this action was not filed until on the 3rd day of March 1995 a period of over fifteen years after the sale. And though the plaintiff said that they have been pursuing the matter with the traditional rulers, is however nothing before the Court to show that the plaintiff protested to any place when the 1st defendant gave out part of the land to the then plateau state government for its housing estate for which houses are said to have been constructed. The plaintiff are claiming 64 hectares of land but did not say if the part lease out by the 1st defendant was part of it.
Are these acts of leasing the land to the plateau government, The assignment to the DWII as a caretaker and the DWII is subsequent assigning people to farm there not positive acts of ownership of the 1st defendant as stated in the cases of OLE V EKEDE (SUPRA), MOGAJI V CADBURY (SUPRA).
On the issue of land being family property raise by the plaintiffs counsel. It is a settled law that a grant or sale of family property by the principal member of the family without the consent of the head of the family is void as initio as state in the case of AKINFOLARIN V AKINNOLA (supra). Nevertheless it is the evidence of the D.W.I the son of the deceased vendor (Bawa) that when his father Bawa sold the land to the 1st defendant his father father i.e. his grandfather was alive, this was no where contradicted and is therefore deemed and admitted.
There is no evidence to show that the said grandfather of the DW I objected to the sale by his son and none of these said to be brother to the Bawa protested the sale. It is not the case of any of the plaintiff that their family land has been sold out, this Court has no jurisdiction to go outside the issue raised before it.
Kushenu Nagai whom the DW I giving evidence for the defence said was Bawas brother whom the plaintiff counsel argued is claiming their family property never said so in his evidence. He never said Bawa sold out their family land without their consent nor did he say he is related to late Bawa father he claimed to have acquired the land through his father who got same from his grandfather.
In AKINFOLARIN V AKINNOLA (SUPRA) it was held that parties are bound by their pleading and evidence which is at variance with the averments in the pleadings goes to no issue and should be discountenanced. It is not sufficient; to plead the family property there must be evidence that the claimant is a family member.
Elsewhere in the same case it held further that a Court of trial must limit itself to pleadings because to act otherwise might well result in the denied to one or the other of the parties of the right of fair hearing. It is not open to a party to rely on material facts, which he should have but had not pleaded at the trial because the other side had, owing to their absence from the pleading lost the opportunity of calling evidence to controvert it.
Even if the 5th plaintiff, Kushenu Nagai said he was related to late Bawa, the unchallenged and uncontradicted evidence of the DW I (1st defendant) was that the father of Bawa confirmed that the land belonged to the late Bawa. In the case of CONTRACT RESOURCE NIG. LTD V. WEWDE (1998) 5 NWLR (pt. 549) 243, It was held that where evidence is uncontroverted and unchallenged and credible it should be accepted.
All these pieces of evidence go to show that the plaintiffs have not proved any claim on the land.
On the second issue of whether the 1st defendant in law acquired a valid title to the land in dispute.
There is no doubt that 1st defendant was a stranger to the land in question, nevertheless, the evidence of the DW I Samuel Bawa magaji was that the land belonged to his father, late Bawa who sold same to the 1st defendant.
This ownership of the late Bawa was confirmed by the DW IV, the Esu Karu who in his evidence told the Court that when Bawa was to sell the land he came to him with one Adogo of NyanYa and Baba Daliya and the letter confirmed to him that the land belonged to Bawa.
It was further the evidence of the DW IV (Esu Karu) that he sent for the son of the chief of Nyanya who now is the chief and further confirmed to him that the land belonged to Bawa before he (DW IV) approved of the sale.
None of the plaintiffs was able to establish a boundary title than late Bawa, who sold the land to the 1st defendant, who therefore entitle than to hold that Bawa was the owner of the land he sold it to the 1st defendant and I so hold in which case the 1st defendant has acquired a good and valid title to land.
Thus the augment that the plaintiff being natives have better claim of title than this vendor, Bawa who himself is a native. The plaintiffs in the case have failed to satisfactorily prove a better title and can therefore not displace the 1st defendant.
On the nature of the transaction, I am unable to understand if the learned plaintiffs counsel expects the parties to the sale agreement Exhibit 2 to indicate in the sale agreement if the transaction was under the customary or English law.
Even in the case of ALDERT OJELADE V SADATU ATOKE SOROYONYE (supra) cited by the learned plaintiffs counsel it is held that failure to stated the nature of the sale may only invalidate and not shall invalidate the sale. It follows therefore that if there was any failure to stated the nature of transaction, it will not render the document void.
After all, it is my belief that a sale transaction reduced into writing, signed by the parties and their witness and officially stamped and signed by the paramount chief, the Esu Karu, was surely intended to be a transaction under the English law and I so hold, hence the application of the principles governing claim to a declaration of title to land.
Coming to the approval or consent of the state or local government for the transfer of such land lands. It is the law as stated in Section 21 of the Land Use Act and the case of ONAMADE V. A.C.B. (1997) ; NWLR (pt.480) 123 that consent of the Military Administrator is required for a valid assignment, mortgage, transfer of possession as sublease. The question one ask is which precedes the other is it to obtain the consent the Military Administrator before buying the land before applying for a formal approval as consent for the transfer of the property.
I am of the firm belief that the later is the practice and more sensible subject to the doctrine of Caveat Emptor. I also hold that the consent of the DW IV, the Esu Karu, given in this case will surface until the 1st defendant obtains the consent of the state Military Administrator.
On the validity of Exhibit 2, the sale agreement, I hold that even without the Exhibit, the abundant evidence of the DW I,II,III,IV,V that the 1st defendant acquired the land from Bawa where title is established satisfied the fact that the 1st defendant bought the land.
Exhibit 2, I hold is a valid document to the extent that it transferred Bawas farmland to the 1st defendant subject to anyone showing a better title than Bawa which the plaintiff in this case have failed to prove. In the absence of any fraud which is not established before this Court, the fact that the agreement has two dates notwithstanding.
On the failure to call Adogo Nyanya who was said to have confirmed that the land belonged to late Bawa, it is trite law that the plaintiff can only succeed on the whole the burden on the plaintiff is not discharged the weakness of the defence case will not help the plaintiff.
On the whole considering the evidence before me it is firm belief that on the preponderance of evidence, the plaintiffs have failed to establish any case, consequently I have no basis to grant any of the reliefs sought, accordingly, the plaintiffs case is dismissed.
The effect of these findings is that the appellants failed to call vital witnesses to testify and adduce legally admissible evidence to prove their root of title, namely, customary law, custom acts of possession and user, etc, to be entitled to a decision. Section 167(a)-(d) of the Evidence Act, 2011 reads:-
167.The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:-
(a) A man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
(b) A thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence.
(c) The common course of business has been followed in particular cases.
(d) Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
Section 74(a) of the Evidence Act, 2011 stipulates thus:-
74.When the Court has to form an opinion as to:-
(a) The usages and tenets of anybody of men or family.
Claimants can plead that their ancestors first deforested and settled on the land and exercised acts of possession and user. In Onadehin & Ors. vs. Sonuga & Ors. (1974) 1 All NLR (Pt.2) 452, Fatayi-Williams, JSC (as he then was) held at pages 461-462 as follows:-
From the above findings, it is clear that the issue of settlement, which is nothing more than actual physical occupation of the land by the plaintiffs, was thoroughly dealt with by the learned trial Judge. We are not in any doubt that his finding in this respect covers both the case for settlement and for the possession on which the claim for trespass was predicated. Therefore, it would not be correct for the Western Court of Appeal to say that the evidence in support of the settlement was not considered at all. It is manifest that the dual function of this crucial testimony has also made the learned trial Judge fall into the error of stating that he need not consider the issue of settlement when he has, in fact, considered it adequately and thoroughly.
After all, the traditional history given in support of the title of a family to its land usually traces the title to an individual founder who first acquired the land. This acquisition might be by settlement which, in that con, is no more than a permanent occupation of the land by the founder and the clearing of part of it for his own use and, if he has a family, for the use of his family as well. Consequently, when the plaintiffs averred in their statement of claim that their ancestor, Ogbodo had settled on and farm the land for many years before his death and that the family have been in possession of the whole land since it was settled upon by their said ancestor, all they meant was that the Ogbodo family had been in continuous possession of the land since it was occupied by their ancestor Ogbodo. Therefore, any finding as to the plaintiffs possession of the land in dispute would, in these circumstances, obviously include a finding as to the settlement.
For these reasons, we think that the Western State Court of Appeal was in error in concluding that the learned trial Judge did not consider the issue of settlement.
The appeal is allowed and the judgment of the Western State Court of Appeal in Appeal No.CAW/2/1972 delivered on 28th March, 1973, including the order as to costs, is set aside. We order that the judgment of the Ijebu-Ode High Court in Suit No.J/21/1963 delivered on 29th January, 1971, dismissing the plaintiffs claim in its entirety be restored and it is hereby restored and affirmed. Costs in favour of the defendants in the Western State Court of Appeal are assessed at N142 and in this Court at N153.
In Momodu Ajala vs. Samuel Awodele (1971) 1 NMLR 127, the defunct Western State Court of Appeal also held at page 129 as follows:-
Mr. Adegunwa argued that because the plaintiffs ancestor had no grant of the land in dispute from anybody therefore their title was defective. But the plaintiffs case is that the land was acquired by settlement. Joseph Olaniran the second plaintiff in his evidence said inter alia:-
The Oluwofin migrated from Ife and settled at Iwofin which was then a virgin land. Many people came with him. He settled there and was hunting all over the area now in dispute.
It is needless to point out that settlement is one of the traditional modes of acquisition of land. In our view there is no substance in this ground and it fails.
In Anyanwu vs. Mbara (1992) 6 SCNJ 22, Nnaemeka-Agu, JSC held at page 31 that:
The first question is whether the plaintiff based his case on tradition. I would have agreed with the learned Counsel for the appellant that if the plaintiffs case rested on tradition it was insufficiently pleaded. Pleading in paragraphs 5 and 6 of the statement of claim that the plaintiff and his predecessor-in-title had owned and possessed the land in dispute from time immemorial is not a sufficient pleading of tradition. In this regard, the plaintiff was bound, if he relied on tradition, to have pleaded who founded the land, how he founded it and the particulars of the intervening owners through whom he claims: see on this Akinloye & Anor. vs. Bello Eyiyiola & Ors. (1968) NMLR 92; Adejumo vs. Ayantegbe (1989) 3 NWLR (Pt.10) 417; Olujinle vs. Adeagbo (1988) 2 NWLR (Pt.75) 238. There was, therefore, no proper pleading of tradition and so evidence of deforestation, not having been pleaded, went to no issue. What we are faced with in this case is, therefore, not the result of failure to prove tradition relied upon by the plaintiff: he did not rely on any tradition. So, the case cited on failure to prove tradition when pleaded are not in point. Recognizing the fact that there are five ways of proving title (for which see Idundun vs. Okumagba(1976) 9-10 SC 227 and Atanda vs. Ajani (1989) 3 NWLR (Pt.III) 511), the only question is whether the plaintiff proved acts of possession and ownership and/or ownership of contiguous lands which he relied upon. The Court limited itself to the two grounds duly pleaded by the plaintiff.
See Igbojimadu vs. Ibeabuchi (1998) 1 NWLR (Pt.533) 179 at pages 190-191 and Owonyin vs. Omotosho (1961) 1 All LR 317 at page 322.
On the other hand “custom” is defined in Black?s Law Dictionary, 9th edition, page 442 as follows:-
Custom:- 1. A practice that by its common adoption and long, unvarying habit has come to have the force of law. See Usage (Cases: Customs and Usages
Customary law is proved by expert evidence of members of a community where the land in dispute is situated. See Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at pages 461-462 and Udo vs. Melifonwu (1961) 5 ENLR 93 at page 96.
In Oyakoja vs. Ibadan District Council (1959) WNLR 304 the Court held at page 306 as follows:
The first, third and fifth witnesses for the defendants are prominent and responsible people in Ibadan and their opinions expressed on matter relating purely to native law and custom must of necessity carry considerable weight. I accept their testimony in its entirety. It is not surprising that the plaintiffs own witness, Mr. Laniyonu, agree with these witnesses on the main issue, namely, that Ibuko market, like other markets in Ibadan, is communally owned by the Olubadan and Council, i.e., the defendants.
See Nwawuba vs. Enemuo (1988) 2 NWLR (Pt.78) 581 at page 595 paragraphs B-D per Nnaemeka-Agu, JSC.
The appellants pleaded customary law and customs in paragraphs 6-7 of the Amended Joint Statement of Claim. The legislative intention is that the learned trial Judge should have relied on the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and customs and in the alternative the appellants could have relied on any book or manuscript recognized as legal authority by persons indigenous to the locality in which such law or custom applies or call these vital witnesses coupled with documents of title as provided under Section 70 of the Evidence Act, 2011. At the close of evidence the learned trial Judge could have invoked the provisions of Section 68(1) and (2) of the Act to found in favour of the appellants.
A composite reading of the provisions of Sections 68-70 of the Evidence Act, 2011 will show that the vital and relevant witnesses the appellants ought to have called to establish their root of title to the land in dispute, customary law and custom being the root of title was to call the traditional rulers, chiefs, or other persons having special knowledge of the customary law and custom and or any other book or manuscript recognized as legal authority by persons indigenous to the locality in which such law or custom applies under Section 70 of the Evidence Act, 2011. The Court would have regarded their evidence as the opinion upon that point of persons specially skilled in such customary law or custom and the Court would have then held that they are experts which renders their evidence admissible under Section 68(1)-(2) of the Act (supra).
Calling witnesses that are not experts as defined in Section 68(1)-(2) read together with Section 70 of the Evidence Act, 2011 means the appellants did not prove their root of title founded on customary law or custom in accordance with the provisions of Section 68(1)-(2) and 70 of the Evidence Act, 2011. This is equivalent to appellants failure to call vital witnesses who have special knowledge of the customary law and custom under Section 68(1)-(2) and 70 of the Act. In that case the provisions of Section 167(d) of the Evidence Act, 2011 applies. The vital witnesses are the traditional rulers, chiefs or other persons having special knowledge of the customary law and custom that are indigenous to the locality in which such law or custom is applicable to the land in dispute. They ought to have been called to testify as experts and to render their evidence admissible under Sections 68-70 of the Act.
If there were vital witnesses the failure to call them to testify contravened the provisions of Section 167(d) of the Act. If there were none in the locality, the appellants should have ensured that witness called to testify were persons having special knowledge of the customary law or custom where the land is situate. Customary law was defined in Zaidan vs. Khalil Mohssen (1973) 11 SC 1 by Elias, C.J.N. at page 19-22 as follows:-
It follows, therefore, that, having regards to our own built-in rules in Section 20 of the Customary Courts Law governing the choice of law in the application of the lex situs to the succession to the intestate estate of a deceased person in Warri, the applicable law is not the Administration of Estate Law (Cap.1), but the (Moslem) Customary Law of Lebanon which is the one binding between the parties (Section 20(3)(a)(i) of the Customary Courts Law). We are of the view that, in this con, customary law is any system of law not being the common law and not being a law enacted by any competent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway. We are also of the view that anyone subject to any such law is excluded from the operation of Section 49 of the Administration of Estates Law (Cap.1) of Western Nigeria, 1959 applicable in the Mid-Western State of Nigeria.
For the foregoing reasons, the appeal fails and it is hereby dismissed.
SeeJoseph Ohai vs. Samuel Akpoemonye (1991) 1 SC 96.
Oral hearing commenced in the trial Court on 3rd July, 1997. The appellants called Mamman Turaki (PW1); Danjuma Fenu (PWII); Kushenu Dazani (PWIII); Vundabo Iya (PWIV); Bawa Adogo (PWV); Danladi Kwatnabawa (PWVI); Jeji Adogo (PWVII) and Jeriya Zaboson (PWVIII) who testified on behalf of the claimants. None of these witnesses claimed to be traditional rulers or chiefs in the locality where the land in dispute is situate. No foundation was led by the appellants to establish that any of these witnesses have special knowledge of the customary law and custom or that their opinions upon the points in dispute regarding the applicable customary law or custom are the opinions upon that point of persons specially skilled in such customary law or custom or as persons so specially skilled as mentioned in Subsection (1) of this section under Section 68(1) of the Evidence Act, 2011 to be called experts under Section 68(1) and (2) of the Evidence Act, 2011.
Land Use Act, 1978 came into effect on 29th March, 1978. Section 50(1) of the Act defines a customary right of occupancy to mean the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree.
Section 50(1) of the Act defines occupier to mean any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law and includes the sub-lease or sub-under-lease of a holder.
A holder mean in relation to a right of occupancy, a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not include any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgagee, sub-lessee or sub-under-lessee under Section 51(1) of the Land Use Act, 1978. These conditions precedent were not pleaded by the appellants nor admissible evidence adduced to prove their title or interests to the land in dispute at the hearing.
The onus was on the claimants to plead and prove that their occupation or usage of the land before the dispute with the respondents arose were persons or communities lawfully using or occupying the land in dispute in accordance with customary law or that their rights were derived from a customary right of occupancy granted by a Local Government under this Decree or they ought to be regarded as the occupiers of the land in dispute as persons lawfully occupying land under customary law or were using or occupying the land in accordance with customary law as the sub-lessees or sub-under-lessees of a holder.
The appellants pleaded in paragraph 6 of the Amended Joint Statement of Claim that they had been in possession of their farmlands since their deforestation, founding, possession and user for ever 70 years without challenge, interference or adverse claim over their respective pieces of land; performing various acts of ownership over their respective farmlands. Evidence of history, user, possession and custom shall be led to establish their respective titles/interests and inheritance. That being the case, the root of title pleaded had to be proved by invoking the provisions of Section 74 of the Evidence Act, 2011.
The learned trial Judge relied on the Appellants Amended Statement of Claim filed on the 21st July, 1997 to determine this dispute. Paragraphs 5-16 of the Amended Joint Statement of Claim at pages 111-114 in the printed record reads as follows:-
5.The plaintiffs are deemed customary/statutory holders of those pieces of farmland being situated and lying at Abuja Road, Mararaban Gurku in Karu Local Government Area of Plateau State.
6.The plaintiffs not related by live in the same village, respectively had been in possession of their farmlands since their deforestation, founding, possession and user for over 70 years without challenge, interference or adverse claim over their respective pieces of land, performing various acts of ownership over their respective farmlands. Evidence of history, user, possession and custom shall be led to establish their respective titles/interests and inheritance.
7.The plaintiffs aver that their respective ancestors were the first to deforest the land in dispute and named same as APULUYAKWO farm.
8.The plaintiffs further state that since they settled thereon, nobody has ever challenged their title. They have not sold nor in anyway alienate their respective titles to anybody or person.
9.The plaintiffs state that the parcel of land in dispute is about 64 hectares the site plan is hereby pleaded and shall be relied upon at the trial of this suit. This parcel of land comprise their respectively lands trespassed upon by the 1st defendant.
10.The plaintiffs state that the land in dispute is bounded in the Eastern side with JIYABA, in the Western side with ZHIBA, Northern side with BAGYI and in the Southern side with YAMUSA.
11.Sometime in 1980, the plaintiffs jointly informed by one Bawa Magaji, a staff of the 2nd defendant Bureau that the Plateau State Government was acquiring their lands for its housing programme and that they would be compensated appropriately after service of Notices of Acquisition and were advised to start scouting for alternative farmlands.
12. While awaiting Governments action, but still cultivating their respective farmlands. The 1st defendant erected a sign post on the farm of the 9th defendant proclaiming ownership of the 9th defendants land.
13. When the 1st defendant started digging ground to erect fence, pillars, the plaintiffs challenged him as he was fencing their land without their leave, licence, authority, consent or permission. The 1st defendant claimed to have been granted a statutory certificate of occupancy over the plaintiffs respective farmlands.
14. The 1st defendant is hereby put on Notice the C of O No.PL13604 at the hearing of this action.
15. Despite protests and warning, the 1st defendant continued to fence the land in dispute. And attempted through his agents to erect a building on the land, still uncompleted which was stopped by the plaintiffs.
The Land Use Act, 1978 came into effect on 29th March, 1978. The fore-runner of the Act was the Land Tenure Law of the defunct Northern Nigeria, 1963. The Land Tenure Law and the Land Use Act, 1978 recognized land holding or ownership by native communities.
The preamble and Sections 1-3 of the Land Tenure Law, Cap.59, Laws of Northern Nigeria, 1963 provided as follows:-
WHEREAS it is expedient that the existing customary rights of the natives of Northern Nigeria to use and enjoy the land of the Region and the natural fruits thereof in sufficient quantity to enable them to provide for the sustenance of themselves and their families should be assured, protected and preserved;
AND WHEREAS it is expedient that native customs with regard to the use and occupation of land should, as far as possible, be preserved;
AND WHEREAS it is expedient that the rights and obligations of the Government in regard to the whole of the lands within the boundaries of Northern Nigeria and also the rights and obligations of cultivators or other persons claiming to have an interest in such lands should be defined by law:
BE IT ENACTED BY THE LEGISLATURE OF NORTHERN NIGERIA:-
1. This law may be cited as the Land Tenure Law.
2. In this law where the con requires or admits:-
Agricultural purposes includes the planting of rubber, cocoa and other trees and plants of economic value;
Customary right of occupancy means the title of a native or native community lawfully using or occupying native lands in accordance with native law and custom;
Easement means a right annexed to land to utilize other land in different holding in a particular manner (not involving the taking of any part of the natural produce of that land or of any part of its soil) or to prevent the holder of the other land from utilizing his land in a particular manner; grazing purposes includes only such agricultural operations as are required for growing fodder for livestock on the grazing area; holder means a person entitled to a right of occupancy and includes any person to whom a right of occupancy has been validly assigned or has validly passed on the death of a holder but does not includes any person to whom a right of occupancy has been sold or transferred without a valid assignment, nor a mortgage, sublessee or sub-underlessee; improvements or unexhausted improvements means anything of any quality permanently attached to the land, directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf, and increasing the productive capacity, the utility or the amenity thereof and includes buildings, plantations of long-lived crops or trees, fencing, wells, roads and irrigation or reclamation works, but does not include the results of ordinary cultivation other than growing produce; Minister means the Minister charged with responsibility for land maters; mortgage shall include a second and subsequent mortgage and an equitable mortgage.
native means a person whose father was a member of any tribe indigenous to Northern Nigeria; non-native means any person other than a native as above defined; occupier means any person lawfully occupying native lands and includes the holder of a right of occupancy; and a native or native community lawfully using or occupying land in accordance with native law and custom and a sublessee or sub-underlessee of a holder; public purposes includes:-
(a) for exclusive Government or native authority use or for general public use;
(b) for or in connection with measures taken against sleeping sickness or with sanitary improvements of any kind, including reclamations;
(c) for or in connection with the laying out of any new, or the improvement of any existing, township, town, village, market, civic centre or Government station;
(d) for obtaining control over land contiguous to any port or river;
(e) for obtaining control over land required for or in connection with planned rural or urban development or
97
settlement;
(f) for or in connection with the laying out of an area of land to be reserved for the purposes of trade or industry;
(g) for obtaining control over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government or a native authority or native authorities;
(h) for obtaining control over land required for or in connection with the purposes of any Corporation or Board established under the provisions of any Act or Law for carrying out any functions of a public nature;
right of occupancy means a title to the use and occupation of land and includes a customary right of occupancy and a statutory right of occupancy but does not include a licence granted under Section 16; sub-lease includes a sub-underlease; statutory right of occupancy means a right of occupancy granted under the provisions of Section 6 or of any written law replaced by this Law whether by the Governor or the Minister or by any public officer or native authority duly authorized and empowered in that behalf.
3.The provisions of this Law shall apply to all rights of occupancy help or granted on or after the date of the commencement of this Law whether or not application for any such right of occupancy has been made before that date under the provisions of any written law replaced by this law.
A person, a family or a community that claims ownership of land before the promulgation of the Land Tenure Law, 1963 or the Land Use Act, 1978 has the onus of pleading and proving how and who first founded the land and when. See Nwankpu vs. Ewulu (1995) 7 NWLR (Pt.407) 269 at page 291 paragraphs B-C and page 299 paragraphs B-C and Ohiaeri vs. Akabeze (1992) 2 SCNJ (Pt.1) 76.
What is the meaning of user In Lawal vs. Dawodu (1972) 8-9 SC 83, Coker, JSC held at pages 121 to 124 as follows:
Concerning the evidence of Sufiano Bale, the Onibassa of Ibassa, it is enough to point out that his evidence was most improbable. He first stated that it was the Olojo of Ojo who gave the plaintiffs people the land on which they farmed at the boundary of his own land with the Olojo but later, under cross-examination, he retracted that and stated that he did not know who gave the Irede people the land which they farmed. We think that by all standards he must be considered an unreliable witness unless there are special circumstances which must be and are indeed spotlighted for holding a contrary view. So with the evidence of the witness Muritalabi Adamu (DW3).
In a case of declaration of title to land, the onus is on the plaintiff to prove by traditional evidence or actual acts of possession or both that he is the owner of the land in dispute. If the evidence of tradition fails and indeed if it is proposed to test the probability of such traditional evidence, recourse must be had to the evidence of actual user and possession of the land in dispute. In the case in hand, the plaintiffs pleaded possession and gave the evidence earlier on set out The Onibassa of Ibasa, a witness for the defence, confirmed that the plaintiffs people are in possession of that portion of the land in dispute on his own boundary. i.e. the south-east. As against all these, the defendant called only one witness, i.e. Gbadamosi Alaka who as (sic) a farmer at Tedi. Then there was the evidence of long possession as given by Ajimuti in Exhibit K and that of Alebiosu in Exhibit L showing the consistency with which the plaintiffs people have always asserted their claims of possession. The learned trial Judge rightly, in our view, made no findings of possession in favour of the defendants but failed, wrongly in our view, to make a finding of possession in favour of the plaintiffs despite the plethora of evidence, indisputable as well as undisputed, manifest in the record. In Lawrence Onyeakaonwu & Ors. vs. Ekwubiri (1966) 1 All NLR 32 at p.35, this Court observed, in similar circumstances, as follows:
Mr. Oputa agreed that Section 145 was against him, and conceded that the onus was on the defendants to prove that the plaintiffs were on the land with the defendants permission, but there was no finding in their favour that they were the owners and entitled to turn the plaintiffs out of the land.
Thus it is conceded that in this case the primary onus of proof on the plaintiffs has been discharged; they have proved sufficient acts of possession to throw the burden of proof on the defendants under Section 145; they have established a prima facie case that they are the owners which the defendants must rebut if they are to avoid judgment for the plaintiffs. So much on the claim for declaration of title. See Aseimo vs. Amos (1975) 2 SC 57.
Traditional history is not the same as traditional evidence. In Kojo II vs. Bonsie & Anor., Privy Council Judgments (1841-1973) by Olisa Chukura, 1980 edition, Lord Denning explained how traditional evidence may be used as root of proving title to a parcel of land in dispute at page 671 as follows:-
Lord Denning who stated the facts set out above, and continued: It is plain that each side claimed the land to have been awarded to his ancestor by virtue of the part played by him in the Abrimoro war and the main issue in the case was, who was right about the history of the matter? If the land was originally given to Atwinahene for his part in the war, nothing since would have deprived him of it. He would not lose it by pledging it and doing nothing about the pledge for 80 years. But he had, of course, to account for the fact that he had not received any of the profits for many years, and he did this by saying that he had parted with it by way of pledge only. He sought to refute the case of the Defendants by saying that the Odikro of Nerebehi admittedly did not take part in the active campaign but only followed up afterwards, and that would not be a sufficient reason for rewarding him with a grant of land. Their Lordships notice that the Judges in the Appeal Court who were in favour of upholding the decision of the Asantehenes B Court, did so on two grounds: first, that it was a decision of fact depending on the demeanour of the witness and almost inviolable on that account; second, that on a review of the evidence it was the correct decision. So far as the first ground is concerned, their Lordships do not think it was the correct approach to this case. Their Lordship notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime.
The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable. That is how both the native Courts approached the matter and their Lordships think they were right in so doing. If both the native courts had come to the same conclusion, the Supreme Court is necessarily called upon to review the evidence and draw its own inferences. It should not start with the presumption that the lowest native Court (here the B Court) is correct because it saw and heard the witnesses, but should rather give weight to the views of the native Appeal Court (here the A Court). In the end, however, it must reach its own conclusion just as a Court of Appeal in England must do, on inferences of fact: See Benmax Vs. Austin Motor Co. Ltd (1955) A.C. 370; (1955) 2 W.L.R. 418; (1955) 1 ALL E.R. 326).”
Possession per se is a weapon of defence not assault. Again in Agboola vs. Abimbola (1969) All NLR 277, Coker, Acting C.J.N. held at pages 280 to 281 as follows:
The resultant position therefore is that although both parties agreed that the radical title to the land belonged to the Oloto Chieftaincy family the appellant rested his case on the conveyance Exhibit D executed in his favour by family whilst the respondent based her claim on the fact of her long possession of the land (by herself and her predecessors-in-title), the documents Exhibit C and F and the purchase receipt Exhibit B (dated the 18th March, 1949) issued by her by the Oloto Chieftaincy family. The conveyance of the appellant, Exhibit D, contains a recital to the effect that the Oloto Chieftaincy family had sold the land to the appellant by virtue of a purchase receipt dated the 8th October, 1938.
To start with, if it is common ground, as indeed it was, that the land originally belonged to the Oloto Chieftaincy family then in order to establish title to the land a party must trace his title to the family. See Thomas vs. Preston Holder (1946) 12 WACA 78. There can be no doubt whatsoever on the evidence before the Registrar that the appellant did so clearly by the conveyance Exhibit D executed in his favour by the Oloto Chieftaincy family. On the other hand, the respondent (or his predecessors-in-title) had no conveyance from the Oloto Chieftaincy family and indeed except for the purchase receipt Exhibit B they had no documents whatsoever evidencing any transfer to them or her of the absolute interests of the Oloto Chieftaincy family.
His Lordship concluded at pages 282 to 283 to wit:
Again, the Registrar of Titles took the view that the respondent has established her title because of the long possession of the land by her and her predecessors-in-title. It is correct that there was evidence which if accepted, as indeed it was accepted, clearly established that the respondent, whether by herself or her predecessors-in-title, had been in possession of this land for a considerable length of time. The Registrar of Titles however erred in regarding the long possession of the respondent as conferring title to the land on her. She had agree that the original owners of the land were the Oloto Chieftaincy family and she must prove in a battle of titles that that family had transferred to her the quantum of interest in respect of which she sought to be registered as the proprietress. In Da Costa vs. Ikomi, SC.733/66 of the 20th December, 1968, we observed dealing with the issue of long possession, vis a vis a claim for title, as follows:
Not only was this not her case as presented to the High Court on her pleadings, but, even if it had been it would have no merit when seeking to rely on long possession to establish effectively a right to a declaration of title against another person who proved a good title from the original owner. Possession may under Section 145 of the Evidence Act give a presumption of ownership, but it does not do more and cannot stand when another proves a good title.
The proceedings before the Registrar were not an action for a declaration of title and even if they were, long possession will only avail as a weapon of defence against an ostensibly clear title but will not by itself constitute a basis of title. See also Ayodele vs. Olumide SC.260/67 of 23rd May, 1969. The Registrar took the view that the respondent had by proving her long possession of the land established an absolute title from the Oloto Chieftaincy family. We have no doubt that this is an erroneous view of the legal position and this ground of disqualification of the appellants title must also fail.
In Bonsi vs. Adjena II (1940) 6 WACA 241 the West African Court of Appeal held at page 241 regarding proof of root of title based on Native Law and Customs as follows:
In this case, the learned Chief Justice in the Divisional Court held that the writ disclosed no cause of action and non-suited the plaintiff on the pleadings without hearing evidence. The plaintiff now appeals to this Court contending that he ought at least to have been allowed to lead evidence to prove the Native Law and Custom upon which he desired to rely. But neither in his writ nor in Counsels opening did he allege any Native Law and Custom, and we cannot too strongly emphasize that where a party intends to set up and rely upon a Native Custom it must be specifically alleged and pleaded. In this case if the rather vague Native Law and Custom suggested to us were set down in black and while it is clear that it would be so palpably absurd as not to merit serious consideration.
We concur with the view of the learned Chief Justice that the writ disclosed no cause of action.
The appeal is dismissed with costs assessed at 17.13pounds.
In Solomon vs. Botchway (1943) 9 WACA 127 Ga Native Law and Custom was relied upon to lay claim to a deceased property. The West African Court of Appeal held at page 134 to 135 to wit:
It has not been suggested to us in argument in the present case, nor does it appear from any of the cases cited to us that the custom makes any distinction between personal and real estate, though there is a distinction between ancestral and self-acquired property. Although in his order in the Cole case the Judge clearly used the expression personal estate in its English legal meaning, i.e. as opposed to real estate, we think it clear that when the Native Tribunal used the expression personal estate in paragraph 6 of their Report they were using it not in that sense but as meaning self-acquired property as opposed to ancestral property. That the custom applies equally to realty as to personalty is shown by reference to the case of Lutterodt and Lutterodt vs. Solomon decided in the Ga mantses Tribunal on the 30th December, 1930, a case in which the Tribunal made an order in favour of children of a six-cloth marriage specifically in respect of realty. It is significant that the very first step the Tribunal took in the Cole case was to enquire as to the nature of the marriage between Coles parents. It is agreed that their enquiries established that it was six-cloth marriage. The ruling of the Tribunal applies only to such marriages.
The customs, then, being clear and settled, there ought to be no difficulty in deciding the present case, but unfortunately the plaintiffs pleadings were so badly drawn that there is difficulty. It is laid down by Rules 3 and 4 of Order 25 in Schedule III to the Courts Ordinance that every pleading shall contain a statement of all the materials facts on which the party pleading relies and that the facts shall be alleged positively, precisely and distinctly. Further, in the case of Bonsi vs. Adjena II (6 WACA 241) this Court said:-
We cannot too strongly emphasize that where a party intends to set up and rely upon a Native Law and Custom it must be specifically alleged and pleaded.
It was obviously incumbent upon the second plaintiff to plead that he and the other children were children of six-cloth marriages and that he relied upon the Accra custom applicable to the children of such marriages. He did neither; instead he described himself and the other children merely as children, and so far as appears on the face of the pleadings any custom which he relied would be a custom applicable to all children as such and not to a restricted class. In this connection, we are of opinion that the learned trial Judge misdirected himself as to the onus of pleading and proof in that passage of his judgment which reads:-
It may be added that the question whether the mothers of the late Vanderpuyes eighteen children were married according to the six-cloth custom was not raised on the pleadings by the defendant; and indeed Mr. Bossman, Counsel for the defendant, never touched upon it.
The onus was clearly upon the plaintiffs to plead and (unless admitted) to prove both the custom and facts which brought the children within the class to which the custom applies. Counsel for the respondents, however, alleges that the case was fought throughout in the lower Court on the assumption that the children were children of six-cloth marriages and he points to a passage in the shorthand notes of his final address to confirm this. Counsel for the appellant denies this. We are of opinion that it is impossible for this Court, and was wrong for the Court below, to act upon mere assumption on such a vital point. In the absence of the proper averments appearing in the pleadings, a note by the Judge recording an agreement by Counsel upon the point is the least that could be acted upon. As matters stand we feel that in the interests of justice the case will have to go back to the Court below for the plaintiffs to be allowed to amend their pleadings by making the averments necessary to establish the childrens claim to an interest in their fathers property, and if they are put to proof of the facts, they will of course have to prove those facts by evidence before they are entitled to a declaration in the form of declaration No.(4) which was given to them in the judgment appealed against. We think that no further evidence or argument is necessary as regards the custom, which, as we have said, we regard as now established; but it should, of course, be pleaded.
See also Nteogwuile vs. Otuo (2001) FWLR (Pt.68) 1076 at 1096-1097; Kolape vs. Alade (1985) 3 NWLR (Pt.12) 352; Ajuwa vs. Odili (1985) 2 NWLR (Pt.9) 710 and Ajani vs. Ladega (1986) 3 NWLR (Pt.28) 276.
In Olayioye vs. Oso (1969) All NLR 271, Coker, Acting, C.J.N. held at pages 274 to 276 as follows:
Concerning the first submission of learned Counsel for the defendant, it is well to point out that on the plaintiffs statement of claim they based their case on the direct purchase of the land from the Oloto Chieftaincy family by Madam Wusamotu Shelle. At the trial, the plaintiffs gave evidence and called witnesses, but the learned trial Judge found as quoted above that they failed to prove this. The pleadings of the plaintiffs did not aver any indirect purchase from that family and the judge was clearly in error in thinking that there was such a claim. In a series of cases constituting a long line of consistent authorities, it has been held that where a plaintiff in an action for declaration of title fails to prove his case the proper order is one of dismissal. (See Kodilinye vs. Odu (1935) 2 WACA 336). In the case in hand, the learned trial Judge non-suited the claim for declaration of title. A non-suit invariably means giving the party that lost another opportunity of relitigating the same case. When it is proposed to make such an order it is only fair to invite addresses from Counsel on both sides so that in the exercise of affording a party another chance, greater injustice is not being done to the other party who equally had fought the contest on the materials before the Court. (See Craign vs. Craign (1957) NMLR 32). We are in no doubt that the proper order on the claim for declaration of title in this case should have been one of dismissal and not a non-suit.
On the second ground of complaint, it is necessary to bear in mind that both parties had already agreed that the original owners of the land were the Oloto Chieftaincy family. Now, on the findings of the learned trial Judge, the plaintiffs had failed to prove that they derived their title from the original owners. In other words, they had failed to establish that they claimed through the true owners of the land. They are at the best squatters. Trespass is a wrong to possession and the rule of law is that a trespasser can maintain an action in trespass against anyone else but the true owner. (See Hemmings vs. The Stoke Poges Golf Club (1920) 1 KB 720). On this basis it is inconceivable that the plaintiff in the circumstances of this case can maintain an action in trespass against the acknowledged owners of the land or any person or persons claiming through them. That without doubt is the position vis a vis the defendant in this case and surely as he holds a conveyance from the accepted owners he cannot be successfully sued in trespass by someone who is himself a squatter. The remedy of injunction will not avail where, as in this case, the plaintiff could not have succeeded in the claim for trespass and both claims should have been as well refused.
The learned trial Judge dealt at length in his judgment with the issue of the long possession of the plaintiffs but, with respect to him, he was in error in employing the plea of long possession as a sword instead of as a shield. A party in long possession is entitled to resist the claims of a rightful owner by pleading his long possession but understandably he cannot make that a basis of a claim in an action instituted at his own instance for a declaration of title as against a true owner. Our attention was drawn by learned Counsel for the defendant to the case of Odutola vs. Akande 5 FSC 142. That was a case relating to the registration of title and should in our view be understood in the light of the arguments put forward therein as it runs counter to the very long line of authorities which we think show the correct view and in which the plea of long possession has always been upheld in favour of the defendant only. (See Da Costa vs. Ikomi SC.733/66 of 20 December, 1968.) In any case, we entertain real doubts as to the correctness of the decision and do not hesitate to differ from it in so far as it is necessary to make it consistent with these authorities.
The appellants ought to have called persons having special means of knowledge on the matters specified in this section under Section 74(a) of the Evidence Act, 2011 to establish that by the usages and tenets of anybody of men or family, land is acquired in the community by the first person, family or community that deforested same in dispute.”Usage” is defined at 1680-1681 in Blacks Law Dictionary, 9th edition as follows:-
Usage 1. A well-know, customary, and uniform practice, usually in a specific profession or business. See CUSTOM (1) Cf. CONVENTION (6) (Cases: Customs and Usages)
A usage is merely a customary or habitual practice; a convention is a practice that is established by general tacit consent. Usage denotes something that people are accustomed to do; convention indicates that they are accustomed to do it because of a general agreement that it is the proper thing to do.
Herbert W.Horwill, The Usages of the American Constitution 22 (1925).
Although rules of law are often founded on usage, usage is not in itself a legal rule but merely habit or practice in fact. A particular usage may be more or less widespread. It may prevail throughout an area, and the area may be small or large a city, a state or a larger region. A usage may prevail among all people in the area, or only in a special trade or other group. Usages change over time, and persons in close association often develop temporary usages peculiar to themselves. Restatement (Second) of Contracts, paragraph 219 (1979).
A tenet is different from a tenement which is a large building divided into several different flats (Latin tenere to hold). See Collins English Dictionary, 2009 edition, page 787. Section 74(a) of the Evidence Act, 2011 refers to the usages and tenets of anybody of men or family not tenement and the nature of the evidence a claimant pleads to prove usages, or tenets as being the opinions of persons having special means of knowledge on the matters specialized in this section and that such opinion evidence are admissible under Section 74(a) of the Act (supra). The tenets of a theory or belief are the main principles on which it is based.” See Collins CoBuild Advanced Learners English Dictionary, 2006 edition, page 1493.
In legal parlance, “tenement” is explained in Blacks Law Dictionary, 9th edition, page 1607 as follows:-
Tenement:- 1. Property (especially land) held by freehold; an estate or holding of land.
Dominant tenement See dominant estate under ESTATE (4).
Servient tenement See servient estate under ESTATE (4).
A house or other building used as a residence. 3. An apartment. 4. TENEMENT HOUSE.
Tenement House A low-rent apartment building, usually in poor condition and at best meeting only minimal safety and sanitary conditions. Sometimes shortened to tenement.
The appellants did not at any moment plead nor show that any of the witnesses testified and prove deforestation and occupation of the land in dispute as the opinions of persons having special means of knowledge on the matter specified in this section, namely Section 74(a) of the Evidence Act, 2011. The result is that no admissible evidence was adduced by the appellants from vital witnesses to establish their claim to the land in dispute as a result of deforestation and settlement under Section 74(a) of the Evidence Act, 2011. A party in litigation cannot appeal on a ground that there was miscarriage of justice when no legally admissible evidence was adduced to prove a material point or points that were absolutely essential for the learned trial Judge to found a decision in his or their favour.
Admissibility of evidence is governed by its relevance. Relevance is determined by the purpose for which the evidence was pleaded and proved at the trial. SeeMusa Sadau vs. State (1968) NMLR 124 at 129; Agunbiade vs. Sasegbon (1968) NMLR 223 at 226 and ACB Ltd. vs. Alhaji Gwagwada (1994) 4 SCNJ (Pt.2) 268 at 277. Where the question to be determined is dependent on the existence of any general custom or right and this includes custom or rights common to any considerable class of persons, Section 73(1) of the Evidence Act (supra) provides that the Court is to utilize the opinions, as to the existence of such custom or right, or persons who would be likely to know of its existence if it existed to be admissible.
Sections 74 of the Evidence Act, 2011 provides the mode of proving (a) usages and (b) tenets of any body of men or family; (c) the constitution and government of any religious or charitable foundation; or (d) the meaning of words or terms used in particular district or by particular classes of people under Section 74 of the Evidence Act postulates that the learned trial Judge should rely on the opinion of persons having special means of knowledge on the matters specified in this section to be admissible under Section 74 of the Evidence Act, 2011. Section 75 of the Act is couched as follows:-
75.When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who as a member of the family or otherwise, has special means of knowledge on the subject, is admissible.
Provided that such opinion shall not be sufficient to prove a marriage in proceeding for a divorce or in a petition for damages against an adulterer or in a prosecution for bigamy.
Last but not the least is the provisions of Section 76 of the Act which reads as follows:-
76. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible.
The provisions of the Evidence Act, 2011 have no application to proceedings conducted in Area or Customary Courts by virtue of Section 256(1)(c) of the Evidence Act, 2011 which reads as follows:-
256(1) The Act shall apply to all judicial proceeding in or before any Court established in the Federal Republic of Nigeria but it shall not apply to:-
(c) Judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary court, unless any authority empowered to do so under the Constitution, by order published in the Gazette, confers upon any or all Sharia Courts of Appeal, Customary Court of Appeal, Area Courts or Customary Court in the Federal Capital Territory Abuja or a State, as the case may be, power to enforce any of all the provisions of this Act.
If the Court of trial is precluded from applying the provisions of any written law or an Act of the Legislature, an appellate Court cannot do likewise. See Aderemi Ogunnaike vs. Taiwo Ofayemi (1987) 1 NWLR (Pt.53) 760 at 767 and 774. This decision does not apply to proceedings emanate from Area Court or Customary Court of Appeals.
There is no substance in issues 3(a) and 3(e) that the appellants formulated for the determination of this appeal. I resolve issues 3(a) and (e) against the appellants.
ISSUE TWO:
Issue two is Issue 3(b) and is argued at pages 5-7 in the appellants brief as follows:-
ISSUE NO. TWO: Whether the parties joined issues on the identity of the disputed land such that the plaintiffs had the onus of proving the boundaries of the land. This 2nd issue is covered by ground 3 of the amended notice and grounds of appeal.
The trial Court held on pages 278-281 of the record of proceedings that the plaintiffs failed to establish with certainty and precision the area of land their case relates and for that reason dismissed their claim. I concede that in land cases, the onus is on the plaintiff or plaintiffs as the case may be, to establish with certainty and precision the identity of the land in dispute. There is however an exception to this rule. Where the identity of the land is not in dispute between the parties and issues were not therefore joined on identity of the disputed land, then the plaintiff is relieved of the burden of proving identity and boundaries of the disputed land. See the cases of Agundo vs. Gberbo (1999) 9 NWLR (Pt.617) 71 at 99; Ezeudu vs. Obiagwu (1986) 2 NWLR (Pt.21) 208; Fatuade vs. Onwoamanam (1990) 2 NWLR (Pt.132) 322; Abodunrin vs. Arabe (1995) 5 NWLR (Pt.393) 77 at 89 and Akanbi vs. Kasandubu (1997) 11 NWLR (Pt.530). In the case at hand, the parties did not join issues on the identity and boundaries of the disputed land. They all agreed on the name, location, size and boundaries of the land in dispute. According to the parties and their witnesses, the name of the disputed land is APULUYAKWO and is situate at Maraban Gurku in Karu Local Government of Nasarawa State.
It was the consensus of the parties that the size of the land is 64 hectares. All these facts were pleaded in the plaintiffs further amended joint Statement of Claim and admitted in 1st defendants further amended statement of defence. Similarly, the 1st defendant filed a counter affidavit dated 20th March, 1997 in response to plaintiffs motion for injunction and stated very clearly that he knows the disputed land, its size, features boundaries and location. The counter affidavit is on pages 43-53 of the record of proceeding. In short, from the totality of evidence before the Court there was no confusion about the identity, boundaries and features on the land. Both parties knew the land they were litigating upon. That being the case, there was no need for evidence to prove concise size, description and features on the land. There was therefore no onus on the plaintiffs to prove all these facts. These issues were not at all raised at the trial. Learned Counsel for the 1st defendant raised these issues for the first time in his oral address. His address to the effect that plaintiffs failed to prove the identity of the disputed land is not supported by any evidence on the record, which is to the contrary. Address of Counsel no matter how beautiful and eloquent cannot take the place of evidence. The trial Court was therefore in grave error when it dismissed the plaintiffs case for the reason that they did not prove the identity of the land in dispute.
Paragraph 5 of the Amended Joint Statement of Claim pleaded that the land in dispute is situated and lying at Abuja Road, Mararaba Gurku in Karu Local Government Area of Plateau State and not Mararaban Gurku in Karu Local Government of Nasarawa State as argued in the appellants brief of argument at pages 5-7. Paragraphs 1-4 of the Appellants Joint Amended Statement of Claim pleaded the following facts:
1. The plaintiffs are farmers and reside in Mararaba Gurku Karu Local Government Council within the jurisdiction of this Court.
2.The 1st defendant is a businessman and resident in Kaduna State.
3. The 2nd defendant is at all times material to this suit the Director-General in charge of lands and survey in the Governors Office in Jos.
4. The 3rd defendant is the Chief Law Officer of Plateau State with Chambers in the Ministry of Justice, Plateau State.
Paragraph 1 of the 1st respondents Amended Statement of Defence and paragraph 1 of the 2nd 3rd respondents Joint Amended Statement of Defence pleaded the following facts:
1. The first defendant admits paragraphs 1, 2, 3 and 4 of the statement of claim.
1. The defendants admit paragraphs 1, 2, 3, and 4 of the statement of claim.
The respondents are from Jos in Plateau State, not Nasarawa State. Paragraphs 16(a)-(c) of the Amended Joint Statement of Claim sought the sundry declarations against the respondents from Jos, Plateau State which is the subject-matter in dispute. No one sets out to prove what has been admitted on the pleadings. See Olale v Ekwelendu (1999) 7 SCNJ (Pt.2) 62 at page 102; Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747 and Ebueku vs. Amola (1988) 3 SCNJ (Pt.2) 207 at 224. What is admitted in the pleadings needs no further proof at the hearing. See Section 123 of the Evidence Act, 2011 which reads as follows:-
123. No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
The land in dispute is that being claimed by the appellants and the 1st and 2nd 3rd respondents in the Court below. See Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 at 622. Between the appellants and the 1st respondent there is no dispute about the location, size and boundaries of the land in dispute. A dispute can only arise on the pleadings. See Fatuade vs. Onwoamanam (1990) 3 SCNJ 200; Ezeudu vs. Obiagwu (1986) 2 NWLR (Pt.21) 208 at 210 and Atolagbe vs. Shorun (1985) 4 SC 250 at 257-258. There is no dispute on the facts admitted by the 1st and 2nd to 3rd Respondents in their respective statement of Defences. Where a case is fought or contested on pleadings, it is no longer necessary to call or rely on the facts in an affidavit to prove what has been admitted in the pleadings. In other words, where a respondent disputes facts pleaded in a statement of claim, a statement of defence but not an affidavit should be filed. See Ege Shipping & Trading Industry Inco. vs. Tigris International Corp. (1999) 11-12 SCNJ 1 at 14.
I am of the candid opinion that the identity, size and location of the land claimed by the appellants and the respondents was no longer an issue for trial before the learned trial Judge. I resolve issue two in favour of the appellants.
ISSUE THREE:
Issue three is argued as Issue 3(c) in the appellants brief at pages 7 to 9 as follows:-
ISSUE NO. THREE: Whether the sale from Bawa Magaji to the 1st defendant is valid in the absence of the consent of either the State Governor or the Local Government depending on where the land is situate. This issue is covered by ground 5 of the amended notice and grounds of appeal.
The 1st defendant based his root of title on purchase from Bawa Magaji. He who asserts must prove. The onus was therefore on the 1st defendant to prove that he bought the land from the said Bawa Magaji, paid the purchase price and was led into possession in presence of witnesses. See Clay Industries vs. Adeleye Aina (1997) 7 SCNJ 491 at 551. That is not all. The 1st defendant must still go further and prove that his vendor has a valid title because such a vendor cannot sell what does not belong to him. That apart, even if there was a sale from Bawa Magaji to the 1st defendant but the consent of the appropriate authority was not sought and obtained; the sale is still invalid, null and void. The onus once more is upon the 1st defendant to prove that the consent of the appropriate authority was sought and obtained else an otherwise valid sale from Bawa Magaji to him without such consent is still null and void.
In Nigeria, land can either be in an urban or rural area. Depending on where the land is situate, the consent of either the State Governor or the Local Government is required before alienation of the land is valid. If the land is situate in an urban area then by virtue of Section 22 of the Land Use Act, consent of the Governor is required before alienation is valid. If on the other hand the land is situate in a rural area, consent of the Local Government is required by virtue of Section 21 of the Land Use Act else the alienation is null and void. Where the land is situate, rural or urban, alienation without consent of either the Local Government or State Governor is null and void. See Section 26 of the Land Use Act. I also refer the Court to the case of Savannah Bank vs. Ajilo (1989) 1 SCNJ 169. See also U.B.N. Plc vs. Ayo Dare (2000) 11 NWLR (Pt.679) 644 and Onamade vs. A.C.B. (1997) 1 NWLR (Pt.480) 123 at 143. In this case, there is no evidence that consent of either the Governor or the Local Government was sought and obtained. The holding of the trial Court on pages 286-287 is to the effect that consent of neither the Governor nor the Local Government was sought and obtained but that such a consent was not necessary because the transaction between Bawa Magaji and 1st defendant was a mere agreement to sell and the consent of Etsu Karu was sufficient for the time being pending when the Local Government or Governors consent is obtained.
With due respect, I submit that the holding that consent of neither the Governor nor the Local Government was required is completely misplaced. The transaction that took place between Bawa Magaji and 1st defendant was not mere agreement to sell but a complete transfer of title from Bawa Magaji to 1st defendant in that Bawa Magaji purportedly transfer title of the land in dispute to 1st defendant who took possession and sold portions to 3rd parties. There was a complete alienation from Bawa Magaji to 1st defendant. By the combined effect of Sections 22 and 21 of the Land Use Act therefore, consent of either the State Governor or the Local Government is required without which the alienation of title to land from Bawa Magaji to 1st defendant is null and void. Assuming but without conceding that Etsu Karu granted any consent to the transaction, such a consent given by the Etsu Karu is of no significance because Etsu Karu is not an authority recognized by the Land Use Act to grant consent for alienation of land. The only authorities permitted by law to give consent for alienation of land whether in an urban or rural area is either the State Governor or the Local Government. I submit therefore, that the sale from Bawa Magaji to 1st defendant in so far as it amounts to an alienation of land without either the Local Government or Governors consent is null and void. I urge this Honourable Court to so hold, reverse the decision of the lower Court and hold that the purported sale of the land in dispute by Bawa Magaji to 1st defendant is null, void and unenforceable.
Sections 131-133 of the Evidence Act, 2011 provides as follows:-
131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to a any presumption that may arise on the pleadings.
(2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
The appellants failed woefully to establish how they were lawfully in occupation of the land under customary law, custom or deforestation by usage and tenets of the locality where the land in dispute is situate as provided in Sections 68-70 and 74(a) of the Evidence Act, 2011. The appellants did not plead the customary law or custom of the people or plead their respective tribes through whom they claim the land in dispute. The name of the tribe or community where deforestation and settlement on land passes title or ownership under that customary law, custom, usages or tenets of the indigenous community were not pleaded by the appellants. The appellants lack the locus standi to challenge the transaction by the 2nd and 3rd respondents in passing title/ownership and possession of the land to the 1st respondent. The appellants are busy bodies who seek to interfere with the grant of the land to the 1st respondent in exercise of the statutory functions of the 2nd 3rd respondents as provided in Section 5(1)-(2) of the Land Use Act, 1978 which reads as follows:-
5(1) It shall be lawful for the Governor in respect of land, whether or not in an urban area to:-
(a) grant statutory rights of occupancy to any person for all purposes;
(b) grant easements appurtenant to statutory rights of occupancy;
(c)demand rental for any such land granted to any person;
(d) revise the said rental:-
(i) at such intervals as may be specified in the certificate of occupancy; or
(ii) where no intervals are specified in the certificate of occupancy at any time during the term of the statutory right of occupancy;
(e) impose a penal rent for a breach of any covenant in a certificate of occupancy requiring the holder to develop or effect improvements on the land, the subject of the certificate of occupancy, and to revise such penal rent as provided in Section 19 of this Act;
(f) impose a penal rent for a breach of any condition, express or implied, which precludes the holder of a statutory right of occupancy from alienation the right of occupancy or any part thereof by sale, mortgage, transfer of possession, sublease or bequest or otherwise howsoever without the prior consent of the Governor;
(g) waive, wholly or partially, except as otherwise prescribed, all or any of the covenants or conditions to which a statutory right of occupancy is subject where, owing to special circumstances, compliance therewith would be impossible or great hardship would be imposed upon the holder;
(h) extend except as otherwise prescribed, the time to the holder of a statutory right of occupancy for performing any of the conditions of the right of occupancy upon such terms and conditions as he may think fit.
(2) Upon the grant of a statutory right of occupancy under the provisions of Subsection (1) of this section, all existing rights to the use and occupation of the land, which is the subject of the statutory right of occupancy, shall be extinguished.
See Attorney-General of Kaduna State vs. Hassan (1985) 1 NWLR (Pt.8) 483 at page 496; Frank vs. Abdu (2003) FWLR (Pt.158) 1330 at page 1350.
The issue of locus standi, busy bodies, or meddlesome interlopers can be raised at any time during the trial or on appeal. See Adefulu vs. Oyesile (1989) NWLR (Pt.122) 377 at 409; Oredoyin vs. Arowolo (1989) 7 SCNJ 60 at 69-70 and 75 and Oloriade vs. Oyebi (1984) 1 SCNLR 390.
I resolve issue three (3(c)) against the appellants.
ISSUES FOUR AND FIVE:
Issue four at page 9 to 11 and is couched as issue 3(d) at page 2 of the appellants brief to wit:
ISSUE NO. FOUR: Whether the plaintiffs were given a fair hearing and if not whether the decision of the trial Court in Suit No.PLD/k.11/1995 can be sustained. This issue is covered by ground 6 of the amended notice and grounds of appeal.
When the case came up on the 26th March, 1998, D.W.4 gave evidence and at the end of his evidence Counsel to 1st defendant sought an adjournment for continuation of defence and the case was adjourned to 14th April, 1998 for continuation of defence. On the 14th April, 1998, D.W.5 gave evidence at the end of which Counsel to 1st defendant again sought an adjournment to enable him bring his last witness. The Court obliged him an adjournment and the case was further adjourned to 10th June, 1998 for 1st defendants last witness to be taken but on the said date the witness was not taken and the case was further adjourned to 27th July, 1998 for continuation of defence. However, on the 27th July, 1998, 1st defendant did not call his last witness but instead closed his case and proceeded to make an oral address after which the Court adjourned the case for plaintiffs Counsel to reply to 1st defendants oral address. When the case came up on the 10th August, 1998 by which time Courts vacation had commenced, plaintiffs Counsel was sick and absent in Court.
Though Counsel to the defendants conceded an application for an adjournment to enable plaintiffs Counsel appear in Court and address the Court, Counsel to 2nd and 3rd defendants, who did not himself make oral submissions but rather adopted the oral submissions of Counsel to 1st defendant, applied that Counsel to plaintiffs submit written address and the Court so ordered and the case was adjourned for judgment. I submit with due respect that the procedure adopted by the trial Court for the purpose of addresses of Counsel to the parties was a denial of fair hearing on the part of the plaintiffs. Whereas Counsel to 1st defendant was afforded the opportunity to deliver an oral address in open Court on behalf of his client, Counsel to plaintiffs had no such opportunity. Counsel to 2nd and 3rd defendants on his own elected not to address the Court and adopt the oral address of Counsel to 1st defendant. By virtue of Order 48 Rule 4(2) High Court (Civil Procedure) Rules, Plateau State applicable to Nasarawa State, the month of August is a vacation period and where a Court sits during vacation such a proceeding conducted during the vacation is a nullity. See Mil Gov. Lagos State vs. Adeyiga (2003) 1 NWLR (Pt.802) 589 at 610.
That being the case, I submit that the proceeding of 10th August, 1998, being within the vacation period wherein plaintiffs Counsel was ordered to submit written address is null and void. That apart, the High Court Civil Procedure Rules of Plateau State as applicable to Nasarawa State made no provision for a written address. Indeed an order directing a party to file a written address is a denial of fair hearing in that such a party has been denied the opportunity to be heard in open Court in respect of his case. One of the attributes of fair hearing is that the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing. See Kotoye vs. C.B.N. (1989) 1 NWLR (Pt.98) 419 and Deduwa vs. Okorodudu (1976) 10 SC 329. In the first place, it was not the plaintiffs Counsel that requested for written address. It was Counsel to 2nd and 3rd defendants who himself did not address the Court that applied that plaintiffs Counsel be ordered to submit written address. A party who submits written address cannot be said to be heard in public in open Court. That is why written address is a denial of fair hearing as guaranteed by Section 33 of the 1979 Constitution which provides that hearing should be in public in open Court. See Onagoruwa vs. I.G.P. (1991) 5 NWLR (Pt.193) 593 and Aminu Mikal vs. State (2001) 8 NWLR (Pt.715) 469 at 483-484. In this case, whereas Counsel to the defendants had the opportunity of oral address in open Court, that was not the case of Counsel to the plaintiffs who was not even given the opportunity to adopt the written address in open Court before judgment. Where a party to a proceeding is denied fair hearing, such a proceeding no matter how well conducted is null and void. See Garba vs. University of Maiduguri (1986) 1 NWLR (Pt.18) 550. I urge this Honourable Court to on the strength of this submission declare the entire proceeding in suit No.PLD/K.11/1995 null and void and set aside same.
ISSUE FIVE:
The appellants argued issue five in their Joint Brief of Argument as follows:
ISSUE NO FIVE: Whether the plaintiffs proved their case against the defendants and are therefore entitled to judgment as per their claims in paragraph 18 of the Further Amended Joint Statement of Claim. This issue is covered by Grounds 1 and 4 of the Amended Notice and Grounds of Appeal.
I have argued that the purported sale from Bawa Magaji to 1st defendant is null and void. I adopt this, my earlier submission and urged the Court to hold that 1st defendant acquired no valid title from Bawa Magaji. If in the first place there was no sale from Bawa Magaji to 1st defendant, he cannot put up a claim to the disputed land. As for the plaintiffs, they all traced their roots of title to their grand fathers who first founded the lands before it devolved to their fathers and finally unto themselves. Their grand fathers and later their fathers all exercised acts of ownership and possession before they inherited the lands and themselves exercised acts of ownership and possession consistently until Bawa Magaji told them that the Government wanted to acquire the lands and they for that reason vacated the land. However, the Government did not take over the lands but rather Bawa Magaji purportedly sold the same to 1st defendant who illegally took possession of same. This possession by 1st defendant based on a dubious sale by Bawa Magaji is at best an act of trespass and confers no title upon the 1st defendant who ab initio acquired no valid title. Plaintiffs on their part proved their title by way of traditional history and acts of possession being two of the 5 ways of prove of title. Prove by one of the two ways is sufficient. 1st defendant on the other hand based his root of title on purchase from Bawa Magaji. He who asserts must prove.
The onus was upon 1st defendant to prove the sale, which he asserted but failed to do so. Apart from failure to obtain consent, which renders the sale invalid, 1st defendant did not in the first place prove sale. In the first place D.W.1 said the land in dispute is family land and the vendor Bawa Magaji has 3 surviving brothers among who is Kushenu Magaji the 5th plaintiff. However, from the evidence before the Court, Bawa Magaji sold disputed land to 1st defendant in his individual capacity. There is no evidence that he had the authority to sell family land. That perhaps explained why the 5th plaintiff, his brother and a member of the family challenge the sale. Where an individual sells family land without the consent of the other family members, the sale is null and void. See Odekilekun vs. Hassan (1997) 12 NWLR (Pt.531) 56 at 70-71. To further confirm that the sale from Bawa Magaji to 1st defendant is a dubious sale of what does not belong to the vendor, the land of the 9th plaintiff was initially included in the land sold to 1st defendant until same was later excised from the land in dispute. These facts cast doubts on the purported sale from Bawa Magaji to 1st defendant.
It is a confirmation of the fact that Bawa Magaji do not own the land he purportedly sold to 1st defendant and do not know with certainty the area of land he sold to 1st defendant. That apart, the father of Bawa Magaji from whom Bawa Magaji was alleged to have inherited the land from though alive, was not called to give evidence. If his father was still alive, the land belongs to his father until his father is no longer alive before he inherits same. At best, he sold what does not belong to him but his father. He cannot sell what does not belong to him. Similarly, though the father of Bawa Magaji and grand father to D.W.1 was still alive, D.W.1 and not his grand father was called to tell the Court what his grand father told him. The evidence of DW1 is at best hearsay and inadmissible. If the evidence of DW1 is expunged, then the evidence of the root of title of 1st defendants vendor is lacking and 1st defendant cannot be said to establish that his vendor has valid title to pass unto him. 1st defendant must not only prove that his vendor actually sold disputed land to him but had he has a valid title to pass unto him. In any case Exhibit 2 the Sale Agreement did not identify with clarity the portion of land sold to the 1st defendant. It did not even specify the location of the land, I submit that the land referred to in Exhibit 2 is unknown. It cannot by any means be assumed that the subject matter of Exhibit 2 is same as the land now in dispute between the parties without any evidence linking both lands. There is no such evidence. All these facts go a long way in disproving the assertion of 1st defendant that Bawa Magaji sold the land to him. These are weaknesses in the case of the 1st defendant, which supports the case of the plaintiffs and they are entitled to rely on the weaknesses of the defendants case, which support their case. See Yusuf vs. Kode (2002) 6 NWLR (Pt.762) 231 at 262 paragraphs A-C.
In any case the 1st defendant cannot rely on long possession if he fails to prove his root of title, which is purchase from Bawa Magaji. See Fasoro vs. Beyioku (1988) 2 NWLR (Pt.76) 263. Where there is no valid sale, the possession of 1st defendant is at best on act of trespass, which cannot amount to title on his part.
On the whole, I submit that putting the entire evidence on an imaginary scale, that of the plaintiffs weigh heavier on the balance of probability than that of the defendants and they are entitled to judgment as per their claims in paragraph 18 of the further amended joint statement of claim.
I do not need to refer to the arguments of the 1st and 2nd-3rd respondents as issue five does not contain any points of substance.
There is no paragraph 18 in the Amended Joint Statement of Claim settled by the appellants learned Counsel Golching, S. Yilyok, Esq. of G.S. Yilyok & Company (plaintiffs Solicitors) of No.11 Rwang Pam Street, Jos. See page 111-114 of the printed record. The appellants have not shown that issue five arose from any of the grounds of appeal in the Further Amended Notice of Appeal filed on 17th September, 2015 and deemed proper on 11th April, 2018. Issue five is struck out.
I shall not quote or refer to the reply of the 1st respondent in the brief at page 16 paragraph 7.00 to page 19 paragraph 7.11 for reasons I proffered at the beginning of my decision-making. The 2nd and 3rd respondents reply is at page 2 paragraph 2.4 to page 8-9 paragraph 5.4 of the Amended Brief of Argument. I do not need to quote or reproduce the reply for reasons I had earlier given.
The appellants seek the following reliefs from the Court of Appeal in their Further Amended Notice of Appeal filed on 17th September, 2015 and deemed proper on 11th April, 2018:-
(a) Set aside the decision of the lower Court and enter judgment for the plaintiffs or;
(b) Set aside the decision of the lower Court and order a retrial.
Order 1 Rule 1 of the Court of Appeal Rules, 2016 provides that These Rules may be cited as the Court of Appeal Rules, 2016 and shall come into force on the 1st day of December, 2016 thereby repealing the Court of Appeal Rules, 2011. Order 1 Rule 3 of the 2016 Rules provides as follows:
3.The practice and procedure of the Court shall be as prescribed by these Rule notwithstanding any written law or rule of practice to the contrary obtaining in any of the States.
The Court of Appeal Rules, 2016 derive their potency from the provisions of Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as altered which is couched as follows:-
249. Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.
The Court of Appeal Rules, 2016 have constitutional flavour. SeeKalu vs. Odili (1992) 6 SCNJ 76 at page 96
From the coming into effect of the Court of Appeal Rules, 2016 on 1st December, 2016, Justices of the Court of Appeal are constitutionally bound to hear appeals and come to a decision based on the provision of Order 4 Rule 9(1)-(5) of the Court of Appeal Rules, 2016 which provides as follows:-
Order 4 Rules 9(3) of the Court of Appeal Rules, 2016 provides as follows:-
9(3)A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in paragraph (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.
The onus is on the appellants to establish that the issues raised as arising from any or all the grounds of appeal are such that this Court may make an order for a new trial or set aside a verdict, finding or judgment of the Court below under Order 4 Rule 9(1) of the Rules. Alternatively, that in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned under Order 4 rule 9(2) of the Rules. The third option is for the appellants to convince this Court why a new trial may be ordered on any question without interfering with the finding or decision on any other questions, and if it appear to the Court that any such wrong or miscarriage of justice as is mentioned in sub rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to that party or those parties only, and give final judgment as to the remainder.
The legal implication of Order 4 Rule 9(2)-(3) of the Court of Appeal Rules, 2016 is that the Court of Appeal is to interfere with the verdict of the Court below where the appellants are able to convince the Justices that heard this appeal that substantial wrong or miscarriage of justice has been thereby occasioned under Order 4 Rule 9(1) but nevertheless, the Court of Appeal Justices may not order a new trial but excise the aspect of the verdict that a substantial wrong or miscarriage of justice was established by the appellants and give final judgment as to the remainder of the admissible evidence on the printed record. This is known as the principle of the Blue Pencil Rule codified in statutory form.
The “Blue Pencil Rule” is explained in Blacks Law Dictionary (supra) at page 196 to wit:-
Blue Pencil Test A judicial standard for deciding whether to invalidate the whole contract or only the offending words. Under this standard, only the offending words are invalidated if it would be possible to delete them simply by running a blue pencil through them, as opposed to changing, adding, or rearranging words The Blue Pencil Rule has been applied in a plethora of the decisions of the Supreme Court. See Ezekpelechi & Ors. vs. Ugoji (1991) 7 SCNJ (Pt.2) 196 at page 258; Onifade vs. Olayiwola (1990) 11 SCNJ 10 at page 22 and Onojobi vs. Olanipekun (1985) 4 SC (Pt.2) 156 at page 163 Ugo vs. Obiekwe (1989) 2 SCNJ 95 at pages 103-104.
The effect of these authorities is that it is not in all or every case that an appellant establishes a substantial wrong or miscarriage of justice that the Court of Appeal will interfere with the findings or verdict of the Court below. When the appellants have established that there was a substantial wrong or a miscarriage of justice by the lower Court, the Court of Appeal, applying the Blue Pencil Rule is to excise the offensive parts of the verdict and give final judgment on the remainder of the admissible evidence that proved the matters in controversy. But, if, upon applying the Blue Pencil Rule, the Court of Appeal is of the opinion that the remainder of evidence did not prove the matters in controversy, the appeal would be allowed and the final judgment Rule will be invoked to set aside the verdict of the learned trial Judge and the claims of the plaintiffs or respondents would be dismissed.
The dismissal will be on the merit and constitute the judgment or decision of the Court below. In Chief Bola Ige vs. Dr. Victor Omololu Olunloyo & Ors. (1984) 1 SC 254, Obaseki, JSC observed at pages 268-269 as follows:
“Being aggrieved by the decision of the election panel of the High Court of Oyo State, the petitioner appealed unsuccessfully to the Federal Court of Appeal. The respondents also appealed against the minority judgment to the Federal Court of Appeal. This was an unusual step and an uncalled for exercise. A dissenting judgment or minority judgment as it is sometimes called is not the judgment of the Court under our 1979 Constitution. It is the judgment of the majority that is the judgment of the Court. See Section 258(3) of the Constitution of the Federal Republic of Nigeria, 1979. The Federal Court of Appeal quite rightly and properly held that the cross-appeal is incompetent and dismissed it. That Section 258(3) reads:
A decision of a Court consisting of more than one judge shall be determined by the opinion of the majority of its members.
There is no right of appeal against the minority or dissenting judgment.
The right of appeal granted by the 1979 Constitution is against the decision of the Court which means the opinion of the majority of the Judges constituting the Court. See Section 220(1) and (2) of the 1979 Constitution.
See Obasi Bros. Co. Ltd. vs. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt.929) 117 at page 128 and Rankin Udo & Ors. vs. Mbian Obot & Ors. (1989) 1 NWLR (Pt.95) 59 at page 72 or (2005) 2 SCNJ 272 and 279.
The final decision of the Court of Appeal should always be striking out of an appeal does not amount to a final decision or a decision on the merit as the parties can re-litigate the controversy in a Court of competent jurisdiction. InPaul Cardoso vs. John Bankola Daniel & Ors. (1986) All NLR 317 per Coker, JSC held at page 337 as follows:
Be that as it may, the Courts had to be saddled with the task of making these investigations, leading to these proceedings. In the end the investigation narrowed itself to a re-assertion of the principles of binding force of precedents, often called stare decisis principles which have been maintained over the years, being held salutatory for the certainty of the law, (see Davis vs. Johnson (1978) 2 WLR 553 at 577 H.L.; (1978) 2 WLR 182 C.A). The Courts are jealous of these principles and would not lightly tolerate interference with them. (See Board of Customs & Excise vs. J.B. Bolarinwa (1968) NMLR 350, Young vs. Bristol Aeroplane Co. (1944) 2 All E.R. 293; Osumanu vs. Amadi 12 WACA 437; Cassel & Co. Ltd. vs. Broome & Anor. (1972) 2 WLR 645 at 653. The words of Lord Hailsham of St. Marylebone, L.C. in Cassel vs. Broome (supra) are sufficiently incisive and sharp enough to remind all Courts of the necessity of keeping rigidly to the rules of stare decisis. He had this pointed rebuke for the Court of Appeal when that Court (per Lord Denning, M.R., Salmon and Phillimore) dared to criticize the decision of the House of Lords in Rookway vs. Barnard (1964) A.C. 1129 as being wrongly decided. He said at page 653:
The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of Courts which exists in this country, it is necessary for each.
lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in Young vs. Bristol Aeroplane Co. Ltd. (1944) K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom.
With respect, I entirely agree that this rebuke was well deserved. Nothing but anarchy and chaos will emerge where a lower Court chooses to ignore the decision of a higher Court or refuses to follow the decision. It is this spirit that Jibowu, Ag. F.C.J., held, in Jalo Isamiya vs. Bauchi Native Authority (1957) NRNLR 73 that a High Court must follow the decision of the West African Court of Appeal even if it considers the decision to be given per incuriam.
In U.T.C. vs. Pamotei (1989) 3 SCNJ 79 Uwais, JSC held at pages 92-94 as follows:
In the present case the defendants solicitor was aware that the summons for judgment had been filed by the plaintiffs and attempted to attend the proceedings but was held-up by traffic. Secondly, soon after the summary judgment was given the defendant filed an application to set it aside. He did not enter into any negotiation to settle the summary judgment as was done in Spiras case. Thirdly, the difference in procedure ought to be taken into consideration. In England the application under our Order 10 for summary judgment would go before a master and when the master decides, the aggrieved party can appeal to a Judge who could have reversed the decision of the master. In our case although Order 10 Rule 1 refers to the application being taken to a Judge in Chambers, it is the Judge of the High Court (and not a master and a Judge that acts in both capacities and could himself, therefore, exercise the power to set aside the summary judgment.
Furthermore, the summary judgment given in the present case cannot be judgment on the merits, but a default judgment. What constitutes a judgment on the merits had been defined by Oputa, JSC in Paul Cardoso vs. John Bankole Daniel & Ors. (1986) 2 NWLR 1 at page 45 where he observed as follows:
A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines, on an issue either of law or fact, which party is right.
Order 10 Rule 1 envisages that after the plaintiff applied for liberty to enter judgment, the defendant would show that it had either a good defence or it was in possession of facts which would entitle it to defend the action generally. There is no doubt that from the facts averred in the statement of defence and the affidavit sworn to in support of the application to set aside the summary judgment, the defendant disclosed sufficient facts which would entitle it to defend the action. The facts can only be made available to the learned Judge by their being sworn to in an affidavit by the defendant as required by Order 10 Rule 3. If follows that the manner or form, laid down by Order 10, of showing defence to the claim, which was open to the defendant, had not been followed although the defendant had a good defence. In that event, can it be said that the summary judgment obtained by the plaintiffs is a judgment on the merits or a default judgment since the defendant missed the opportunity to file the affidavit although he was in possession of facts that would entitle him to defend the action? In view of the above dictum of Oputa, JSC, I am of the opinion that as far as the defendant is concerned, the summary judgment obtained by the plaintiffs is a default judgment and is, therefore, of the class of default judgments that can be set-aside under Order 24 Rule 15.
In Spiras case (supra) though Du Pareq, L.J., held that absence in Court is not default, he appear to accept the view that a summary judgment can be set aside when it is shown that the defendant failed to appear in Court to show cause through no fault of his own. For he observed on page 927 thereof as follows:
I think that when one looks at the terms of R.S.C. Order 27 Rule 15, what is contemplated there is a failure to do something that a litigant is directed to do either by R.S.C. Order 27, or by one of the other Orders. When one looks at R.S.C. Order 14 Rule 1 far from finding anything, the rule only says that the judge can order that the plaintiff should sign judgment – unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally
There is no direction to the defendant. All that is said is that if he does not satisfy the judge that he has a defence, judgment shall be signed against him. It seems to me conceivable that cases of hardship may arise. There is a special provision for a defendant who fails to appear at the trial, it may be through no fault of his own. In such a case the Court can intervene and set aside the judgment, on terms, though nothing wrong had been done by the plaintiffs
For case of reference Order 27 rule 15 of the English Rules of Supreme Court read at the time of the decision in Spiras case, as follows:
Any judgment in default, whether under this Order or under any Order of these Rules, may be set aside by the Court or a Judge, upon such terms as to costs or otherwise as such Court of Judge may think fit, and where an action has been set down on motion for judgment under Rule 11 of this Order, such setting down may be dealt with by the Court or a Judge in the same ways as if judgment in default has been signed when the case was set down.
To remove the procedural gap or injustice and anomaly created by the decision in Spiras case, which was that every judgment in default or a judgment given in the absence of a defendant under Order 14 could not be set aside, except to be appealed against to a Judge, Order 14 Rule 11 was added to the English Rules of Supreme Court in 1962 See p.161 of Volume 1 of the Supreme Court Annual Practice, 1979 (White Book). The new rule reads:
14.11 Any judgment given against a party who does not appear at the hearing of an application under Rule 1 or Rule 5 may be set aside or varied by the Court on such terms as it thinks just.
In the light of the foregoing, would it be right for our Courts to allow themselves to be guided or persuaded by the decision in Spiras case which is capable of causing hardship and injustice? I think not, since the decision is merely persuasive and not binding on the Courts. To the extent I am of the opinion that the Court of Appeal was wrong in following the decision in Spiras case.
Karibi-Whyte, JSC held at page 109 as follows:
It seems not to have been appreciated that the rules enabling entry of summary judgment are limited to the cases where the application before the Judge entitled the plaintiff to the remedy, i.e. where there is no room for doubt of the liability of the defendant. The moment the rules cease to apply because summary judgment could not be entered even on the ground that there is default on the part of the defendant, such as that he was not heard or because that there was a good defence or a triable issue, or where a difficult question of law is invoked enabling him to defend; Order 10 cases to be applicable. In all cases where the defendant has shown he has a bona fide defence, Order 10 procedure ceases to be applicable.
His Lordship stated at page 112 as follows:
The consequence of a contrary decision is to deprive the defendant of opportunity of putting forward his defence, at this stage, which is available, when he is ready and willing to do so. It is a well established principle that the duty of the Court is to decide the rights of the parties and not to punish them for errors, if any, in the conduct of their case by deciding otherwise than in accordance with their rights. Hence where the defendant has a good defence, and is willing and ready to defends the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence has been brought. The rules are designed to assist the parties in putting forward their case before the Court. They are not intended to deny parties of the opportunity of presenting their case thereby resulting in injustice.
The next action by the defendant is to file his statement of defence in accordance with Order 18 Rule 6 of the High Court (Civil Procedure) Rules (Cap.52) of Lagos State. If he is out of time to apply for extension of time to do so.
Oputa, JSC held at page 119 as follows:
In Cardoso vs. Daniel & Ors. (1986) 2 NWLR 1 at page 45, I dealt with the meaning of judgment on the merit. I will now probe that issue further. In an old case, the great Lord Mansfield observed:
To be sure the Court regularly adhere to regular judgment, if in support of the merits and justice; but if against the merits and justice they always get rid of the mere formality of them Lord Mexborough vs. Sir John Delaval (1774) Lofft 310. In the above dictum, Lord Mansfield allowed merits and justice to go hand in hand. Lord Penzance, almost a century after, gave an idea of where not to look for justice:-
The spirit of justice does not reside in formalities, or words, nor is the triumph of its administration to be found in successful picking a way between the pitfalls of technicality. After all, the law is, or ought to be but the handmaid of justice, and inflexibility, which is the most becoming robe of the former, often serves to render the latter grotesque. But any real inroad upon the rights and opportunities for defence of a person charged with a breach of the law, whereby the certainty of justice might be imperiled, I conceive to be a matter of the highest moment Combe vs. Edwards (1878) L.R. 3P.D. 142.
In his ruling that prompted these appeals, Longe, J., maintained that a judgment heard on its merits serves a better chance to convince a reasonable man that justice had been done than one obtained by summary judgment even though the Rules support such step What then is the meaning of hearing on its merit or judgment on merits A judgment on merits is one rendered after argument and investigation, and when it is determined, which party is in the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical point, or by default and without trial. A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues in controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits. A judgment on the merits is therefore one arrived at, after considering the merits of the case the essential issues, the substantive rights presented by the action, as contra-distinguished from mere questions of practice and procedure.
The above distinction is very clearly brought out by Lord Broen in Cropper vs. Smith (1884) Ch.D. 700 at 710:-
I think it is a well-established principle that the object of Court is to decide the rights of the parties and not to punish them for mistakes they may make in the conduct of their cases by deciding otherwise than in accordance with their rights Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy It was said by Mr. Barber in his very powerful speech to us you are taking away an advantage from the plaintiffs who have got judgment below by making an amendment at the last moment. In one sense we should be taking away an advantage from them, but only an advantage which they have obtained by a mistake of the other side, contrary to the true bearing of the law on their rights of the parties.
A judgment on the merits is thus one that take cognizance of the true bearing of the law on the rights of the parties where pleadings have been filed, issues are settled on those pleadings and the rights of the parties are decided on the resolution of those issues. Where this happens, the ensuring judgment is on the merits. But where as in this case the judgment set aside by Longe, J., was obtained by and because of the failure of the defendant to file its affidavit as prescribed by Order 10 Rule 3 Lagos High Court Rules, then the ensuring judgment was one obtained because of the default of the defendant to comply with said Order 10 Rule 3. In my humble view, such a judgment is certainly a judgment in default and by default. It is a default judgment and not a judgment on the merits of this case as pleaded in the plaintiffs Statement of Claim and the Defendants Statement of Defence.
There is a wall of difference between striking out an appeal and dismissing same on the merit. InOgbechie vs. Onochie (1988) 2 SCNJ (Pt.1) 170, Oputa, JSC held at pages 194-195 as follows:-
An order for dismissal made by the Court of first instance was based on the credibility of the witness the trial Court saw, heard and either believed or disbelieved. From what he saw and heard, the learned trial Judge was not satisfied that the claim for a declaration of title had been proved. Can an appellate Court in a case like this, a case turning on the credibility of witnesses, substitute its own satisfaction for that of the trial Court? Of course the answer is a positive unhesitating No. No, it cannot.
Secondly, an order of dismissal puts an end to the claim, while an order for a non-suit or an order striking out, keeps the claim alive. Interest rei publicae ut sit finis litium (Co. Litt. 303). (It is in the interest of all that there should be an end to litigation). The power to order a non-suit should be very carefully and very sparingly used otherwise the Courts will create a situation where there no longer can be any finality to litigations. The West African Court of Appeal sounded a similar warning in Dawodu vs. Gomez (1947) 13 WACA 151 at page 152. It is only if, and where the interest of justice so dictates and/or demands that an order for a non-suit may be considered. This Court considered non-suit the appropriate order to make in Ekpere & Ors. vs. Aforije & Ors. (1972) 1 All NLR (Pt.1) 220 and in Oloriode vs. Oyebi (1984) 1 SC NLR 390. In both cases, the central issue was the locus standi of the plaintiffs whose individual interests were different from the interest of the clan or family that holds the radical title. There were not made parties. So in the interest of justice a non-suit was ordered in each state.
Thirdly, for a non-suit or striking out to be ordered the appellants complaint against the judgment of the lower Court must have first been upheld. In Ekperes case (supra) as well as in Oloriodes case the appeal was allowed before the order of non-suit was made. In this case, now on appeal, it was Ground 1 that attacked the judgment of the trial Court that that Court erred in law in refusing to grant a declaration of title in favour of the plaintiffs in respect of the land in dispute. In his lead judgment Omo-Eboh, JCA readily agreed that the trial Judge in refusing to grant the plaintiffs/appellants the declaration they sought acted rightly and well within the discretion allowed him by law. He went further to say that Ground 1 failed. Where, and when a judgment of the lower Court (or part of it) has been unsuccessfully assailed on appeal, the judgment appealed against remains intact. With the failure of Ground 1, the judgment of Unurhoro, J., appealed against on that ground remains intact. The Court of Appeal with the greatest respect, had no right to uphold the decision of the trial Court dismissing a claim and then turn round to make a consequential order which was anything but consequential. An order of dismissal is consequential to the failure to establish the title pleaded. An order for a non-suit or striking out is inconsistent rather than consequential.
Fourthly, an order of striking out, or of a non-suit, is usually made in the interest of justice. Now justice in civil proceedings is not a one way traffic. It is not justice for the plaintiffs/appellants alone. No. It is also justice for the defendants/respondents. Striking out the claim for a declaration will be of immense advantage to the losing plaintiffs (who can thereafter proceed afresh) without any corresponding advantage to the winning defendants/respondents in the Court of Appeal. Justice that is not even handed is not justice. It may be injustice. The Court of Appeal showed some sympathy for the plaintiffs but as I observed in Willoughby vs. International Merchant Bank (1987) 1 NNWLR 105 at page 132, justice should do far better without the bandage of prejudice or sympathy around her eyes.
Fifthly, when a case is heard on its merits with all necessary parties before the Court, in such a situation if the plaintiff fails to prove his case, the verdict should be one of dismissal and not striking out or a non-suit. See Olayioye vs. Oso (1969) 1 All NLR 281. This was also what happened in Chief Abusi David Green vs. Chief Dr. E.T. Dublin Green (1987) 3 NWLR 481 where this Court held that where a plaintiff has completely failed to prove his case, the proper order to make it that of dismissal of the suit and not that of striking out the suit in order to give the unsuccessful plaintiff a second chance to prove what he had failed to prove in the fist trial. Giving the plaintiffs/appellants here a second chance by striking out their claim for a declaration of title will certainly be to the prejudice of the defendants whose version of traditional history was found by the trial Court to be more probable
The legal effect of the provisions of Order 4 Rules 9(1)-(3) of the Court of Appeal Rules, 2016 will be that the Court of Appeal Justices are to apply the Blue Pencil Rule, excise the part of the decision that is substantially wrong or that led to a miscarriage of justice in the lower Court, but render or give final judgment in favour of the party that was entitled to the decision of the Court of Appeal on the merit. The Court can do this by a consideration of the pleaded facts, evidence and exhibits, etc, contained in the record of appeal as argued in the briefs of argument. That is the purport of Order 8 Rules 7 of the Court of Appeal Rules, 2016 which provides as follows:-
7.Every Record of Appeal shall contain the following documents in the order set out:-
(a) the index;
(b) a statement giving brief particulars of the case and including a schedule of the fees paid;
(c) copies of the documents settled and compiled for inclusion in the record of appeal;
(d) a copy of the notice of appeal and other relevant documents filed in connection with the appeal.
Another principle of law that is an adjunct to the Blue Pencil Rule and the Final Judgment Rule is that it is not every error or mistake a trial or an intermediate appellate Court commits that is capable of setting aside the overall verdict of the decision in favour of the appellants. See Amayo vs. Erinmwingbovo (2006) All FWLR (Pt. 318) 612 at page 628; Bankole vs. Pelu (1991) 8 NWLR (Pt.211) 523 and Chiabee Bayol vs. Iorkighir Ahemba (1999) 7 SCNJ 223 at page 236.
In Adeogun & Anor. vs. Fasogbon (2011) 3 SCNJ 342, Chukwuma-Eneh, JSC held at page 359 as follows:
Also it is settled law as per the case of Niger Construction Ltd. vs. Okugbeni (1987) 4 NWLR (Pt.67) 787 that appeals are allowed on the issues raised and successfully canvassed and not on the grounds of appeal simpliciter as is being urged by the appellants here. See: also Chime vs. Chime (1995) 6 NWLR (Pt.404) 734 and so it would have been anachronistic and particularly so for the Court to succumb to mere technicalities in dealing with this appeal in the face of its peculiar facts as against doing substantial justice in the matter.
In Mora & Ors. vs. Nwalusi & Ors. (1962) 1 All NLR 675, Lord Evershed held at page 681 as follows:
In their Lordships view however the conclusive answer to all these criticisms upon the judgments under appeal lies in this. The issues raised in the action were, essentially, issues of fact and in respect of those issues there are JUSTICES concurrent judgments of the trial Judge and the Federal Supreme Court.
In such cases the rule which the Board should follow was clearly enunciated in the judgment of Lord Thankerton as recently as 1947 in the case of Scrimati Bibhati Devi vs. Kumar Ramendra Narayan Roy. In his judgment in that case Lord Thankerton reviewed the previous authorities and formulated the conclusions which resulted from those cases and which the Board in cases such as the present should follow in a series of numbered paragraphs (See (1946) A.C. 508 at pages 521 and 522). From this formulation, it is made clear that the Board should decline to review the evidence for a third time when there are concurrent judgments of two Courts on a pure question of fact unless a departure from such practice was justified by proof of some miscarriage of justice or some violation of some principle of law or procedure or unless the case were of so unusual a character as sensibly to make the general rule inapplicable. Lord Thankerton proceeded to define the phrases miscarriage of justice and violation of some principles of law or procedure as follows: miscarriage of justice means such a departure from the rules which permeate all procedure as to make that which happened not in the proper sense of the word judicial procedure at all The violation of some principles of law or procedure must be such an erroneous proposition of law that if that proposition be correct the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding is such a question of law.
Can it then be said that the circumstances of this case are so unusual or that there has been established some miscarriage of justice or violation of some principles of law or procedure going so much to the root of the issues in dispute, as to bring the present case within the exception to the general rule
See Udeze vs. Chidebe (1990) NWLR (Pt.125) 141.
The practical application of the Blue Pencil Rule will be that the Rules Maker has abolished the Court of Appeal ordering a new trial on the ground of misdirection, or of the improper admission or rejection of evidence under Order 4 Rule 9(2) of the Rules, or of ordering a new trial on any questions without interfering with the finding or decision on any other question; and if it appears to the Court that such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder of the admissible evidence in the record of appeal.
The Court of Appeal is during the hearing of any appeal, to ensure that the determination of the dispute or controversy is final. The”Final judgment Rule” is explained in Blacs Law Dictionary (supra) at pages 705-706 in the following language:-
Final 1. (Of a judgment at law) not requiring any further judicial action by the Court that rendered judgment to determine the matter litigated; concluded. 2. (Of an equitable decree) not requiring any further judicial action beyond supervising how the decree is carried out. Once an order, judgment, or decree is final, it may be appealed on the merits.
Finality Doctrine The rule that a Court will not judicially review an administrative agencys action until it is final. Also termed final-order doctrine; doctrine of finality; principle of finality. Cf. Final-Judgment Rule; Interlocutory Appeals Act.
Final Judgment Rule The principle that a party may appeal only from a district Courts final decision that ends the litigation on the merits. Under this rule, a party must raise all claims of error in a single appeal. Also termed final-decision rule; finality rule.”
The default or failure to apply the provisions of Order 4 Rules 9(1)-(3) of the Court of Appeal by applying the blue pencil rule to give a judgment as to the remainder of the admissible evidence and exhibits in the record of appeal may or may not render the decision per incuriam. If the Court of Appeal is to give final judgment on the remainder of the record of proceedings, striking out an appeal on technicalities does not constitute a final judgment on the merit.
In Obasi Brothers Merchant Co. Ltd. vs. Merchant Bank of Africa Securities Ltd. (2005) 2 SCNJ 272, Pats-Acholonu, JSC held at page 278 thus:
A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the Courts by the legal combatants.
In Blacks Law Dictionary, 9th edition, page 1254 the Latin phrase or maxim Per incuriam is explained as follows:-
Per Incuriam (Of a judicial decision) wrongly decided, usually because the Judge or Judges were ill-informed about the applicable law.
There is at least one exception to the rules of stare decisis. I refer to judgments rendered per incuriam. A judgment per incuriam is one which has been rendered inadvertently. Two examples come to mind: first, whether the judge has forgotten to take account of a previous decision to which the doctrine of stare decisis applies. For all the care with which attorneys and judges may comb the case law, errare humanum est, and sometimes a judgment which clarifies a point to be settled is somehow not indexed, and is forgotten. It is in cases such as these that a judgment rendered in contradiction to a previous judgment that should have been considered binding, and in ignorance of that judgment, with no mention of it, must be deemed rendered per incuriam, thus, it has no authority The same applies to judgments rendered in ignorance of legislation to be deemed per incuriam, that judgment must show that the legislation was not invoked. Louis-Phillipe Pigeon, Drafting and Interpreting Legislation, 60 (1988).
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some features of the decision or some step in the reasoning on which it is based is found on that account to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must in our judgment, consistently with the stare decisis rule which is an essential part of our law, be of the rarest occurrence. Rupert Cross & J.W. Harris, Precedent In English Law, 149 (4th edition, 1991).
In Ahmadu Makun & Ors. Vs. Federal University of Technology, Minna & Ors. (2011) 6 SCNJ 334 the Supreme Court held at page 324:
In the case of Buhari Vs. INEC (2008) 19 NWLR pt. 1120 pg. 246 at page 3772, the Supreme Court held that per incuriam in law means the judge giving a judgment in ignorance or forgetfulness of an enabling statutes or some binding authority on the Court. A case decided per incuriam includes a situation where the Court forgot to take into consideration a previous decision which the doctrine of stare decisis applies. Such decisions given per incuriam usually contradict a settled principle of law by a superior Court. It is also a situation where a statute or rule having statutory effect or other binding authority, which would have affected the decision, had not been brought to the attention of the Court. Rossek Vs. ACB Ltd (1993) 8 NWLR pt. 312 pg. 382, African Newspaper Vs. Federal Republic of Nigeria (1985) 2 NWLR pt. 6 pg. 137, Cross on precedent in English Law (1961) at page 139.”
The principle of stare decisis prohibits a lower Court to declare a decision of the Supreme Court as having being rendered per incuriam for not adverting to the provisions of Order 8 Rule 13(3) of the Supreme Court Rules 1985 (as amended). This is the purport of the authority ofYoung vs. Bristol Aeroplane (1944) 2 ALL E.R (pt. 2) 293 at 298-299:
Our attention was called to the opinion expressed by Lord Patrick in Brown Vs. William Hamilton & Co. Ltd. (5). In that opinion Lord Patrick referred to Perkins case (1) and Selwoods case (2), and refused to follow them because he thought they were contrary to the current of decision in Scotland and to be true intent of the Workmens Compensation Act, 1925, and to the proper construction of Sect. 29(1) of that Act. His criticism deserves the most careful consideration but, even if we were inclined to accept it, we should not by reason of it, be entitled to ignore the decisions in Perkins case (1) and Selwoods case (2), which for reasons which we now proceed to state, are, in our opinion, binding on us and must, therefore be followed. We now turn to what is the more important question raised by this appeal. When it first came on for hearing before LORD GREENE, M.R. and MACKINNON and GODDARD, L.J.J., counsel for the appellant stated that unless he could establish that Perkins case (1) and Selwoods case (2) could not stand with the decision of the House of Lords in Kinneils case (4), his only chance of succeeding lay in satisfying this Court that those two cases were wrongly decided and that he wished to argue that this Court was not bound to follow them.
The question thus raised as to the jurisdiction of this Court to refuse to follow decision of its own was obviously one of great general importance and directions were given for the appeal to be argued before the full Court. It is surprising that so fundamental a matter should at this date still remain in doubt. To anyone unacquainted with the rare cases in which it has been suggested or asserted that this Court is not bound to follow its own decisions or those of a Court of coordinate jurisdiction the question would, we think, appear to be beyond controversy. Cases in which this Court has expressed its regret at finding itself bound by previous decisions of its own and has stated in the clearest terms that the only remedy of the unsuccessful party is to appeal to the House of Lords are within the recollection of all of us numerous examples are to be found in the reports. When in such cases the matter has been carried to the House of Lords it has never, so far as we know, been suggested by the House that this view was wrong and that this Court could itself have done justice by declining to follow a previous decision of its own which it considered to be erroneous. On the contrary, the House has, so far as we are aware, invariably assumed and in many cases expressly stated that this Court was bound by its own previous decision to act as it did. The attitude both of this Court and of the House of Lords is so well known that citations are scarcely necessary. But we take three modern examples at random.
The first is Produce Brokers Co., Ltd. Vs. Olympia Oil & Cake Co., Ltd. (6) in which BUCKLEY, L.J. began his judgment as follows, at p. 322
I am unable to adduce any reason to show that the decision which I am about to pronounce is right. On the contrary, if I were free to follow my own opinion, my own powers of reasoning such as they are, I should say that it is wrong. But I am bound by authority which, of course, it is my duty to follow and, following authority, I feel bound to pronounce the judgment which I am about to deliver.
PHILLIMORE and PICKFORD, L.J.J., similarly expressed themselves to be bound by previous decisions of this Court with which they did not agree. The decision was reversed by the House of Lords. The second example is Velazquez, Ltd. Vs. Inland Revenue Comrs. (7) where this Court held itself bound by a previous decision of its own which, it considered, had not been overruled by an intervening decision of the House of Lords. LORD COZENS-HARDY, M.R. said, at p. 461. But there is one rule by which, of course, we are bound to abide that when there has been a decision of this Court upon a question of principle it is not right for this Court, whatever its own views may be, to depart from that decision. There would otherwise be no finality in the law. If it is contended that the decision is wrong, then the proper course is to go to the ultimate Tribunal, the House of Lords, who have power to settle the law and hold that the decision which is binding upon us is not good law.
The correctness of Velazquezs case (7) was impugned in English, Scottish & Australian Bank, Ltd. Vs. Inland Revenue Comrs. (8). This Court held that it was bound to follow Velazquezs case (7), and in the House of Lords, LORD BUCKMASTER said, at p. 242, that it was right to so holding. In the result, the appeal was allowed and Velazquezs case (7) overruled. This was a strong case since, even before the question was set at rest by the House of Lords, Velazquezs case (7) was generally regarded as having been wrongly decided. The third example is the very recent one of Perrin Vs. Morgan (9). There, this Court held itself bound by previous decisions to give a narrow construction to the word money in a will. In the House of Lords VISCOUNT SIMON, L.C said, at p. 405 (1943) 1 ALL E.R. at p. 189), that this Court: could take no other course than follow and apply the rule of construction by which, owing to previous decisions of Courts of co-ordinate jurisdiction, it was bound. It is true that in this and similar cases the Court which held itself to be bound by previous decisions consisted of three members only. But we can find no warrant for the argument that what is conveniently but inaccurately called the full Court has any greater power in this respect than a division of the court consisting of three members only.
The Court of Appeal is a creature of statute and its powers are statutory. It is one Court though it usually sits in two or three divisions; each division has co-ordinate jurisdiction, but the full Court has no greater powers or jurisdiction than any division of the Court. Its jurisdiction is mainly appellate, but it has some original jurisdiction. To some extent its decisions are final (for example, in appeals in bankruptcy and from the county Courts), but in the majority of cases there is an appeal from its decisions to the House of Lords either with the leave of the Court of Appeal or of the House of Lords. Neither in the statute itself nor (save in two cases mentioned hereafter) in decided cases is there any suggestion that the powers of the Court of Appeal sitting with six or nine or more members are greater than those which it possesses when sitting as a division with three members. In this respect, although we are unable to agree with certain views expressed by GREER, L.J., as will presently appear, we think that he was right in saying that what can be done by a full Court can equally well be done by a division of the Court.
The corollary of this is, we think, clearly true, namely, that what cannot be done by a division of the Court cannot be done by the full Court. In considering the question whether or not this Court is bound by its previous decisions and those of Courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which e are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a Court of co-ordinate jurisdiction which cover the question before it, and there is no conflicting decision of this Court or of a Court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this Court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination.
In the second class, the Court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the Court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment. For the moment it is the first class which we have to consider. Although the language both of decision and of dictum as well as the constant practice of the Court appears to us clearly to negative the suggested power, there are to be found dicta and, indeed, decisions the other way. So far as dicta are concerned, we are, of course, not bound to follow them. In the case of decisions we are entitled to choose between those which assert and those which deny the existence of the power. In recent times the question was discussed obiter in Newsholme Bros. Vs. Road Transport & General Insurance Co. (10). In that case Scrutton, L.J., said, at p. 375.
The decision of the Court of Appeal on fact is not binding on any other Court, except as between the same parties. When the decision is that from certain facts certain legal consequences follow, the decision is, I think, binding on the Court of Appeal in any case raising substantially similar facts. But GREER, L.J. in the same case said, at p. 384:
I should like to point out this fact, that (this Court) has, at least on two occasions, sitting as a full Court, differed from a previous decision by the same Court, and it seems to me that, if that is right, it is equally right to say that, sitting with a quorum of three Judges, it has exactly the same power as if it were sitting with six Judges, though it would only be in most exceptional cases that those powers would be exercised. In Re Shoesmith (11), GREER, L.J. said, at p. 644 (1938) 3 ALL E.R. at p. 189): I wish to repeat what I said in the course of the argument, that the Court has more than once, sitting as a Court with all its six members, decided that it can overrule a decision of the Court of Appeal which has held the field for a number of years. If the Court of Appeal, sitting with its six members, can do so, equally a Court sitting with a quorum of members can do the same thing. It is noteworthy that the substantial question in Newsholme Bros. Vs. Road Transport & General Insurance Co. (10) was not whether the Court of Appeal had jurisdiction to overrule a previous decision, but how it should exercise its choice between apparently irreconcilable decisions given by it previously.
The two decisions mentioned by GREER, L.J., in the passage first quoted are Kelly & Co. Vs. Kellond (12) and Wynne-Finch Vs. Chaytor (13). In the former case LORD ESHER, M.R. said at p. 572: This Court is one composed of six members, and, if at any time a decision of a lesser number is called in question, and a difficulty arises about the accuracy of it, I think this court is entitled sitting as a full Court, to decide whether we will follow or not the decision arrived at by the smaller number. This dictum of LORD ESHER, M.R., was not assented to by FRY, L.J., who said, at p. 574: As to the power of this Court when sitting as a full Court to overrule the decision of a Court consisting of a smaller number, I do not think it is necessary to give an opinion. It is not very clear what view was taken by LOPES, L.J., the other member of the Court. He said, at p. 575: I do not desire to express an opinion as to what is the power of a full Court of Appeal in respect of a decision of three of their number, but I understand that the full court was called together in Ex parte Stanford (14) to consider the question arising in that case, and to revise and reconsider any decision touching the point in that case which had been previously laid down. But lower down on p. 575 he is reported as having said that, if the earlier decision decided what was contended for, it was overruled by the later decision, a view which seems inconsistent with what he said in the passage quoted.
It is to be observed that the question in Kelly & Co. Vs. Kellond (12) was not whether a particular decision should be overruled, but which of two inconsistent decisions should be followed. The two decisions in question were Roberts vs. Roberts (15) and Ex parte Stanford (14), the latter being a decision of the full Court of Appeal, and the Court followed Ex parte Stanford. Although the decision in Roberts Vs. Roberts (15) was cited during the hearing of Ex parte Stanford (14) by the full Court, the decision was not commented on or even referred to in the judgment. It appears to have been open to the Court in Kelly & Co. Vs. Kellond (12) to choose between the two decisions but, of course, in such circumstances the decision of the full Court would be likely to carry greater weight than that of a division of the Court. In Wynne-Finch Vs. Chaytor (13), the decision was on a point of practice, the question being whether an application ought to have been made to the Chancery Division to set aside a judgment directed to be entered by an official referee to whom the whole action had been referred or whether the proper procedure was by way of appeal to the Court of Appeal. The question was directed to be argued before the Full Court. Reference was made to Daglish Vs. Barton (16). STIRLING, L.J., who delivered the judgment of the Court, said at p. 485: With the greatest respect, we are unable to agree with Daglish Vs. Barton (16), and think that it ought not to be followed; and it is, therefore, overruled. It may be that the true explanation of this decision is that the Court came to the conclusion that the decision in Daglish Vs. Barton (16) was manifestly incorrect and contrary to the plain words of the statute. Nevertheless the case is, we think an authority in favour of the proposition that the Court has power to overrule its previous decisions. Certainly it cannot be said that there is any statutory right of appeal from a decision of the Court of Appeal to the full Court, although on occasions where there has been a conflict caused by the existence of inconsistent earlier decisions the Court has ordered the case to be argued before a full Court.
Apart from a recent case which falls under the fourth class referred to above, we only know of one other case in which the Court of Appeal appears to have exercised the suggested power. That was Mills Vs. Jennings (17). It is to be noted that the earlier authority which the Court refused to follow was a decision not of the Court of Appeal but of the old Court of Appeal in Chancery. Indeed, this fact was given as the justification of the view which the Court of Appeal then took. COTTON, L.J., in delivering the judgment of the court, said at p. 648:
we think that we are at liberty to reconsider and review the decision in that case as if it were being re-heard in the old Court of Appeal in Chancery, as was not uncommon. It remains to consider Lancaster Motor Co. (London), Ltd. Vs. Bremith, Ltd. (18), in which a Court consisting of SIR WILFRID GREENE, M.R., CLAUSON and GODDARD, L.JJ., declined to follow an earlier decision of a Court consisting of SLESSER and ROMER, L.JJ. This was clearly a case where the earlier decision was given per incuriam. It depended upon the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the Court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the Court is bound to give effect to them as to a statute. Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different.
It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this Court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our enquiry, namely (i) those where the Court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it in such a case a subsequent Court must decide which of the two decisions it ought to follow; and (ii) those where it has acted in ignorance of a decision of the House of Lords which covers the point ? in such a case a subsequent Court is bound by the decision of the House of Lords. On a careful examination of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of Courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (i) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (ii) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords. (iii) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
The appeal is dismissed with costs. I should perhaps add, speaking for myself individually with regard to the observations in Unsworths case (3), mentioned in this judgment, that I have carefully considered my own observations there mentioned in Perkins case (1), and I have come to the conclusion that the criticism of them in Unsworths case (3) is justified, and that what I said was wrong. What I said there formed no part of the ratio decidendi, as would appear from a reading of the judgment and does not affect its validity, for that reason. Appeal dismissed. Leave to appeal to the House of Lords granted.”
On the whole, though this Court has found in favour of the appellants regarding issue two 3(b), the appellants have failed to establish that the learned trial Judge committed substantial wrongs or that the verdict has led to a miscarriage of justice as to warrant this Court to apply the Blue Pencil Rule, set aside the decision of the learned trial Judge in favour of the respondents and enter a final decision in favour of the appellants. The result is that this appeal on the other grounds and issues has no merit and is dismissed.
I award N300,000.00 (Three Hundred Thousand Naira) cost to the respondents.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Ruling just delivered by my learned Brother, Joseph Tine Tur, JCA, dismissing the appeal. I agree with the conclusion that the Appellants failed to establish their case.
The time worn evidential principle remains that he who asserts must prove; Hillary Farms vs. MV Mahtra & Ors. (2007) 6 SC (Pt.11) 85, (2007) LPELR-1365 (SC); Agala vs. Okusin (2010) LPELR-221 (SC). In his contributory opinion in Maihaja vs. Gaidam (2017) LPELR-42474 (SC), Eko, JSC, said, at pages 61-62 of the E-Report:
Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.
It is for the party asserting to decide the witnesses he requires to prove his case, within boundaries set by the pleadings.
Parties are bound by their pleadings. Evidence lead on matters not pleaded go to no issues, Buraimoh vs. Esa (1990) 4 SC 1; Agala vs. Okusin (2010) LPELR-221 (SC); Okonkwo vs. CCB (Nig.) Plc (2003) 2-3 SC 104. Even when elicited under cross-examination, if the evidence was not pleaded, it is still inadmissible; Okwejiminor vs. Gbakeji (2008) LPELR-2537; Adenle vs. Olude (2002) LPELR-129 (SC).
The Appellants as plaintiffs relied on proof by traditional history. In such a case, the plaintiff has the onus to plead the root of title, the names and history of his ancestors, without any yawning gap. The evidence must be cogent, clear and uncontroverted. Indeed, the settled position of the law is that where a party relies on evidence of tradition in proof of title to land, he must give satisfactory evidence as to how he derived the particular title pleaded and claimed. He is bound to plead and establish facts such as:
a. Who founded the land;
b. How he founded the land; and
c. The particulars of the intervening owners through whom he claims;
See: Nruamah vs. Ebuzoeme (2013) LPELR-19771 (SC); Onwugbufor vs. Okoye (1996) LPELR-2716 (SC); Dike vs. Okoloedo (1999) 7 SC (Pt.111) 35; Ngene vs. Igbo (2000) 4 NWLR (Pt.651) 131; Makinde vs. Akinwale (2000) LPELR-1829 (SC); Ezeokonkwo vs. Okeke (2002) 5 SC (Pt.1) 44. The pleadings of the Appellants fell far short of these requirements. They had pleaded in paragraphs 5(a) and 6 of their Amended Statement of Claim, pages 103-108 of the Record of Appeal, as follows:
5(a) The plaintiffs, not related but live in the same village, respectively had been in possession of their farmlands since their deforestation, founding, possession and user for 70 years without challenges, interference or adverse claim over their respective pieces of land, performing various acts of ownership over their respective farmlands. Evidence of history, user, possession and custom shall be led to establish their respective titles/interests and inheritance.
6. The plaintiffs aver that their respective ancestors were the first to deforest the land in dispute and named same as APULUYAKWO farm.
Bearing in mind the obligations to be met in proof of traditional history, as articulated in the above cited judicial pronouncements, one need not go into deep scrutiny to see that the averments of the Appellants were grossly inadequate to establish traditional history and inheritance. Further, the evidence that some of their fathers were alive was extracted under cross-examination of PW4 and PW5, pages 191 and 195 of the Record of Appeal. This fact was not pleaded by any of the parties. It was therefore of no consequence that the living parents were not called in evidence. The learned trial Judge ought not to have placed emphasis on this fact. Notwithstanding, the pleadings were fundamentally deficient. The Appellants? case could not have been beefed up by evidence not pleaded.
For these reasons and for the more comprehensive reasons given by my Learned Brother, I also dismiss this appeal.
I abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Tur, JCA, which has just been delivered.
In a claim for declaration of title, the onus is on the plaintiff to establish his claim by a preponderance of evidence or on the balance of probability. He must succeed on the strength of his own case and not on the weakness of the case of the defendant except where the defendants case supports his case. See Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt.1372) 474, 494 and Onovo vs. Mba (2014) 14 NWLR (Pt.1427) 321, 414.
The first duty of a plaintiff in a claim for declaration of title to land is to establish the identity of the land in dispute. However, such a burden does not arise when the identity of the land in dispute was never put in issue by the defendant. See Falomo vs. Onakanmi (2005) 11 NWLR (Pt. 935) 126 and Atanda vs. Iliasu (2013) 6 NWLR (Pt. 1351) 529. Furthermore, where the identity of the land in dispute is known to the parties and not in dispute, no issue of identity arises. See Awoyoolu vs. Aro (2006) 135 LRCN 729 and Ogun vs. Akinyelu (2004) 18 NWLR (Pt.905) 362. In this instance, the respondents in their pleadings did not raises any issue as to identity of the land in dispute. Furthermore, it is clear from the pleadings and evidence of the parties that the land in dispute is well known to them. The 1st respondent in his first Further Amended Statement of Defence variously referred to the land in dispute and the said land.
It was on the same land that he erected a sign post which prompted the suit of the appellants. It was also over the same land that he obtained Certificate of Occupancy. The trial Court was therefore not right in holding at page 281 of the record of appeal that the appellants did not clearly state the identification of the land on the basis that witnesses gave different names of boundary men. In the case of Ogun vs. Akinyelu (supra) it was held that it is of no moment where different witnesses give different names to boundary men or different names to pieces of surrounding lands, unless it is shown that the witnesses are not referring to the same land. In this instance, the witnesses were referring to the same land in dispute.
The trial Court at page 278 of the record noted that the PWIV told the Court that some of their (appellants) parents were still alive. The trial Court concluded that their parents evidence would have been vital to the appellants case and that failure to call them was very fatal to their case. I think with due respect, that there was no basis for the conclusion by the trial Court. The reason is that the fact that the parents of some of the appellants were still alive was not pleaded by any of the parties and was only elicited in cross-examination. Evidence of facts not pleaded goes to no issue and is to be discountenanced or expunged from the record. It is immaterial that such evidence was elicited in cross-examination. See Enang vs. Adu (1981) 11/12 SC 25 and Ojoh vs. Kamalu (2006) 136 LRCN 1130.
The case of the appellants as pleaded in paragraphs 5(a) and 6 of their amended statement of claim is follows:-
5(a) The plaintiffs, not related but live in the same village, respectively had been in possession of their farmlands since their deforestation, founding, possession and user over 70 years without challenge, interference or adverse claim over their respective pieces of land, performing various acts of ownership over their respective farmlands. Evidence of history, user, possession and custom shall be led to establish their respective titles/interest and inheritance.
6. The plaintiffs aver that their respective ancestors were the first to deforest the land in dispute
The appellants therefore claimed ownership of the land in dispute through inheritance based on traditional evidence. In the case of Anyafulu vs. Meka (2014) 7 NWLR (Pt.1406) 396, 416, Aka as, JSC, stated as follows:
A plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or on whom title devolved in respect of the land before the plaintiff took control of the land. Where evidence of tradition is relied upon in proof of declaration of title to land, the plaintiff in order to succeed must plead and establish the following facts:
(i) Who founded the land;
(ii) How he founded it; and
(iii) The particulars of the intervening owners through whom he claims down to him.
The appellants failed to plead and lead evidence as required above. Their case suffered a still birth. No amount of advocacy can breath life into it.
It is therefore my view that the fact that the trial Court erroneously held that failure to call appellants parents was fatal to their case and that the appellants did not clearly state the identification of the land is not material. This is because it is not every error in a judgment that will lead to the success of an appeal. The error must be shown to occasion a miscarriage of justice. Since the appellants failed to establish their case to be entitled to the reliefs sought, the trial Court was right in dismissing their case.
For the above reason, I agree with my learned brother that the appeal has not merit. I accordingly dismiss the same.
Appearances:
J.M. Goton, Esq.For Appellant(s)
A.S. Gayam (holds brief for I.M. Dikko, SAN ) for the 1st respondent.
A.H. Akosun (Principal State Counsel, Nasarawa State MOJ) for 2nd-3rd Respondents.For Respondent(s)
