GBADAMOSI & ORS v. ADISA & ORS
(2022)LCN/16724(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, March 30, 2022
CA/AK/212/2019
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
1. LASISI GBADAMOSI 2. YEKINI OLADUNJOYE 3. JOSHUA OLAOYE OLADOKUN AKINLABI 4. SAHEED ASIMI ABIDOYE 5. WALIU YEKINI OLADUNJOYE (For Themselves And On Behalf Of Okusindin/Obe Family Of Iwo) APPELANT(S)
And
1. BODE ADISA 2. ISAAC AMOO 3. OLUGBENGA JOEL OPANIKE 4. CHIEF AKINLOYE ALAO TAIWO 5. DEACON OLAGUNJU OLADAPO 6. TAIWO AMOO (For Themselves And On Behalf Of Oduwusi Awokekere Family Of Iwo) RESPONDENT(S)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Osun State, Iwo Judicial Division delivered in Suit No HIW/17/2016 by Honorable Justice A. D. Oladimeji on the 25th of January, 2019.
This appeal arose out of a land dispute and Respondents were the claimants in the lower Court and their claims against the Appellants were for:
i. A declaration that the Respondents are entitled to customary right of occupancy over the farmland known as Binuyo, Opasanya, Babayemi Oduwusi Awokekere farmland lying and being along Iwo/Ibadan Road and bounded as follows (i) in the north by Iyalode/Asape/Alawo stream; (ii) in the east by Oba River; iii. in the south by Akangbanna stream and (iv) in the west by Sawo; and particularly described in a survey plan to be drawn by a registered surveyor.
ii. Perpetual injunction restraining the Appellants, their servants, agents and/or privies from further trespass and/or interference with the Respondents’ right on the said land.
iii. A declaration that the Respondents as against the Appellants are entitled to collect rents from all tenants admitted unto the land by the Respondents.
iv. N500,000.00 (Five Hundred Thousand Naira) for trespass committed and still being committed by the Appellants on the Respondents’ family farmlands described above.
The case of the Respondents on the pleadings in support of the claims was that the land in dispute, as described above, and which is located in Iwo Local Government, was granted to their ancestral father called Oduwusi (a.k.a. Awokekere) over two hundred years ago by Oba Alausa, who was the Oluwo of Iwo between 1673 and 1744, for his dexterity in Ifa oracle divination. It was their case that the land was a virgin land at the time and that Oduwusi settled on the land and cultivated same extensively with the help of farm hands and assistants and that Oduwusi begat four children namely, Odulana (Male), Awokolude (Male) Ojoye (Male) and Olaito (Female). It was their case that Odulana and Awokolude had no children while Ojoye begat Binuyo Oduwusi, Opasanya Oduwusi and Babayemi Oduwusi, the forefathers of the Respondents, and that their sister, Olaito married Okusundin, who migrated from Oyo and came to learn Ifa oracle divination from Oduwusi, and they begat Akinola, Akintaro and Koleoso, the forefathers of the Appellants.
It was the case of the Respondents that it is the custom of their family that only male children and their descendants inherit farmlands while female children and their descendants could inherit any land at home or be granted land to erect residential buildings and that so it was for Olaito and her children. It was their case that Oduwusi was the first Baale of Awokekere and was first succeeded by Odulana and then by Awokolude and thereafter, because there was nobody from the family to occupy the throne, Akinola, the son of Olaito, was made the acting Baale and the Baales from thenceforth were from the side of the Appellants up till the time of the installation of Asimi Abidoye as Baale. It was their case that the portion of land granted to their forebear, Oduwusi Awokekere, by Oba Oluwo Alausa was depicted on Survey Plan No CK17/72 drawn by late Surveyor Abolade O. Coker and they pleaded two judgments in Suit No. HOS/62/76 and Suit No HIW/20/98 obtained by their family in respect of portions of their land.
It was the case of the Respondents that Oduwusi planted palm trees, cocoa trees, kolanut trees and other food and cash crops on the land in dispute and that after his death his sons and male descendants continued to develop and plant crops thereon. It was their case that Babayemi was the father of the fifth Respondent while Binuyo was the father of the first, third and fourth Respondents and Opasanya was the father of second and sixth Respondents and the Appellants are the descendants and grandchildren of Okusindin. It was their case that the portion of land granted to Oduwusi now encompasses many villages such as Pemu, Asape, Opileja, Mosigba, Opababa, Tubosun Oluyena, Adegbodu, Molukere, Olukosi, Sawo Akintunde, Aipate, Ogungun, Sawo Oniyanrin, Agbo Meji, Ajibope and that they have many tenants on the land in dispute and who pay rent and Ishakole to them annually.
It was the case of the Respondents that they allowed some of their tenants to sublet their leased portions of land and that the Appellants have been going about the land demanding payment of rents from their tenants thereon and that any tenant that refused their demands was met with harassment and intimidation and some were chased off the land. It was their case that when they recently wanted to ascertain the boundaries of the land in dispute, the Appellants brought fully armed thugs to attack them on the land and they uprooted the pillars already installed and have been harvesting their food and cash crops on the land without their consent or that of their tenants.
The Appellants in their defence conceded that Oduwusi, the forebear of the Respondents, a professional Ifa priest, was the founder of Awokekere’s compound and that he begat four children and the female amongst the children was Laito, from whom they descended, but it was their case that Oduwusi was not the founder of Awokekere Baale Village situate at Oke-Oba River and that it was Akinola, son of Laito. It was their case that Laito married one Obe, a warrior from Oyo Alaafin who founded Ile-Ogo Township in Osun State and that after the death of her husband, Laito moved her children to her father’s compound Awokekere in Iwo Township and that Obe did not learn Ifa divination from Oduwusi.
It was the case of the Appellants that Laito begat three children, Akinola, Koleoso and Sowale and that Akinola was the first Baale of Awokekere Village and he begat Bamgbopa who in turn gave birth to Chief Asimi Abidoye, the fourth Baale of Awokekere Village, and Asimi Abidoye begat Saheed Abidoye, the fourth Appellant. It was their case that Koleoso begat Akintaro, the second Baale of Awokekere Village, Adio and Oyedele and that Akintaro gave birth to Gbadamosi Awosola, the third Baale of Awokekere Village, and who in turn begat Lasisi Gbadamosi, the first Appellant. It was their case that Adio begat Oladokun Ajani and who gave birth to Joshua Oladokun, the third Appellant and the incumbent Baale of Awokekere Village while Oyedele begat Oladunjoye and who gave birth to Yekini Oladunjoye, the second Appellant, and Yekini Oladunjoye begat the fifth Appellant.
It was the case of the Appellants that they do not know the portion of land being claimed by the Respondents and that Akinola was a warrior and intimate friend of Oba Sanni Alabi Lamuye Abimbola I, the Oluwo of Iwo (1909 to 1929) and who honoured him with the chieftaincy of Awokekere Baale and granted him a big farmland now referred to as Awokekere Baale Village and that the land shared boundary with Agberire land, Oyediran land, Depiti land, Oluyena land and Oba River. It was their case that only descendants of Akinola became Baale of Awokekere Baale Village and their family and the families of the Respondents did a lot of things together in Iwo Township as one and united family but that their villages were different from one another.
It was the case of the Appellants that the crisis between the two families commenced when the family of the Respondents showed intention of becoming Baale of Awokekere Baale Village, an exclusive preserve of their family and that it was this misunderstanding that led the Respondents to commence an action against them in Suit No HIW/20/98 claiming for their share of land of the Awokekere Baale Village and the Appellants were granted 45.425 hectares of land out of 1125.122 hectares of land as shown on Survey Plan No CK/72 dated 25th of February, 1972. It was their case that the portion of land awarded to the Respondents in Suit No HIW/20/98 is not the same as the present portion of land in dispute and that the Counsel to the Respondents asserted in a letter dated 15th of October, 2010 that the land of the Respondents was limited to the portion of land granted in Suit No HIW/20/98 and they shall raise the defences of laches and acquiescence and estoppel at the trial.
It was the case of the Appellants that they have been in possession of their land in Awokekere Baale Village and that they have exercised various acts of possession thereon from the time it was granted to their forebear, Akinola, and that they have put tenants on the land who pay Isakole to the Baale of the Village regularly. It was their case that the land in dispute was unknown to them as Awokekere Baale Village is not along Iwo/Ibadan Road and is not bounded by Akangbanna stream or Saawo Village.
The record of appeal shows that the Appellants filed a notice preliminary objection dated the 10th of October, 2016 on the 11th of October, 2016 challenging the competence of the action of the Respondents on the grounds of estoppel per rem judicatam and statute of limitation. The lower Court heard the notice of preliminary objection on the merits and dismissed same in a considered ruling delivered on the 25th of November, 2016. The record of appeal shows that the matter thereafter proceeded to trial and in the course of which the Respondents called nine witnesses and tendered documents in proof of their case and the Appellants called ten witnesses and also tendered documents in proof of their defence. At the conclusion of trial, Counsel to the parties rendered final written addresses and the lower Court delivered judgment granting the claims of the Respondents.
The Appellants were dissatisfied with the judgment and they caused their Counsel to file two notices of appeal against it and they are the notice of appeal dated and filed on the 13th of February, 2019 containing five grounds of appeal and the notice of appeal dated the 3rd of April, 2019 and filed on the 8th of April, 2019 containing seven grounds of appeal. Both notices of appeal were filed within the time allowed for the filing of appeals. In arguing the appeal before this Court, Counsel to the Appellants filed a brief of arguments dated the 15th of October, 2019 on the same date and the brief of arguments was deemed properly filed by this Court on the 16th of November, 2020. In response, Counsel to the Respondents filed a brief of arguments dated the 14th of November, 2019 on the same date and the brief of arguments was similarly deemed properly filed by this Court on the 16th of November, 2020. Counsel to the Appellants filed a Reply brief of arguments on the 23rd of November, 2020. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as their submissions in the appeal.
Counsel to the Appellants distilled five issues for determination in the appeal and these were:
i. Whether the Respondents proved their case as traditionally required and definitely described the land in dispute as required by law to let the Court grant them ownership of the land in dispute.
ii. Whether, going by all the rights of ownership exercised on Awokekere land as confirmed by the Respondents’ PW9 and Exhibit H (letter by the Respondents’ Counsel in respect of earlier suit in respect of Awokekere farmland), the Respondents still have any claim to the remaining Awokekere farmland which is not in dispute.
iii. Whether estoppel and statute of limitation has not caught up with the Respondents in respect of the land in dispute.
iv. Whether the trial Judge, Honorable Justice Akinwale D. Oladimeji, who was former Counsel to the Respondents in the suit between the Respondents and Appellant could preside over this suit as a Judge and give unbiased judgment.
v. Whether the statutory requirement of ninety days for delivering judgment after Counsel’s addresses did not catch up with the trial Judge as he had forgotten many things in the matter.
On his part, Counsel to the Respondents formulated six issues for determination in the appeal and these were:
i. Whether the appeal of the Appellant is competent, the Appellants having filed two different and distinct notices of appeal on the same judgment.
ii. Whether from the totality of the evidence before the lower Court, the Respondents were not entitled to judgment.
iii. Whether the Appellants can at this stage raise the same issue that was earlier decided by a Court of competent jurisdiction same issue not having been appealed against.
iv. Whether the principles of estoppel and statute of limitation were applicable to the Respondents’ case.
v. Whether the learned trial Judge can be said to be biased in his judgment delivered on 25th of January, 2019.
vi. Whether the judgment of the learned trial Judge delivered on 25th of January, 2019 is valid or not.
Reading through the records of appeal, particularly the pleadings of the parties, the notes of evidence, the written addresses of Counsel before the lower Court, the judgment of the lower Court and grounds of appeal, as well the arguments in the briefs of arguments of Counsel to the parties, it is the view of this Court that there is one preliminary issue for determination and four substantive issues for determination in this appeal.
The preliminary issue is:
Whether the appeal as filed by the Appellants with two separate notices of appeal is competent?
The four substantive issues are:
i. Whether the doctrines of estoppel and limitation of actions were properly raised in this appeal and are available to the Appellants to defeat the case of the Respondents.
ii. Whether the issue of bias on the part of the trial Judge was properly raised in this appeal and is available to the Appellants to nullify the judgment of the lower Court.
iii. Whether, on the strength of the pleadings and evidence led by the parties, the lower Court was correct when it found that the Respondent made out a credible case on the balance of probabilities to be entitled to judgment.
iv. Whether, on the facts and circumstances of this case, the judgment of the lower Court delivered outside the period of ninety days after adoption of written address by Counsel is valid.
This appeal will be resolved on these issues for determination and all the arguments of Counsel to be parties will be considered thereunder. The issues for determination will be considered seriatim.
Preliminary Issue
Whether the appeal as filed by the Appellants with two separate notices of appeal is competent
The issue was raised by Counsel to the Respondents and it is in the nature of a preliminary objection to the competence of the appeal. Counsel noted that the Appellants filed two notices of appeal against the judgment of the lower Court – notice of appeal dated and filed on the 13th of February, 2019 containing five grounds of appeal and notice of appeal dated the 3rd of April, 2019 and filed on the 8th of April, 2019 containing seven grounds of appeal. Counsel stated that the Counsel to the Appellant did not make any reference to either of the notices of appeal as being the fulcrum of his submissions in the Appellants’ brief of arguments. Counsel stated that the second notice of appeal was not an amended version of the first notice of appeal and that the attempt by the Appellants to prosecute this appeal on two notices of appeal was wrongful and renders the appeal incompetent.
Counsel to the Appellants did not respond to these arguments in his reply brief of arguments and made no contention against it. The Appellants did not thus join issue with the Respondents on the point and this is suggestive of their conceding the point – National Oil & Chemical Marketing Co Ltd Vs Penbridge Trading Co Ltd (2019) LPELR-47295(CA), Alao Vs United Bank of Africa Plc (2019) LPELR-49339(CA). This however does not mean that this Court must accept the arguments of the Counsel to the Respondents as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko Vs Oruene (1996) 7 NWLR (Pt 462) 555, Dada Vs Dosunmu (2006) LPELR-909(SC), Akinlade Vs Ayinde (2020) LPELR-49592(CA), Bureau of Land and Survey Vs Yusuf (2020) LPELR-49615(CA), First Bank of Nigeria Plc Vs Amanyi (2020) LPELR-49946(CA). In Edonkumoh Vs Mutu (1999) 9 NWLR (Pt 620) 633, Ibiyeye, JCA stated at 652 E-F thus: “It is pertinent to point out that the learned counsel for the first respondent did not proffer any response to this issue in his brief of argument. It follows therefore that he has little to urge on it. The fact that there is want of response by the first respondent is no licence to accede to the arguments and submissions of learned Counsel for both the appellant and the second to fourth respondents. Those submissions will still be meticulously considered and opined upon accordingly.”
This Court will consider the merits of the arguments of Counsel to the Respondents. It is correct as asserted by Counsel to the Respondents that the Appellants filed two separate notices of appeal against the judgment of the lower Court. Both notices of appeal were filed within the time allowed for appealing against the judgment. The law permits, allows and so recognizes that an appellant may file more than one notice of appeal against the decision of a lower Court, within the period of time stipulated and prescribed for so doing by the law – Tukur Vs Government of Gongola State (1988) 1 SCNJ, 54, Adeleke Vs Oyo State House of Assembly (2005) All FWLR (319) 862, Integrated Data Services Ltd. Vs Adewumi (2013) All FWLR (292) 145.
The law on the practice in the appellate Courts however, requires that where an appellant files more than one notice of appeal against a decision of a lower Court, he should, at the hearing of the appeal, either consolidate the notices or abandon/withdraw some of them so as to leave the one he intends to rely on for the hearing and determination of the appeal. The practice is that an Appellant cannot rely on more than one notice of appeal at the hearing of the appeal before the appellate Court – Iteshi Onwe Vs State (1975) 9-11 SC 41, Tukur Vs Government of Gongola State supra, Bilante International Ltd Vs N.D.I.C. (2011) 8 SCM, 40 at 54, Ogboru Vs Uduaghan (2012) 3 MJSC (Pt.III) 75 at 86-87, Shinkafi Vs Federal Republic of Nigeria (2017) LPELR-42701(CA). In the case of Tukur Vs Uba (2012) 6-7 MJSC (Pt IV) 156, the Supreme Court made the point thus: “There is no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the Rules of Court. But whenever there is more than one Notice of Appeal and all the said Notices, were filed within the time so prescribed, the appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon.”
The abandonment or withdrawal of a notice of appeal, however, need not be done formally and it may be inferred from the conduct of the appellant towards the notice of appeal – Mohammed Vs Husseini (1998) 14 NWLR (Pt 584) 108, Barigha Vs Peoples Democratic Party (2013) 6 NWLR (Pt 1349) 108, Nkume Vs Okonkwo (2020) LPELR-49942(CA). In the present appeal, a read through of the records of appeal shows that the conditions of appeal issued by the lower Court to the Appellants were predicated on the notice of appeal filed on the 8th of April, 2019. Further, the five issues for determination formulated by the Counsel to the Appellants in this appeal were distilled from the seven grounds of appeal contained in the notice of appeal filed on the 8th of April, 2019, as indicated by Counsel in his brief of arguments.
Counsel to the Appellants, by his actions, showed that he had abandoned the notice of appeal filed on the 13th of February, 2019 and that the appeal was based on the notice of appeal filed on the 8th of April, 2019. The Appellants are not contending this appeal on both notices of appeal. The Appellants’ appeal is thus in order and the contention of Counsel to the Respondents on the preliminary issue is misconceived. The issue is resolved in favour of the Appellants. This takes us to the four substantive issues in the appeal.
Issue One
Whether the doctrines of estoppel and limitation of actions were properly raised in this appeal and are available to the Appellants to defeat the case of the Respondents
In arguing the issue for determination, Counsel to the Appellants stated that the cause of action of the Respondents over the portion of land in dispute arose in 1998 when the Respondents commenced Suit No HIW/20/98 against the Appellants, but that the Respondents limited their claim to a small portion of the land in dispute, instead of the entire portion of the land in dispute that was in possession of the Appellants then and up till now, and he referred to the evidence of the ninth plaintiff witness at the trial in affirmation of the fact. Counsel referred to the provision of Section 3 of the Limitation Law of Osun State that fixed a limitation period of ten years for recovery of land actions and stated that the cause of action of the Respondents against the Appellants in respect of the portion of land in dispute accrued on the 6th of March, 1998 when the former action was commenced, while the present action was commenced on the 14th of February, 2017, far beyond the ten years period and that the lower Court thus lacked jurisdiction to entertain the action.
Counsel stated further that the parcel of land in litigation in this present action is the same as the parcel of land litigated upon in the 1998 case and that the parties in the present cases are privies of the parties in the 1998 case and that the judgment in the 1998 case was delivered by the High Court of Osun State, a Court of competent jurisdiction, and he referred to the survey plan admitted as Exhibit G and the evidence of the ninth plaintiff witness in affirmation of the facts. Counsel referred to the case of Oshodi Vs Eyifunmi (2000) 3 NSCQR 320 in reiterating the five ingredients of a successful plea of estoppel per rem judicatam and stated that all the ingredients were available in the present instance. Counsel also referred to the cases of Adeyefa Vs Bamgboye (2014) 3 SC 185 and Daudu Vs A. G. Lagos State (2011) NWLR (Pt 1265) 447 in adumbrating the principles and rationale of the doctrine of estoppel per rem judicatam and stated that the Appellants made out a case for upholding the doctrine in the present case. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.
In his response arguments, Counsel to the Respondents noted that the issue of the applicability of the doctrines of estoppel per rem judicatam and limitation of action were considered and overruled by the lower Court in a ruling delivered on the 25th of November, 2016, and not in the judgment delivered on the 25th of January, 2019 and he reproduced portions of the ruling. Counsel stated that the Appellants did not appeal against the ruling and he referred to the cases of GTB Plc Vs Innoson Nig Ltd (2017) 78 EJSC 68 and Isitor Vs Fakarode (2017) 76 EJSC 135 in asserting the principle that a decision of a Court not appealed against is deemed conceded by the party against whom it was decided and remains valid and binding between the parties. Counsel stated that, having not appealed against the ruling, the Appellants cannot competently raise the issue of the applicability of the doctrines of estoppel per rem judicatam and limitation of action again and in this appeal. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
As stated earlier, the records of appeal show that the Appellants filed a notice preliminary objection dated the 10th of October, 2016 on the 11th of October, 2016 challenging the competence of the action of the Respondents on the grounds of estoppel per rem judicatam and statute of limitation. The lower Court heard the notice of preliminary objection on the merits and dismissed same in a considered ruling delivered on the 25th of November, 2016 and held that the two doctrines were not applicable to the facts and circumstances of this case. The Appellants did not appeal against the ruling and the matter proceeded thereafter to hearing and eventually to the delivery of judgment on the 25th of January, 2019. Counsel to the Appellants did not re-argue the issue of the applicability of the doctrines of estoppel per rem judicatam and statute of limitation in his final written address and they were not considered by the lower Court as core issues in the judgment.
Counsel to the Appellants distilled this first issue for determination under consideration from Ground Three of the notice of appeal. The ground reads thus:
“Ground 3
The learned Justice of the trial Court erred in Law when he holds that the part of the land previously litigated upon which was claimed by the Respondents’ family in 1989 (which is 45.425 hectares out of 1135.122 hectares) without claiming the other portion of which Appellants were exercising right of ownership on it and he ruled that the Respondents can claim the remaining land anytime without having regard to limitation law and law of laches and acquiescence.
Particulars of Error
1. The fact before the Court revealed that the Respondents have claimed part of the land in dispute before and after ten years they can still re-claim remaining part.
2. The Osun State Law of Statute of Limitation was never considered at all in this case as regard claiming of the land in dispute piece meal by piece meal.”
Reading through the judgment of the lower Court appealed against, nowhere therein did the lower Court make the holding and the finding constituted by the Appellants in the above reproduced ground of appeal and the issues of limitation of action and/or laches and acquiescence were neither raised by the Counsel to the Appellants in his final written address nor were they considered by the lower Court in the judgment. The relevant portion of the judgment, and from where Counsel to the Appellants conjured up and imagined the ground of appeal, reads thus:
“I do not see anything wrong in a party claiming only a portion of his land that has been trespassed upon by an opponent only while that trespass occurs. I do not see any reason for that party to claim those portions upon which there was no dispute. If however dispute arises later on that portion which was not disputed previously, he can chase the trespasser out again and again. It appears this is what happened in this case. I note both Exhibits ‘B and C’ which are judgments of this Court in 1998 and 1978 respectively which were in favour of the Plaintiffs’ family which were in respect of the adjacent land to the land in dispute. There is such presumption that the Plaintiffs are likely to be the owners of the land in dispute and part of the original vast land. In such a situation, it lies in the Court of the Defendants to rebut such presumption by a superior evidence…”
It is evident that there is no correlation whatsoever between the above reproduced excerpt of the judgment of the lower Court and the above reproduced ground of appeal. The lower Court did not, in the reproduced excerpt of judgment, consider the doctrines of limitation law, law of laches and acquiescence and/or estoppel per rem judicatam and these doctrines were not raised or considered in any portion of the judgment appealed against. The lower Court did not find in the above excerpt of judgment that the Appellants were in possession of and were exercising rights of ownership over the rest portion of the vast land in dispute as at 1998 when the Respondents sued and obtained judgment against them over the 45.425 hectares of land. The above ground of appeal did not emanate or arise from the above excerpt of the judgment and/or from any other portion of the judgment of the lower Court appealed against.
It is an elementary rule of the appellate Court practice that grounds of appeal must arise and emanate from the terms of the judgment of the lower Court and must be directed at or be related to the ratio decidendi of the decision contained in the judgment. Where a ground of appeal does not meet this rudimentary threshold, it is incompetent – First Bank of Nigeria Plc Vs Yerima (2020) 8 NWLR (Pt 1725) 63, Okechukwu Vs Obiano (2020) 8 NWLR (Pt 1726) 276, Okpulor Vs Okpulor (2020) 8 NWLR (Pt 1727) 427. Ground Three of the notice of appeal of the Appellants is thus incompetent. Additionally, it is settled law that for an issue for determination to be viable in an appeal, it must arise from a competent ground of appeal – Umanah Vs NDIC (2016) 14 NWLR (Pt 1533) 458, Mato Vs Hember (2018) 5 NWLR (Pt 1612) 258, Sanmi Vs State (2019) LPELR-47418(SC), Doregos Vs Adele (2020) LPELR-51815(CA). Therefore, the first substantive issue for determination in this appeal formulated from Ground Three of the Appellants’ notice of appeal is also incompetent.
A read through the arguments contained in the Appellants’ brief of arguments under this issue for determination shows clearly that this issue for determination was an attempt by their Counsel to re-present for the consideration of this Court the same submissions he made on his notice of preliminary objection and which were dismissed by the lower Court in the ruling of the 25th of November, 2016. The Appellants did not appeal against the ruling at the time it was delivered and neither did they appeal against it in their final notice of appeal. It is settled law, and as rightly pointed out by Counsel to the Respondents, that decisions of Court not appealed against are conclusive and binding on the parties and cannot be interfered with by this Court – Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587. The doctrines of estoppel and limitation of actions raised by the Appellants under this issue for determination were not properly raised and they were no longer available to the Appellants to defeat the case of the Respondents. The first issue for determination is resolved in favour of the Respondents.
Issue Two
Whether the issue of bias on the part of the trial Judge was properly raised in this appeal and is available to the Appellants to nullify the judgment of the lower Court
In arguing the issue for determination, Counsel to the Appellants stated that they raised the issue of bias of the learned trial Judge severally in the lower Court but that their protestations were not recorded by the learned trial Judge as they had smelt a rat. Counsel stated that they feared favouritism, unfairness and impartiality towards the Respondents because the learned trial Judge was the Counsel to the Respondents in Suit No HIW/20/98 in which judgment was delivered in 2007 and that the learned trial Judge knew the land in dispute very well and was a friend to the Respondents. Counsel stated that it was not impossible that the learned trial Judge discussed this case extensively with the Respondents behind the backs of the Appellants and their Counsel and that the learned trial Judge, as Rev. Akin Oladimeji, conducted the proceedings in Suit No HIW/20/98 on behalf of the Respondents as their Counsel and wrote letters to the tenants of the Appellants on the land in dispute on behalf of the Respondents and he referred to the relevant portions of the records of appeal in confirmation of the assertions.
Counsel referred to the case of Oni Vs Odeyinka (1998) 8 NWLR (Pt 562) 425 in restating what constitutes likelihood of bias on the part of a Judge and to the case of Nwokanma Vs Azuokwu (2000) 8 NWLR (Pt 670) 767 in asserting that the Courts have held that foreknowledge or previous knowledge of the facts of a pending case was something likely to bias or influence the mind of a judicial officer. Counsel stated that it was very evident from the documents in this case that the learned trial Judge had positive foreknowledge of the facts of the matter before him and that this was sufficient for any reasonable man on the street to know that he would have been biased in favour of the Respondents. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.
In his response arguments, Counsel to the Respondents referred to the cases of Agboola Vs UBA (2011) 2-3 MJSC (Pt II) 150 and West African Breweries Ltd Vs Savannah Ventures Ltd (2002) 9 MJSC 141 is reiterating the established principle that parties are bound by their pleadings, the main aim of which is to put the other party on notice of the case he would meet at trial so as to enable him prepare and not be taken by surprise. Counsel stated that the Appellants neither pleaded the issue of bias nor did they raise it at any point in the proceedings so as enable the Respondents join issues with them thereon and the Appellants cannot be allowed to raise a new issue in this Court for the first time without leave of Court and he referred to the case of UTB Vs Dolmetsch Ltd (2007) 8 MJSC 1.
Counsel stated that the Appellants were further estopped from turning round to use the documents in the records of appeal which they, the Appellants, frontloaded in support of and to prove their case to now raise the issue of bias against the learned trial Judge simply because the judgment did not go in their favour and he referred to the case of Adone Vs Ikebudu (2001) 7 MJSC 170. Counsel stated that the Appellants fully participated in the trial of this case without once raising the issue of bias of the learned trial Judge and that this was tantamount to a waiver, i.e. an abandonment of their right to raise the issue and he referred to the case of Bank of the North Vs Yau (2001) FWLR (Pt 54) 380. Counsel urged the Court to resolve the issue for determination against the Appellants.
There is nothing in the records of appeal showing or even suggesting that the Appellants raised, canvassed or debated the issue of bias on the part of the learned trial Judge at any time before the lower Court. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court – Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt 1269) 145, Orok Vs Orok (2013) LPELR 20377(CA), Egba Vs State (2019) 15 NWLR (Pt 1695) 201, Okechukwu Vs Obiano (2020) 8 NWLR (Pt 1726) 276. Neither the parties nor an appellate Court can read into the records of appeal, what is not there, and/or read out of the records of appeal, what is there. An appellate Court must read the record in the exact content and interpret it – Agbareh Vs Mimra (2008) 2 MJSC 134, Oguntayo Vs Adelaja (2009) 15 NWLR (Pt 1163) 150.
Counsel to the Appellants asserted that they raised the issue of bias of the learned trial Judge severally in the lower Court but that their protestations were not recorded by the learned trial Judge as they had smelt a rat. The records of appeal show that the Appellants did not file an application in the lower Court requesting the learned trial Judge to recuse himself from hearing the matter on the ground of bias and they did not also file an application in this appeal to challenge the records as compiled and transmitted. It must be that the Appellants and their Counsel did not ‘smell the rat’ properly until after judgment had been delivered in the matter. An appellant cannot go outside the records of appeal and canvass what he thinks is in favour of his case, which is not in the records. Thus, no arguments or submissions in a party’s brief of arguments, however ingenious, can distort or make an iota of difference to the contents of a record of appeal – Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt 1623) 138, Dick Vs Our and Oil Co. Ltd (2018) 14 NWLR (Pt 1638) 1 and Patrick Vs State (2018) 16 NWLR (Pt 1645) 263.
What these translate to is that the issue of bias is a fresh issue in this appeal. It is being raised in this Court for the first time and the law is that the Appellants were obligated to first seek for and obtain the leave of this Court before they can raise the issue. There is nothing on the face of the records of appeal that the Appellant sought for and obtained the required leave of Court to raise the issue. The issue of bias raised, as rightly pointed out by Counsel to the Respondents, is thus incompetent – Nidocco Ltd Vs Gbajabiamila (2013) LPELR-20899(SC), Darlington Vs Federal Republic of Nigeria (2018) LPELR-43850(SC), Shola Vs State (2020) 8 NWLR (Pt 1727) 530.
This said, it should be noted that bias, in its ordinary meaning, is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale. It is a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. It refers to a mental attitude or disposition of a Judge toward a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.
Bias in relation to a Court or Tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules. The likelihood of bias may be drawn or surmised from many factors such as corruption, partnership, personal hostility, friendship, group membership or association and so towards or involving a particular party in a case – Usani Vs Duke (2006) 17 NWLR (Pt 1009) 610. Foreknowledge of facts is an aspect of bias. Where a Court has foreknowledge of the facts it does not come to the dispute with an openness of mind that would enable it to hold an even scale. Therein lies the unfairness. Foreknowledge of primary facts disqualifies a Court from hearing a matter. Another aspect of bias is that the Court is likely to be biased in favour of its previous decision – Kenon Vs Tekam (2001) 14 NWLR (Pt 732) 12, Federal Republic of Nigeria Vs Abacha (2014) LPELR-22355(CA).
Counsel to the Appellants predicated his case of bias on the ground that the learned trial Judge possessed the foreknowledge of the facts of the case by reason of the fact that the learned trial Judge used to be Counsel to the Respondents and that he appeared for the Respondents and prosecuted an earlier case between the parties in Suit No HIW/20/98 in respect of a portion of vast parcel of land, and of which the land in dispute in this matter also formed part. Counsel invited this Court to infer the facts in support of this assertion from the contents of the record of proceedings and of the judgment of the High Court of Osun State in Suit No HIW/20/98, Exhibit G in the lower Court, as well as from two letters written on behalf of the Respondents wherein one Rev. Akin Oladimeji acted as Counsel to the Respondents. Counsel stated that Counsel referred to as Rev. Akin Oladimeji in those papers is the same person as Hon. Justice Akinwale D. Oladimeji, the learned trial Judge in this matter.
At the core of this allegation of bias is the assertion of the Appellants that the Counsel referred to as Rev. Akin Oladimeji in the earlier suit is the same person as Hon. Justice Akinwale D. Oladimeji, the learned trial Judge in this matter. Counsel to the Respondents did not admit this fact in his brief of arguments and there is no iota of evidence in the records of the lower Court to support the assertion. Counsel to the Appellants urged this Court to accept and act on his say-so as proof of the assertion. It is settled law that address of Counsel and oral statements made by Counsel in Court do not amount and cannot substitute for cogent evidence in proof of a fact in issue. Address of Counsel must be based on the facts contained in the evidence before the Court. Therefore address or any argument of counsel based on or alleging facts not contained in the records of the Court are not competent or valid for consideration – Akpan Vs State (1987) 5 SCNJ 112, Oduwole Vs West (2010) All FWLR (Pt 532) 1643 (SC), Chiokwe Vs State (2012) LPELR-19716(SC). There is nothing in the records showing that the person referred to as Rev. Akin Oladimeji is the same person as Hon. Justice Akinwale D. Oladimeji, the learned trial Judge in this matter
It must always be understood that to charge a Court with bias or likelihood of bias, there must be cogent and reasonable evidence to satisfy the Court that, there was in fact such bias or real likelihood of bias as alleged. It is a very grave matter and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint. Allegations of bias cannot be founded on mere conjectures but on concrete and real evidence. Although justice in law must not only be done but seen to be manifestly done, bias cannot be proved by sheer and vague suspicion and scandalous allegation against a Court – Ojengbede Vs Esan (2001) 18 NWLR (Pt 746) 771, Osayomi Vs State (2007) 1 NWLR (Pt 1015) 352, Womiloju Vs Anibire (2010) LPELR-3503 (SC) 31, Ahangba Vs Nigerian Army (2021) LPELR-54841(CA), Adingarwa Vs Assandariyu (2021) LPELR-54645(CA).
The Appellants did not make out a credible case to sustain the allegation of bias against the lower Court and the second issue for determination is resolved in favour of the Respondents.
Issue Three
Whether, on the strength of the pleadings and evidence led by the parties, the lower Court was correct when it found that the Respondent made out a credible case on the balance of probabilities to be entitled to judgment
In arguing the issue for determination, Counsel to the Appellants referred to the case of Kodilinye Vs Odu (1935) 2 WACA 336 in reiterating the established principle of land litigation that where a party claims declaration of title to land, it must succeed on the strength of its case and not on the weakness of the defence and that where the onus is not discharged, proper judgment will be against him. Counsel also referred to the case of Idundun Vs Okumagba (1976) 9-10 SC 445 in restating the five accepted ways of proving title to land and in noting that a party claiming title to land need not plead and prove more than one of the five ways to succeed. Counsel stated that the Respondents relied on traditional evidence in proving their ownership of the land in dispute and he thereafter summarized the evidence of each of the nine plaintiff witnesses and carried out what he termed “forensic analysis” of the historical evidence of the Respondents.
Counsel stated that there were contradictions in the evidence of the plaintiff witnesses on whether the land in dispute, the farmland, was part of the portion of land granted to the forebears of the Respondent by Oba Alawusa, the then Oluwo of Iwo, and he dichotomized between the farmland in the rural area and the township land in the urban area. Counsel stated that the Respondents claimed the land in dispute through Binuyo, Opasanya and Babayemi Oduwusi, grandchildren of Oduwusi, and they failed to lead evidence showing when the Oduwusi land was partitioned amongst the children and grandchildren. Counsel stated that there was also uncertainty in the case of the Respondents on who settled their forbear on the land in dispute and that, contrary to the finding of the lower Court, this was a material anomaly in the case of the Respondents and he referred to the case of Nwokidu Vs Kanu (2010) 1 SC (Pt 1) 136.
Counsel stated that there were too many questions begging for answers in the case made out by the Respondents and they cannot thus be said to have proved their case in accordance with the requirements of the law. Counsel stated that the Respondents did not also meet the requirements of the law to succeed on the claims in trespass and for injunction and he referred to the cases of Yusuff Vs Keinsi (2004) 48 WRN 143, Irolo Vs Uka (2006) 20 WRN 43, Ishola Vs Abake (1972) 5 SC 321, Akintola Vs Lasupo (1991) 3 NWLR (Pt 180) 508 and Akanni Vs Oba Olaniyan (2005) 47 WRN 166. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.
In his response, Counsel to the Respondents referred to the case of Adeleke Vs Iyanda (2001) 9 MJSC 171 in conceding that the burden of proof was on the Respondents to establish their case on a balance of probability or preponderance of evidence and he relied on the case of Bank of Baroda Vs Iyalabani (2002) 11 MJSC 102 in asserting that the Respondents could discharge their burden of proof by leading oral and documentary evidence. Counsel stated that the Respondents led oral evidence tracing their ownership of the land in dispute to their forbear, Oduwusi Awokekere, and that they also tendered documents including a Survey Plan, Exhibit A, showing the entire land belonging to them with its boundaries and the portion of 287.44 acres in dispute in the present case and the judgment they obtained against the Appellants in respect of 45.425 hectares, part of their vast land, and the judgment they obtained against one Molukere family in respect of another portion of their vast land.
Counsel traversed through the oral evidence led by their witnesses, and which they said showed how they came to own the land in dispute and the acts of possession and ownership they carried out thereon through their tenants on the land, and he noted that the case of Respondents was bolstered and supported by the admissions contained in the evidence of some of the defence witnesses and he traversed through those pieces of evidence. Counsel stated that, though a claimant must succeed on the strength of his case, the law allows him to rely on the portion of the evidence of defence that supports his case and that admission of facts pleaded by a party renders it unnecessary for the party to prove those facts and he referred to the cases of Civil Design Const. Nig. Ltd Vs SCOA (2007) 5 MJSC 142, Orianwo Vs Okene 10 NSCC 98 and Egonu Vs Egonu (1978) 11-12 SC 111.
Counsel referred to the case presented by the Appellants on the ownership of the land in dispute and stated that the case was self-defeating in that they relied on an alleged grant made to their forebear by an Oluwo of Iwo, over one hundred and fifty years after an earlier Oluwo of Iwo had granted a large parcel of land including the land in dispute to their own forebear. Counsel stated that the Respondents made out a better case of ownership of the land in dispute than the Appellants on a preponderance of evidence led and he urged the Court to resolve the issue for determination in favour of the Respondents.
In deliberating on the case of the parties, the lower Court stated in the judgment thus:
“… I note that the arguments of I. T. Tewogbade, learned counsel for the Defendants that the Plaintiffs relied only on traditional history and it is my humble view that this is far from the truth. It will be noted that the Plaintiffs, apart from relying on historical evidence, they also pleaded and relied on evidence of some acts of ownership by farming on the land, putting tenants on the land in dispute among who are PW5, PW6, PW7 and PW8.
Apart from putting tenants on their land, the Plaintiffs have also offered in evidence, Exhibits ‘B and C’, which tend to show that they, the Plaintiffs, have obtained judgments in previous suits at different times on land adjacent to the land in dispute which was part of the original vast land. The question that arises from all the above is whether those evidence are sufficient enough to enable the Plaintiffs have judgment in their favour in this suit.”
The lower Court also noted that Counsel to the Appellants raised the issue of non-proof of the identity of the land in dispute and it continued its deliberations thus:
“… I seriously doubt if such an issue can arise at this stage when the Plaintiffs filed and tendered Dispute Survey Plan, Exhibit ‘A’. I note that the Dispute Plan of the Plaintiffs was tendered by PW1, a registered Surveyor … The Defence Counsel in his address did not refer to any counter plan tendered by the Defendants … The Defence Counsel had strenuously argued that the Plaintiffs have neither shown who first settled on the land in dispute and the Plaintiffs’ nexus to the settler/land. I should think what the Defence Counsel refers to as nexus is how the Plaintiffs are connected to their ancestral father who first got the land. The evidence I have before me from the Plaintiffs is that they got a grant from one Oba Alasusa, Oluwo of Iwo, over one and a half century before the Defendants got their own grant from Oba Abimbola Lamuye. I believe Exhibit ‘D’ which is the program of event of the presentation of Staff of Office and official coronation ceremony of the incumbent Oluwo of Iwo, which is a recent document, which shows the chronological order in which the past Oluwos of Iwo reigned. Particularly at page 17 of Exhibit ‘D’ which shows Oba Alawusa, who the Plaintiffs’ claim granted their ancestral fatherland, reigned between 1673–1744 while the grantor of Defendants, Oba Alabi Abimbola Lamuye, reigned between 1909–1929. There is a wide gap of about One Hundred and Sixty-Five years. I seriously doubt if a parcel of land granted in 1744 can be re-granted to another person one hundred and sixty-five years after without a revocation of the earlier grant. I refuse to believe and accept such evidence and arguments of the Defendants.
Furthermore, the argument of the Defence that the Plaintiffs’ ancestors were not installed as Village Head (Baale) on the land in dispute is irrelevant and of no moment. It is neither the case of the Plaintiffs nor that of the Defendants that whoever owns the land must be installed as Village Head; and of course, it is not an existing tradition that the Court can take judicial notice of. The case is on land and not chieftaincy. In any case, the Plaintiffs have pleaded and offered evidence that their ancestral father, Oduwusi Awokekere was installed as Baale of Awokekere and after his death, his three sons took their turn to be installed as Baale. I also note that both the Plaintiffs and the Defendants agree that the incumbent Village Head Baale who was installed by incumbent Oluwo of Iwo is a member of the Plaintiffs’ family.”
The lower Court continued thus:
“I. T. Tewogbade Esq. learned Counsel for Defendants rightly submitted … that civil cases are determined on preponderance of evidence and balance of probabilities. … While the Defence Counsel took time to state the facts and evidence of the Plaintiffs’ case, he did not for a moment state any evidence of the Defendants in the said address. I have taken time to go into the records thoroughly to peruse the evidence of the Defendants and I find nowhere where the scale of balance of evidence can be titled against the Plaintiffs. All the tenants of the Defendants, who testified, DW3, DW4 and DW5, were not actually farming on the land in dispute but outside it. DW6 and DW8 called as boundary men are found not to be at the boundary of the land in dispute. The 3rd Defendant, DW7, said under cross-examination that he only knows a bit of the land in dispute.
… I note both Exhibits ‘B and C’ which are judgments of this Court in 1998 and 1978 respectively which were in favour of the Plaintiffs’ family which were in respect of the adjacent land to the land in dispute. There is such presumption that the Plaintiffs are likely to be the owners of the land in dispute and part of the original vast land. In such a situation, it lies in the Court of the Defendants to rebut such presumption by a superior evidence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<> Furthermore, the argument of the Defence Counsel that the Plaintiffs are not in possession is very weak. It is the evidence of the Plaintiffs that their ancestral father upon being granted the land planted tree crops like palm trees and cocoa. Subsequently, his successors planted crops. They also offered in evidence that they are still farming on the land and granted possession to tenants like PW4, PW5, PW6, PW7 and PW8. What purported this action, according to the Plaintiffs, is that the Defendants are now claiming ownership and demanding for and taking rents from their tenants. I hold therefore that the Plaintiffs from evidence before me are in exclusive possession.
I further hold that the acts of ownership mentioned above coupled with the evidence of PW4, PW5, PW6, PW7 and PW8 who are tenants of the Plaintiffs on the land in dispute are positive and numerous enough to warrant the inference that the Plaintiffs are the owners of the land in dispute.
… I note that the evidence of DW8 and DW9 Oba Jacob Oyetunde Alajide and Oba Asimiyu Sodiq Iyanda Agboluaje of Ogburo respectively have not helped the evidence of the Defendants. DW8 under cross-examination said that the Defendants’ ancestor Akinola … farmed on a farmland different from the land in dispute while DW9 does not know the land in dispute. I note that these two traditional rulers who were called by the Defendants as boundary men did not give evidence as boundary men to the land in dispute as they asserted that there are other settlements between their domain and the land in dispute.
It is to be noted that the 4th Defendant, who testified as DW10, under cross-examination confirmed that his own father was the Defendant in Exhibit B in the case where the Defendants lost to the Plaintiffs on a dispute over 45.425 hectares. I also note that DW1 who testified as grantor of land to the Defendant, Prince Olalekan Abimbola, said that he did not know the boundaries of the land in dispute. He said further under cross-examination that the forefathers of the Defendants farmed at Oduo Village which was granted to them by Oluwo Lamuye and which is far from the land in dispute.”
It was based on these deliberations and evaluation of the evidence of the parties that the lower Court found that the Respondents made out a better case of ownership of the land in dispute than the Appellants and entered judgment for the Respondents.
The complaint of the Appellants under this issue for determination is against the above reproduced evaluation of the evidence of the parties carried out by the lower Court. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.
Thus, it is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to different decision; he must attack the findings of fact made by the trial Court from the evidence led – Uor Vs Loko (1988) 2 NWLR (Pt 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom (1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (Pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543.
An appellant has a duty to show how the findings made by the lower Court are perverse – Ude Vs State (2016) 14 (Pt 1531) 122, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the Superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168 (1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”
Reading through the entire submissions and contentions of Counsel to the Appellants on this issue for determination in his brief of arguments, all Counsel did was to rehash and reproduce a compressed version of the submissions contained in his final written address before the lower Court. Counsel did not engage, contend against, attack or in any way disparage the findings made by the lower Court in the above reproduced excerpt of judgment. The duty on this Court in such circumstances is simply to examine the findings made by a trial Court to ensure that it did not go outside the evidence led at the trial to search for more inculpatory or exculpatory evidence, and where this is the case, not to interfere with the findings – Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26, Akaninwo Vs Nsirim (2008) 1 SC (Pt III) 219.
Reading through the notes of the evidence led at the trial and the contents of the documentary evidence tendered by the parties, particularly the Survey Plan, Exhibit A, the judgment in Suit No HIW/20/98 between the family of the Respondents and the family of the Appellants, Exhibit B, and the judgment in Suit No HOS/62/76 between the family of the Respondents and Molukere family, Exhibit C, vis-à-vis the above reproduced deliberations and findings of the lower Court, it is clear that the lower Court acted within the evidence of the parties on record, and did not go beyond the evidence in making its findings. This Court thus has no business interfering with the findings. Once the appellant fails to attack the findings and satisfactorily establish the error in the judgment appealed against, the respondent is entitled to an order affirming the judgment – Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74. The third issue for determination is thus resolved in favour of the Respondents.
Issue Four
Whether, on the facts and circumstances of this case, the judgment of the lower Court delivered outside the period of ninety days after adoption of written address by Counsel is valid
In arguing the issue for determination, Counsel to the Appellants noted that trial in the matter before the lower Court was concluded on the 3rd of July, 2018, and that the parties filed and adopted their final written addresses on the 15th of October, 2018 and the lower Court delivered judgment on the 25th of January, 2019. Counsel stated that on the date of the judgment, the lower Court asked the Counsels for more explanation about some aspects of the case and it, without adjourning to refresh its memory, proceeded to deliver the judgment immediately. Counsel stated that due to the lapse of the ninety-day period for delivering judgment after adoption of addresses, the lower Court forgot a lot of the pieces of evidence led by the parties and that this led to a miscarriage of justice and he proceeded to itemize the said pieces of evidence and errors committed by the lower Court in the judgment.
Notwithstanding that there is nothing in the records of appeal showing that the lower Court requested the parties to re-adopt their final written addresses before it went ahead to deliver judgment on the 25th of January, 2019, Counsel to the Appellants referred to the cases of Olusanya Vs UBA (2017) LPELR-42348(CA), Amokeodo Vs IGP (1999) 6 NWLR (Pt 607) 467 and Kajubo Vs State (1988) NWLR (Pt 73) 721 on the impropriety of a Court asking Counsels to re-adopt their written addresses in order to beat the ninety day period rule for delivery of judgment. Counsel stated that by the provisions of Section 294 (6) of the 1999 Constitution, a presiding Judge or Justice who delivers judgment outside the ninety-day period must send a report of the occurrence to the Chairman of the National Judicial Council and that this provision is mandatory and pre-condition for the validity of the judgment. Counsel urged the Court to find that the judgment delivered by the lower Court is not valid and to resolve the issue for determination in favour of the Appellants.
In his response, Counsel to the Respondents referred to the cases of Olusanya Vs UBA (2017) LPELR-42348(CA) and Awoyale Vs Ogunbiyi (1985) LPELR-661(SC) in asserting that the law recognizes the power of a Court to reopen the case of the parties, after the adoption of written addresses and the setting down of a matter for judgment, to request for further address on an issue not covered by the final addresses and which it discovered in the course of preparing the judgment, and that where this happens, the ninety day period for judgment delivery would re-commence running from the date of the further address. Counsel stated that was exactly what happened in the instant case and the lower Court re-opened the case on the 25th of January, 2019 and requested Counsel to the parties to address it on whether the parties joined issues on the description of the land in dispute and it, after the further address, stood down the matter for judgment.
Counsel stated that the ninety day period for delivery of judgment thus re-commenced running from the 25th of January, 2019 and that the judgment delivered by the lower Court later that day was proper and within time. Counsel stated that the allegation of Counsel to the Appellants that the lower Court forgot some pieces of evidence was unfair and uncharitable to the lower Court and that the Appellants did not suffer any miscarriage of justice. Counsel urged the Court to resolve the issue for determination in favour of the Respondents.
This issue for determination revolves around the interpretation of the provisions of Section 294 of the 1999 Constitution of the Federal Republic of Nigeria. The records of appeal show that trial in the lower Court closed on the 3rd of July, 2018, the parties filed and adopted their final written addresses on the 15th of October, 2018 and the lower Court delivered judgment on the 25th of January, 2019; one hundred days after the adoption of written addresses by Counsel. Section 294 (1) reads:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address”
The records of appeal show that on the 25th of January, 2019 the following exchange took place in the lower Court:
“Court: I noticed in the address of Counsel for defence that he raised the issue of description of the land … Counsel are to address me upon that issue; if issues were joined on the description of the land.
I. T. Tewogbade says he did not file a counter plan because the Defendants do not have a counterclaim. He says further that the land in dispute is a village and not in an urban area. Part of the land was claimed about 15 years ago and there was no dispute on the land in dispute as at then.
R. O. Ewuola for Plaintiffs says the Plaintiffs filed a survey plan which is Exhibit ‘A’.
Court: I have heard the submission of both Defendants and Plaintiffs Counsel on the issue of location and description of the land. I think the description of the land should be taken care of in the judgment to be issued later in this case. The case is stood down for judgment to be delivered in the Court.”
In other words, the lower Court re-opened the case of the parties on the 25th of January, 2019 to request for a further address and it thereafter re-closed the case and stood the case down for judgment. As rightly submitted by Counsel to the Respondents, the lower Court acted within its rights and powers to re-open the case and request for further address from Counsel. The Supreme has held in several cases that a Judge has an unfettered discretion in appropriate cases to reopen for further argument in any matter adjourned for judgment – Awoyale Vs Ogunbiyi (No. 1) (1985) 2 NWLR (Pt 10) 861, Taylor Vs Trustees of the Trinity Methodist Church (1986) 4 NWLR (Pt 34) 136, Utih Vs Onoyivwe (1991) LPELR-3436(SC).
Counsel to the Appellants has not challenged the propriety or otherwise of the re-opening of the case of the parties and as such the exercise of the power of re-opening of the case by the lower Court cannot be faulted by this Court. The law is that where the discretion has been validly and properly exercised the ninety-day period for the delivery of judgment will be reckoned from the date of conclusion of such further addresses, which if it is the last before judgment, will be accepted as the final address – Sodipo Vs Lemminkainen OY (1985) 2 NWLR (Pt 8) 547, Ojokolobo Vs Alamu (1987) NWLR (Pt 61) 377, Mustapha Vs Governor of Lagos State (1987) LPELR-1931(SC), Utih Vs Onoyivwe supra. The lower Court delivered judgment on the same date it re-opened and re-closed the case for further address. The judgment was thus within the ninety day period.
Going forward and assuming that the re-opening of the case for further address by the lower Court was improper because it was done after the original ninety day period had lapsed and not within it, as opined by the Supreme Court in the cases of Sodipo Vs Lemminkainen OY supra and Utih Vs Onoyivwe supra, and which effectively means that the judgment was not delivered within the ninety day period, Section 294 (5) of the 1999 Constitution states that:
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
This provision has been interpreted severally by the Courts to mean that a party cannot seek to nullify a judgment of Court simply because it was delivered outside the ninety day period allowed by the Constitution. The party must proceed further to convince the Court exercising jurisdiction by way of appeal or review of that decision that he has suffered a miscarriage of justice by the reason thereof. Where there is a failure to so establish a miscarriage of justice, the appellate Court will find it difficult to declare that judgment a nullity. In other words, the emphasis is not strictly on the length of time simpliciter but on the effect it produced in the writing of the judgment – Savannah Bank of Nigeria Ltd Vs Starite Industries Overseas Corporation (2009) 8 NWLR (Pt 1144) 491, International Beer and Beverages Industries Ltd Vs Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt 1297) 487, Kolawole Industrial Company Ltd Vs Attorney General, Federation (2012) 14 NWLR (Pt 1320) 221 and Peoples Democratic Party Vs Okorocha (2012) 15 NWLR (Pt 1323) 205.
The delay in the delivery of the judgment in the present case was by ten days and Counsel to the Appellants is of the opinion that this delay occasioned the lower Court into forgetting pieces of the evidence led by the parties. It is elementary that trial Judges do not store evidence led by parties in their memory, but record them in notes of evidence which form part of the records of proceedings. Therefore, they are not expected to recall the evidence from memory when writing judgment, and as such, the question of trial Judge forgetting evidence cannot arise. The alleged errors in the judgment itemized and highlighted by Counsel to the Appellants as arising from the delay of ten days in the delivery of judgment were either peripheral and tangential or non-existent. There is nothing on the face of the record showing or even suggesting a miscarriage of justice suffered by the Appellants by reason of the delay in the delivery of judgment by ten days. The complaints of the Appellants are baseless and the issue for determination is resolved in favour of the Respondents.
In conclusion, having resolved all the four substantive issues for determination in this appeal against the Appellants, it is obvious that the appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Osun State, Iwo Judicial Division delivered in Suit No HIW/17/2016 by Honorable Justice A. D. Oladimeji on the 25th of January, 2019 is affirmed. The Respondents are awarded the costs of the appeal assessed at N100,000.00.
These shall be the orders of the Court.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother, Habeeb Adewale O. Abiru, JCA; in this appeal.
The judgment is lucid and insightful and I cannot think of any aspect therein that warrants contribution from me. I agree in entirety with the reasoning of my learned brother in the said judgment and abide by the resolution of all the issues upon which the appeal has been determined in the judgment as well as the consequential order in relation to costs made by his lordship.
Accordingly, I too dismiss the appeal and affirm the judgment of the lower Court delivered in Suit No. HIW/17/2016 on 25/1/2019.
YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft, the lead judgment delivered by my noble brother Habeeb Adewale O. Abiru, JCA. I agree with my Lord’s reasoning and conclusions.
All I perhaps need to add is that no doubt Section 294(1) of the 1999 Constitution provides that every Court established under that Constitution shall deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses, but then it must be well understood that not every judgment delivered outside the 90 days is deemed ipso facto a nullity, for the decision to be rendered a nullity, the Appellant has to establish that the said decision occasioned a miscarriage of justice. The party complaining has the abiding duty to establish before the appellate Court to its satisfaction that he has suffered injustice on the ground of the non-compliance. See Section 294 (5) of the 1999 Constitution and the case of Ofulue V. Okoh (2014) LPELR 23218. The Appellants, in this case, have not been able to show that the delay of in the delivery of the judgment for a period of 10 days has occasioned any miscarriage of justice.
For this and the more elaborate reasons contained in the lead judgment, I too hereby dismiss the appeal for want of merit. The judgment of the High Court of Ondo State, holden at Iwo in Suit No: HIW/17/2016 delivered on 25th January 2019 is hereby affirmed.
I abide by all the orders in the lead judgment including the order as to cost.
Appearances:
N. O. Salawu For Appellant(s)
R. O. Ewuola For Respondent(s)