KELAS v. FITTI (2020)

KELAS v. FITTI

(2020)LCN/14005(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/J/332/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

KABIRU KELAS APPELANT(S)

And

AKENTI FITTI RESPONDENT(S)

RATIO

THE DOCTRINE OF ESTOPPEL BY STANDING

The foregoing arguments for and against tend to postulate two issues of law, Estoppel by standing by and issue of Limitation of Action. Estoppel by standing by to my understanding is a form of Estoppel by conduct. It is an equitable estoppels and applicable when a party omitted deliberately to intervene in a pending action affecting his interest. Such person would be precluded by the result of the action even though he is not a party to the action. See the case of FRIDAY KAMALU & ORS V DANIEL NWAKUDU UKA UMUNNA (1997) 5 NWLR (Pt. 508) 21. In the case of OLALERE OYETUNJI V ALHAJI ASIRU AWOYEMI AND ORS (2013) LPELR – 20226, NWEZE, JCA as he then was now Justice of the Supreme Court has this to say on Doctrine of Estoppel by standing by:
“This contribution is only limited to the lower Court’s finding with regard to Exhibit ‘A’. Indubitably, the Appellant was not a party to the said Exhibit “A”. At page 93 however, the Court opined that the doctrine of issue estoppel applies with equal validity to persons who were aware of the pendency of the previous suit and whose interest were likely to be affected by the outcome but refused or neglect to be joined as parties. In my humble view, the lower Court was actually referring to the species of estopel by conduct known as “the doctrine of Estoppel by standing by”. This doctrine would appear to have been first stated by lord PENZANCE IN WYTCHERLEY V ANDREWS (1871) L.R.2 P and M. 327, 328 in these words: If a person knowing what was passing, was content to stand by and see his battle fought by something else in the same interest, he should be bound by the result and not be allowed to re-open the case. The doctrine is as much a principle of English Law as it is a principle of Nigeria Law. It has been applied in many cases, DURU V ONWUMELU (2001) 18 NWLR (Pt. 746) 672, 695, OBODO V. OGBA (1988) 1 QLRN 175; ONWU V NKA (1996) 7 SCNJ 240. Indeed the Courts have even extrapolated from this doctrine that it even look like an abuse of the process of the Court if a person, with full knowledge of the pendency of a suit over a property he claims to be his, does nothing but merely look on only to commence another proceeding in Court over the same issue and asking the Court to make another pronouncement on the subject matter, UDEORAH V NWAKONOBI(2003) 4 NWLR (Pt. 811) 643. Such a party is thus, estopped because he omitted to intervene in the pending action affecting his interest, although he was not a party thereto, BELLO V FAYOSE (1999) 1 NWLR (Pt. 627) 512. So where a person is content to be a spectator rather than a gladiator, an onlooker rather that a player, the doctrine would apply, ANYAOKE V ADI (1986) 3 NWLR (Pt. 31) 73; OKPALA V IBEME (1989) 1 NWLR (Pt. 162) 208, UDEORAH V NWAKONOBI (supra).”PER ONIYANGI, J.C.A.

CONDITION FOR THE OPERATION OF THE DOCTRINE OF ESTOPPEL BY STANDING

For the condition for the operation of the doctrine of estoppel by standing by, see the case of OKWUDU NWAKONOBI AND ORS V BENEDICT UDEORAH AND ORS (2012) LPELR – 9721 where the apex Court said thus Per GALADIMA JSC.
“In other words the following must be shown to established the operation of the doctrine;
(1) That the judgment has been given in a case over the same matter in which another has an interest;
(2) That the other party knew his right or interests were being adversely affected.
(3) That inspite of the knowledge of this, the other party did nothing. See EKPOKE V USILO (1978) 6 SC 187 at 203; NANA OFORI ATTA II V NANA ABU BANSRA II (1958) AC 95 at 103.” PER ONIYANGI, J.C.A.

THE DOCTRINE OF STATUTE OF LIMITATION

What is next is the issue of limitation law. Belgore JSC as he then was, and former Chief Justice of Nigeria has this to say on the nature of Limitation Law.
“The limitation law is certainly procedure, setting out clearly time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature as such statute on this all important subject must be read as a whole. As such whether specifically stated or not in such a statute, it must be read retroactively. A person should not sleep on his right”.
On purport and essence of limitation Law, ADEKEYE JSC in the case of CHIEF DR. FELIX AMADI AND ANOR V INDEPENDENT NATIONAL ELECTORAL COMMISSION AND ORS (2012) LEELR- 7831 said thus:
“The purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought legal proceedings cannot be properly or validly instituted after the expiration of the period prescribed. An action instituted after expiration of the prescribed period is said to be statute barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. The conspicuous effect of Limitation Law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period”.PER ONIYANGI, J.C.A.

THE PRIMARY RESPONSIBILITY OF THE TRIAL COURT

It is settled law that it is the primary responsibility of a trial Court to hear the parties, watch and observe the demeanor of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the Court. The procedure is crucial in its observance. The trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party.
Once these considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. The trial Court must carefully examine the evidence and clearly understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision. Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (pt 1270) 217. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice Gombe State sitting in its appellate jurisdiction over the judgment of the Upper Area Court No. 1 Kumo and delivered on the 27th day of February, 2018 wherein it set aside the decision of the trial Upper Area Court No. 1 Gombe delivered on 24th day of July, 2017 and ordered rehearing of the Suit by the Appellant as Plaintiff.

The Appellant in this appeal was the Respondent before the appellate High Court Gombe. Dissatisfied with the outcome of the appeal by the Respondent in this Court sought and obtained leave of this Court on 15th day of March, 2018 and hence he filed his notice and ground of appeal on the 16th day of March, 2018 at the Court below. The said notice and ground of appeal has five grounds and vide which he sought for the following reliefs:
“An Order of Court setting aside the order for retrial as made in the judgment of the Gombe State High Court and in its place to affirm the judgment of the trial Upper Area Court Kumo”

The fact of the case of the Appellant who was Plaintiff

against the Respondent as Defendant before the Upper Area Court No. 1 Kumo as Court of first instance is for a claim of title over a piece of land located at Kayel Baga. It is part of the complaint of the Plaintiff that the Defendant encroached into his farmland sometimes in the month of April, 2017 without his permission. According to the Plaintiff, he inherited the land from his father who cultivated same for over sixty years (60). According to him, his father died 12 years ago and since then ownership devoid on him and he has been cultivating the land. He also sought for a claim of Five Hundred Thousand Naira as damages from the Defendant.

The claim was refuted by the Defendant (Respondent) who asserted that the said piece of land was kept in trust with the Plaintiff (Appellant’s) Mother who was his Aunt consequent upon the demise of the Defendant’s (Respondent) father. It is the case of the Defendant that after the demise of his father one Shettima an uncle took him to his house. This Shettima was also holding the land in trust. At one time or the other the Aunt demanded to take custody of the Defendant from Shettima and latter again

demanded to take over the land and farm. Shettima surrendered both the Respondent and the land to the Aunt. The Aunt promised to send the Defendant to school but never did. Rather he was sent to the farm. The Aunt was married to the father of the Plaintiff. The Defendant eventually vacated the house and upon demise of both the Aunt and the father of the Plaintiff (Appellant) the said piece of land was shared as part of the estate of the Plaintiff (Appellant) deceased father. The Defendant (Respondent) who claimed to be the owner of the land stepped into the piece of land and started farming on it. This informed the suit by the Plaintiff (Appellant) against the Defendant (Respondent) before the Upper Area Court No. 1 Kumo. The matter went through full trial. The Plaintiff called three witnesses while the Defendant called five witnesses. In the end, the trial Upper Area Court in its considered judgment awarded the land to the Plaintiff (Appellant).

Dissatisfied with the outcome of the trial, the Defendant appealed to the High Court of Justice Gombe State. Issues were joined before that appellate High Court and in the end, the judgment of the Upper Area

Court No. 1 was set aside and a retrial ordered.

Miffed by the outcome of the appeal, hence this appeal before this Court under consideration.

Respective party filed and exchanged their brief of argument consequent upon the transmission of the Record of Appeal on the 3rd day of August, 2018 and which was deemed as properly compiled and transmitted on the 16th day of January, 2019.

In the adopted Appellant’s brief of argument filed on 13th February, 2019, the following issues were presented for the determination of the appeal.
(i) Whether grounds one and two of the grounds of appeal of the Respondent as Appellant before the Court below can be said to have flown from the judgment of the trial Upper Area Court Kumo and whether issue one as formulated for determination by the Respondent before the Court below is competent in law (ground 1)
(ii) Whether the decision of the Court below setting aside the judgment of the trial Upper Area Court Kumo which confirmed title on the Appellant who inherited the land and have been in possession of the same for a long time without challenge from anyone is a judgment against the weight of

evidence? (Grounds 3 & 5)
(iii) Whether the holding of the Court below that the trial Upper Area Court Kumo did not evaluate the evidence on record before reaching its decision and further refused to re-evaluate the evidence on record having held that it had the power to do so by law did occasion miscarriage of justice? (Grounds 2 and 4)

The Respondent’s adopted brief of argument was filed and deemed as properly filed and served by the order of this Court granted on the 23rd September, 2019. In the said brief, the following issues were formulated for the determination of the appeal:-
(A) Whether grounds one and two of the Grounds of Appeal of the Respondent as Appellant before the Court below can be said to have flown from the judgment of the trial Upper Area Court Kumo and whether issue one as formulated for determination by the Respondent before the Court below is competent in law (Ground 1)
(B) Whether reconciling the record it could be said that estoppel by standing by and limitation law is applicable to the case (ground 3)
(C) Whether it can be said that trial Court as held by the lower Court did not evaluate/reevaluate

evidence before it in arriving at its judgment (Grounds 2, 4 and 5)

Having read the respective issues formulated by parties, it is my view that respective issues 1 by both the Appellant and the Respondent are same in form and content. Issues 2 and 3 of the respective parties are also same but differently worded. It appears to me that issues 2 and 3 by the Respondent are better elegantly drafted. I will therefore adopt the three issues drafted by the Respondent for the determination of the appeal.

ISSUE ONE
Whether Ground one and two of the Grounds of appeal of the Respondent as Appellant before the Court below can be said to have flown from the judgment of the trial Upper Area Court Kumo and whether issue one as formulated by the Respondent before the Court is competent in law. (ground 1).

The contention of the Appellant by this issue is that a ground of appeal must arise or relate to the judgment against which the appeal is filed. That is to say that the ground(s) of appeal should directly challenge the decision of the trial Court appealed against. Where this is not so, such ground of appeal would be incompetent and liable to be struck out.

He relied on the following cases. In WASSAH AND ORS V KARA & ORS (2015) 239 LRCN 38 at 52, M.B.N. V NWOBODO (2005) 130 LRCN 2269 ratio 4, IKWEKI V EBELE (2005) 127 LCRN 1231 ratio 6. Referring to the Notice and Grounds of Appeal contained on page 1 and pages 19-25 of the record of appeal, he submitted that the matter commenced at the trial Upper Area Court Kumo where the Appellant, then Plaintiff was conferred title over the land, the Respondent not satisfied with the said decision informed the appeal to High Court of Justice Gombe. He argued that looking at grounds 1 and 3 of the additional grounds of appeal it would be seen that the grounds are complaint about the judgment of the trial Court and which is not the situation before the Gombe State High Court. It is his case that the Appellant was in the dark as to which judgment the Respondent was referring to before the Court below and as if the record through which the Respondent’s appeal was argued before the Court below does not contain the record of the trial Court which the Respondent was complaining about before the Gombe State High Court where the trial Court failed to use the evidence led

before it, and where the lower Court affirmed the judgment of the trial Court which is against the weight of evidence. He argued further that it is important to note that this matter started before the Upper Area Court Kumo directly and not complaint about a lower trial Court that the Upper Area Court Kumo affirmed its decision which is shut of evaluation of evidence. He submitted that grounds 1 and 3 of the additional grounds of appeal filed by the Respondent before the lower Court does not flow from the judgment of the trial Upper Area Court Kumo sitting as the Court of first instance. He urge the Court to strike out the grounds and relied on the case of WASSAH AND ORS V. KARA AND ORS (2015) 239 LRCN 38 at 59.

It is also his argument that it is trite law that issue for determination of an appeal must be formulated upon grounds of appeal filed against the judgment on appeal. He added that for an issue for determination of an appeal to be sustained, it must as condition precedent satisfy two conditions which are that the grounds are framed within the circle of the grounds of appeal and the grounds of appeal must be complaint against the judgment of the

Court below. He relied on the case of BIOCON AGROCHEMICALS V. KUDU (2000) 82 LRCN 3332 ratio 2. Further he argued that issue 1 formulated for determination by the Respondent as Appellant in its brief of argument before the lower Court (High Court) tied to ground 2 of his ground of appeal does not arise from ground 2 or any other ground of appeal contained in the Notice of Appeal. After reproducing ground 2 of the Respondent’s ground of appeal before the Gombe State High Court, he argued that ground 2 of the Respondent’s ground of appeal was alleging that the trial Upper Area Court Kumo solely relied on possession to confer the title of the disputed land on the Appellant. He submitted that the said issue as formulated does not flow from the said ground of appeal or indeed any other ground of appeal before the lower Court. He added that for an issue for determination to be competent, it must flow from the ground or grounds of appeal. He relied on the following cases:- SOCIETY BIC S.A. AND ORS V CHARZIN INDUSRIES LTD (2014) (Pt. 234) LRCN 182 at 210; GARBA V. STATE (2000) 77 LRCN 1126. He contended that the issues for determination having not been

formulated or distilled from any of the grounds of appeal is therefore incompetent in law and should be struck out. Therefore grounds one and two of the additional grounds of appeal by the Respondent as Appellant before the lower Court are incompetent in law as they do not flow from the judgment of the trial Upper Area Court Kumo and hence issue one by the Respondent is incompetent and should be struck out.

The reaction of the learned Counsel representing the Respondent on this issue is that Grounds of Appeal are to appraise the opposite party of the nature of the complaint of the Appellant and where such complaint is clear and unambiguous and no rule of Court is violated such a ground should be regarded as competent. He relied on the case of STIRLING CIVIL ENG. LTD V MAHMOOD YAHAYA (2005) 22 NSCQR 1 at 20 R. 6. He reproduced grounds 1 and 2 of the ground of appeal before the lower Court and argued that the lower Court predicated its findings upon same. He referred to page 103 para. 4. He added that the grounds manifestly flowed from the trial Court’s judgment and that the lower Court was right to have come to the conclusion reached. He urged the

Court to so hold.

In my humble view, the pertinent question flowing from this issue under consideration is whether or not grounds one and two before the appellate High Court Gombe are complaints emanating from the judgment of the trial Upper Area Court No. 1 and whether the issue formulated there from is competent. Providing answer to the foregoing questions, I consider it ideal to reproduce the grounds of appeal and their particulars herein below. See (page 24 of the Record of Appeal).

GROUND 1
“Lower Court erred in law as it failed to evaluate/reevaluate the evidence led at trial Court in arriving at its judgment.
PARTICULARS OF ERROR
(1) Lower Court repeated the testimony of witnesses without evaluating same.
(2) Lower Court admitted that Appellant witnesses discharged the burden placed upon them.
(3) Appellant discharge the burden of proving his title to the land.”
GROUND TWO
“Lower Court erred in law as it relied solely on possession in affirming land upon the Respondent.
PARTICULARS OF ERROR
(1) The land in dispute belonged to the Appellant bonafide.
(2) Respondent did not

discharge the burden of proving his root of title.
(3) Respondent stay on that land was by virtue of the trust created into his mother’s Hand.
(4) Possession of this land by the Respondent is adverse.

The challenge emanating from the two grounds are lack of evaluation and reevaluation of evidence led at the trial Court and reliance placed on possession by the Appellant in arriving at its conclusion and whether those complaint emanated from the judgment of the trial Upper Area Court. By the foregoing, it becomes apt to have a look at the judgment of the trial Upper Area Court. See pages 16-18 of the Record of Appeal. On those pages are the evaluation carried out by the trial Upper Area Court No. 1 and the findings. For better understanding, I consider it proper to reproduce the whole evaluation and judgment of the said Court.
“Concerning the matter between Alh. Kabiru Kelas V Akenti Fitti the Court got this suit in which Alh. Kabiru came and sued Akenti over a farmland.
According to the Plaintiff Alh. Kabiru he explained that Akenti entered into his farmland without his permission and consent and he inherited the farm from

his father for about 60 years and he has been farming on the said land his father died about 12 years ago and he still farming there, he asked that Akenti be removed from the farm.
In his response to the claim Akenti Fitti told the Court that since he was still in the womb his father died and after he was born he was taken to Alh. Shettima from there his Aunt carried him to Kabiru’s house to school and that he did not go to the school and he left he did not stay in the house. After the death of his Aunt he came and asked for farm for about 3 years, he has been asking Alh. Kabiru for the land but he refused to give him.
The Court asked Kabiru Kelas if he has witness to prove his case and he brought 3 witnesses, Dagaci Yaya Kayel- Baga aged 75 years, Magaji Hammayidi aged 62 years, and Sani Ajaji Liddi aged 59 years.
PW1 testified that for so many years he knows that land is with Kabiru’s father and they were farming together with Kabiru. And that Alh. Kabiru’s father died about 15 years ago and it is Alh. Kabiru that is farming on the said farmland.
Magaji Hammayidi explained that he used to hire the land from Alhaji

Kabiru’s father and he has done so for about 25 years and after his death he continued to hire the land from Alh. Kabiru after he inherited the farmland and he has been doing so for about 12 years now which shows that Magaji has been farming the land for about 40 years.
Sani Ajaji Liddi told the Court that he has been a boundary neighbour on hire close to the land for about 25 years and that in those years it is Alh. Kabiru’s father that has been hiring out the land until he died and nobody has ever come to claim the land from him.
Akenti Fitti also presented his witnesses to the Court. He had 4 witnesses, Hassan Aji aged 55 years, Jika Naman Kai aged 95 years, Sumaila Shettima aged 77 years.
Hassan Aji testified that his grandfather and Akenti’s grandfather were neighbours and they stayed together with Naman Kai … Lashiri who his evidence did not mention anything about farm. Then Jika Naman Kai testified to the Court that Akenti grandfather gave his father a place to settle and he was born there and also gave birth to children there, after a period of time Akenti went and started staying with his Aunt Kolo. Shettima

told her that since she has taken Akenti he will leave him and that was how the farm entered the land of Kelas, he later relocated to Billiri. The witnesses Samaila Shettima also testified that Akenti was staying with him then later Alh. Kabiru’s Mother who is his cousin name and took Akenti together with farmland Akenti’s father left for him so that Akenti will cultivate later, that was how the land entered Kabiru’s father hand. After the Court listened to the testimony of the Plaintiff and Defendant as well as witnesses on both sides the Court visited the land in dispute together with the parties and their witnesses and the Court measured the farm from south to north 130 feet, the middle toward the West 95 feet, East to West 210 feet the farm has 3 baobab trees, 2 tamarind trees, and 3 Aduwa trees” (under line is mine)
JUDGMENT
“I Abdulkarim Aliyu Gwani Hon. Judge UAC Kumo based on this suit between Alhaji Kabiru Kelas V Akenti Fitti after hearing the statement of claim and response and also the evidence presented by witnesses from both sides the Court agrees with the case of the Plaintiff and the witnesses he brought

before the Court so because of this, the Court observes that the land has been in the custody of Kabiru for a long time without anyone challenging him till the death of Kabiru’s father and Kabiru inherited the land and he has also been in possession for a long time in total the land has been with him for up to 50 years from the hands of Kabiru’s father to the hands of Kabiru and in all that time Akenti has been alive and did not say anything and he has been physically well not that he was sick and he has relatives and they also did not say anything to retrieve the farmland back to Akenti and then they sat quietly without saying anything; because of this and the length of years the farm has been with Kabiru this Upper Area Court hereby gives title to Alhaji Kabiru. There is right of appeal within 30 days”.
“Abdulkarim A. Gwani
Hon. Judge UAC Kumo
24/07/17”

The matter went on appeal to the High Court of justice, objection was registered against the finding of long possession and failure to evaluate the evidence. The learned judges of High Court considered the objections raised by the Appellant and overruled them.

See pages 100-103 of the record of appeal. In my candid view, the learned judges of the High Court properly considered and evaluated the evidence before the trial Upper Area Court and came to the conclusion that the learned Upper Area Court’s decision was not a product of proper evaluation of the evidence before the Court. Put in another way, there was a miscarriage of justice and hence set aside the judgment of the Upper Area Court and ordered a retrial. It is as clear as crystal from the judgment of the trial Upper Area Court that the Court rather than evaluating the evidence before the Court as required by law merely reproduce the testimonies of witnesses and came to the conclusion that the Respondent slept over its right and based on long possession by the Appellant’s father, the Respondent is estoppel and cannot asked for the land. However, the Appellate High Court discovered this and reversed the decision and ordered a retrial. By the foregoing, it is clear that the complaint of the Respondent in his appeal before the High Court of Justice Bauchi are complaints against the judgment of the Upper Area Court No. 1 Kumo hence they are valid and

competent grounds. Let me add that evaluation of evidence simply means the assessment of evidence so as to give value or quality to it. See ONWUKA V EDIALA (1989) 1 NWLR (Pt. 96) pg 182 at 208, IBANGA V USANGA (1982) 5 SC 102, OSUAGWU V THE STATE (2013) SC 1-2 (Pt. 1) 37. Summary or restatement of evidence as merely done by the trial Upper Area Court No 1 is not the same thing as evaluation of evidence. See CHIEF NIYI AKINTOLA V BURAIMOH L. BALOGUN AND ORS (2000) 1 NWLR (Pt. 642) 532 at 549.

For all the foregoing, I answer the two questions posed in this issue in the affirmative. Further to this, the last segment of the resolution of issue one has also provided answer to the question put forward in issue number three on whether or not the trial Court Upper Area Court No. 1 Kumo) evaluated the evidence before it. This question is answered in the negative and resolved against the Appellant. The trial Upper Area Court totally failed to evaluate the evidence placed before it in arriving at the conclusion reached and in the end a miscarriage of justice is occasioned.

ISSUE TWO
Whether reconciling the record it could be said that estoppels by

standing by and Limitation Law is applicable to the case.

The Appellant on this issue argued that the onus of proof in this case is on the Plaintiff and the standard of proof is on the preponderance of evidence or on the balance of probability. He referred to Sections 131, 132, 133 and 134 of the Evidence Act, 2011 and the case of MBANEFO V AGBU AND ANOR (2014) 229 LRCN 32 at 68. He argued that there are five major recognized ways of proving title to land. He added that this is not exhaustive as “inheritance” is also added as one of the judicially recognized method of proving title to land. He cited the following cases ONANUBI V OGUNFOLU (2009) ALL FWLR (Pt. 496) 1926 at 1940-1941. Ratio 2; SAIDI V IBUDE (2011) ALL FWLR (Pt. 571) 1633 para. F. Ratio 8. He argued further that the Appellant as Plaintiff before the trial Upper Area Court Kumo sued the Respondent as Defendant over a piece of land he claimed to have inherited from his father who had been cultivating the land for over 60 years without hindrance by or litigation from any quarters. He added that the father died 12 years ago. This piece of evidence by the Appellant is on issue of

inheritance and long possession without any hindrance. This he said constituted one of the ways of proving title to land. It is his case that the Respondent admitted the issue of inheritance and hence needed no further proof. He relied on the case of ADEDEJI V OLOSO (2007) 5 NWLR (Pt. 1027) 134. He also relied on the testimonies of the witnesses of the Appellant as can be found on pages 7-14 of the record of appeal. He also argued the issue of laches and acquiescence pronounced upon by the trial Upper Area Court. He urged the Court to take into consideration the point that the proceeding appealed against is that of an Area Court that aims at doing substantial justice with no regards to technicalities. He added that an appellate Court is advised to consider the substance rather than the form of the judgment and to look at the proceedings as a whole and not just the claim and reply thereto. He cited the case of FALEYE AND ORS V DADA AND ORS (2016) LPELR – 40297. For the foregoing, he submitted that the decision of the Court below setting aside the judgment of the trial Upper Area Court Kumo which confer title on the Appellant as Plaintiff who inherited the

land and have been in possession of same for a long time without challenge from anyone is a judgment against the weight of evidence and urged the Court to resolve the issue in favour of the Appellant and allow the appeal.

The contention of the Respondent on this issue is that what was before the lower Court was an appeal initiated by the Respondent over his dissatisfaction with the trial Court’s judgment. He argued that throughout the appeal before the lower Court, the Respondent did not file any cross appeal suggesting Limitation Law. He relied on the case ofLAFIA LOCAL GOVERNMENT VS ANZAKU (2012) 57 NSQR 535 at 542. He added that the trial Court did not manifest the limitation law as the bases for his judgment and neither did the Appellant sought leave to argue same as fresh issue on appeal. Where he fails to do so, the issue, ipso facto is rendered incompetent and liable to be struck out. He relied on the case of WEMA SECURITIES AND FINANCE PLC VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2015) 63 NSCQR 561 at 597-599. He submitted that the lower Court was apt and correct to have ignored the Appellant’s importation of the Limitation Law

in the absence of a cross appeal. He contended that assuming without conceding that there is a threat linking the principles of limitation and standing by to this case, he queried whether they are sustainable. He argued further that Limitation presupposes that a party who claims or has a right of action must exercise it within the prescribed time or hold his peace forever. He relied on the case of ARCHINAGA V A.G. AKWA IBOM STATE (2015) 6 NWLR (Pt. 1454) 1. He contended that the period of Limitation begins to run from the date on which the right or cause of action accrued to the party entitled to it and against another who is responsible for the grievances in respect of which the action arises. He relied on the case of AREMO II V ADEKANYE (2004) 13 NWLR (Pt. 8910 572. He argued further that a cause of action will not abate or become time barred until the injury or damage which is of continuing nature completely stops or abates. He referred to the case of GWEDE VS INEC (2014) 18 NWLR (Pt. 1438) 56 at page 116-117. It is his case that the Appellant as Plaintiff manifested his claim at page 2 para. 1 and the Respondent replied as Defendant thus:-

“I came and asked for the land from Alh. Kabiru for three (3) years, I have been following him and he and his elder brother have been turning me for three (3) years, then they included the farmland in their father’s estate as inheritance. Then I went and clear the farm intend to plant on it since I don’t have the resources to file a suit”.

It is his contention that a tenant or customary tenant does not become an owner because of long possession of the land he was permitted by the land owner to enter and farm on. The moment the tenant sets up a rival title to defeat the allodial right of the overload, he commits a serious misconduct and becomes a trespasser liable to forfeiture. He relied on the case of AMADI V. AMADI (2011) 15 NWLR (Pt. 1271) p. 437. Further he added that the stay of the Appellant on the land became adverse just 3 years ago when they were given notice to release but they refused. It is therefore misconceived to import Limitation Law into this case as suggested in ground three of the Appellant’s ground of appeal.

He urged the Court to as rightly held by the lower Court that it was wrong to rely solely on long

possession by the Plaintiff/Respondent, the possession was based on trust and to resolve the issue in favour of the Respondent, dismiss the appeal and affirm the well considered judgment of the lower Court.

93 however, the Court opined that the doctrine of issue estoppel applies with equal validity to persons who were aware of the pendency of the previous suit and whose interest were likely to be affected by the outcome but refused or neglect to be joined as parties. In my humble view, the lower Court was actually referring to the species of estopel by conduct known as “the doctrine of Estoppel by standing by”. This doctrine would appear to have been first stated by lord PENZANCE IN WYTCHERLEY V ANDREWS (1871) L.R.2 P and M. 327, 328 in these words: If a person knowing what was passing, was content to stand by and see his battle fought by something else in the same interest, he should be bound by the result and not be allowed to re-open the case. The doctrine is as much a principle of English Law as it is a principle of Nigeria Law. It has been applied in many cases, DURU V ONWUMELU (2001) 18 NWLR (Pt. 746) 672, 695, OBODO V. OGBA (1988) 1 QLRN 175; ONWU V NKA (1996) 7 SCNJ 240. Indeed the Courts have even extrapolated from this doctrine that it even look like an abuse of the process of the Court if a person, with full knowledge of the pendency of a

suit over a property he claims to be his, does nothing but merely look on only to commence another proceeding in Court over the same issue and asking the Court to make another pronouncement on the subject matter, UDEORAH V NWAKONOBI(2003) 4 NWLR (Pt. 811) 643. Such a party is thus, estopped because he omitted to intervene in the pending action affecting his interest, although he was not a party thereto, BELLO V FAYOSE (1999) 1 NWLR (Pt. 627) 512. So where a person is content to be a spectator rather than a gladiator, an onlooker rather that a player, the doctrine would apply, ANYAOKE V ADI (1986) 3 NWLR (Pt. 31) 73; OKPALA V IBEME (1989) 1 NWLR (Pt. 162) 208, UDEORAH V NWAKONOBI (supra).”

his right or interests were being adversely affected.
(3) That inspite of the knowledge of this, the other party did nothing. See EKPOKE V USILO (1978) 6 SC 187 at 203; NANA OFORI ATTA II V NANA ABU BANSRA II (1958) AC 95 at 103.”

validly instituted after the expiration of the period prescribed. An action instituted after expiration of the prescribed period is said to be statute barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. The conspicuous effect of Limitation Law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period”.

In the light of all the foregoing, the pertinent question is whether the doctrine of standing by and limitation act are applicable to the situation at land. In the Record of Appeal, there is abundant undisputed and uncontradicted evidence of Shettima, that the Respondent father died when the Respondent was an infant. Upon the death of the Respondent’s father both the piece of land belonging to the deceased father was kept in trust with him. The Respondent was also living with him. But later the Respondent’s Aunt who was married to the

Appellant’s father approached him that she wanted to take custody of the Respondent so as to send him to school.

He believed the Aunt since the intention to send the Respondent to school is same with his, he released the Respondent to his Aunt. After sometimes, the said Aunt returned to Shettima and demanded for the land left by the Respondent’s father so as to start cultivating and farm. Again he released the piece of land to the Aunt to keep in trust. The Respondent was never sent to school but rather made a herdsman. The Respondent left his Aunt. Both the Aunt and her husband, the father of the Appellant died. Appellant took over the piece of land as part of the inheritance of his deceased father. Meanwhile the Respondent has been making demand for the piece of land left by his father in the custody of his late Aunt. The Appellant was adamant and hence the Respondent entered the said land in dispute and stated farming. Upon the discovery of this, the Appellant slammed the Respondent with a law suit at the Upper Area Court No. 1 Kumo claiming ownership of the land in dispute and damages for trespass against the Respondent. After trial, the

Upper Area Court Kumo awarded the land in dispute to the Appellant. Dissatisfied with the outcome, the Respondent appealed to the High Court of Justice Gombe State. The High Court sitting in its appellate jurisdiction set aside the judgment of the Upper Area Court No. 1 Kumo and ordered a retrial. Against the order, is the appeal now before this Court by the Appellant.

From the foregoing, it is clear that the Appellant sued the Respondent at the Upper Area Court pursuing his cause of action. The Respondent obeyed the summons served on him and joined issue with the Appellant. Judgment was entered against the Respondent and hence he appealed to Gombe State High Court and which appeal was successful. The foregoing fact clearly shows that it was the Appellant that pursued his cause of action which he believed was potent against the Respondent. The Respondent did not initiate the action. Therefore the issue of the Doctrine of standing by or issue estoppel cannot and does not apply to the Respondent who was sued. From the foregoing fact, this principle of law cannot apply to the Respondent. All he did was to appeal the judgment of the Upper Area Court No. 1

Kumo against him in the High Court. At that stage he was exercising his constitutional Right of appeal and such exercise of right cannot in this circumstance be said to be statute barred. Neither will the doctrine of standing by will operate against him. This issue in my humble view is nothing but a rues. I therefore have no hesitation in resolving the issue against the Appellant for lacking in merit.

On that note, I conclude that this appeal is devoid of any merit and should be dismissed.

I dismiss the appeal and affirm the judgment of the High Court of Justice Gombe State sitting in his appellate jurisdiction in Appeal No. GM/68A/2017 delivered on the 27th day of February, 2018.

I award a cost of N200,000.00 against the Appellant and in favour of the Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudashiru Nasiru Oniyangi, JCA. His Lordship has considered and resolved all the issues in contention in the appeal. I agree with and abide the conclusions reached therein.

This matter arose out of a land dispute between the

Appellant and the Respondent. The Appellant commenced the action leading up to this appeal against the Respondent in the Upper Sharia Court No 1 in Kumo, Gombe State (hereinafter called the trial Court) and judgment was entered in his favour by the lower Court on the 24th of July, 2017. The Respondent was dissatisfied with the judgment and he appealed to the High Court of Gombe State, sitting in its appellate jurisdiction, (hereinafter called the lower Court). The lower Court upheld the appeal of the Respondent and it set aside the judgment of the trial Court on the ground of improper evaluation of the evidence led by the parties and it ordered a retrial. This appeal is against the judgment of the lower Court.

The lead judgment identified the three issues for determination in this appeal and
these were:
i. Whether Grounds One and Two of the Grounds of Appeal of the Respondent as Appellant before the Court below flowed from the judgment of the trial Upper Area Court Kumo and whether issue one as formulated for determination by the Respondent before the Court below was competent in law.
ii. Whether, reading through the records of appeal, it

could be said that estoppel by standing by and limitation law are applicable to this case.
iii. Whether it can be said that trial Court as held by the lower Court did not evaluate evidence before it in arriving at its judgment.

Counsel to the parties argued the three issues for determination in their respective briefs of arguments. A close reading of the first issue for determination shows that it is directed at the grounds of appeal and the issues for determination formulated against the judgment of the Upper Sharia Court in the appeal to the High Court of Gombe; and it has nothing to do with the judgment of the High Court of Gombe, which is the subject matter of this appeal. It is elementary that this Court does not, and has no jurisdiction to, entertain appeals from the Upper Sharia Court. Thus, this Court cannot be requested to determine whether the grounds of appeal and issues for determination formulated before the lower Court against the judgment of the Upper Sharia Court were competent. The first issue for determination is improper and cannot be entertained by this Court – Akibu Vs Odutan (2000) 13 NWLR (Pt 685) 446, Idagu Vs State (2018)

LPELR 44343(SC), Ayoade Vs State (2020) LPELR 49379(SC). I hereby strike out the first issue for determination together with all the arguments canvassed thereunder.

On the second issue for determination, the contention of Counsel to the Appellant was that there were facts on the face of the records of appeal and in the evidence led by the parties that made available to the Appellant the two concepts of estoppel of standing by and limitation of action in support of his claim of ownership of the land in dispute and that the lower Court ought to have applied them in upholding the judgment entered in his favour by the trial Court. Now, the doctrine of estoppel of standing by is a variant of the concept of estoppel by conduct. It postulates that where a person who has an interest in the subject matter of a dispute prefers to stand by and watch while other persons are litigating over the subject matter, he would be bound by the result of such litigation as if he was a party to it and will be precluded from reopening the case or re-litigating on the subject matter on the same issues all over again.
Similarly, if an individual, with knowledge that a legal

battle is being fought upon a subject matter in which he has an interest, stands by while others carry on the battle with the hope of reaping the fruits of the action when it is concluded, he must be, and indeed is, bound by the action and will not be allowed to re-litigate on the same case again. In other words, a person who knowingly stands by during litigation concerning the title to a parcel of land in which he claims ownership to or interest in, in circumstances in which he might reasonably be expected to apply to be joined as a party to establish his claim or interest may find himself bound by the judgment in the suit even though he was not a party to the suit in which the judgment was given – Obodo Vs Ogba (1987) 2 NWLR (Pt 54) 1, Osunrinde Vs Ajamogun (1992) 6 NWLR (pt 246) 156, Kpansanagi Vs Shabako (1993) 5 NWLR (Pt 291) 67, Gbadamosi Vs Dairo (2001) 6 NWLR (Pt 708) 137, Duru Vs Onwumelu (2001) 18 NWLR (pt 746) 672.
For the doctrine of estoppel of standing by to apply, there would have been a previous proceeding in respect of the subject matter of the dispute and which was to the knowledge of the person against whom the plea is set up and that

the notice notwithstanding, the person took no steps to assert his rights – Ibrahim Vs Mohammed (1996) 3 NWLR (Pt 437) 453. In Udeorah Vs Nwakonobi (2003) 4 NWLR (Pt 811) 643 at pages 672-673, Ubaezonu, JCA stated of the doctrine thus:
“Estoppel by conduct or standing by and estoppel per rem judicata, though can arise from the same set of circumstances, are, however, two distinct defences. Res judicata arises as a matter of record. Estoppel by standing by is an equitable principle and is essentially a question of fact. Where a person is content to be a spectator rather than a gladiator, an onlooker rather than a player, the doctrine applies. There must however be evidence that a person knew that his rights or interests were being adversely affected, and yet chose to do nothing. The person need not be a party in the previous action or have qualified as a privy in interest. If he were so, res judicata would apply. Therefore, a non-party will be estopped and thereby bound by a previous judgment if he knew or ought to have known of the pendency of the previous suit and yet chose to do nothing or stand by. Such a knowledge is either actual or imputed .”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the instant case, there is no fact or evidence on face of the records of appeal showing or suggesting that there was any previous proceedings over the land in dispute between the parties and in respect of which the Respondent had notice and he did nothing to ventilate his rights in that matter. Thus, there was nothing on the face of the records of appeal to ignite the application of the doctrine of estoppel of standing by in the present case.

With respect to the concept of limitation of action, the general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions and these are contained in the Limitations Laws of the different States of Nigeria, and including of the Federal Capital Territory, Abuja. This is based on public policy that there should be an end to litigation and that stale demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence formerly available to him necessary to

rebut the claim – Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524, Yakubu Vs NITEL (2006) 9 NWLR (pt 985) 367, Industrial Training Fund Vs Nigerian Railway Corporation (2007) 3 NWLR (Pt 1020) 28.
The philosophy behind the Limitation Laws was stated by Tobi, JCA (as he then was) in Mercantile Bank (Nig) Ltd Vs Feteco (1998) 3 NWLR (Pt 540) 143 at 156-157 thus:
“A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when human memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff …. ”
This position was reiterated by Aderemi, JCA (as he then was) in Union Bank of Nigeria Ltd Vs Oki (1999) 8 NWLR (Pt 614) 244 at 253-254 thus:
“To my mind the philosophy behind the

application of the statute of limitation is that barring actions by effluxion of time will encourage and secure reasonable diligence in litigation and protect defendants from stale claims when the evidence which might have answered them has perished… And perhaps the rationale for that piece of legislation is to give peace to a defendant after the lapse of a given period… Eternal vigilance is the price of freedom.”
It is clear from the foregoing that limitation law affects a cause of action or the validity of a cause of action instituted outside the limitation period. Hence, it has been held that limitation law constitutes a good, complete and special defence to an action.Lamina Vs Ikeja Local Government (1993) 8 NWLR (Pt 314) 758, Ogoh Vs ENPEE Industries Ltd (2004) 17 NWLR (Pt 903) 449. In the instant case, the Appellant was the claimant in the action before the trial Court and the Respondent was the defendant. The concept of limitation of action cannot be applied to diminish the case of a defendant who filed no counterclaim and it thus has no application in this matter. The contentions of the Appellant on the second issue for determination

were not well founded.

On the third issue for determination, the contention of the Appellant was that the lower Court was in error when it held that the trial Court did not properly evaluate the evidence led by the parties. The case of the Appellant before the trial Area Court was for a claim of ownership of a piece of land located at Kayel Baga. It was his case that he inherited the land from his father who cultivated same for over sixty years and that upon his father’s death twelve years ago, the ownership of the land devolved on him and he had been cultivating the land without any disturbance until the Respondent encroached into the farmland sometimes in the month of April, 2017 without his permission.

The case of the Respondent in response was that the land in dispute belonged to his father and that upon the death of his father, he was sent to live with an uncle of his called Shettima and the land was handed to the uncle to be kept in trust for him. It was his case that at a point in time, the mother of the Appellant, who was his aunt, demanded for his custody from Shettima with an undertaking to send him to school and that he was sent to live

with the aunt and the land was handed over to his aunt to keep in trust for him. It was his case that rather than send him to school, the Appellant’s mother sent him to the farm and that the father of the Appellant cultivated on the land in dispute and that at a point in time he left the house and that upon demise of his aunt and the Appellant’s father, the said land was shared as part of the estate of the Appellant’s father. It was his case that he made several demands for the return of the land to him and that when the Appellant refused and/or neglected to hand him the land, he went thereon and started farming.

The records show that the Appellant called three witnesses in proof of his case before the trial Court while the Respondent called five witnesses in proof of his defence. The records show that in the judgment delivered by the trial Court, it summarized the respective cases of the parties and the evidence led by each of the witnesses and it thereafter continued thus:
“I Abdulkarim Aliyu Gwani Hon. Judge UAC Kumo based on this suit between Alhaji Kabiru Kelas V Akenti Fitti after hearing the statement of claim and response and also the

evidence presented by witnesses from both sides the Court agrees with the case of the Plaintiff and the witnesses he brought before the Court so because of this, the Court observes that the land has been in the custody of Kabiru for a long time without anyone challenging him till the death of Kabiru’s father and Kabiru inherited the land and he has also been in possession for a long time in total the land has been with him for up to 50 years from the hands of Kabiru’s father to the hands of Kabiru and in all that time Akenti has been alive and did not say anything and he has been physically well not that he was sick and he has relatives and they also did not say anything to retrieve the farmland back to Akenti and then they sat quietly without saying anything; because of this and the length of years the farm has been with Kabiru this Upper Area Court hereby gives title to Alhaji Kabiru. There is right of appeal within 30 days”.

The lower Court found that the trial Court did not properly evaluate the evidence led by the parties before making its findings and entering judgment in favour of the Appellant.
It is settled law that it is the primary

responsibility of a trial Court to hear the parties, watch and observe the demeanor of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the Court. The procedure is crucial in its observance. The trial Court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The Court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the Court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party.
Once these considerations fall into line, the Court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision. The trial Court must carefully examine the evidence and clearly

understand the issues he has to resolve in the case and then proceed to resolve them. Its duty is to reach a decision only on the basis of what is in issue and what has been demonstrated upon the evidence by the parties and supported by law. The observance of the procedure for evaluation of evidence is crucial to arriving at a just decision. Its breach will most likely lead to a perverse decision. Mogaji Vs Odofin (1978) 4 SC 91, Adeleke Vs Iyanda (2001) 13 NWLR (pt 729) 1, Okoko Vs Dakolo (2006) 14 NWLR (pt 1000) 401, Tippi Vs Notani (2011) 8 NWLR (pt 1249) 285, Momoh Vs Umoru (2011) 15 NWLR (pt 1270) 217.
Reading through the above excerpt of the judgment of the trial Court, it is clear that it was in gross violation of the above stated procedure fashioned out to ensure justice to both parties. It did not consider the case made out and the evidence led by the Respondent before arriving at its decision as to who was the owner of the land in dispute. It considered only the case of the Appellant and the testimonies of his witnesses. It did not put the evidence of both sides on a scale to weigh them and see which side preponderated. It did not properly

evaluate the evidence of both parties before making its findings of fact. The finding of the lower Court upholding the complaint of the Respondent on improper evaluation and/or non-evaluation of the evidence led by the parties by the trial Court was very well founded. The lower Court made the appropriate order of retrial since the parties prosecuted their respective cases on oral evidence which depends to a large extent on the credibility of witnesses.
An appellate Court cannot, on the basis of printed record of evidence, usurp the function of the trial Court, who had the advantage of seeing, watching and observing the witness in the witness box, in respect of the evaluation of the credibility of a witness.Ochiba Vs State (2011) 17 NWLR (Pt 1277) 663, Ogundepo Vs Olumesan (2011) 18 NWLR (pt 1278) 54. The contention of the Appellant on the third issue for determination was misconceived.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Gombe State delivered in Suit No GM/68A/2017 on the 27th of February 2018. I

abide the order on costs in the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement With is reasoning and conclusion. I also dismiss the appeal.

Appearances:

J.P. Dukut Esq. holding brief of Ishaku Daniel Esq. For Appellant(s)

Emmanuel Nwaekwe Esq. For Respondent(s)