GAVOH & ORS v. LANWE (2020)

GAVOH & ORS v. LANWE

(2020)LCN/14593(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, September 02, 2020

CA/YL/214/17

RATIO

PLEADINGS: PLEADINGS WITHOUT EVIDENCE, AND VARIANCE OF EVIDENCE.

It is apt at this stage to note that the Appellants who filed pleadings in form of a joint Statement of Defence and Counter Claim did not call any witness in support or proof of their pleadings. In respect of pleadings without evidence, the Supreme Court clearly stated the position of the law in the case of IFETA VS.S.P.D.C. NIG.LTD (2006) LPELR – 1436 (SC) P. 10 PARAS. C – G, his Lordship Mohammed, JSC held thus:
“…It is noted that pleadings cannot constitute evidence and a defendant as in the instant case, who does not give evidence in support of his pleading or in challenge of the evidence of the plaintiff, is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded and does not constitute proof of such facts unless such facts are admitted. See WOLUCHEM VS. GUDI (1981) 5 SC 291, BASHEER VS. SAME (1992) 4 NWLR (PT 236) 491; UWEGBA VS. AG BENDEL STATE (1986) 1 NWLR (PT 16) 303; ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT 146) 578 at 590 and FCDA VS. NAIBI (1990) 3 NWLR (PT 138) 270at 281.”
See also OMOBORIOWO & ORS VS. AJASIN (1984) LPELR – 2643 (SC) P. 26, PARAS. B-D, AKINBADE & ANOR VS. BABATUNDE & ORS (2017) LPELR – 43463 (SC) PP. 32 – 33, PARAS.C-A, ONUBE VS. ASUAKOR & ORS (2019) LPELR – 47231 (CA) P. 24, PARAS.B-C and KAYDEE VENTURES LIMITED VS. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY (2010) 7 NWLR (PT 1192) 171, 204. As it is, the Appellants did not challenge the evidence led by the Respondent at the trial and there is nothing on record to show that the Respondent admitted the pleaded facts, so as not to require evidence in proof of the admitted facts. The Appellants had argued that there were variations in the evidence of the PW1 – PW4 as to the boundaries and boundary men in respect of their proximity or direction from the land in dispute. I would say that the side of the land in dispute bounded by the river and access roads depends on the approach to the land in dispute, which could have been approached from any of the four sides that the land in dispute could be approached from. Further, the Appellants had argued that while the PW1 stated that the original plaintiff Bala Lanwe had inherited the land in dispute from his father sixty years ago, the PW2 under cross examination stated that Bala Lanwe had inherited the land from his father about thirty years ago. I would say that these are minor discrepancies and not contractions as contended by the learned counsel to the Appellants in respect of the evidence of the PW1 – PW4. Where the evidence led by witnesses are similar, there is likelihood that the witnesses have been tutored to say the same thing in evidence. Contradiction is the opposite of what has been earlier stated. The law is trite that where two or more pieces of evidence seem to vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. See AYO GABRIEL VS. THE STATE (1989) 5 NWLR 457, UWAGBOE VS. STATE NCC 3 PAGE 636, OPOSI VS. STATE (1971) 1 NMLR 315, MBODAN VS. DABAI (2019) LPELR – 46739 (CA) PP. 17-18 , PARAS. E-A, IREGU EJIMA HASSAN VS. THE STATE (2016) LPELR – 42554 (SC) PP.28-29, PARAS F-B. In the present case, whether the river borders the land in dispute to the North or South is immaterial, the important thing is that the river forms part of the border of the land in dispute. Also, whether the original plaintiff inherited the land sixty years ago from the evidence of the PW1 or thirty years ago as stated by the PW2 is immaterial and did not affect the credibility of the evidence of these witnesses. I hold that the minor discrepancies in the evidence of the PW1 – PW4 in respect of the boundary men are minor variations. Similarly, the side of the land in dispute that borders with the access roads are also minor discrepancies. As stated earlier in this judgment, thedescription of the boundary features in proximity to the land in dispute depends on which side the land in dispute is approached, it does not go to the root of the matter so as to affect the credibility of the witnesses that would warrant setting aside the judgment of the trial Court. See OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP.39 – 41, PARAS. E – A and MBODAN VS. DABAI (Supra). The alleged contradictions as contended by the Appellants were not proved. Per CHIDI NWAOMA UWA, J.C.A

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. ISAAC GAVOH 2. CLEMENT SHADI 3. SAMUEL SHADI 4. GIDEON SHADI APPELANT(S)

And

DAVID LANWE RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Taraba State delivered on 27th April, 2016, by the then Chief Judge, J.Y. Tukur, C.J, wherein all the reliefs claimed by the Respondent as plaintiff were granted in their entirety.

The background facts are that the original plaintiff Bala Lanwe sued the Appellants as defendant at the trial High Court vide a writ of summons dated 5th March, 2011, filed on 8th March, 2011, wherein he claimed the following reliefs:
1. “AN ORDER declaring title to all that piece of land lying and situate at Mayo – Dassa Kona, Jalingo Local Government Area, to the plaintiff.
2. AN ORDER against the defendants to remove anything they brought upon the land.
3. AN ORDER declaring the entry of the defendants, there (sic) agents, assigns or privies into the land in dispute and trespass.
4. AN ORDER of perpetual injunction restraining the defendants by themselves, there (sic) agents, relations legal or personal representatives from tampering, claiming or entering the said piece of land.
5. AN ORDER declaring any sale of the land

in dispute by anybody order (sic) than the plaintiff as null and void.
6. General damages of Two Hundred Thousand (N200,000.00)
7. The cost of filing and prosecuting this suit.”
The Appellants as defendants counter claimed as follows:
1. “A Declaration that the Counter-Claimants are entitled to the Statutory Right of Occupancy over the vast parcel of land measuring 576.450 Hectares lying and situate at Mayo Dassa, Jalingo L.G.A. and properly described as being bounded in the North and East by a stream, in the West by the land of Tuwa Abbi and in the South by the land of Sokoto Kruman.
2. AN ORDER of the Honourable Court declaring the Defendant to the Counter-Claim as a trespasser over the said land.
3. AN ORDER of the Honourable Court granting an injunction restraining the Defendant to the counter-claim whether by himself, his servants, workmen and agents or otherwise how so ever from further interfering with the ownership and possession of the land by the Counter-Claimants.
4. The sum of Two Million Naira as damages for trespass and
5. The cost of prosecuting the counter-claim.”

Before the commencement of hearing, the original plaintiff died and was substituted by the Respondent. In proof of his case, the plaintiff called four (4) witnesses, himself inclusive and tendered no exhibit. The Appellants as defendants called no witness but rested their case on that of the Respondent. The appellants made out that the Respondent’s case before the trial Court lacked merit and was riddled with contradictions. It was also made out that the Respondent whose claim was based on traditional history omitted and/or failed to plead two(2) basic ingredients of traditional history, to wit:
(i) Who founded the land
(ii) How the land was founded.

It was alleged that in view of the fundamental and incurable defects that afflicted the claims of the Respondent that informed the Appellants’ decision to rest their case on the case of the Respondent. Further, that despite the alleged contradictions, the trial Court granted all the claims of the Respondent, the Appellants were aggrieved by the decision, thus this appeal.

The appellants distilled the following two issues for the determination of the appeal thus:

“Whether the entire proceedings and resultant judgment of the trial High Court in Suit No. TRSJ/28/2018 are competent in law, regard being had to the fact that the originating processes used by the Respondent to commence Suit No. TRSJ/28/2011 were all signed by the law firm of I.C. Osuji & Associates. (Distilled from Ground one of the notice of Appeal)
2. Whether it was proper for the learned trial judge to have regarded the evidence adduced by the Respondent as credible and further granted the claims of the Respondent rather than dismissing same, regard being had to the fact that the pleadings in the amended statement of claim of the Respondent are contradictory to one another and at variance with the evidence he adduced at the trial.” (Distilled from Grounds two, three, four, five and six of the notice of appeal).

The Respondent adopted the two issues as formulated by the Appellants for the determination of the appeal.

When the appeal was argued on 4/6/2020, both learned counsel for the parties J.A. Oguche Esq., for the Appellants and I.C. Osuji Esq., for the Respondent were served with the hearing notices, both counsel were absent and there was no

reason given for their absence. Since all the briefs had been filed, the Appellants’ brief of argument settled by Danlami Filibus Esq., filed on 14/5/18, deemed properly filed and served on 15/5/18 and the Respondent’s brief of argument settled by I.C. Osuji Esq., filed on 15/1/19, deemed properly filed and served on 16/1/19 were deemed argued pursuant to Order 19 Rule 9(4) of the Court of Appeal Rules, 2016.

The appellant’s issue one, is whether Suit No. TRSJ/28/11 that gave rise to this appeal was competent having been signed by the law firm of I. C. Osuji & Associates? It was argued that the original writ of summons and original statement of claim used by the Respondent to commence the suit are incompetent; reference was made to pages 1-2, 4-6 and 79-84 of the records of appeal. It was submitted that processes ought to be signed either personally by a party or by his counsel but, not a law firm. The respondent’s processes at the trial Court were said to be defective and liable to be struck out. See OKAFOR VS. NWEKE (2007) 10 NWLR (PT 1043) 52 and FIRSTBANK NIG. LTD VS. MAIWADA (2012) VOL. 213 LRCN 121 at 129. It was argued

that the processes were as though they were not signed at all being a nullity. SeeUDOEBOI VS. UDOUSUA (2017) 5 NWLR (PT 1559) 501 at 503, OMEGA BANK (NIG.) PLC VS. OBC LIMITED (2005) 8 NWLR (PT 1044) 89, AG ABIA VS. AGHARANYA (1999) 6 NWLR (PT 607) 362.

It was argued that the trial Court lacked the jurisdiction to have heard the matter and that the judgment is null and void. See OKEREKE VS. YAR’ADUA (2008) ALL FWLR (PT 430) 25 at 36 – 37, NWANKWO VS. YAR’ADUA (2010) 12 NWLR (PT 1209) 518, ANTONY TIPPI VS. SYLVESTER NOTANI, Appeal No. CA/YL/51/13 (Unreported) and U.A.C VS. MACFOY (1948) 2. A. C.

The appellants’ second issue challenged the evaluation of evidence by the trial Court. It was submitted that the trial Court was wrong to have held that the evidence adduced by the Respondent at the trial was unchallenged. It was argued that the pleadings in the amended statement of claim and the evidence adduced by the PW1 – PW4 were contradictory and were faulted under cross examination. Reference was made to paragraphs 4, 5, 6 and 7 of the Respondent’s amended statement of claim, pages 81 and 82 of the printed records

of appeal. It was submitted that the boundaries as pleaded were at variance with the testimony of the PW1 (Johnson Agwu). The evidence of the PW2 and PW3 were highlighted. It was argued that the Respondent as the PW3 declared paragraph 3 of his amended statement of claim as false and the PW1, PW2 and PW4 as liars. It was submitted that the evidence of the PW4 destroyed the veracity of paragraph 3 of the Amended Statement of Claim and the testimony of the PW1 – PW4 who testified that the land in dispute has a river as its boundary to the North, the East side an access road, at the South an access road and the West by another road. Also the evidence of the PW4 that the original plaintiff Bala Lanwe inherited the land in dispute from his grandfather which is contradictory to the evidence of the PW1 to the effect that the land was inherited from his father, page 98, lines 1 – 4 and page 11 lines 25 – 26 of the printed records of appeal. The case of the Respondent at the trial Court was said to have been contradictory and properly challenged by the Appellant.

It was argued that where a defendant has not called witnesses in support of his

pleadings, he could challenge the plaintiff’s case through Cross Examination and could rest his case on that of the plaintiff. See ALECHENU VS. OSHOKE (2002) FWLR (PT 85) 281 at 293 – 294 and MOMOH VS. UMORU (2011) ALL FWLR (PT 588) 797. Further, it was argued that the written statements of the PW2, PW3 and PW4 were made in the Lawyer’s office which rendered the said statements void ab initio. See BUHARI VS. INEC (2008) 19 NWLR (PT. 1120) 246 and CHIDUBEM VS. EKENNA (2009) ALL FWLR (PT 455) 1692.

In response, in his brief of argument settled by I. C. Osuji Esq., learned counsel to the Respondent adopted the two issues as formulated by the Appellants. In arguing the first issue, it was submitted that Court processes must be prepared and signed by a legal practitioner who is registered on the roll of legal practitioners. It was contended that pages 2 – 3 of the printed records of appeal, page 2 of the amended writ, at pages 30 and 40 of the Amended Statement of Claim and at page 84 of the printed records show that the processes were signed by I. C. Osuji Esq., who is registered in the roll of legal practitioners. See OKAFOR VS. NWEKE (2007) (supra).

On the second issue, contradictory evidence was defined as evidence that affirms the opposite of what the previous evidence stated, they are contradictory when they are inconsistent. See IKUEPENIKAN VS. THE STATE (2011) 1 NWLR (PT 1229) 449 at 454. It was stressed that the faulted paragraphs 4, 5, 6 and 7 of the amended statement of claim by the Appellants’ counsel in his brief of argument are not contradictory. Further, that it is not every discrepancy or inconsistency in the testimony of witnesses that will vitiate a decision on the part of the plaintiff. It was contended that minor discrepancies in the evidence of the PW1, PW2, PW3 and PW4 in respect of the boundary men and the date the plaintiff inherited the land are trivial and did not affect the credibility of the evidence of these witnesses. See OLADIPO VS. MOBA (2010) 5 NWLR (PT 1186) 117. It was argued that failure to depose to a written statement on oath before a commissioner for oaths will not render the deposition invalid once the deponent adopts same at the trial. See UDEAGHA VS. OMEGARA (2010) 11 NWLR (PT 1120) P.246 and BUHARI VS. INEC (2008) 19 NWLR (PT 1120) P. 246.

I would utilize the issues as formulated by the Appellants and adopted by the Respondent in the determination of the appeal. On issue one, the learned counsel to the Respondent in his brief of argument agreed that Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. 207, Laws of the Federation, 2004 defined a Legal Practitioner in Nigeria as a person entitled to practice law as a Barrister or Solicitor if his name has been enrolled in the register of legal practitioners at the Supreme Court of Nigeria. Also, that it is a Legal Practitioner so registered that could prepare and/or sign all Court processes under the name as enrolled. The Appellants had alleged that the original writ of summons and the original statement of claim used to commence the action at pages 1 – 2 and 4 – 6 of the printed records and the amended statement of claim at pages 79 – 84 of the printed records were all signed by the law firm of I. C. Osuji and Associates as opposed to being personally signed by the party or counsel. At page 2 of the records of appeal I. C. Osuji Esq., is clearly printed above the name of the firm, with the signature

in between, on the endorsement page of the original writ of summons.
Similarly, on the original statement of claim at pages 4 – 6, particularly at page 6 of the printed records of appeal, I. C. Osuji Esq., is clearly written above the signature, while I. C. Osuji & Associates, the firm is beneath the signature. Similarly endorsed are the Amended Writ of Summons and the Amended Statement of Claim particularly at pages 80 and 84 of the printed records of appeal. It is therefore not in doubt that from the printed records of appeal, I. C. Osuji Esq., signed the originating processes not the firm as made out by the learned counsel to the Appellants. The learned counsel to the Appellants has not shown that I. C. Osuji Esq., that signed the originating processes is not registered in the roll of Legal Practitioners in Nigeria in line with the Legal Practitioners Act (Supra). The Authorities cited and relied upon by the learned counsel to the Appellants are not applicable in this case but, applies where learned counsel or a party fails to sign or endorse Court processes and the name of the firm is endorsed below or above the signature. The present case is

distinguishable from OKAFOR VS. NWEKE (Supra) in that, in the latter case the name of the firm appeared as the signatory of the Court processes which were held to be defective by the Apex Court. I hold that I. C. Osuji Esq., signed the processes faulted by the Appellants. I resolve issue one against the Appellants.

On issue two, the appellants challenged the evaluation of evidence by the trial Court, alleging that the pleadings in the amended statement of claim are at variance and contradictory to the evidence adduced at the trial Court. It is apt at this stage to note that the Appellants who filed pleadings in form of a joint Statement of Defence and Counter Claim did not call any witness in support or proof of their pleadings. In respect of pleadings without evidence, the Supreme Court clearly stated the position of the law in the case of IFETA VS.S.P.D.C. NIG.LTD (2006) LPELR – 1436 (SC) P. 10 PARAS. C – G, his Lordship Mohammed, JSC held thus:
“…It is noted that pleadings cannot constitute evidence and a defendant as in the instant case, who does not give evidence in support of his pleading or in challenge of the evidence of

the plaintiff, is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded and does not constitute proof of such facts unless such facts are admitted. See WOLUCHEM VS. GUDI (1981) 5 SC 291, BASHEER VS. SAME (1992) 4 NWLR (PT 236) 491; UWEGBA VS. AG BENDEL STATE (1986) 1 NWLR (PT 16) 303; ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (PT 146) 578 at 590 and FCDA VS. NAIBI (1990) 3 NWLR (PT 138) 270at 281.”
See also OMOBORIOWO & ORS VS. AJASIN (1984) LPELR – 2643 (SC) P. 26, PARAS. B-D, AKINBADE & ANOR VS. BABATUNDE & ORS (2017) LPELR – 43463 (SC) PP. 32 – 33, PARAS.C-A, ONUBE VS. ASUAKOR & ORS (2019) LPELR – 47231 (CA) P. 24, PARAS.B-C and KAYDEE VENTURES LIMITED VS. THE HON. MINISTER OF FEDERAL CAPITAL TERRITORY (2010) 7 NWLR (PT 1192) 171, 204.

As it is, the Appellants did not challenge the evidence led by the Respondent at the trial and there is nothing on record to show that the Respondent

admitted the pleaded facts, so as not to require evidence in proof of the admitted facts.

The Appellants had argued that there were variations in the evidence of the PW1 – PW4 as to the boundaries and boundary men in respect of their proximity or direction from the land in dispute. I would say that the side of the land in dispute bounded by the river and access roads depends on the approach to the land in dispute, which could have been approached from any of the four sides that the land in dispute could be approached from. Further, the Appellants had argued that while the PW1 stated that the original plaintiff Bala Lanwe had inherited the land in dispute from his father sixty years ago, the PW2 under cross examination stated that Bala Lanwe had inherited the land from his father about thirty years ago. I would say that these are minor discrepancies and not contractions as contended by the learned counsel to the Appellants in respect of the evidence of the PW1 – PW4. Where the evidence led by witnesses are similar, there is likelihood that the witnesses have been tutored to say the same thing in evidence. Contradiction is the opposite of what

has been earlier stated. The law is trite that where two or more pieces of evidence seem to vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. See AYO GABRIEL VS. THE STATE (1989) 5 NWLR 457, UWAGBOE VS. STATE NCC 3 PAGE 636, OPOSI VS. STATE (1971) 1 NMLR 315, MBODAN VS. DABAI (2019) LPELR – 46739 (CA) PP. 17-18 , PARAS. E-A, IREGU EJIMA HASSAN VS. THE STATE (2016) LPELR – 42554 (SC) PP.28-29, PARAS F-B. In the present case, whether the river borders the land in dispute to the North or South is immaterial, the important thing is that the river forms part of the border of the land in dispute. Also, whether the original plaintiff inherited the land sixty years ago from the evidence of the PW1 or thirty years ago as stated by the PW2 is immaterial and did not affect the credibility of the evidence of these witnesses. I hold that the minor discrepancies in the evidence of the PW1 – PW4 in respect of the boundary men are minor variations. Similarly, the side of the land in dispute that borders with the access roads are also minor discrepancies. As stated earlier in this judgment, the

description of the boundary features in proximity to the land in dispute depends on which side the land in dispute is approached, it does not go to the root of the matter so as to affect the credibility of the witnesses that would warrant setting aside the judgment of the trial Court. See OLOYE VS. STATE (2018) LPELR – 44775 (SC) PP.39 – 41, PARAS. E – A and MBODAN VS. DABAI (Supra). The alleged contradictions as contended by the Appellants were not proved.

The learned counsel to the Appellants had alleged that the written statement on oath of the Respondents’ witnesses are incompetent not having been made or signed in the office and presence of the commissioner for oaths by the witnesses. The written statements of the witnesses were adopted on oath in Court by the witnesses. Where the maker is subsequently cross examined on the same statement, it cures any defect that would have occurred had the oath not been sworn in Court.

The Appellants did not summon their witnesses to adopt their statements on oath. At page 123 of the printed records of appeal, the trial Court was right to have observed as follows:

“The entire claim of the plaintiff, as a result therefore was left unchallenged as presented through the writ of summons and the statement of claim, and as testified to by the witnesses.”

The evidence of the Respondent’s witnesses was to the effect that the land in dispute belongs to the Respondent who inherited same from his father Lanwe, the son of Gimbe who founded the land. The Appellants neither made attempt to defend the Respondent’s claim nor prove their Counter Claim.

Further, at page 126 of the printed records of appeal, the trial Court rightly held thus:
“…PW2, 3 and 4 all traced the origin of the land in dispute and how it devolved to the plaintiff by credible evidence as pleaded in the amended Statement of Claim and Writ of Summons, which is placed on one side of the imaginary scale of justice for the plaintiff without anything on the side of the defendants.”
Further, the trial Court at page 125 of the printed records held thus:
“It is settled law that in any action in the High Court parties are bound by their pleadings. There (sic) case stands or falls by the averments in their pleadings

and evidence adduced in support of these averments.
It is also trite law that the pleadings without evidence in support is deemed abandoned. In the case at hand where defendant did not lead witnesses at all the Court is only left to consider the case of the defendant abandoned. To crown it all, the defendant through its counsel at the address stage elected to waive the right. Therefore leaving this Court with the case as placed before this Court by the plaintiff and witnesses to be put on the one side of the imaginary scale of justice.
…
The defendants having placed nothing before this Court against or in contradiction of the claim of the plaintiff, the Court is therefore left to consider the claim as per the evidence adduced by the witnesses before this Court and the address of the Court in support of the claim.”

The Appellants at the trial did not make any attempt to challenge the Respondent’s claim, whereas the Respondent adduced credible evidence as to how he came about having possession of the land in dispute. I am of the view that even though the Appellants did not put up any defence, the trial Court properly evaluated

the evidence before it and was right to have found the evidence adduced by the Respondent credible and granting the reliefs sought by the Respondent. There was no evidence on one side of the imaginary scale, therefore the scale heavily tilted on the side of the Respondent. The decision of the trial Court cannot be faulted. The trial Court was right to have held that the appellants failed to defend the defendant’s claim and failed to prove their counter claim. I resolve issue two against the Appellants.

In sum, the appeal is without merit, I dismiss it. The judgment of the trial Court in Suit No. TRSJ/28/11 delivered on 27/4/16 is hereby affirmed. I award costs of N50, 000.00 (Fifty Thousand Naira) to the Respondent.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.

My learned brother has dealt with exhaustively with the issues for determination. I have nothing more useful to add. I adopt the reasoning and conclusion in the lead judgment as mine in dismissing the appeal for lacking in merit.

I abide by all other orders in the lead judgment including the orders as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

A. OGUCHE ESQ. for the Appellant absent For Appellant(s)

C. OSUJI ESQ. for the Respondent absent For Respondent(s)