KHALIL v. GARBA & ANOR (2020)

KHALIL v. GARBA & ANOR

(2020)LCN/14730(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/K/67/2019

RATIO

SERVICE OF PROCESS: IMPORTANCE OF THE ISSUE OF SERVICE OF PROCESS

The issue of service of Court process on the adversed party, raises fundamental questions, as lack of it will vitiate proceedings of Court, no matter how well articulated or conducted it may appear to be. PER HUSSAINI, J.C.A.

WORDS AND PHRASES: DEFINITION OF “MISCARRIAGE OF JUSTICE”

Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. PER HUSSAINI, J.C.A.

LAND LAW: WAYS OF PROVING TITLE TO LAND

There is nothing wrong with placing reliance on documents as evidence of title of the person who produced it as indeed, one of the five (5) methods by which a claimant can prove his ownership of land, is by the production of title documents. The other methods, are proof by:
1. Traditional evidence
2. Proof by acts of ownership
3. Proof by acts of long possession
4. Proof of possession of connected of adjacent land in circumstances which render it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See: Idundun v. Okumagba (1976) 9 – 10 SC 227; Thompson v. Arowolo (2003) 4 SC (Pt. 2) 108, 155 – 156. PER HUSSAINI, J.C.A.
LAND LAW: QUESTIONS TO INQUIRE BY COURT WHERE A PARTY RELIES ON THE PRODUCTION OF TITLE DOCUMENTS AS WAY OF PROOF OF TITLE

However the production of title documents does not automatically entitle the party to the declaration sought as the Court will need to inquire into a number of questions including the question:-
(a) Whether the document is genuine and valid
(b) Whether it has been duly executed
(c) Whether the grantor had the authority and capacity to make the grant
(d) Whether the grantor had in fact what it purported to grant
(e) Whether it had the effect claimed by the holder of the instruments.
See: Yaro v. Usman Babe Manu (2014) LPELR – 2418 (CA) Romani v. Romainle (1992) 5 SCNJ 25,36; Olohunde v. Adeyoju (2007) 6 SC (Pt. 11) 120, 134-135;Olaniya v. Fatoki (2013) 17 NWLR (Pt. 1384) 477. PER HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

NURA KHALIL APPELANT(S)

And

1. HAJIYA BINTA GARBA 2. GOVERNOR OF KADUNA STATE RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Kaduna State delivered on the 17th January, 2019 in favour of the 1st Respondent vide suit No. KDH/KAD/384/2014.

The 1st Respondent, then the Plaintiff at the High Court aforesaid, took out a Writ of Summons, as amended, and by the amended statement of claim filed on the 22/9/2014 claimed assorted reliefs against the Appellant including a declaratory Order that the property at No. 17 Rabba Road Kaduna belong to her having purchased it from one Alhaji Ibrahim A. Mohammed sometimes on the 21st May, 1997; that the Defendant now the Appellant and his agents and privies are trespassers to that property. She sought for an Order of perpetual injunction against them from further trespassing on the said property. She further sought for a declaratory order to the effect that the act of the Defendant/Appellant, who forced her (1st Respondent) out of the property in dispute during the pendency of the suit, was illegal and unlawful hence the claim of the sum of N5 Million Naira for disturbance, from quiet possession of the property in dispute.

The 1st Respondent further claimed general damages as well as cost for instituting the suit. The 1st Defendant/Appellant denied the claim and filed a Counter-claim stating that the property in dispute indeed belong to him having purchased it from the same Alhaji Ibrahim A Mohammed the Original owner of the Property. That he only authorized the 1st Respondent then, his wife, to execute the deed of Assignment as his trustee. The property in dispute, it is contended was formerly transferred to him by the 1st respondent, by another deed of Assignment. The suit before the trial Court was fought on the following pleadings, namely:
(1) The 1st Respondent’s amended writ of summons
(2) 1st Respondent’s amended statement of claim
(3) 1st Respondent’s Reply to Appellant’s statement of defence.
(4) Appellant’s (1st defendant) further statement of defence and counter-claim
(5) Appellant’s (1st defendant) amended statement of defence.
(6) 2nd Respondent’s statement of defence to Appellant’s counter-claim.

Parties to the suit at the trial, elicited evidence of witnesses and also tendered documents.

These are in evidence as Exhibits. At the close of evidence, the trial Court in the Judgment delivered on the 17th January, 2019, found for the Plaintiff, now the 1st Respondent, in terms of the reliefs sought while dismissing the counter-claim.

Against this Judgment and Order the Appellant appealed to this Court vide the Notice of Appeal of six (6) grounds filed on the 31/1/2019. By the further amended Notice of Appeal, filed on the 6/11/2019, the Appellant has appealed to this Court on Ten (10) grounds. For better understanding of the Complaint presented, I will endeavor to reproduce the ten (10) grounds of Appeal but shorn of the particulars, thus:
“GROUND 1
The Honourable Court erred in law when it held, “the defendant had led oral evidence to show that he bought the property from Alhaji Ibrahim A. Mohammed. His DW 4 and 5 are to this effect. The oral evidence presented by the Defendant who presents documents at the same time in proof of his claim must go hand in hand. Extrinsic evidence of their contents will not be admissible in evidence thereby occasioning a miscarriage of justice.
GROUND 2
The Honourable Court

erred in law when it held “the whole of Exhibit 1 will play a vital role in the decision to be arrived at by this Court. It traces the title of the original from whom both parties are claiming their title to the disputed property. Rom page 102 up to page 146 are documents showing what the plaintiff (now 1st Respondent) has undergone through, to get the C of O No KD 30572 to herself. It shows the revocation of C of O No NC 221 in the name of Alhaji Ibrahim A. Mohammed. On the other hand the Defendant (Appellant) Counter-claimant could not be said to prove his claim of the disputed property over the plaintiff. The documents presented by him in this case could not confer better title to him than the plaintiff”. Thereby occasioning miscarriage of justice.
GROUND 3
The Honourable Court erred in law when it granted the Respondent damages for he Appellant forcing the 1st Respondent and her children out of her property without evaluating the evidence of parties before it property to arrive at a just and well considered decision, as trespass is predicated on exclusive possession.
GROUND 4
The witness deposition on oath sworn to by the

1st Respondent on September 22, 2014 as her evidence in this suit is incompetent in law as it did not comply with Section 13 of Oath Act and so the Respondent did not have any evidence before the Court to support her pleadings.
GROUND 5
The Court lacked jurisdiction to entertain this suit as the same was Statute Barred.
GROUND 6
The Court erred in law when it refused to admit in evidence letter dated May 14, 1997 and letter dated April 13, 2013 written to Alhaji Ibrahim A. Mohammed in which the Appellant authorized the execution of the Sale Agreement and Deed of Assignment by the 1st Respondent as his Trustee and divorce letter written to the Respondent on the ground that they are photocopy and no foundation was laid as to the where about of the original when they were sought to be tendered in evidence.
GROUND 7
The trial Court erred in law when it failed to evaluate evidence adduced by the parties before arriving at a decision thereby occasioning miscarriage of justice against the Appellant.
GROUND 8
The judgment delivered by the trial Court is void as it was delivered after 90 days from the date final written

addresses were adopted by counsels to the parties and this affected the outcome of the judgment negatively against the appellant.
GROUND 9
The 1st Respondent did not have a sustainable suit in law as the Writ of Summons upon which the suit was commenced had expired and therefore void.
GROUND 10
The weight of evidence adduced in Court is against the judgment of the Honourable Trial Court.”

Parties thereto filed and exchanged their briefs of argument after the transmission of Record, in terms of:
(1) The Appellant’s Amended Brief of Argument filed on the 4th March, 2020 but deemed on the 17th March, 2020.
(2) 1st Respondent’s Brief of Argument filed on the 6th August, 2019 but was deemed filed on the 17th March, 2020, incorporating the Notice of Preliminary Objection and arguments canvassed thereto.
(3) Appellant’s reply to 1st Respondent’s Preliminary Objection.
(4) Appellant’s Reply to 1st Respondent’s brief of argument.
The 2nd Respondent did not file any brief of argument

The said briefs of argument were adopted on 8/7/2020 and re-adopted on 9/11/2020.

The 1st Respondent or counsel has urged us to strike out this appeal based on the Preliminary Objection taken by them. Contrariwise, the Appellant has urged us to discountenance the said Preliminary Objection for want of merit.

This is the most opportuned time to address issues arising from the Preliminary Objection taken by the 1st Respondent. A Notice to that effect was incorporated at page 1 of the 1st Respondent’s brief of argument but the same is predicated on the following grounds namely;
“(a) The appellant’s original Notice of appeal and the amended Notice of appeal did not reflect the 1st Respondent’s address for service and consequently, the 1st Respondent was never served personally as required by Order 2 Rule 1(a) of the Court of Appeal Rules, 2016.
(b) The appellant’s amended Notice of appeal deemed properly filed on the 13th June, 2019 and the Appellant’s Brief of Argument were never signed by any Legal Practitioner or anyone for that matter.
(c) The Appellant’s amended Notice of Appeal does not have a counsel stamp affixed as mandatorily required by

Rule 10 of the Rules of Professional Conduct for Legal Practitioner (2007)
(d) No issue is formulated from Grounds 5 and 10 in the amended Notice of Appeal and those grounds must be deemed abandoned.
(e) No leave was sought and obtained before raising Grounds 9 and 4 being fresh issues not raised before the trial Court.
(f) No extension of time was sought or obtained on the ruling delivered by the lower Court on 31st October, 2017 on the admissibility of the letter dated May 14, 1997, thereby rendering ground 6 incompetent.
(g) The Appellant joined the 3rd Respondent unilaterally as a party to this appeal without any order of the lower or this Court.
(h) The Appellant’s Notice of appeal is incurable defective where it appeals against “HIGH COURT 1” instead of KADUNA STATE HIGH COURT as contained in Section 240 of 1999 Constitution as amended.”

Grounds (g) and (h) above have been withdrawn, hence the same are accordingly, struck out without much ado. The stated grounds of objection are self-explanatory. I have addressed each one of them.

The issue of service of Court process on the adversed party, raises fundamental questions, as lack of

it will vitiate proceedings of Court, no matter how well articulated or conducted it may appear to be.

The complaint here is that the 1st Respondent was not personally served with a copy of the Notice of appeal or the amended Notice of appeal as ordained by the Rules of Court under Order 2 Rule 1(a) of the Court of Appeal Rules, 2016. That may very well be true. However, the essence of service of any Originating process is to give Notice to the other party, of the existence of a suit in Court. Notwithstanding that the 1st Respondent was not personally served, but through her counsel, records have revealed that the (1st Respondent) appeared in Court on the 16/4/2019 and 13/6/2019 and filed processes in obedience to the service affected on her through counsel, hence the message had been delivered to her and she cannot at this stage complain of lack of personal service on her having already taken certain steps, she is deemed to have waived personal service on the authority of the decision in Odua Investment Co. Ltd v. Talabi(1997) 10 NWLR (Pt. 523) at page 1 (SC); MACB Ltd v. Ono Foods Dev. Co. (Nig. Ltd.) (2006) 9 NWLR (Pt. 985) 325, 335 – 336.

This ground of objection therefore fails.

The second ground of objection relates to the non-signing of the Appellant’s amended Notice of appeal, and the Appellant’s Brief of argument by a Legal Practitioner. However a look through the said processes only reveal that the documents in question were indeed signed by C. O. Ojijieme, a legal Practitioner, contrary to the objection taken on this point. The Notice of appeal and the Appellant’s Brief of argument relied upon and upon which the appeal was argued are the Further amended Notice of Appeal filed on the 6/11/2019 and deemed filed on the 17th March, 2020 and the appellant’s amended Brief of argument filed on the 4/3/2020 and deemed on 17/3/2020, both of which were signed by one C. O. Ojijieme Esq., at the time of filing. The Notice of appeal or the further amended notice of appeal and the Appellants amended brief of argument have the stamp of counsel on them.

Relative to grounds 4 and 9 contained in the further amended Notice of appeal, it was contended for the 1st Respondent that the said grounds raise fresh issues on appeal without leave first being sought to raise those grounds.

At the risk of repetition, Grounds 4 and 9 of the Grounds of appeal, shorn of the particulars state thus:
GROUND 4
The witness deposition on oath sworn to by the 1st Respondent on September 22, 2014 as her evidence in this suit is incompetent in law as it did not comply with Section 13 of Oath Act and so the Respondent did not have any evidence before the Court to support her pleadings.
GROUND 9
The 1st Respondent did not have a sustainable suit in law as the Writ of Summons upon which the suit was commenced had expired and therefore void.”

Under Ground 4 above, the complaint relates to the 1st Respondent’s deposition on Oath, said to be incompetent for non-conformity, with the provisions of the Oaths Act. The same goes for ground 9 in that the suit of the 1st Respondent was founded on an incompetent writ of Summons. When the validity of a process of Court is brought to question, the issue of jurisdiction is ignited and it becomes a threshold question hence the same can be raised at any time without leave of Court first being sought. I rely on the decision in Abbey v. State (2018) 1 NWLR (Pt. 1600) 183, 201. This ground of objection also fails.

Ground (f) of the grounds of Preliminary Objection, is the complaint about the competency of ground 6 of the grounds of appeal since no extension of time was sought and obtained to appeal the ruling of the Court below delivered on 31/10/2017, to which ground 6 relates. This ground of objection even if resolved in favour of the objectors it is still not sufficient to obliterate the entire appeal. The appeal still subsists by the existence of other grounds of appeal contained in the Further amended Notice of appeal. Ground (f) of the Grounds of Objection is accordingly hereby discountenanced by me. The Preliminary Objection in effect, fails and the same is dismissed. I will now address issues relating to the merit of this appeal.

The appellant has appealed to this Court on Ten (10) grounds as earlier stated in this Judgment and from those ten (10) grounds, the Appellant, in the further amended brief of argument, distilled seven (7) issues for determination thus:
“(i) Whether the 1st Respondent had valid Writ of Summons which could sustain the suit and if the answer is yes, which is not concede, whether

the witness depositions on oath sworn to by the 1st Respondent as her evidence are competent in law having not complied with the clear provision of Section 13 of the Oath Act. Distilled from Grounds 9 and 4 of the Amended Notice of Appeal.
(ii) Whether the Judgment delivered after 90 days from the date final written addresses were adopted is not liable to be set aside when there is evidence that the trial Judge lost appreciation of the facts of the case leading to miscarriage of justice against the Appellant. Distilled from Ground 8 of the Amended Notice of Appeal.
(iii) Whether letters dated May 14, 1997 and April 13, 2013 written to Alhaji Ibrahim A. Mohammed and the 1st Respondent respectively are not admissible in law though the witness did not give express explanation as to the where about of the originals before they were sought to be tendered in evidence.
(iv) Whether the judgment delivered by the trial Court is not liable to be set aside as the Judge failed to evaluate the evidence adduced in Court by parties thereby before arriving at it’s decisions which occasioned injustice to the Appellant.
(v) Whether the Appellant led

only oral evidence to show that he bought the property from Alhaji A. Ibrahim, and whether the evidence are not such that fall within the exceptions provided in Section 128(1)(a) of the Evidence Act 2011. Distilled from Ground 1 of the Amended Notice of Appeal.
(vi) Whether the trial Court was right in holding that both parties are claiming their title to the disputed property from the original allottee, and that the 1st Respondent having got C of O No. KD30572 to herself, the Appellant could not be said to prove his claim of the disputed property. Distilled from Ground 2 of the Amended Notice of Appeal.
(vii) Whether the trial Court was right in awarding damages to the 1st Respondent on the ground that she was forced out of the property, without evaluating the evidence before the Court to establish whether she was in possession of the subject property assuming without conceding that the trial Court was right in its judgment.”

The 1st Respondent through her counsel took the unconventional approach in arguing this appeal. She did not formulate any issue for determination neither did she adopt any of the seven (7) issues formulated by the

Appellant in his brief of argument. All the same, the 1st Respondent is seen to canvass arguments on some of those issues formulated in the Appellant’s brief of argument.
Order 19 Rule 4(2) of the Court of Appeal Rules 2016 provide thus:
“The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform with Rule 3(1), (2), (3), (4), (5) and (6) of this order.” (words underlined for emphasis)
By Order 19 Rule 4(2) read together with Rule 3(1) of Order 19 of the Court of Appeal Rules, the 1st Respondent, like any Respondent in an appeal case, is required to state in his brief of argument, the issues, which in his view arose for determination in the appeal.

Be that as it may, I shall abide by those issues formulated in the appellant’s brief of argument in addressing this appeal.

ISSUE NO. 1
The question here is whether the 1st Respondent had valid writ of summons which can sustain the suit.

Secondly, whether the witness deposition on Oath sworn to by the 1st Respondent as her evidence are competent in law having not complied with provisions of Section 13 of the Oaths Act?

Learned Appellant’s counsel addressing this question argued that there was no valid writ of summons before the trial Court. In reference to the writ of summons in this suit issued on the 25th April, 2014, he argued that the Writ before the Court expired on 24/7/2014 but that the 1st Respondent or her counsel did not apply to renew the process before its expiration until on the 19/9/2014 and the application was granted on the 22/9/2014.

In reference to the rules of the Court below he argued that the writ of summons has to be renewed before the expiration of its life span i.e before the expiration of 3 months from the date it was issued. With reference to Order 6 Rule 6(1) and 6(2) of the High Court Civil Procedure Rules of Kaduna State, he argued that there is no provision for renewal of the Originating Summons after its expiration. He referred us to the decision of this Court in Hon. Moses Bisuakefe & 8 Ors v. Hon. Dr. Godwin Amanke (2012) 5 NWLR (Pt. 1294)

455, 466 – 467. He urged us to nullify the judgment appealed against on this account.

He argued in the alternative, by reference to the 1st Respondent’s witness’ deposition to submit that the same was not competent by reason of non-compliance with S. 13 of the Oaths Act read together with the 1st Schedule of the Act. He argued that every deponent of an Oath must adopt the wordings in the 1st Schedule of the Act, particularly the closing paragraph, and failure of which it is argued, will render the deposition invalid. We were referred to the decision in GTB Plc v. Abiodun (2017) LPELR – 42551 (CA). He argued that compliance with the statutory provision was mandatory and that the same should be observed in the manner as provided by statute. He referred us to Crutech v. Obeten (2011) 15 NWLR (Pt. 1271) 588, 608; CCB (Nig.) Plc v. Attorney General Anambra State (1992) 8 NWLR (Pt. 261) 5028; Corporate Ideal Ins. Ltd v. Ajaokuta Steel Coy. Ltd (2014) 7 NWLR (Pt. 1405) 156, 193 – 194; Adesanoye v. Adewole (2006) 14 NWLR (Pt. 1060) 242.

It is argued that in the light of this fundamental defect surrounding the 1st

Respondent’s deposition on Oath, there was no evidence before the trial Court to support her pleadings. We were urged to dismiss the suit of the 1st Respondent at the trial Court on account of the Writ of Summons being void.

In response to those arguments, learned counsel for the 1st respondent relied on the decision in Kolawole v. Alberto (1989) LPELR – 1700 (SC) to submit that:
(i) A writ of summons can be renewed even after expiration.
(ii) That although the Kaduna State High Court (Civil Procedure) Rules empowers the Chief Registrar to renew the writ before its expiration, under Order 6 Rule 6, nothing in the Rules stop the Judge to renew the writ after expiration.
(iii) That the renewal of the Writ of Summons vide the Exparte application made to Court was in order and the Writ of Summons so renewed was valid in law.

Order 6 Rule 6(1) and 6(2) of the Kaduna State High Court (Civil Procedure) Rules, 2017 provides thus:
“6(1) The life span of every originating process shall be 3 months”
“6(2) If the Chief Registrar is satisfied that it has proved impossible to serve an Originating summons on

any Defendant within its life span and a Plaintiff applies before its expiration for renewal of the process, the Chief Registrar may renew the Originating process for 3 months from the date of of such renewal. A renewal of an originating process shall be as in form 6.”
It is clear that by those provisions, the power to renew the Writ of Summons in vested in the Chief Registrar but the application to renew the process can only be made to the Chief Registrar before the expiration of the existing process. The Rules are however silent as to whether the Originating Process can be renewed after expiration by any Court Procedure other than by administrative action of the Chief Registrar. This is the question but it appears to me that the decision in Bisuakefe v. Amanke (2012) 5 NWLR (Pt. 1294) 455, 466 – 467 did not strike on this distinction. I shall again return to this point in due course.

In the meantime, I have to observe that the Writ of Summons in this Suit was issued on April, 25th, 2014 and it expired after 3 months i.e. on 24/7/2014. On the 19th September, 2014, Appellant’s counsel by a Motion Exparte sought to renew the process.

The Exparte application for renewal of the process was granted on 22/9/2014 by a Court Order to that effect and not by the Chief Registrar. It is clear that at the time the Renewed Order was made, the Writ of Summons had expired. The question therefore is whether the new writ issued or ordered by the Court on the Exparte application after the expiration of the old Writ, is valid?
The Response of the learned counsel for the 1st Respondent was in the affirmative and rightly so. See the decision in Kolawole v. Alberto (supra) where Craig, JSC held thus:
“What has presented some difficulty and the real point of this appeal is whether an application can be made outside the twelve-month period? Some decisions at first instance have tended to show that once the twelve months have elapsed, no application for extension can be made. I do not share that view. I think the whole purpose of the Rule is to do substantial justice between the parties. After all the real contest between the parties has not begun; issues have not been joined and the whole suit is at the commencement stage. With this background in view, I do not think the Court would want to shut out

plaintiff even before his opponent is served and before he has had the opportunity to state his case.”
Order 42 Rule 13 of the High Court (Civil Procedure) Rules of Kaduna State, provide thus:-
“Where a matter arises in respect of which no provision or adequate provision is made by this Rules or any other written law, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned, and the Court may make any order which it considers necessary for doing justice in the circumstances.”
The order made at the Court below renewing the Writ of Summons even after its expiration was geared at doing substantial justice to the parties before it hence proceedings of the Court below taken subsequent to the issuance of the New Writ are valid in law.

There is a second leg to issue No. 1 and that is the validity of the written deposition of the 1st Respondent. The question is whether that written statement on Oath of the 1st Respondent is invalid merely on account of non-compliance with provisions of Section 13 of the Oaths Act read with the 1st Schedule of the same Act?

Learned counsel for the appellant had returned an affirmative answer. In reference therefore to the decision in GTB Plc vs. Abiodun (2017) LPELR-42551 (CA), he argued that any written deposition on Oath which was not in conformity with the Oaths Act or which failed to adopt the exact wordings in the Oaths Act particularly as it relates to the closing paragraph, in the 1st schedule was invalid, incompetent and void. We were urged therefore to hold that the 1st respondent’s statement on Oath being invalid, there was no evidence presented to Court by her to warrant the Court giving judgment in her favour.

Contrariwise is the submission made for the 1st respondent wherein learned counsel on her behalf also relied on a number of cases such as Ekperetu vs. Ofogori (2013) ALL FWLR (Pt. 680) 1313, 1357; Dasofunjo vs. Ajiboye (2017) ALL FWLR (Pt. 911) 508, 530-531 to submit that there was substantial compliance with provisions of the Oaths Act as to make it possible for the 1st respondent’s deposition on Oath to sail through, in doing substantial justice to the matter. He urged us to so hold.

Section 13 of the Oaths Act provides as follows:
“It shall be lawful for any commissioner for Oaths, notory public or any other person authorized by the Act to administer an Oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the first Schedule of this Act.”

The opening paragraph to the 1st Schedule of the Oaths Act provides thus:
“I … do solemnly and sincerely declare that…”
The closing paragraph provides thus:
“I make this solemn declaration consciously believing the same to be true and by virtue of the provision of the Oaths Act.”

The 1st respondent’s witness’ deposition on Oath is at pages 8-10 of the record. At paragraph 21 is the witness’ concluding statement or remark thus:
“That I depose to this affidavit in good faith believing same to be true and correct in accordance with the Oath Act, 2004.”
Those concluding remarks of the 1st Respondent no doubt are not the exact words as are contained in the 1st Schedule to the Oaths Act. They are nonetheless in substantial compliance with the Act. See the decision in Ekperetu vs. Ofogari (2013) ALL

FWLR (Pt. 680) 1333, 1357; Dasofunjo vs. Ajiboye (2017) ALL FWLR (Pt. 911) 508, 530-531. This Court has further held in Ojibara vs. Gov. of Kwara State (2004) LPELR-13002 (CA). “That the law does not require a deponent to use the exact words in the Oaths Act. Anything in substantial compliance with the requirements of that Act will be enough in this era of substantial justice at the expense of technicalities.” What is more, the Apex Court has held in Anatogu vs. Iweka II (1995) 8 NWLR (Pt. 415) 457 Per Uwais, JSC (as he then was) that no miscarriage of Justice is caused by the failure to strictly comply with the provisions of the Oaths Act. By this decision, it means that the Court of Appeal decision in GTB Plc vs. Abiodun (Supra) on this point does not represent the true state of the law hence I resolve Issue No. 1 against the appellant.

Issue No. 2 is a challenge to the delivery of judgment at the trial Court outside 90 days and whether such judgment is not liable to be set aside?

Learned counsel for the appellant and those for the 1st respondent have addressed this question in their respective briefs of arguments as can be found at

pages 9-13 of the appellant’s brief of argument at paragraphs 5.01-5.11 for the appellant and at pages 9-11, paragraphs 4.1-4.3 for the 1st respondent.

Unarguably, the judgment delivered at the Court below on the 17th January, 2019 was delivered outside 90 days. Counsel’s final addresses were adopted on the 20th June, 2018. The case was initially adjourned to 12th September, 2018 for delivery of judgment. See the proceedings of Court at pages 636-651 of the Record of Appeal. By the delivery of that judgment on the 17th January, 2019, i.e a period of about 6 months, after the adoption of Written addresses, there was failure of compliance with Section 294(1) of the Constitution of FRN, 1999 (as amended) which provides as follows:
“294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
However mere failure to comply with provisions of Section 294(1) by the late

delivery of Judgment within 90 days does not ipso facto, render that judgment invalid unless evidence of miscarriage of justice was established under Section 294(5) of the Constitution. Sub-Section 5 of Section 294 of the Constitution of FRN 1999 (as amended) provides thus:
“294(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1)of this Section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
If therefore, as a result of inordinate delay after the end of trial and the writing of Judgment apparently and obviously affected the trial Court’s perception, appreciation and evaluation of the evidence such that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of some possible miscarriage of justice and then, but only then, the appellate Court can interfere. See: Owoyemi v. Adekoya (2003) 18 NWLR (Pt. 852) 307.

“Miscarriage of Justice,” has been defined to mean: failure of justice or failure of Court to do justice in a matter. It is justice misapplied, mis-appreciated or misappropriated. Unless a decision can be shown to be prejudicial, it cannot be said to be miscarriage of justice as held in Gbadamosi vs. Dairo (2007) NWLR (Pt. 1021) 282, 306 and Larmie vs. Data Processing Maintenance and Services Ltd (2005) LPELR-1756 (SC).
The burden duty lies with the Appellant, that is, the person complaining of time lag in the delivery of judgment to prove that by that delay there is a miscarriage of justice, in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impression of the trial due to such inordinate delay. In Akpan v. Umah (1999) 7 SC (Pt. 11) 13 or (1999) 1 NWLR (Pt. 627) 349, the Apex Court listed the ways by which such judgments can be identified when it held that:
“Such derogation from the quality of the judgment may be identified from the disjointed and incoherent nature of the judgment or the inability of the trial judge to appraise the quality of evidence

adduced at the trial which may be indicative of the fact that he has lost the impression of whatever was the demeanor and credibility of the witnesses that testified before him and even the nature of the trial itself…”
The complaint in this instance is not that the judgment appealed against was disjointed and incoherent. Neither is the complaint about the inability of the trial judge to appraise the quality of evidence adduced at the trial. The complaint is about the way and manner the trial Court dealt with Exhibit 19, the Deed of Assignment by which the property in dispute was assigned or transferred to the Appellant. The trial Court, in addressing this question has held that since Exhibit 19 was not registered, it could not convey title over it to the appellant. The learned appellant’s counsel has contended that this conclusion arrived at by the trial Court was attributable to the long delay in the delivery of that judgment, which delay affected the trial Court’s perception of the trial.
I find it difficult to agree with that submission of the learned counsel to the appellant. Exhibit 19, unarguably, was not registered as

a Deed of Assignment. The trial Court said so in its findings and this is a statement of tact. If by that finding, the trial Court was constrained to dismiss the counter-claim before it, in its application of the law to the facts, it should not and cannot translate to a breach within the meaning and contemplation of Section 294(1), (5) of the Constitution of FRN, 1999 (as amended) to warrant the setting aside of that Judgment. The question whether or not the trial Court properly applied the law on the facts, is an issue which I intend to address shortly. In the meantime, Issue No. 2 is also resolved against the appellant.

ISSUE NO. 3
Issue No. 3 crafted in the Appellant’s brief of argument is as to:
“Whether the Appellant relied on oral evidence to show that he bought the property from Alhaji Ibrahim A. Mohammed, whether in this instant case, the exception to the provision in Section 128(1)(a) of the Evidence Act 2011 will not avail the Appellant and whether the oral evidence adduced by the Appellant witnesses are not in consonance with the documents tendered by the Appellant in support of his defence.” Distilled from ground 1 of the Further Amended Notice of Appeal.

My understanding of the argument proffered under issue No. 3 for the Appellant is that if the trial Court properly considered the evidence of DW4, DW5, and Exhibit 13, it would have come to the conclusion that the Appellant indeed bought and paid for the property in dispute but instructed the 1st Respondent to sign Exhibits 2, 3 and 4 as his trustee, only who at a later date vide Exhibit 19, executed a deed of assignment in his (Appellant’s) favour. I will take a second look at those Exhibits.

Exhibit 13 relied upon by the Appellant is the Sales Receipt or the acknowledgement of payment of the sum of N11,000,000 (Eleven Million naira) by Engineer Mohammed Nurr Khalil for the purchase of the property at No. 17 Rabbah Road, Kaduna North. Exhibit 13 was issued on the 7th May, 1997.

Exhibits 3 and 7 among others, were tendered to support the case of the 1st Respondent. Exhibit 3 is the Deed of Assignment by which the Assignor, Alhaji Ibrahim A. Muhammed assigned the unexpired residue of the property at No. 17 Rabba Road covered by the Certificate of Occupancy No. NC 271 to Hajia Binta Garba, the Assignee, that is, the 1st Respondent herein.

Exhibit 2 dated the 21st May, 1997 is the Sales Agreement between Alhaji Ibrahim A. Mohammed and Hajiya Binta Garba. Exhibit 7 is the certificate of statutory Right of occupancy issued to Hajiya Binta Garba in respect of the property at No. 17 Rabbah Road, GRA Malali Kaduna issued on 24/9/2014.

Exhibit 19 is the Deed of Assignment between Hajiya Binta Garba and Mohammed Nura Khalil, dated and executed on the 5th May, 1999 in respect of the property at plot No. 17 Rabah Road, Kaduna North, wherein the Assignor, Hajia Binta Garba assigned the said property to Mohammed Nura Khalil, the Assignee. By dint of Exhibit 13, and the evidence of DW4 and DW5, the Appellant traced his title over the property at No. 17 Rabah Road Kaduna to Alhaji Ibrahim A. Mohammed, the original owner of that property.
The 1st Respondent in the same vein, relying on Exhibits 2, 3 and 7 claim to have derived her title from Alhaji Ibrahim A. Mohammed. Faced with those competing claims, the law is in favour of the person who establishes a better title relative to the property in dispute, mindful of the enactment at Section 128(1) of the Evidence Act, 2011,

which provides that:-
“128(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given or such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
By the foregoing provision, oral evidence will not be admissible to vary, contradict or alter the contents of a document. See: Fagbenro v. Arobadi & Ors. (2006) LPELR – 1227 (SC); A. A. Macaulay v. Val. Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283, 310 – 311.
It follows therefore that the contents of Exhibits 2 and 3 cannot be varied or contradicted by any oral evidence relative to the subject-matter in question, in this case, the property at No. 17 Rabbah Road, Kaduna, North. The evidence of DW4, which is to the effect

that it was the Appellant that bought the property at No. 17 Rabbah Road Kaduna, from Alhaji Ibrahim A. Mohammed purports to contradict or vary the contents of Exhibit, 2 and 3 which clearly show that by those documents, Alhaji Ibrahim A. Muhammed had transferred his interest in the property at No. 17 Rabah Road, Kaduna to the 1st Respondent and not the Appellant hence evidence of DW4 stating the contrary is unacceptable to vary the contents of that document. See: Hussaini Isa Zakirai v. Salisu Dan Agumi Mohammed (2017) LPELR-42349 (SC). Thus, documentary evidence as held in Aiki v. Idowu (2005) 9 NWLR (Pt. 984) 47 is a hanger to base other pieces of evidence. Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are even more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. I do not see how any of the exception created under S. 128(1) of the Evidence Act, can avail the Appellant on this point. By Exhibits 2 and 3, the 1st Respondent is the buyer and the assignee of the

property at No. 17 Rabbah Road Kaduna hence the evidence of DW3, DW1 and DW4 among others, cannot add to or vary those facts contained in Exhibits 2 and 3.

Exhibit 13 relied upon by the Appellant as the receipt of purchase and issued to him as the new owner of the property in dispute, is a mere Receipt. It is not an agreement duly signed or executed by the parties to the transaction to indicate transfer of interest and thus cannot confer any legal estate, rather Exhibits 2 and 3, can, hence the same, in the determination of title or ownership of the property in dispute, have primacy over Exhibit 13, but for Exhibit 19, a point I shall return to shortly. In the meantime, I resolve issue No. 3 against the Appellant.

ISSUES 4 and 5 TOGETHER
I will address issue Nos. 4 and 5 together. These are:
ISSUE 4
“Whether the learned trial Judge was right to hold that both parties are claiming their title to the disputed property from the original allottee and that the Plaintiff (1st Respondent) having got C of O No. KD 30572 to herself, the Defendant (Appellant) could not be said to have proved his claim of the disputed property.”

Distilled from Ground 2 of the Further Amended Notice of Appeal
ISSUE 5
(v) Whether the Appellant led only oral evidence to show that he bought the property from Alhaji A. Ibrahim, and whether the evidence are not such that fall within the exceptions provided in Section 128(1)(a) of the Evidence Act 2011. Distilled from Ground 1 of the Amended Notice of Appeal.

I have considered certain questions relative to issue Nos. 4 and 5 while addressing issue No. 3. The Appellant, relying on the evidence of DW3, the evidence of DW1 and DW4 and Exhibit 13 purportedly claimed that he also derived his title from one Alhaji Ibrahim A. Muhammed, the original owner of the property at No. 17 Rabbah Road, Kaduna North. However, given the documents as in Exhibits 2 and 3 and 19 all of which have primacy over and above the oral evidence of witnesses elicited in the case, particularly those of DW1, DW3 and DW4, it is beyond contestation and rightly so, by reason of Section 128(1)(a) of the Evidence Act, 2011 that it was/is the 1st Respondent who can truly be said, has derived her title from Alhaji Ibrahim A. Mohammed in relation to the property in dispute at No. 17

Rabbah Road, Kaduna and not the Appellant, and this brings me to the question whether in the light of the existence of Exhibits 2, 3, 4, 5, 6, 7, 8, 9 and in particular, Exhibit 19, the trial Court was right in making a declaratory order of ownership of that property in favour of the 1st Respondent? This question entails the examination or evaluation of evidence in terms of those documents to see where the pendulum rested.

Upon the property in dispute being transferred to the 1st Respondent vide Exhibits 2 and 3, and after due registration of the Instrument (Exhibit 3), the 1st Respondent sought for and was issued with the certificate of occupancy (Exhibit 7) in her name, over plot No. 17 Rabah Road, Kaduna in place of the C. of O (Exh. 9) in the name of the original owner. The 1st Respondent thus, has relied on documents of title to prove her ownership of the property in dispute. She has relied on Exhibits 2, 3, and 7 among other as document of her title to the property at No. 17 Rabbah Road, Kaduna. Exhibit 7 is the Certificate of Occupancy issued in the name of the 1st Respondent, Hajiya Binta Garba, on the 19th September, 2014.

There is nothing wrong with placing reliance on documents as evidence of title of the person who produced it as indeed, one of the five (5) methods by which a claimant can prove his ownership of land, is by the production of title documents. The other methods, are proof by:
1. Traditional evidence
2. Proof by acts of ownership
3. Proof by acts of long possession
4. Proof of possession of connected of adjacent land in circumstances which render it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See: Idundun v. Okumagba (1976) 9 – 10 SC 227; Thompson v. Arowolo (2003) 4 SC (Pt. 2) 108, 155 – 156.
However the production of title documents does not automatically entitle the party to the declaration sought as the Court will need to inquire into a number of questions including the question:-
(a) Whether the document is genuine and valid
(b) Whether it has been duly executed
(c) Whether the grantor had the authority and capacity to make the grant
(d) Whether the grantor had in fact what it purported to grant
(e) Whether it had the effect claimed by the

holder of the instruments.
See: Yaro v. Usman Babe Manu (2014) LPELR – 2418 (CA) Romani v. Romainle (1992) 5 SCNJ 25,36; Olohunde v. Adeyoju (2007) 6 SC (Pt. 11) 120, 134-135;Olaniya v. Fatoki (2013) 17 NWLR (Pt. 1384) 477.

The question(s) now is whether as at the time the 1st Respondent presented her claim at the Court below she had title over the property in dispute to warrant the Court below to enter judgment in her favour based on Exhibits 2, 3 and 7 among others. This is where Exhibit 19 comes in hence Exhibits 2, 3 and 7 among other documents have to be considered and addressed along with Exhibit 19. Exhibit 19 is the Deed of Assignment executed on the 5th May, 1999 between Hajiya Binta Garba (the 1st Respondent) and Mohammed Nura Khalil (the Appellant) by which the former assigned the property, title, interest contained in the certificate of occupancy in the unexpired residue granted by certificate of occupancy No. 221, to the Appellant. It is worthy of note that Exhibit 19 predated Exhibit 7. In other words the 1st Respondent after having transferred her interest in the property at No. 17 Rabah Road, Kaduna vide Exh. 19, to the

Appellant, still applied for and was granted the certificate of occupancy (C of O) in terms of Exh.7 over that same property. That cannot be because the 1st respondent no longer hold any interest over the property at No. 17 Rabah road, Kaduna let alone to apply for Certificate of Occupancy, which the 2nd Respondent issued wrongly though, to her (1st Respondent) in terms of the document, (Exhibit 7).

The Court below did not stop at that but went ahead to dismiss the counter–claim of the Appellant ostensibly because Exhibit 19 tendered by him as evidence of transfer of title over property at No. 17 Rabah Road, Kaduna was not a Registered instrument. The Appellant, I must say, need not register Exhibit 19 in Order to prove his interest over the property at No. 17 Rabah road, Kaduna. By dint of the Deed of Assignment or transfer of interest made to him vide Exhibit 19, the Appellant had acquired equitable interest over that property at No. 17 Rabah Road, Kaduna, and this, is as good as legal estate. See: Godwin Nsiegbe & Anor v. Obinna Megemena & Anor. (2007) LPELR – 2065 (SC). A registable instrument which has not been registered is

admissible and can be acted upon to prove such equitable interest. Consequently, the trial Court was in error when it failed or refused to act on Exhibit 19 and this failure has occasioned a miscarriage of justice to the Appellant. In effect, I resolve issues 4 and 5 in favour of the Appellant and against the Respondents.

ISSUE NO. 6
Whether the Court was right in granting the 1st Respondent damages on the ground that herself and her children were forced out of the subject-property?

Given my discourse and the resolution of issue Nos. 4 and 5 in favour of the Appellant, who by reason of the evidence on the printed record and Exhibit 19 in particular, is entitled to Judgment as per his counter-claim, issue No. 6 becomes otiose. It does not arise.

The appeal in effect succeeds and same is allowed based on issues 4 and 5 discussed as above hence the judgment delivered at the High Court of Kaduna State on 17th January, 2019 in suit No. KDH/Z/364/2014, granting the claim of the 1st respondent, is set aside and the claim is hereby dismissed. In its place is entered this judgment granting the counter-claim of the Appellant. Accordingly, I order as follows:

(a) The Certificate of Occupancy No. KD 30572 (Exhibit 7) issued by the 2nd Respondent to the 1st Respondent on the 19th September, 2014 being unlawful, is void.
(b) Consequently, the said certificate No. KD 30752, that is Exhibit 7 is accordingly hereby set aside.
Cost to the Appellant is assessed in the sum of N100,000.00 (One Hundred Thousand Naira) only against the Respondents.
Ordered accordingly.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother Saidu Tanko Husaini, JCA, and I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother SAIDU TANKO HUSAINI, JCA and agree with my learned brother’s reasoning and conclusion.

I also allow the appeal in the terms of the judgment and subscribe to the Orders made therein.

Appearances:

O. OJIJIEME, ESQ. For Appellant(s)

T. MOHAMMED, ESQ., with him, N. A. TURAKI, ESQ. For Respondent(s)