GEORGE & ORS v. ZAKA & ORS
(2022)LCN/16729(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, May 17, 2022
CA/PH/540/2016
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. Mr. Manson George 2. Mr. Eugene George 3. Mr. Enfal George 4. Mr. Ada George (Sued Personally And As Representing Members Of George Family, Igbogene-Epie) APPELANT(S)
And
1. Chief Ebenezer Olali Ozaka 2. Mr. Amon Olali Ozaka 3. Mr. Okuns Olali Ozaka 4. Mr. Luis Olali Ozaka ] Suing For Themselves And As Representing Olali Ozaka Family Of Igbogene-Epie) RESPONDENT(S)
RATIO
WHETHER OR NOT A COUNTER-CLAIM IS A SEPARATE AND INDEPENDENT CLAIM
It is important to note that the appellants filed a counter-claim before the lower Court. As with all such claims, it is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action. See Jeric (Nig.) Ltd. v. U.B.N. Plc [2000] 15 NWLR (Pt. 691) 447 at 463. A counter-claim is an independent action, the trial or success of which does not depend on the success or failure of the original suit. It is substantially a cross-action and not merely a defence to the plaintiff’s case. It is to be treated for all purposes for which justice requires it to be treated as an action which is not pivoted on another action. A counter-claim is in the same position as an action being itself a cross-action and subject to the rules of Court as regards pleadings. Therefore, where the plaintiff fails to file a defence to the counter-claim, the trial Court would assume that the plaintiff has no defence and enter judgment for the defendant/counter-claimant. See Total Nigeria Plc v. Morkah [2002] 9 NWLR (Pt. 773) 492 at 513, Tayo Oyetibo & Co. v. Ajose-Adeogun [1996] 6 NWLR (Pt. 452) 29, Ogbonna v. A-G, Imo State [1992] 1 NWLR (Pt. 220) 747 and Dabup v. Kolo [1993] 9 NWLR (Pt. 317) 254. PER ADEGBEHINGBE, J.C.A.
WHETHER OR NOT JURISDICTION IS A QUESTION OF LAW
In the case of Agbule v. W.R.P. Co. Ltd. [2013] 6 NWLR (Pt. 1350) 318, 354, 359, the Supreme Court warned that jurisdiction is a question of law. It is a threshold issue, very fundamental and the live wire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided, would amount to a nullity. The product of such a proceeding, in other words, is a nullity. In the instant case, the Court of Appeal rightly held that the trial Court had no jurisdiction to entertain the proceedings as it did. See also Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Trustees, P.A.W. v. Trustees A.A.C.C. (2002) 15 NWLR (Pt. 790) 424, A.P.P. v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 and Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88.
In the case of Estate of Late Chief HIS Idisi v. Ecodril (Nig.) Ltd. (Pt. 1527) 355 at 377-378, the Supreme Court reiterated that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Put differently, jurisdiction is the life wire of any proceeding in Court and everything done in the absence of jurisdiction is simply, a nullity. That is the fate of the judgment of the trial Court in this case. PER ADEGBEHINGBE, J.C.A.
WHETHER OR NOT ANY JUDGEMENT OR ORDER GIVEN WITHOUT JURISDICTION IS VALID
Iguh, J.S.C. in the case of J. C. Limited v. Ezenwa [1996] 4 NWLR (Pt. 443) 391 at 414 stated: “It is beyond question that a judgment or order by a Court given without jurisdiction is a nullity. See Timitimi v. Amabebe (1953) 14 WACA 374, Nyarko v. Akowuah 14 WACA 426, Oranye v. Jibowu (1950-51) 13 WACA 41. It is also indisputable that Section 53 of the Evidence Act enables any party to a suit to raise lack of jurisdiction in respect of a judgment or order of a Court sought to be used against him on ground of estoppel. See also Timitimi v. Amabebe, supra. Fadiora v. Gbadebo (1978) 3 SC 219; (1978) NSCC Vol 2 page 121 at 133 and Attorney-General for Trinidad and Tobago v. Eriche (1893) A.C. 522-523. I am also in agreement that lack of jurisdiction in the Court deprives the judgment or order of any effect whether by estoppel or otherwise, even where the party alleged to be estopped himself sought the assistance of the Court whose jurisdiction is impugned.
See Rogers v. Wood (1831) 2 B & Ald. 245; 109 ER 1134, Dublin (Archbishop v. Trimleston (1849) 12 I Eq R. 251, Toronto R. Co. v. Toronto (1904) A.C. 809 at 815. In other words, in raising the invalidity or attacking the validity of a judgment or order on ground of want of jurisdiction, it will go to no issue and must be treated as wholly irrelevant and immaterial that such judgment or order was obtained at the instance of the party against whom it is tendered. See Mcintosh v. Parent (1924) 4 D.L.R 420.” PER ADEGBEHINGBE, J.C.A.
THE DEFINITION OF “TAINTED WITNESS”
On the other hand, it has been said that the term “tainted witness” should be confined to one who is either an accomplice or who by the evidence he gives whether as a witness for the prosecution or defence, may be regarded as having some purpose of his own to serve. See Idahosa v. The State (1965) NMLR 85 and Jimoh Ishola v. The State, supra at P. 509. I am prepared to accept that a tainted witness may be defined as a witness who may not in strict sense, be an accomplice, but who on giving his evidence is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to the corroboration of his evidence may appropriately be given.
It seems to me important, however to recall the admonition of Idigbe, J.S.C. in Garuba Mailayi & Anor v. The State (1968) 1 All NLR 116 at 123 with regard to this class of witnesses described as “tainted”. Said he:-
“Recently, there has been a tendency among criminal lawyers to create a category of “tainted” witnesses. We however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds, a great deal of confusion will be unleashed in an area of evidence which even now is fraught with difficulties.” PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The first punch in the dispute which led parties to the Court of Appeal was thrown by the respondents, when they filed a writ of summons in the registry of the lower Court, on 29/12/2011, shortly after the celebration of Christmas. Their target was the appellants. The writ of summons and paragraph 20 of the amended statement of claim (filed on 02/07/2012) demanded that the lower Court should make the following orders against the appellants:
“20. Whereof the claimants are aggrieved and claim as follows:
a. Declaration that the claimants are the owners and are entitled to a Statutory Right of Occupancy over the piece or parcel of land in dispute lying and situate at Ishiakwa bush, (also sometimes referred to as Idin bush because it situates beside the Idin lake) Igbogene-Epie in the Yenagoa Local Government Area of Bayelsa State, which is delineated and verged red in survey plan No. HIF/BYS/SP-05/2011 prepared by Surveyor H. I. Festus.
b. An Order of perpetual injunction restraining the Defendants, their agents, servants, privies and heirs howsoever described from entering into, selling, leasing, farming, building or committing any other form of trespass to the claimants’ aforesaid land, verged red in survey Plan No. HIF/BYS/SP-05/2011 prepared by Surveyor H. I. Festus.
c. The sum of N10,000,000.00 (Ten Million Naira) only, as general damages for trespass over the claimants’ aforesaid land.”
(See page 1-2 and 96 of the record of appeal).
The appellants (then as defendants) filed a statement of defence and counter-claim on 27/01/2012. The counter-claim, in its fullness, demanded as follows:
“1. The defendants (Claimants by counter-claim) state that the land in dispute is called Idin bush. The defendants shall rely on their survey plan No. AIG/BYS/LID.001/2012, prepared by Surveyor Igo A. Goin of Geobeam Global Ltd.
2. The defendants (claimants by counter-claim) in proof of their counter-claim state that their late father, George Aguba inherited the land in dispute from his late father, Aguba, and was in exclusive and quite possession of same.
3. The defendant (claimants by counter-claim) state further that the land in dispute devolved on them upon the demise of their above named ancestors.
4. The defendants (claimants by counter-claim) shall at the trial counter-claim against the claimants (defendants by counter-claim) in accordance with the facts and claim stated herein.
5. The defendants (claimants by counter-claim) shall rely on paragraphs 7, 8 and 9 of their statement of defense in proof of their counter-claim and do hereby adopt the said paragraphs as part of this counter-claim.
WHEREFORE the defendants (claimants by counter-claim) claim against the claimants jointly and severally as follows:
i. A declaration that the defendants (claimants by counter-claim) are the owners of the land in dispute and entitled to quiet possession of same.
ii. An order of injunction restraining the claimants, their agents, privies and assigns from further trespassing into defendants’ land.
iii. The sum of Ten Million Naira (N10,000,000.00) only as general damages for trespass into the land in dispute.
iv. The sum of Five Million Naira (N5,000,000.00) only being special damages for the destruction of their crops and economic trees.
COMPUTATION OF DAMAGES
ECONOMIC TREES/CROPS
…
…
TOTAL N5,000,000.00”
At the end of trial, the lower Court (per Justice Kate Abiri, Chief Judge) delivered its judgment on 03/02/2016, wherein it concluded as follows:
“Judgment is accordingly entered in favour of the Claimants as follows;
1. A declaration that the Claimants are the owners and are entitled to a statutory right of occupancy over the piece or parcel of land in dispute lying and situate at Ishakwa bush (also sometimes referred to as Idin bush because it situates beside the Idin lake) Igbegene-Epie in the Yenagoa Local Government Area of Bayelsa, which is delineated and verged red in survey plan no. HIF/BYS/SP-05/2011 prepared by Surveyor H. I. Festus.
2. An order of perpetual injunction restraining the Defendants, their agents, servants, privies and heirs howsoever described from entering into, selling, leasing, farming, building or committing any other form of trespass to the Claimants aforesaid land verged red in survey plan No. HIF/BYS/SP-05/2011 prepared by Surveyor H. I. Festus.
3. The sum of N500,000.00 (five hundred thousand naira) only as general damages for trespass over the Claimants’ aforesaid land.
….
Court: cost in favour of the Claimants against the Defendants if N50,000.00.”
(See pages 184-201 of the record of appeal).
Promptly, appellants registered their understandable displeasure with the judgment quoted above, by filing a notice of appeal on 25/02/2016, which arrived with four grounds of appeal. The grounds of appeal, without their particulars, state as follows:
“GROUND I
The learned trial Judge erred in law when he relied on the evidence of traditional history of CW 5, instead of rejecting same as unreliable in the light of Exhibit “D”.
…
GROUNDS II
The learned trial Judge erred in law when he held thus:
“the name Olali Ozaka as used by the Claimants is not challenged by the Defendants either in their pleadings or evidence led. If the claimants had used only Ozaka in their cases at the Customary Court and the High Court, how has it affected the defendants or caused injustice by adding Olali? The Defendants have not so stated in their pleadings”.
…
GROUND III
The learned trial Judge erred in law when he held thus:
“Putting the case of the parties on the imaginary scale and also, on preponderance of evidence, the claimants’ evidence is weightier and more probable in that, they traced their traditional history in an unbroken chain. Boundary witnesses testified and there was serious challenge against their evidence and they fixed the land with certainty and clarity”.
…
GROUND IV
That the judgment cannot be supported by the weight of evidence.”
At the hearing of this appeal, appellants were represented by P. P. P. Tamuna Esq. (holding the brief of Goerge Halliday Esq.) Clement S. Buruboyefe Esq. (with B. S. Aveke Esq.) appeared for the respondents.
Respondent’s counsel reminded the Court that his clients filed a preliminary objection on 03/10/2017, which they argued at pages 3-7 of the respondents’ brief of argument. He adopted that argument and urged that the notice of appeal which commenced this appeal should be struck out or issues raised for determination therefrom should be struck out.
Appellants’ counsel adopted appellants’ brief of argument and reply brief of argument, respectively, filed on 12/05/2017 and 07/09/2018. He urged the Court to allow the appeal and to set aside the judgment of the lower Court. He indicated that the appellants did not respond to the preliminary objection.
Respondents’ counsel adopted their brief of argument filed on 20/03/2019 as argument of opposition to the appeal, which he urged the Court to dismiss.
Issues for Determination
George Halliday Esq., settled the brief of argument and reply brief of argument filed on behalf of the appellants, on 12/05/2017 and 07/09/2018, respectively, and both deemed properly filed and served on 13/11/2018. In the brief of argument, learned counsel asked the following five questions:
1. Whether the evidence of CW1 and CW2, being evidence of witnesses that have sued the defendants before on the same land in dispute as evidence by Exhibit “A” and the admissions of CW2, can be regarded as evidence of boundary witnesses with no purpose of their own to serve.
2. Whether material inconsistencies of claimants’ root of title will not void their claim for declaration of title to land.
3. Whether evidence of witnesses that is flatly contradictory to obvious facts and documentary evidence will not be treated by the Court as unreliable.
4. Whether the silence of the trial Court on the question of the credibility of CW5, did not constitute an improper evaluation of evidence.
5. Whether the defendants/counter-claimants’ evidence of traditional history was not cogent enough to sustain a counter-claim on land.
The respondents’ brief of argument was settled by C. S. Buruboyefe Esq., and it was filed on 20/03/2019. There is a preliminary objection embedded in the respondents’ brief of argument, which will be attended to later in this judgment.
Respondents’ counsel found the following three questions for determination of this appeal:
(1) Whether the lower Court erred in relying on the evidence of the 1st respondent (CW 5) – Ground 1.
(2) Whether the lower Court erred in holding that the name, Olali Ozaka, as used by the respondents, was not challenged by the appellants. – Ground 2.
(3) Whether the lower Court erred in holding that the respondents’ evidence is weightier and more probable. – Grounds 3 and 4. Resolution of the Preliminary Objection
Respondents’ two-pronged preliminary objection is located at pages 3-7 of the respondents’ brief of argument. The complaint of the respondents is that the notice of appeal filed by the appellants is neither signed by the appellants nor their legal counsel. He urged that the process should be struck out, as unsigned documents are without any value. The attention of the Court was drawn to the cases of Brewtech Nigeria Limited v. Akinnawo [2016] LPELR – 40094(CA) and Egunjobi v. Oluwo [2016] LPELR – 41950(CA).
It is important to note that respondents’ counsel recorded his bellyache about how the first copy of the record of appeal served on the respondents did not have the signature of counsel. On 13/11/2018, this Court (according to respondents’ counsel) observed that the copies of the record of appeal transmitted to this Court were different. Appellants asked for and were granted adjournment to correct the mistakes in different copies of the record of appeal. Thus, the second copy of the record of appeal, transmitted on 02/11/2016, which was served on the respondents had the signature of learned counsel.
Learned counsel for the respondents stated:
“2.15 In the said second copy of the record of appeal the appellant’s counsel has appended his signature to the notice of appeal, which was not signed as at the time it was prepared and filed. The appellants, upon seeing our preliminary objection, which was filed since 3rd day of October, 2017, has appended his signature to the copies of the notice of appeal, contained in the records of appeal. It must be noted that the said signature of counsel as appended on notice of appeal, in the record of appeal, is not a true reflection of the notice of appeal. It was merely appended on the record of appeal, after the notice of appeal had been filed and the record of appeal transmitted to this Honourable Court.”
On failure to sign Court processes, the attention of this Court was directed to the case of Onwukwe v. Iwuchukwu [2017] LPELR-41584(CA) etc. He urged the Court to strike out the notice of appeal.
The second leg of the argument is that appellants deduced more issues for determination that grounds of appeal filed. On that score, learned counsel for the respondent requested that the issues for determination should be struck out and the appeal should suffer the same fate. He relied on the cases of Okonobor v. D. Edegbe & Sons Transport Company Limited [2010] 17 NWLR (Pt. 1221) 181 at 189, Orji v. Zaria Industries Limited [1992] NSCC (Pt. 1) 1 at 16-17, Onuaguluchi v. Ndu [2000] 11 NWLR (Pt. 679) 519 at 556, Wema Bank Limited v. International Fishing Company Limited [1998] 6 NWLR (Pt. 555) 557 at 569 and Order 19 Rule 10 of the Court of Appeal Rules, 2016.
The appellants’ counsel did not respond to the complaints of the respondents narrated above. Ordinarily, it is the law that the appellants have thereby conceded the issues raised and argument. That does not obviate the need for this Court to determine the issues in this judgment, as a matter of judicial responsibility or duty.
On the first leg of respondents’ objection, I have examined the two copies of the record of appeal before this Court. The copies are marked as having been transmitted to this Court on 02/11/2016. I have paid close attention to the notice of appeal, which sleeps at pages 234-237 of each of the two copies. At page 237, in each of the two copies, I see that George Halliday Esq., signed the process filed on 25/02/2016. On visual confirmation of the content of the record of appeal, there is no truth in the complaint of the respondents’ counsel that the notice of appeal is not signed. The notice of appeal is signed and sound. The complaint of the respondents’ counsel with respect to the want of signature on the notice of appeal is without root and is hereby discountenanced. There was no attempt to challenge or successfully challenge the record of appeal by the appellants, which makes it impossible for this Court to go beyond the record of appeal placed before it.
On the second leg of the objection, concerning the complaint that the appellants are guilty of proliferation of issues for determination, it is true that there are four grounds of appeal. It is equally true that appellants’ counsel set five issues for determination before this Court.
Going through the authorities, I found that the current trend in the approach of the Supreme Court is that despite error of proliferation of issues formulated by the appellants’ counsel in appeals cited, the Supreme Court did not strike out the appeals but determined the appeal based on issues formulated by the respondent. See Labiyi v. Anretiola [1992] 8 NWLR (Pt. 258) 139 at 168, Govt., Kano State v. E. F. C. C. [2018] 9 NWLR (Pt. 1625) 443 at 457 and Olaiya v. State [2018] 10 NWLR (Pt. 1626) 1 at 14-15. In the case of Society Bic S. A. v. Charzin Industries Limited [2014] 4 NWLR (Pt. 1398) 531, Ngwuta, J.S.C., stated that the Court should strike out proliferated issues. However, in that same case, the Supreme Court determined the appeal by relying on respondent’s issues for determination, as the Court stated, at page 532 of the Law Report:
“Having disposed of this side issue, I intend to determine the appeal on the issues raised by the respondent which are substantially the same as those of the appellant. Issue 1 is whether the Court below was right in deeming as abandoned prayer 2 in the appellants’ motion.”
See also the unreported decision of this Court, dated 11/10/2021, in appeal no. CA/PH/32CR/2020: Citizen Eze Daniel v. State, per Tani Yusuf Hassan, JCA. In the case of Dung v. Gyang [1994] 8 NWLR (Pt. 362) 315 at 325, this Court stated:
“Where there is a proliferation of issues, as in the case in the instant appeal, the Court of Appeal is free either to adopt the issues formulated for determination or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (supra).”
See the case of Obidinma v. Otuonye [2021] LPELR – 56049(CA) (per Olabode A. Abimbola J.C.A.).
In the case of Ukpong v. State [2019] LPELR – 46427(SC), the Court also, stated:
“On my part, I take the view that only one issue is determinative of this appeal. After all, this Court is entitled to reformulate issues framed by the parties in order to give them precision and clarity. … Simply put, therefore, the purpose of reformulating issues is to accentuate the real question in controversy in the interest of accuracy, clarity and brevity, Musa Sha (Jnr.) and Anor v. Da Rap Kwan and Ors [2000] 5 SCNJ 01.”
Per NWEZE, J.S.C. (Pp. 4-5 paras. C).
In the circumstance, I am of the view that this Court has the power either to adopt the issues for determination formulated by the respondents or re-couch issues for determination in this appeal. See Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235 and Abdullahi v. Adetutu (2020) 3 NWLR (Pt. 1711) 338.
Therefore, for the purpose of clarity and accuracy, based on the grounds of appeal, numbered 1-4 and the issues formulated by the parties, the issues for determination in this appeal are those submitted for the respondents, but tweaked as follows:
(1) Whether the lower Court erred in relying on the evidence of the CW5 (1st respondent), going by its being contradicted by Exhibit D on CW5’s denial of previous proceedings between the parties (CW5) – Ground 1.
(2) Whether the lower Court erred in allowing the appellants to make use of the name, Olali Ozaka, contrary to the simple name of Ozaka, in which the respondents made previous claims in Court – Ground 2.
(3) Whether the lower Court erred in holding that the respondents’ evidence is weightier and more probable than that of the appellants and thereby giving judgment in favour of the respondents – Grounds 3 and 4.
Argument of the appeal by the Appellants
With respect to the first issue, appellants’ counsel pointed out that CW1 and CW2 admitted to being members of the respondents’ family. They also admitted (under cross-examination) to having sued the appellants previously on the same land in dispute. Reference was made to paragraphs 2, 3, 4, 5 and 6 at page 3 of the judgment of the lower Court and paragraphs 2, 3, 4, 5, 6 and 7 of page 4 of the judgment of the lower Court. He pointed at Exhibit A as the summons filed against the appellants by CW2, which suit was later withdrawn. He described the two witnesses as witnesses who had their purposes to serve. He argued that their testimony was not that of independent witnesses, which the Court could rely on.
On inconsistency, learned counsel noted that in Exhibits C and D, which are summons from the customary Court and application to quash the decision of the customary Court, respectively, respondents claimed the land in dispute for the Ozaka family. However, at the trial of the suit in this appeal, respondents claimed the same land in dispute for a branch of the Ozaka family, when they added Olali to the name Ozaka. Reference was made to the case of Balogun v. Agbesanwa [2001] 17 NWLR (Pt. 741) 118 at 140. He explained that in exhibit D, respondents claimed to have inherited the land from their forefathers, while paragraph 10 of the statement of claim stated that it is only the Olalis’ portion which belongs to them by apportionment, contrary to inheritance. Respondents also claimed to have inherited the land in dispute from time immemorial, while paragraph 12 of the statement of claim stated that Olali Ozaka died in 1995 after which respondents inherited the land in dispute. In Exhibit D, the land in dispute is called Idin bush and not Isiakwa bush. CW 2 testified that he sued the appellants in respect of Idin bush and not Isiakwa bush. As seen in Exhibit A, CW 1 gave similar evidence. He relied on the case of Ekang v. State [2001] 11 NWLR (Pt. 723) 1 at 24 on the effect of material contradiction, which should cause the failure of a claim.
Learned counsel referenced the evidence of CW 5 which made him the sole witness who testified on traditional history at the trial. When cross-examined, CW 5 denied the suggestion that there was previous litigation between the parties before the customary Court. That proceeding was quashed by the High Court by Exhibit C. The evidence of CW5 was contradicted by Exhibits C and D. He submitted that the lower Court ought to have disregarded the evidence of CW5 and treated him as a “lying witness”. He found it difficult to understand how a person who could not recall how old she was and the time she returned to the community, was able to remember the number of years she farmed on land, forming boundary with the land in dispute. CW2 could not remember the extent of the land she owned, out of which she has sold a portion. These issues, according to learned counsel, were not resolved by the lower Court. He relied on the case of Ukaegbu v. Nwololo [2009] 3 NWLR (Pt. 1127) 194 at 224.
Going further, learned counsel for the appellants stated that the lower Court failed to reference the falsity of facts in the evidence of CW1, CW2 and CW5, despite the fact that the issues were raised in the final written address of the appellants.
On the failure of the counter-claim, appellants’ counsel submitted that evidence of traditional history ought to have entitled appellants to the grant of their claim, as one of the five ways of proving title to land.
He urged the Court to set aside the judgment of the lower Court and enter judgment in favour of the appellants.
Respondents’ Argument of the appeal
Learned counsel recalled the circumstances of the respondents having to approach the lower Court in their suit against the appellants. He directed the mind of this Court to paragraph 16 of the amended statement of claim and paragraph 10 of the statement of defence, where parties agreed on the facts that there was previous litigation before the suit in the lower Court. CW5 and DW1 testified on the fact, which was not in dispute and thus, needed no further proof. He urged the Court to disregard the appellants’ complaint on the issue.
Respondents, who claimed title through evidence of tradition pleaded facts as required and CW5 testified on the pleading of founding of the land by Ovuke-Oviemo and its being passed down to Olali Ozama, from whom respondents directly inherited. Respondents have been in possession of the land in dispute from that point. He recalled that CW5 testified that Ovuke-Oviemo partitioned his land a number of times before the land in dispute devolved on the respondents. He urged the Court to disregard the submission of the appellants when they claimed that the respondents claimed title by partitioning and apportionment.
Reference was made to paragraph 1 of the amended statement of claim where the name of Olali Ozaka was boldly pleaded and paragraph 1 of the statement of defence which admitted the fact. He submitted that facts admitted need no further proof, which was the conclusion reached by the lower Court. He insisted that the name of the respondents’ family was not in dispute before the lower Court.
Learned counsel informed that it was at the stage of address that learned counsel raised the issue of the name of the respondents’ counsel for the first time, which was not based on evidence led at the trial. He submitted that the address of counsel cannot take the place of evidence, which is the conclusion of the lower Court, which held that the name of the respondents was not challenged at the trial.
Learned counsel noted that the case of the respondents was “predicated mainly on traditional evidence and partition”. (See paragraph 6.03 of respondents’ brief of argument). Respondents also pleaded and proved how the land in dispute devolved from Ovuke-Oviemo to the respondents through the years. Respondents tendered a survey plan showing portions of the land in dispute held by different persons. Reference was made to paragraph 4 of the statement of defence and DW1’s evidence, under cross-examination, where he testified that at the old age of Ovuke-Oviemo, he partitioned the expanse of land, which he founded, to Aguba and Ozaka. From that point, the duo of Aguba and Ozaka owned their portions of the land and they became boundary neighbours. These facts supported the case of the respondents.
Respondents’ case is that Olali Ozaka exclusively owned his own portion of the land until his demise in 1995, after which, the land in dispute devolved on the respondents. Reference was made to paragraphs 12, 13 and 14 of the amended statement of claim and paragraphs 11, 12 and 13 of CW5’s statement on oath. CW 5’s evidence, in the view of learned counsel, was not shaken or contradicted at the trial. He noted that the appellants failed to lead evidence on how their own land was founded or evidence on how the land devolved on them and the particulars of intervening owners. Appellants did not give any evidence of acts of possession, which they laid claim to. What is more, DW1, under cross-examination, admitted that the appellants do not farm on the land in dispute, despite claiming earlier that the land is used for farming by the appellants. The respondents pleaded and proved possession of the land in dispute. Exhibit B and evidence led showed that the respondent is in possession of the land in dispute with remnants of the cassava planted shown on the land.
Learned counsel explained that CW1 testified on behalf of the Benson family and CW 2 testified on behalf of the Francis Ozaka family (boundary neighbours). These are the persons appellants have described as tainted witnesses because they once sued the appellants over the land in dispute. Learned counsel intoned that the two witnesses did not sue the appellants over the land in dispute. They sued the appellants separately concerning lands which were adjacent to the land in dispute and not the land in dispute. They also testified that they are boundary men to the land in dispute. Learned counsel is of the opinion that the case of Dimkpa v. Chioma [2010] 9 NWLR (Pt. 1200) 482 at 505 is all fours with the case herein, as this Court in the case cited, held that there is no basis to treat witnesses like CW1 and CW2 as tainted witnesses, since their being boundary men was not challenged by the appellants.
He urged the Court to resolve the issues in favour of the respondents and to dismiss the appeal.
Appellants’ Reply Argument
The only fresh argument in the reply brief of argument filed by the appellants is that the case of Lebile v. Reg. Trustees C & S (2003) 2 NWLR (Pt. 804) 399 at 419 defines “time immemorial”, which is when the respondents claimed to have inherited the land in dispute, with the date they gave as 1995.
Determination of the Appeal
Going by the observations I will make in this judgment it is apt that all three issues identified for determination should be determined together. In doing so, I intend to open the consideration of the issues with the last of the issues – Issue three (3).
The facts of the respective cases of the appellants and the respondents before the lower Court are as summarized by that Court at page 198 of the record of appeal, as follows:
“Now, the pleadings of the Claimants, in their amended statement of claim is that Ovuke-Oviemo was the ancestor of both parties and founder of a large expanse of land including the land in dispute. Ovuke-Oviemo begat Aguba and Ozaka. Ozaka begat Francis, Vincent and Olali. Olali begat the Claimants.
Ovuke-Oviemo is said to have partitioned his land between Aguba and Ozaka. Ozaka in turn, in his lifetime, partitioned his portion amongst his three sons. The portion partitioned to Olali Osaka is said to be the land in dispute.
The name Olali Ozaka as used by the Claimants is not challenged by the Defendants either in their pleadings or evidence led. If the Claimants had used only Ozaka in the cases at the Customary Court and the High Court, how has it affected the Defendants or caused any injustice by adding Olali? The Defendants have not stated in their pleadings.”
The appellants claim to be descendants of Aguba and the land they laid claim to is that which was partitioned to Aguba. The respondents’ claim to be descendants of Ozaka and that the land they laid claim to is that which was partitioned by Ozaka to his son, Olali Ozaka. At page 198 of the record of appeal, the lower Court continued:
“Who between the Claimants and the Defendants have established title to the land in dispute?”
Proof here shall be on preponderance of evidence. That is weighing the evidence of both sides on an imaginary scale, whose evidence is weightier.
Both parties claim title to the land in dispute vide traditional history and possession.
The Claimants and the Defendants are said to be of common ancestor called Ovuke-Oviemo.
The Claimants in their pleading stated how they came to own the land in dispute tracing from the said ancestor.
That Ovuke-Oviemo begat Aguba and Ozaka and he was also the founder of a large expanse of land including the land in dispute.
Aguba begat George and Azighiri and George begat the Defendants. While Ozaka begat Francis, Vincent and Olali. Olali begat the Claimants.
That Ovuke-Oviemo in his lifetime farmed on the large expanse of the land until his old age when he partitioned it to his two sons Aguba and Ozaka. Ozaka used his portion and also partitioned his portion to his three sons and one Benson he brought up. The portion Ozaka partitioned to Olali was the land in dispute.
Those were the pleadings on the history of the devolution of the land from the founder to the Claimants. There is no unbroken chain as required in traditional history.
The Claimants stated the boundary neighbours of the land in their pleadings at paragraph 10 and some of those witnesses testified. They are CW1, CW 2 and CW 3. The witnesses testified of seeing the Claimants use the land in dispute for farming.
The Defendants in their pleadings, specifically the counter-claim stated that they inherited the land in dispute called Idin Bush and not Ishakwa bush from their late father George Aguba who inherited it from his late father, Aguba. They also admitted their common ancestry, Ovuke-Oviemo. The Defendants however stated that it was not all the land they inherited that was in dispute. They did not plead the boundary of the land nor did any independent witness testified as boundary neighbour. The only witness was the wife of one of the Defendants. She was Fostinah Enfal, DW2, who testified that her father’s land shared boundary with the land in dispute and she was told by her husband that the land belonged to the Defendants.
Both parties traced their root of title to Ovuke-Oviemo. They both claim to be exercising undisturbed possession and use of the land which they inherited from their forefathers. They both alleged destruction of economic crops on the land by the other.
The Defendant’s witness, DW1, under cross-examination stated that he did not know the number of economic trees that were destroyed. He also admitted that the land was for farming but they do not farm on the land and it was virgin land.
Defence counsel however in his reply on points on law tried to explain those answers of the witness. That the case began in 2011, they no longer farmed on the land as law abiding citizens. Also, stating that the land ‘was’ virgin land was different from the land ‘is’ virgin land.
Well, Counsel cannot give evidence, and if there was any ambiguity, he ought to have clarified it under re-examination. Those answers of the witness betrays the fact that the Defendants were in possession of the land. That could explain why they made heavy weather of the name Ishakwa bush being a different bush but failed to prove where this different bush is situate in their survey plan, pleadings and evidence particularly in view of their counter-claim.
The Claimant’s witness CW5 stated that they had been in possession of the land in dispute until 2010 when the Defendants trespassed on the land by cutting down their crops and destroyed some cassava crops particularly the farm of the 2nd Claimant and his wife.
Putting the case of the parties in the imaginary scale and also on preponderance of evidence the Claimants’ evidence is weightier and more probable in that, they traced their traditional history in an unbroken chain. Boundary witnesses testified and there was no serious challenge against their evidence. And they fixed the land with certainty and clarity. While the Defendants, in spite of their counter-claim, gave a scanty history of the devolution of the land. The land they inherited being a larger land than the disputed land, they did not state effectively their boundary neighbor(s) or any credible boundary witness. Their claim to possession is also doubtful in view of the testimony of DW1 earlier pointed out, when he said they do not farm on the land.
From the foregoing, the issue, who between the claimants and the Defendants have established title to the land in dispute, is therefore answered in favour of the Claimants.”
It is important to note that the appellants filed a counter-claim before the lower Court. As with all such claims, it is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action. See Jeric (Nig.) Ltd. v. U.B.N. Plc [2000] 15 NWLR (Pt. 691) 447 at 463. A counter-claim is an independent action, the trial or success of which does not depend on the success or failure of the original suit. It is substantially a cross-action and not merely a defence to the plaintiff’s case. It is to be treated for all purposes for which justice requires it to be treated as an action which is not pivoted on another action. A counter-claim is in the same position as an action being itself a cross-action and subject to the rules of Court as regards pleadings. Therefore, where the plaintiff fails to file a defence to the counter-claim, the trial Court would assume that the plaintiff has no defence and enter judgment for the defendant/counter-claimant. See Total Nigeria Plc v. Morkah [2002] 9 NWLR (Pt. 773) 492 at 513, Tayo Oyetibo & Co. v. Ajose-Adeogun [1996] 6 NWLR (Pt. 452) 29, Ogbonna v. A-G, Imo State [1992] 1 NWLR (Pt. 220) 747 and Dabup v. Kolo [1993] 9 NWLR (Pt. 317) 254.
As the judgment of the lower Court will confirm, the lower Court dismissed the counter-claim filed by the appellants. Regarding the relationship between the land claimed in the respondents’ claim and the appellants’ claim, the lower Court at page 196 of the record of appeal, held:
“It has been my stand that the Claimants know the land in dispute and clearly stated its boundary neighbours and followed it with a survey plan. It is the same land the Defendants are counter-claiming and called Idin bush, though Claimant called it Ishakwa bush or Idin bush.”
CW 4 – Harcourt Ibimo Festus – Registered Surveyor – tendered Exhibit B, a survey plan, with serial no. HIF/BYS/SP-05/2011 on behalf of the respondents. I have examined the notice of appeal filed and relied upon by the appellants in this appeal and I could not find any ground of appeal challenging or attacking this direct and clear finding of the lower Court. Thus, the finding stands inviolate. That is, it is the same land in the claim, which is being claimed in the counter-claim. It amounts to the fact that there is a subsisting holding of the lower Court that parties know the identity of the land in dispute. Having not challenged this finding of fact, all arguments from the appellant regarding the identity of or the name of the land in dispute goes to waste or naught. I will refuse to countenance such argument. Where there is no appeal against specific findings of a trial Court, an appellate Court will not have the power to alter or upturn those findings. See Adeyemi v. Olakunri [1999] 14 NWLR (Pt. 638) 204 at 211.
Where the identity of the land is known to the parties or is not in dispute, the Court can grant a declaration of title without proof of the identity of the land in dispute. See Osazuwa v. Isibor [2004] 3 NWLR (Pt. 859) 16 at 34-35.
The respondents are equally bound by the finding of the lower Court, quoted above, regarding the identity of the land in dispute. Thus, the identity of the land in dispute, whether known and called Idin bush or Ishiakwa bush or both names is established, for the purposes of this appeal. That aspect of the dispute is not available for disputation in this appeal, especially because the judgment of the lower Court is tied to a survey plan which was tendered at the trial by the respondents, which makes for certainty of the identity of the land in dispute.
Next is the fact that the lower Court made a finding of fact on the party in possession of the land in dispute, in the second passage, quoted above. The lower Court, which had the duty to determine which of the respondents and the appellants is in possession of the land in dispute made a positive finding that the evidence led by the appellants betrayed their claim to possession of the land in dispute. That conclusion gave possession of the land in dispute to the respondents, which would activate the provisions of Section 143 of the Evidence Act, 2011. Section 143 of the Evidence Act, 2011 which provides that when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner, creates a presumption of ownership. But its operation will be dislodged when another person proves a better title to the property in dispute. Where one in possession of land is said to be a trespasser, the onus is on the person asserting such an allegation to establish that he has a better title to the land than the person in possession. See Kyari v. Alkali [2001] 11 NWLR (Pt. 724) 412 at 439 and Jinadu v. Esurombi-Aro [2005] 14 NWLR (Pt. 944) 142 at 200.
The lower Court found in the same passage above, that the appellants failed to prove their possession of the land, especially, when DW1 testified, under cross-examination, that the appellants do not farm on the land in dispute, contrary to their previous posturing. That finding of the lower Court has not been subject of any ground of appeal and the appellants are bound by it. As the presumed possession of the respondents of the land in dispute was not displaced by evidence led by the appellants, the lower Court was justified in refusing to grant the appellants’ counter-claim and granting the claim of the appellants.
The appellants have attempted to rely on the judgment in Exhibit D and the summons in Exhibit A to argue that the testimony of CW5 (1st respondent in this appeal) should have been disregarded as contradictory to both Exhibits A and D. Exhibit A is a copy of the summons filed against the appellants in respect of the land, by CW1, in a suit before the customary Court, which CW1 admitted that he had withdrawn because that customary Court did not have jurisdiction to determine that suit. Exhibit A was used to cross-examine CW 1. CW 1 came to Court to testify, just as CW 2 and CW 3, that they are boundary men to the land in dispute.
Exhibit D is a judgment of the lower Court, which pro-actively quashed the judgment of a Customary Court in a suit filed by the respondents, against the appellants, over the same land in dispute. The lower Court, upon proceedings of certiorari being brought before it, found that the Customary Court does not have jurisdiction to determine that suit. Exhibit D is, therefore, the judgment of the High Court of Bayelsa State in suit no. YHC/30M/2011, dated 28/06/2011, signed by Justice D. E. Adokeme, of the Yenagoa Judicial Division of that Court, which set aside proceedings in the suit before the Customary Court in suit no. YCC/26/2010; Between: Mr. Luis Ozaka & Ors v. Manson George & 3 Ors. In Exhibit D, the lower Court concluded its judgment as follows:
“Having held that the area in dispute in YCC/26/10 falls within the Igbogene Urban Area. It goes without saying that neither the Customary Court of Onopa nor any other Customary Court has jurisdiction over the said area.
This Court is therefore left with no other choice than to hold that the suit YCC/26/10 was incompetent abinitio as the Customary Court Onopa did not have the jurisdiction to entertain it.
The proceedings and judgment in YCC/26/10 which was delivered by the 1st Respondent on the 18/01/11 is quashed.”
In the case of Agbule v. W.R.P. Co. Ltd. [2013] 6 NWLR (Pt. 1350) 318, 354, 359, the Supreme Court warned that jurisdiction is a question of law. It is a threshold issue, very fundamental and the live wire of a suit. Where a Court does not have jurisdiction over a matter before it and it proceeds to hear and determine the matter, the whole proceedings no matter how well decided, would amount to a nullity. The product of such a proceeding, in other words, is a nullity. In the instant case, the Court of Appeal rightly held that the trial Court had no jurisdiction to entertain the proceedings as it did. See also Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Trustees, P.A.W. v. Trustees A.A.C.C. (2002) 15 NWLR (Pt. 790) 424, A.P.P. v. Ogunsola (2002) 5 NWLR (Pt. 761) 484 and Lawal v. Oke (2001) 7 NWLR (Pt. 711) 88.
In the case of Estate of Late Chief HIS Idisi v. Ecodril (Nig.) Ltd. (Pt. 1527) 355 at 377-378, the Supreme Court reiterated that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing. Put differently, jurisdiction is the life wire of any proceeding in Court and everything done in the absence of jurisdiction is simply, a nullity. That is the fate of the judgment of the trial Court in this case.
Iguh, J.S.C. in the case of J. C. Limited v. Ezenwa [1996] 4 NWLR (Pt. 443) 391 at 414 stated: “It is beyond question that a judgment or order by a Court given without jurisdiction is a nullity. See Timitimi v. Amabebe (1953) 14 WACA 374, Nyarko v. Akowuah 14 WACA 426, Oranye v. Jibowu (1950-51) 13 WACA 41. It is also indisputable that Section 53 of the Evidence Act enables any party to a suit to raise lack of jurisdiction in respect of a judgment or order of a Court sought to be used against him on ground of estoppel. See also Timitimi v. Amabebe, supra. Fadiora v. Gbadebo (1978) 3 SC 219; (1978) NSCC Vol 2 page 121 at 133 and Attorney-General for Trinidad and Tobago v. Eriche (1893) A.C. 522-523. I am also in agreement that lack of jurisdiction in the Court deprives the judgment or order of any effect whether by estoppel or otherwise, even where the party alleged to be estopped himself sought the assistance of the Court whose jurisdiction is impugned.
See Rogers v. Wood (1831) 2 B & Ald. 245; 109 ER 1134, Dublin (Archbishop v. Trimleston (1849) 12 I Eq R. 251, Toronto R. Co. v. Toronto (1904) A.C. 809 at 815. In other words, in raising the invalidity or attacking the validity of a judgment or order on ground of want of jurisdiction, it will go to no issue and must be treated as wholly irrelevant and immaterial that such judgment or order was obtained at the instance of the party against whom it is tendered. See Mcintosh v. Parent (1924) 4 D.L.R 420.”
In my view, Exhibit D lacked any iota of evidential value, being the product of proceedings, which had been quashed for being null and void. Exhibits A and D should not have been allowed in evidence or allowed to be utilized to cross-examine CW5 because they were not relevant to the proceedings before the lower Court. It therefore follows that the lower Court was correct when it refused to be romanced into relying on documents, which lacked relevance to the case before it to assess the credibility or the testimony of a witness who was properly before it. The contestations of the appellants in that regard are without oxygen and bound to drop off the radar of this appellate judgment.
The parties did not join issues on the name “Olali Ozaka” with which the respondents filed their suit on behalf of themselves and members of their family. The appellants are not members of the respondents’ family and they have no interest in the name with which the respondents may desire to file their suit. Being outsiders to the respondents’ family, it is unjust for the appellants to seek to prescribe the name of the respondents, which they have no interest in. The lower Court was therefore correct in taking the position it took to the effect that the issue of the name with which the respondents brought their suit was not available for debate. The fact that respondents filed a suit, in Exhibit D, which has been quashed, in the name of Ozaka, but returned to Court as Olali Ozaka is of no moment as proceedings in Exhibit D clearly deleted those previous proceedings as a matter of law. Exhibit D merely exists as a material for the archives of the judiciary.
The three issues are hereby resolved against the appellants. It is my view that the judgment of the lower Court was based on the admissible evidence before it. With the evidence of the three boundary men to the land in dispute – CW 1 – Benson Oneni Alex (from Benson family); CW 2 – Diebo Francis Ozaka – from the Francis Ozaka family; and (3) CW 3 – Ezewan Agoro – from Nwikita family of Igbogene, the weight and balance of evidence was clearly in favour of the respondents. The judgment of the lower Court could not have gone in any other direction but in favour of the respondents. Before signing off this judgment, there is imperative need to comment on the ill-directed description of CW 1, CW 2 and CW 3 as tainted witnesses in a civil suit. Iguh, J.S.C. in the case of Ogunlana v. State [1995] 5 NWLR (Pt. 395) 266 at 284, forewarned us in a course-correcting fashion, as follows:
“It seems to me settled that persons are accomplices to a crime who are participes criminis in respect of the actual crime charged whether as principals or accessories before or after the fact, See Omisade & Ors v. The Queen (l964) NMLR 67, Njovens v. The State (1973) 5-7 S.C. 17, Jimoh Ishola v. The State (1978) 9-10 S.C. 81; (1978) 2 LRN 125; (1978) NSCC (Vol. 2) 499 and William Idahosa v. R. (1965) NMLR 85. On the other hand, it has been said that the term “tainted witness” should be confined to one who is either an accomplice or who by the evidence he gives whether as a witness for the prosecution or defence, may be regarded as having some purpose of his own to serve. See Idahosa v. The State (1965) NMLR 85 and Jimoh Ishola v. The State, supra at P. 509. I am prepared to accept that a tainted witness may be defined as a witness who may not in strict sense, be an accomplice, but who on giving his evidence is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to the corroboration of his evidence may appropriately be given.
It seems to me important, however to recall the admonition of Idigbe, J.S.C. in Garuba Mailayi & Anor v. The State (1968) 1 All NLR 116 at 123 with regard to this class of witnesses described as “tainted”. Said he:-
“Recently, there has been a tendency among criminal lawyers to create a category of “tainted” witnesses. We however observe that the expression “tainted” is very loose and if its application is not kept within proper bounds, a great deal of confusion will be unleashed in an area of evidence which even now is fraught with difficulties.”
I must, with respect, endorse the above observation of Idigbe, J.S.C. as sound and worthy of note. The application of this loose class of witnesses described as “tainted” must therefore be kept within proper bounds to avoid unnecessary confusion that may becloud this area of our law of Evidence. Having examined the questions of accomplices and “tainted” witnesses, I will now return to the first issue for determination in the appeal.”
It would appear that tainted witnesses may be found in criminal trials and not in civil trials, contrary to the appellants’ counsel’s description of CW1, CW2 and CW3 in that unfittingly borrowed garb. CW1, CW2 and CW3 are boundary men and woman who testified in that unchallenged capacity.
It should be noted that it is not every slip or error that is found in a judgment that will attract success to such an appeal. It is only when such slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate Court will interfere and the appeal allowed. See Ipinlaye II v. Olukotun (1999) 6 NWLR (Pt. 453) 148 at 174, Oladele v. Aromolaran II (1996) 6 NWLR (Pt. 453) 180.
The respondents have failed to prove that they suffered any miscarriage of justice by the judgment of the lower Court. There is no merit in this appeal, which is hereby dismissed. I affirm the judgment of the lower Court dated 03/02/2016. The appellants shall pay cost to the respondents in the sum of N250,000.00 (Two hundred and fifty thousand naira) only.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the elaborate judgment prepared by my learned brother Adegbehingbe, J.C.A., and wish to add on the issue of identity of the disputed land having counter-claimed the same land at the lower Court, the appellants cannot be heard to complain of the identity of the disputed land vide the Supreme Court case of Anyanwu and Ors v Uzowuaka and Ors (2009) 13 NWLR (Pt. 1159) 445 at 476 to the effect that a defendant who counter-claims a piece of land cannot turn around to argue that the identity of the land was not established because such argument is a contradiction in view of his counter-claim, as a party cannot counter-claim over a piece of land which identity he does not know.
Accordingly, I too find no merit in the appeal and would dismiss it and affirm the well considered judgment of the lower Court (Abiri, CJ) and abide by the consequential orders contained in the lead judgment.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft, the lead judgment just delivered by my learned brother, O. A. Adegbehingbe, JCA in which he adjudged the appeal herein as lacking in merit and has dismissed it.
I agree with the said lead judgment and I abide with the consequential order made as to costs in favour of the Respondent.
Appeal is dismissed by me too.
Appearances:
…For Appellant(s)
Clement S. Buruboyefe, Esq. with him, B. S. Aveke, Esq. For Respondent(s)