KOLBE & ORS v. JEMA’A LOCAL GOVT & ORS
(2022)LCN/17002(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/175/2020
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. GODWIN DANJUMA G. KOLBE 2. KURE FADA 3. IBRAHIM DICKSON 4. MUSA TARU 5. CELESTINE NIKYU APPELANT(S)
And
1. JEMA’A LOCAL GOVERNMENT 2. DUNIYA YASHIM 3. AMINU JIBRIN 4. YUSUF SARKI 5. MONDAY MBA MAGAJI 6. NAOMI ANGWA WYOM 7. DAVID ZAMANI 8. LUKA SHINKUT 9. MARY DUNIYA 10. MARY C. DEMSON 11. PATRICK MOSES 12. MARCUS BULUS 13. MERCY CHECHET 14. LIKITA MOTTY 15. ALLAHBAMU TETE 16. PAUL DEMBO 17. JOSEPH ALI 18. FAMILY OF MARCUS RIYARGOHAI 19. MICHEAL OKAFOR 20. YASHIM IBRAHIM 21. YAKUBU YASHIM 22. JAMES GAIYA 23. ANDREW AFON RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN AN ACTION FOR OWNERSHIP OF TITLE TO LAND
It is trite that a Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or whom title devolved in respect of the land before the Plaintiff took control of the land. Where evidence of tradition is relied upon in proof of declaration of title to land, the Plaintiff in order to succeed must plead and establish the following:
i. Who founded the land?
ii. How he founded it; and
iii. The particulars of the intervening owners through whom he claims down to him.
See the cases of NKADO VS. OBIANO (1997) 5 NWLR (PT. 503) 31 and EZE VS. ATASIE (2000) 10 NWLR (PT. 676) 470. PER IDRIS, J.C.A
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE THE TESTIMONY OF WITNESSES BEFORE IT AND ASCRIBE PROBATIVE VALUE TO IT
It is trite that the Court which heard the witnesses testify is in a better position to evaluate their testimonies and assign probative value thereto and evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in findings of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanor and evaluate the credibility or otherwise of their evidence. See the cases of OKPA VS. STATE (2017) 15 NWLR (PT. 1587) 1; KEKONG VS. STATE (2017) 18 NWLR (PT. 1596) 108 and EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221. PER IDRIS, J.C.A.
WHETHER OR NOT A CLAIMANT MUST SUCEED ON THE STRENGHT OF HIS OWN CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
Furthermore, in a claim for a declaration relating to land, the claimant (this includes a counter–claimant) must succeed on the strength of his own case and not on the weakness of the case of his opponent. In other words, in spite of the failure of the Appellants to file a reply, the Respondents still had the burden of proving their counter-claim. In the case of DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 24, the Supreme Court while considering the effect of the plaintiff’s failing to file a defence to a counter-claim for title to land held as follows:
“There is no doubt that the facts from the pleadings of both parties are intertwined, interwoven as regards plaintiff’s action and defendant’s counter-claim. Had the plaintiff succeeded in his claim for damages the counterclaim would have failed since both parties could not at the same time be in exclusive possessive of the land in dispute. In my respectful view, therefore, this case would be an exception to that general rule that where a plaintiff fails to file a defence to a counter-claim the defendant is entitled to judgment on his counter-claim. Akpata, JSC correctly, in my view, stated the law when in OGBONNA V. ATTORNEY – GENERAL IMO STATE (1992) 1 NWLR (PT. 220) 647 698 he observed as follows: “Failure of a plaintiff to file a defence to a counterclaim may not be disastrous if he succeeds in his claim, his success may render useless the counter-claim depending on the nature of the counterclaim. However, where he fails in his claims, as in this case, and had filed no defence to the counter – claim, the defendants claim in his counter claim remains uncontroverted. If however, the claim in the counter-claim is for a declaratory right, the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein, appealed against the decision of the Learned Trial Judge, Honourable Justice Luka D. Aba of the High Court of Kaduna State, Kafanchan, delivered on the 5th day of March 2020.
The facts of the case leading to this appeal as adduced from the pleadings at the trial Court are to the effect that the Appellants as plaintiffs at the trial Court, claimed the following reliefs:
1) A DECLARATION that the Plaintiffs are the beneficial owners of the piece of land lying and situate at Sabo Gari, Kafanchan also called Ungwan Baki, in Ungwan Baki District, Kaninkon chiefdom, Jema’a Local Government Area of Kaduna State particularly described in paragraphs 9, 10, 11 and 12 of the statement of claim.
2) A DECLARATION that the decision by the 1st Defendant to allocate plots of the land of the plaintiffs lying and situate at Sabo Gari Kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State without the consent and authority of the Plaintiffs constitutes trespass.
3) A DECLARATION that the 1st Defendant did not have the land it purportedly allocated to the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, and 21st Defendants as well as those other persons whose names are unknown and who claim to be having pieces or plots of land in the area allocated to them by the 1st Defendant.
4) A DECLARATION that the erection of buildings by the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, and 21st Defendants on the pieces of land at Sabo Gari kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State belonging to the Plaintiffs constitutes trespass.
5) AN ORDER directing the Defendants jointly and severally to immediately/forthwith remove their properties/ buildings that they have erected on the Plaintiffs’ pieces of land lying and situate at Sabo Gari kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State.
6) AN ORDER of perpetual injunction restraining the Defendants, their agents, proxies, representatives, heirs, etc however and whomever from further erecting any property or interfering with the Plaintiffs’ land lying and situate at Sabo Gari kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State.
7) Award of damages in the sum of Two Million Naira (N2, 000,000) in favour of the Plaintiffs against all the Defendants jointly and severally for trespassing into plaintiffs’ land lying and situate at Sabo Gari kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State.
8) Cost of filing and prosecuting the suit.
At the hearing before the trial Court, the Appellants called 4 (four) witnesses i.e. PW1 – PW4, and tendered 5 (Five) documents through them which were admitted in evidence and marked as Exhibits A, B, C, D, and E respectively. The Respondents on their part called 4 (Four) witnesses i.e. DW1 – DW4 and tendered 7 (Seven) documents through them which were admitted and marked as Exhibits F, H, I, J, J1, K, and K1.
The facts of the case briefly are that the Appellants claim to be the beneficial owners of the disputed land which their grandfathers deforested over 100 years ago, and they inherited. The Appellants claimed that there was no time the 1st Respondent purchased the land from them or even acquired same in line with the law and as such the 1st Respondent did not have the land it allocated the other Respondents. The 1st Respondent on his part claimed that the land was allocated to the 2nd – 23rd Respondents after negotiation was reached between the 1st Respondent and the Ministry of Commerce who originally got it and paid compensation to the inhabitants of the land in dispute. While the 2nd – 23rd Respondents claimed they acquired their title from the 1st Respondents. The learned trial judge gave judgment in favour of the Respondents, and the Appellants dissatisfied with the said decision appealed against it.
The parties to the appeal filed their respective briefs of arguments. In the Appellants’ brief of argument as settled by their counsel, Mohammed Abu, Esq, and dated the 10th day of December, 2020, the following issues for determination were distilled from the grounds of appeal thus:
1. Whether in view of the state of pleadings and admissible evidence adduced by the parties in this suit, the Appellants did not prove their claim against the Respondents? (Ground 1)
2. Whether from the totality of the admissible evidence in this case, the Honourable trial Court was right to have entered judgment in favour of the Respondents particularly, the 2nd-23rd Respondents, merely because the counter-claim was unchallenged? (Ground 3, 4, and 8)
3. Whether in the circumstances of the pleadings and evidence before the Honourable Court, it could properly be said that the case of the Appellants was caught up with lashes and acquiescence and standing by? (Ground 5)
On issue one, learned Counsel for the Appellants submitted that in civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side. On this point, counsel cited Section 132(1) of the Evidence Act 2011 and the case of OJOH VS. KAMALU (2005) 12 SCNJ 236 AT 264. Learned Counsel for the Appellants also cited Section 136 of the Evidence Act 2011, to submit that he who asserts must prove, and then relied on the case of GANKON VS. UGOCHUKWU CHEM. IND. LTD (1993) 6 NWLR (PT. 297) 55 RATIO 12. It was then argued that the Appellants who were Plaintiffs in the Court below have claimed amongst other reliefs, for a declaration of title to the various portions of land lying and situate at Sabo Gari kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State through traditional evidence.
Counsel referred to the case of EZEOKONKWO VS. OKEKE (2002)5 SCJN 1 at 14 to state the factors that must be shown in order to prove traditional title to land. Counsel then submitted that the Appellants satisfied the requirements of the law for proof of title to their respective lands which they aptly described. It was then argued that the pieces of evidence adduced by the Appellants were not controverted or discredited by the Defendants/Respondents under cross-examination. Additionally, Counsel for the Appellant argued that they led evidence to the effect that at no time did the 1st Defendant/Respondent purchase the land in dispute from them or even acquired same in line with the law. Counsel then argued that having pleaded and proven their roots of title, the onus shifts to the Defendants/Respondents. The case of OLOWU VS. OLOWU (1985) 3 NWLR (PT. 13) P. 372 PP. 376 was relied on. It was the submission of Counsel that the Respondents’ assertion that the Plaintiffs/Appellants divested their interests over the land to the Kaduna State Government was never substantiated as the notice of acquisition, names of the landowners, and the amount paid as compensation were never tendered in evidence. The conclusion drawn by counsel was that the non-production of these pieces of evidence by the Defendants/Respondents is that those evidence do not exist at all, or if produced they would be unfavorable to their case. The case of THE FEDERAL REPUBLIC OF NIGERIA VS. AKINDE (2013) 7 NWLR (PT. 1353) 349 AT 371 – 372 was relied on.
Finally, on this issue Counsel submitted that in line with the principle of “nemo dat quod non habet” the Government of Kaduna State, and by extension, the 1st Defendants/Respondents, not having properly or duly acquired the land in dispute, as such, it did not have the land which it purportedly allocated to the 2nd – 23rd Defendants/Respondents.
On issue two, Counsel submitted that it is an established principle of law in Nigeria as it relates to an application for declaration of title to land that the Plaintiff or Claimant must prove his case to be entitled to judgment and that he succeeds only on the strength of his case and not on the weakness of the Defendant’s case. The cases of UKWU EZE VS. ATASIE 2 SCNQR and ELEMA VS. AKENZUA 2 SCQR 1245 at 1250 were cited. Counsel then submitted that generally where a defendant raises a counter-claim, the plaintiff should file a defence and when a defence is not filed, the Court is entitled to assume that the plaintiff has no defence to the counter-claim.
It was submitted that there are however objections to the general rule which includes when the counter-claim is for declaratory rights as the defendant will still have to satisfy the Court by evidence to be entitled to the declaration sought. Counsel further argued that another exception is where the claim and counter-claim are intertwined such that the facts relied upon by the defendant in the statement of defence are same facts relied on in the counter claim. The cases of OGBONNA VS. A.G. IMO STATE (1992) 1 NWLR (PT. 647) PP AT 689 and DUNLOP VS. KOLO (1993) 12 SCNJ 1 AT P. 1 were cited in support.
It was submitted that the 2nd – 23rd Respondents having counter-claimed for a declaration of title to land before the lower Court had to prove their case by one of the five known ways of proving title in Nigeria. Counsel thereafter submitted that the 2nd – 23rd Respondents having pleaded and relied on documents of title traced to the 1st Respondent must establish how the 1st Respondent came to have title vested on him. Additionally, Counsel argued that since the 2nd – 23rd Respondents claimed in their defence and counter-claim that the “disputed land” was acquired by the Government of Kaduna State in 1982, they have a burden under Sections 131, 132, and 133 of the Evidence Act to plead and prove certain facts. However, Counsel argued that the 2nd – 23rd Respondents failed woefully in their bid to prove the facts contained in the sections mentioned above.
On the next point, Counsel submitted that it is trite law that the procedure for acquiring land for overriding public purpose is stipulated in law. The cases of THE FEDERAL GOVERNMENT OF NIGERIA VS. AKINDE (2013) 7 NWLR (PT. 1353) 349 AT 371 – 372; PROVOST LACOED VS. EDUN (2004) 6 NWLR (PT. 2004) (PT. 870) P. 476 PP. 508 – 509; and GOLDMARK (NIG.) LTD VS. IBAFON CO. LTD (2013) ALL FWLR (PT. 663) P. 1830 AT 1886 – 1887 were relied on. Counsel then argued that 2nd – 23rd Respondents neither adduce any shred of evidence that any notice of intention to acquire the property was issued to the original owners of the disputed property nor did they furnish the gazette wherein the said notice of intention was published. Counsel thereafter submitted that the Respondents having failed to show that the lands were acquired for any overriding public purpose by the Government of Kaduna State, the principle of “nemo dat quod non habet” would be applied to hold that the 1st Respondent did not receive the land from anybody and also did not have the land to give to the 2nd – 23rd Respondents. The case of POLO VS. OJOR (2003) 3 NWLR (PT. 807) 344 AT 358 was relied on.
The next point of contention argued by Counsel was with regard to the failure of the 2nd – 23rd Respondents to clearly identify the land. The cases of OLUSANMI VS. OSHANSONA (1992) 6 NWLR (PT. 245) 22 P. 36; and ODICHE VS. CHIBOGWU (1994) 7 NWLR (PT. 354) P. 78 PP. 87 – 88 was relied on. It was the argument of counsel that the pleadings of the 2nd – 23rd Respondents vis a viz the documents tendered in evidence during trial are vague, imprecise, and do not qualify for response by way of reply. Additionally, it was argued that even if the documents listed and annexed to the 2nd – 23rd Respondents’ joint statement of defence amount to pleadings without specifically stating them in the body of the statement of defence and counter claim, the letters of allocation were in respect of only two defendants (3rd and 14th) as such, the judgment for all the other Respondents is not predicated on any documents in evidence. Furthermore, it was argued that the evidence of the 3rd Respondent and 14th Respondent is speculative, perverse and hearsay in view of the clear provisions of Sections 37, 38, and 39 of the Evidence Act 2011. Counsel then argued that each defendant needs to as a matter of legal necessity, have deposed to witness statement on oath to help them in the absence of documents showing there is a relation between them and the 1st Respondent. Again Counsel argued that the two documents of title of the 3rd and 14th Defendants are inadmissible as they are Registrable instruments by the provisions of Sections 2, 3, and 15 of the Land Registration Law Cap 85 Laws of Kaduna State 1991.
Finally, on issue two, learned Counsel for the Appellants submitted that it cannot be said that the counter-claim of the 2nd – 23rd Respondents were unchallenged as the claim and the counter-claim are intertwined and interwoven and the facts relied on are the same as such no judgment can be properly given without considering the evidence led by the Appellants.
As it relates to issue three, counsel submitted that the defence of laches and acquiescence and standing by are equitable defences which must be specifically pleaded with due particularity. The case of IHENWU VS. LAWAL (1971) 1 ALL NLR P. 83 was cited in support. Counsel then argued that the 2nd – 23rd Respondents’ defence of laches, acquiescence, standing by and limitation law cannot be maintained as there was no shred of evidence placed by the 2nd – 23rd Respondents to show that there was allocation of any land to them.
Additionally, it was submitted that since the whole essence of the defence of laches, acquiescence and standing by is that it would be unjust and unfair to dispossess a defendant who has expended money and resources in carrying out development on the land, the 2nd – 23rd Respondents ought to have specifically pleaded and adduced evidence in line with pleadings to show who and who amongst them had actually commenced development against those who merely cultivate on it. It was further argued that in the joint statement of defence the 2nd – 23rd Respondents pleaded approved building plans but failed to tender any such approved building plan and the Court was then urged to invoke Section 167(d) of the Evidence Act, 2011 to hold that if the said plans were produced, they would be unfavourable to the 2nd – 23rd Respondents defence of laches, acquiescence and standing by.
Another argument on this issue submitted by counsel after much computation of the provisional letters of the 3rd and 14th defendants is that 2008 was the earliest time the 2nd – 23rd Respondents could have had physical possession of the disputed land which means that the time between the possession and when this case commenced in 2017 is 9 years as such limitation law set at 10 years does not come to play. Counsel then argued that Suit No. KDH/KAD/45/2009 was instituted against the 1st Respondent and some other people erroneously joined but was withdrawn on the 8th day of May, 2017 after which this case was filed. Further, the Respondents cannot say that when the case was filed in 2009 just a year after physical possession that they developed the land.
Counsel then urged the Court to resolve all the issues in favour of the Appellants.
The 1st Respondent on its own part filed a Respondent’s brief dated the 19th day of May, 2022, settled by his counsel, A. A. Aku, PSC. The 1st Respondent’s Counsel distilled two issues for the determination of this appeal as follows:
1. Whether the trial Court was right in holding that the Appellants did not establish title to warrant dismissal of their Writ of Summons.
2. Whether the Appellants established ownership of land.
On issue one, learned counsel for the 1st Respondent argued that the learned trial judge did not err when he dismissed the suit, as the 1st Respondent acquired the said land through Kaduna State Ministry of Commerce and also paid compensation to acquire the said land. Counsel maintained that the evidence of its witnesses was unshaken throughout the matter and failure to challenge that evidence gives the learned trial judge no option but to agree with the evidence submitted. Further, it was argued that the law is settled that where evidence of a witness has not been challenged, contradicted, or shaken under cross-examination then the evidence must be accepted as the correct version of what was expected to be proved. The case of STANBIC IBTC BANK PLS VS. LONGTERM GLOBAL CAPITAL LTD (2018) 10 NWLR (PT. 1626) 96 was cited. Additionally, Counsel submitted that the Appellants did not show in any way that the 1st Respondent was ever in their land rather they were in tandem that they were never in possession when the 1st Respondent allocated the plots to the 2nd – 23rd Respondents and others. It was then submitted that possession in land matters is the backbone against all other claims to land if not accentuated by the owner of the land who has better title. The case of MR. CHRISTIAN SPIES VS. ONI (2016) 14 NWLR (PT. 1532) 236 at 247 PG. PARA 12 was cited in support.
On issue two, Counsel submitted that there is no evidence in support of the Appellants’ claim to ownership. It was argued that the Appellants who testified on their own behalf annexed previous depositions which they claimed were made by them which contradict the facts of the current appeal. Counsel then argued that where evidence contradicts each other, they become suspect and unusable as they have technically knocked each other out meaning the Appellants have no testimonies before the Court as such, the Court is implored to hold that there is no evidence before it. Counsel then submitted that the Appellants lied with the intention to mislead the trial Court and the public for the purpose of gaining undue advantage over the Respondents. The case of STEPHEN HARUNA VS. A. G. FEDERATION (2012) 3 SCNJ (PT. 2) 431 AT 445 – 446 & 447. Counsel then urged the Court to dismiss the appeal.
The 2nd – 23rd Respondents on their own part filed their joint Respondents brief dated the 14th day of February, 2022, and settled by Kambai J. Jimmy, Esq. In the said joint Respondents’ brief of argument, the 2nd – 23rd Respondents’ Counsel distilled three issues for the determination of this appeal as follows:
1. Whether the Appellants from the pleadings documents, filed the exhibits tendered and evidence placed before the trial Court, had reasonable justiceable and justiciable cause of action in law and equity. (Grounds 1, 2, 6)
2. Whether the Appellants ably represented yet neglected to file a reply to the 2nd – 23rd Respondents’ defence and counter-claim on all the fundamental issues raised do not amount to an admission in law as rightly held by the trial Court. (Grounds 3, 4 and 5)
3. Whether placing reliance on some of the documents pleaded by the Appellants, tendered, admitted, and those relied upon by the trial Court at the instance of DW3 occasioned a miscarriage of justice to the Appellants who did not object to the application for DW3 as an additional witness. (Grounds 7 and 8)
On issue one learned counsel for the 2nd – 23rd Respondents submitted that it is trite law that a claimant for declaration of title to land has five methods of proving his title. It was then argued that the Appellants unnecessarily belabored themselves into a voyage of uncoordinated traditional histories of how they purportedly inherited their alleged pieces of farmlands which they could not with certainty identify or establish via a sketch map. Additionally, it was argued that the Appellants being not descendants of same blood ties and also allegedly, did not acquire their various pieces of farmland at the same time, ought to have specifically pleaded the features by which each farmland can be known and identified bearing in mind that the 2nd – 23rd Respondents were not allotted farmlands but plots as per exhibits tendered. Furthermore, it was submitted that part of the disputed land which was also claimed via PW3 belongs to 3rd parties was not named with proof which was fatal to the Appellants’ case. It was submitted that the Appellants did not deem it fit to urge the Court to visit the locus so as to identify the boundaries of their farmland which they pleaded and denied were already developed by the Respondents. The case of NWOKIDU VS. NKANU (2010) I SCNJ 167 AT 191 – 192 was cited in support.
Counsel for the 2nd – 23rd Respondents then argued that there was no tangible sustainable evidence to support their declaratory reliefs and that aside from PW1, all the other 3 witnesses stated that they cannot read or write English language but none of their depositions on oath contained a jurat and as such the said depositions were incompetent for not complying with Section 109 of the Evidence Act. The case of STEPHEN HARUNA VS. A – G FEDERATION (2012) 3 SCNJ (PT. 2) 431 AT 445 – 446 & 447 was relied on. It was then argued on the depositions of the Appellant in Suit No. KDA/KAF/45/2009 which was withdrawn, that in the said depositions of the Appellants they admitted that the Ministry of Commerce and Industry of Kaduna State took over the said farmland in the year 1982, and that they paid compensation for economic trees and that since the land acquired from them is no longer used for settling artisans they want their land back. Counsel then argued that these admissions are admissible against the Appellants having contradicted their pleadings in the statement of claim. The case of ASTA INDUSTRIES LTD VS. NIG BANK OF INDUSTRIES (1998) 3 SCNJ 97 was cited in support.
Additionally, it was submitted that the Appellants were contented by the act of the Government acquiring the land that is why they stayed for 30 (thirty) years only to challenge the agents of Government now. Counsel argued further that it is trite law that you cannot sue an agent where the principal is known and that is why the Appellants in Suit No. KDA/KAF/45/2009 sued the Government and its agencies but later withdrew the suit, the presumption of which is that the action if maintained would be against them as provided for in Section 167(d) of the Evidence Act. The case of OKAFOR VS. EZENWA (2002) 13 NWLR (PT. 784) SC AT 340 was relied on. Counsel further submitted that as a result, the Appellants lacked locus standi abinitio to have initiated this matter since they no longer since the year 1982 had neither legal nor equitable interest protectable in law over the land. This, Counsel argued, is because nowhere in their depositions in Suit No. KDA/KAF/45/2009 was it shown that they returned to Government the compensation they were paid or questioned the purpose for which the land was put to use as he who comes to equity must come with clean hands. It was submitted that it is trite law that a beneficiary of a contractual relationship cannot turn around to contest the transaction’s validity. The cases of ASTA INDUSTRIES LTD VS. NIG BANK OF INDUSTRIES (SUPRA) and HYDRO-QUEST (NIG) LTD VS. BANK OF THE NORTH LTD (1994) 1 NWLR (PT. 318) 41 AT 49 were relied on.
Finally, Counsel submitted that the action was brought in bad faith as the Appellants who admitted to residing in the community where the land is did nothing since the year 1982 when the Government acquired same and they did not return the compensation paid to them.
On issue two Counsel for the 2nd – 23rd Respondents submitted that it is trite law that a counter-claim is a separate and distinct cause of action which by its nature places a burden on the counter-claimant the same burden of proof in civil matters like he/she is a claimant. The High Court of Kaduna State (Civil Procedure) Rules 2007 and the case of DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 254 AT 270 were relied on. Counsel then submitted that in the course of proceedings they laid the necessary foundation in respect of their defence and counter-claim by cross-examination of witnesses, tendering necessary documents, and leading evidence-in-chief which the law does not frown at. It was argued that the 2nd – 23rd Respondents did not go outside procedure as they were at liberty to cross-examine Appellants’ witnesses and tender their processes and those filed by the Appellants in the case. Furthermore, that in compliance with Order 3 Rule 2(1) of the Kaduna State High Court (Civil Procedure) Rules 2007, the 2nd – 23rd Respondents filed their memorandum of conditional appearance, joint statement of defence, names of witnesses, and list of documents to be relied upon. Further, that the Respondents were granted leave to call an additional witness and the Appellants did not oppose the application and that the documents tendered did not occasion any miscarriage of justice against the Appellants. Counsel thereafter submitted that the entire counter-claim and all the documents pleaded raised new and fundamental issues not replied to hence deemed admitted as provided by law.
The cases of OBOT VS. GENERAL BANK OF NIGERIA (SUPRA); and OGBONNA VS. A. G. IMO STATE (1992) 1 NWLR (PT. 220) 647 AT 675 were relied on.
On issue three, counsel for the 2nd – 23rd Respondents adopted their submissions on issues one and two which if sustained means the Appellants unjustly subjected the Respondents to frivolous litigation and economic loss thus prompting the claim for general and exemplary damages of N5 Million. Finally, Counsel submitted that the trial Court awarded N100,000 without taking into consideration the number of Respondents, the nature of the case, and no denial of the counter-claim and that the said award was unreasonable. Counsel urged this Court to look into same and re-evaluate it since it was never contested in the interest of justice.
Counsel then urged the Court to dismiss this appeal with substantial cost.
The Appellants then filed a reply brief dated the 12th day of May, 2022 which was also settled by Mohammed Abu, Esq.
Firstly, Counsel submitted that it is trite that a sketch map is not the only means by which a claimant may establish the identity of land in respect of declaration of title. As it relates to the argument in paragraph 4.4 of the 2nd – 23rd Respondents brief which relates to illiterate jurat, it was argued that the law has long been settled that no other person can complain of non-compliance where the illiterate himself has not complained. The cases of T. A. O. WILSON & ANOR VS. A. B. OSHIN & ORS (2000) JELR 44195 and SUNDAY VS. F. R. N. (2019) 4 NWLR (PT. 1662) PG 211 were relied on.
With regard to the issue of depositions tendered in the earlier Suit No. KDH/KAF/45/2009, it was argued that there is nowhere in the said depositions where any of the witnesses/deponents admitted that their lands were taken over by the Ministry of Commerce and industry in 1982. It was further submitted that looking at the depositions in the earlier suit found on pages 156 – 170 of the record, nothing could be construed as an admission on the part of the Appellants to the effect that they were paid compensation. Counsel then submitted that given the absence of any admission by the Appellants that they were paid compensation for the land and the failure of the Respondents to adduce any tangible and credible evidence of payment of compensation the land could not properly be said to have been acquired or taken over in 1982 or any other time to warrant the Respondents’ inferring that the Appellants lack the locus standi to institute this action. Finally, it was argued that even if the Appellants admitted being paid compensation at all in the circumstance of the state of pleadings of the Respondents, it would not be open to them to take advantage of such pleadings.
By way of reply to issue two, the Appellants’ counsel adopted all their submissions and authorities cited on issue 2 of their main brief of arguments. As it relates to the Respondent’s issue 3 learned counsel for the Appellants submitted that the Respondents placed their reliance on allocation papers granted by the 1st Respondent as the justification for their dealings upon the disputed land but they failed woefully to do so which is fatal to their claim for declaration of title. Additionally, it was argued that out of the 22 allocation letters only 2 letters of allocation were tendered and admitted in evidence through DW3 who was neither the maker of the document nor the person who issued the document. Further, it was argued that the said letters of allocation (Exhibits K and K1) and their receipt of payment (Exhibits J and J1) clearly show that the payment was made outside the 60 days period limit but despite all these shortcomings judgment was delivered in favour of the Respondents including all those that did not tender their letters of allocation.
Counsel then urged the Court to set aside the decision of the lower Court.
RESOLUTION OF THE ISSUES
Having summarized the Brief of Arguments filed by the parties in this case, I shall now proceed to determine this appeal and in doing so I will adopt the issues for determination formulated by the Appellants which in my opinion will adequately deal with the issues that have arisen in this appeal. The said issues are again reproduced hereunder as follows:
1. Whether in view of the state of pleadings and admissible evidence adduced by the parties in this suit, the Appellants did not prove their claim against the Respondents?
2. Whether from the totality of the admissible evidence in this case, the Honorable trial Court was right to have entered judgment in favor of the Respondents particularly, the 2nd – 23rd Respondents merely because their counter claim was unchallenged?
3. Whether in the circumstances of the pleadings and evidence before the Honorable, it could properly be said that the case of the Appellants was caught up with lashes and acquiescence and standing by?
It is my opinion that these issues be considered together.
The Appellants’ Counsel has argued that the Appellants’ claim at the trial Court among other reliefs, was for a declaration of title to various portions of land lying and situate at Sabo Gari, Kaninkon also called Ungwan Baki in Ungwan Baki District, Kaninko Chiefdom, Jama’a Local Government Area of Kaduna State, which was gotten traditionally and their claim was predicated on traditional evidence and that they did satisfy the requirement of the law for proof of their traditional title and that at no time did the Respondents purchase the said lands from them. It was argued that the Respondents having asserted that the land in dispute was acquired through the proper process of acquisition by the State became obligated to substantiate that assertion which was never done.
It has also been argued that the counter – claim filed by the Respondents are so self-defeating that it ought to fail even without evidence being led that a claimant for declaration of title to land has to succeed only on the strength of his case and not on the weakness of the Defendants’ case or lack of defence at all. It has been argued that the Appellants pleaded and lead evidence to show that consequent upon the trespass upon their lands and upon learning that it was the 1st Respondent who purportedly allocated the lands to them, they instituted Suit No: KDH/KAF/45/2009 against the 1st Respondent and erroneously joined other persons but the suit was discontinued and this present suit filed thus the plea of limitation law by the Respondents which stipulates 10 years in respect of claim over title to land does not apply in this case as a period of 2008 when the Appellants found about the trespass to 2017 when they filed a suit, would be 9 years and that also, the defence of laches and acquiescence ought to equally fail as the Appellants failed to show when development on the land commenced.
The 1st Respondent’s Counsel on the other hand has argued that the 1st Respondent’s evidence of acquiring the land from the Kaduna State Ministry of Commerce was never shaken throughout the matter and that the failure of the Appellants to challenge the evidence of the witnesses gives the trial Court no other option than to agree with the evidence of the 1st Respondent. It has been argued that the Appellants did not in any way show that the 1st Respondent was ever in their land rather they were in tandem that they were never in possession when the 1st Respondent allocated the plots to the 2nd – 23rd Respondents. It has also been argued that there is no evidence to support the claim of the Appellants at the trial Court as the Appellants’ previous depositions which they admitted contradict facts in the current appeal and which shows the Appellants lied under oath and that the facts therein are the true state of affairs.
The 2nd – 23rd Respondents’ Counsel has argued that the Appellants unnecessarily belabored themselves into a voyage of uncoordinated traditional histories of how they purportedly inherited their alleged pieces of farmlands which they could not with certainty identify or establish via a sketch map and that there was no tangible sustainable evidence to support their declarative relief. It was also argued that the PW2, PW3, and PW4 being persons who cannot read and write in the English Language, all their depositions should have contained a jurat but did not. It had also been argued that by Exhibits A, D and E tendered through PW1, PW3 and PW4 contained at pages 229 – 241, 244 – 245, and 245 – 246 of the record of appeal, the Appellants admitted that the Ministry of Commerce and Industry took over the said farmland in 1982, they were paid compensation for the economic trees and grudgingly said that since the land acquired from them is no longer used for settling artisan they went back to their land.
It has been argued further that the Appellants were contented by the act of Government acquiring the land that was why they sat by for well over thirty years only to now challenge the agents of the Government that allotted portions out of the land and that is why they withdrew their Suit No: KDH/KAF/45/2009 and thus the Appellants lacked the locus standi abinitio to have instituted the action.
The 2nd – 23rd Respondents’ Counsel has also argued that their defence and counterclaim and all documents pleaded and frontloaded raised a new and fundamental issue not replied, hence, deemed admitted as provided by law and as rightly held by the trial Court. It has been argued that taking cognizance of all his argument, the 2nd – 23rd Respondents are entitled to the general and exemplary damages claimed and that the award of N100, 000 by the trial Court was totally unreasonable and the Court should re-evaluate same.
The Appellants’ Counsel in the Appellants Reply Brief of Argument has argued that the Appellants described their respective farmlands with certainty in their joint statement of claim and that a sketch map is not the only means by which the claimant may establish the identity of a land in respect of which he seeks a declaration of title. It was also argued that no other person can complain of non-compliance with the provision of the Illiterates Protection Act where the illiterate himself has not complained of same. Counsel has also argued that the Court is to look at the writ of summons and statement of claim filed at the trial Court and that a perusal of the Appellants’ earlier Suit No. KDH/KAF/45/2009 will reveal that contrary to the contention of the Respondents, there is nowhere in the said depositions where any of the witnesses/deponents admitted that their lands were taken over by the Ministry of Commerce and Industry in 1982 and that the words used therein are statements which convey expressions. Counsel had further argued that the Respondents failed to prove their entitlement to the land in dispute.
The above-summarized points when considered will deal with all the arguments of the parties herein, but I shall deal first with the issue of locus standi before going into the merit of the case. See the case of NWORIKA VS. ONONEZE – MADU & ORS (2019) LPELR – 46521 (SC).
As the parties have rightly argued, in the determination of whether the Appellants have locus standi, what the Court looks at is the writ of summons and the statement of claim before the trial Court below. See the case of OJUKWU VS. OJUKWU & ANOR (2008) LPELR – 2401 (SC).
For someone to show that he has locus standi in bringing an action, he must show that he has sufficient interest in the matter. See the case of JITTE & ANOR VS. OKPULOR (2015) LPELR – 25983 (SC).
Looking at the Statement of Claim filed by the Appellants at the trial Court, the Appellants have argued that their pieces of land lying and situate at Sabon Gari Kaninkon also called Ungwan Baki, in Ungwan Baki District, Kaninkon Chiefdom, Jema’a Local Government Area of Kaduna State (the subject matter of this appeal), which was acquired by inheritance from their fathers has been trespassed upon by the Respondents who started building on the said land and that they never sold the said portion of land to the Respondents. This is indicative of the fact that the Appellants have an interest in the land, the subject matter of the appeal of which they now claim against the Respondents. See paragraphs 8 – 17 of the statement of claim as contained at pages 7 – 13 of the Record of Appeal. The statement of claim is thus indicative of a sufficient interest by the Appellants to institute the claim.
Another dimension in this issue of locus standi now arises and that is the fact as seen from the argument of the 2nd – 23rd Respondents’ Counsel contained at paragraphs 4.6 – 4.7 of the 2nd – 23rd Respondents Brief of Argument that the Appellants stood by for well over 30 years only to now challenge the agents of the government. This argument thus lead this Court to consider the merit of the case to determine whether the Appellants actually slept on their rights and have now come to challenge the agents of the government instead of the government itself. This would all be unraveled as I consider the evidence of the parties to this appeal but before I continue, there is no doubt as per my findings on the locus standi of the Appellants that they have sufficient interest to sue who they think has wronged them and nothing also stops them from withdrawing a suit against anyone whom they think they have erroneously sued. In this particular case on hand, the grievance of the Appellants is first directed at the 1st Respondent whom they have all pointed fingers at and whom they claimed allocated their lands in dispute to the other Respondents. It is again necessary to re-state that the Appellants have the locus standi in this regard to sue as they have done herein, and I so hold.
With regard to the argument of learned Counsel to the 2nd – 23rd Respondents that the PW2, PW3, and PW4 being persons who cannot read and write in English Language, and that all their depositions should have contained a jurat but did not, and which I will not dwell too much on, it is the law that once the illiterate for whose benefit the Illiterate Protection Law is made does not complain about the non-compliance, it does not lie in the mouth of another person to complain on behalf of the illiterate. See the cases of EDOKPOLO & CO LTD VS. OHENHEN & ANOR (1994) 7 NWLR (PT. 359) 511 and WILSON & ANOR VS. OSHIN & ORS (2000) 6 SC (PART III) 1.
Moving on to the determination of whether the parties proved their respective claims, firstly, it is clear from the statement of claim filed by the Appellants at the trial Court that they claimed ownership of the land through inheritance from their fathers and thus, have claimed traditional ownership of the land.
It is trite that a Plaintiff who claims ownership of land through inheritance must plead and give evidence of the persons who have held title or whom title devolved in respect of the land before the Plaintiff took control of the land. Where evidence of tradition is relied upon in proof of declaration of title to land, the Plaintiff in order to succeed must plead and establish the following:
i. Who founded the land?
ii. How he founded it; and
iii. The particulars of the intervening owners through whom he claims down to him.
See the cases of NKADO VS. OBIANO (1997) 5 NWLR (PT. 503) 31 and EZE VS. ATASIE (2000) 10 NWLR (PT. 676) 470.
I will now look at the pleadings of the Appellants in line with their evidence to determine whether they have proved the title to the land. The Appellants’ claim is that they all have pieces of land all of which adjoin themselves because of their proximity to one another. The 1st Appellant avers in the joint statement of claim at the trial Court in paragraph 9 i – vii and as contained in pages 7 and 8 of the Record of Appeal that:
i. He acquired title to his piece of farmland by way of inheritance from his late father, Kolbe Mere after his demise and has been exhibiting acts of ownership and possession thereon by giving portions of it to people to do farm work.
ii. That his father inherited the said land from his own father, Mere Gaga also by way of inheritance and he was the one who cleared the said land when same was a virgin land over 100 years ago and he farmed on the land until his demise and his son, Kolbe Mere inherited the land according to native law and custom of Kaninkon and continued to farm on the land.
iii. That the land was bounded North East to William’s Fada’s Land, North West by Kure Fada’s land, West by Gbed Albarka, South by Tanimu Kwalbe, and East by Yakyo Nikyu.
iv. That he was employed as a civil servant and the exigency of his work did not allow him to continuously farm on the land regularly until he discovered that the 10th, 11th, 12th, and 13th Respondents started building on the land in 2008 and he was later informed that the 1st Respondent allocated the land to them.
The 1st Appellant testified as PW1 and adopted his witness deposition in an earlier case KDH/KAF/45/2009 and admitted in evidence as exhibit at the trial Court. The 1st Appellant’s evidence as contained therein is that sometimes in 1982, staff of the Kaduna State Ministry of Lands, Survey and Country Planning came to inform them that the State Government was taking over their land for settling artisan from Kafanchan town and that since the takeover was for common use, the State Government would only pay them for economic trees on the land and so they did not object. However, when they later discovered that the land was no longer for settling artisan but was allocated to the 2nd – 23rd Respondents by the 1st Respondent to build residential houses and they were instead offered some other plots which they rejected.
During his testimony under cross-examination as contained at pages 240 – 241 of the Record of Appeal, PW1 testified that he inherited his land from his father in 1974 and that his father died in 1991 and that it is not in all cases that a father is inherited only after his death. PW1 further gave evidence that as at the time, the late father shared out his inheritance before his death. The witness also gave evidence that he had never had any personal meeting with any of the Respondents prior to the institution of this action and that he did not see the Respondents while they were erecting their various buildings as he only woke up to see them, and that the Respondents were in possession and usage of the land before they eventually built their various houses therein, and that the Kaduna State Government, particularly the then Ministry of Commerce and Industry and Tourism acquired the disputed land but there was no payment of compensation and that by his evidence in Exhibit A, the government compulsorily acquired those lands in 1982 and that he never filed any Court case prior to the one in Exhibit A.
The 2nd Appellant on the other had averred in paragraphs 10 i – xi of the Joint Statement of Claim and as contained in pages 8 – 10 of the Record of Appeal that:
i. He acquired title to his piece of farmland from his late father, Fada Batet prior to his demise in the 1970s when his late father shared the land to his children of which he and one of his brothers, William Fada was one of them, and on account of ill health could not go to farm and he died intestate and that they have been exhibiting acts of ownership and possession thereon exclusive of one another.
ii. That his father inherited the said land from his own father, Batet Ngbieng also by way of inheritance and he was the one who cleared the said land over 100 years ago and he farmed on the land until his demise when his son, Kolbe Mere inherited the land according to native law and custom of Kaninkon and continued to farm on the land.
iii. That the land was bounded North to Ibrahim Samuel Dickson, West by Gbed Albarka’s land, South by Danjuma G. Kolbe, and East by William.
iv. That because he had several other pieces of farmlands, coupled with the fact that he was schooling and was later employed as a civil servant he did not give much attention to farming on the said portion of farmland and the 6th Respondent took advantage of that fact claiming ownership of the land on the authority of the 1st Respondent.
The 2nd Appellant gave evidence as PW2 and gave evidence under cross-examination that in 1982 when Kaduna State Government took over the lands, he was not in possession via farming and that it is not true that after the Government acquisition of the land, he was offered any plots and that it is not true they withdrew the Case No. KDH/KAF/45/2009 because it was unfavorable to them.
The 3rd and 4th Appellants also averred in the Joint Statement of Claim at paragraph 11 (I – viii) as contained at pages 10 – 11 of the Record of Appeal that:
i. That they are Cousins as they shared the same grandfather called Dickson from whom their fathers, Samuel Dickson and Taru Dickson acquired title to the piece of farmland after his demise and from which they also acquired same when they also died and that they have been exhibiting acts of ownership and possession thereon exclusive of one another.
ii. That their grandfather was the one who upon founding the land, cleared the said land over 100 years ago while same was still a virgin land and he farmed on the land until his demise.
iii. That the land of the 3rd Appellant was bounded to the North by Celestine Nikyu’s land, South East by William Fada’s land, South West by Kure Fada’s Land, West by Yakyo Nikyu, and East by Musa Taru’s land.
iv. The 4th Appellant’s land was bounded to the North by Celestine Nikyu’s land, South by William Fada’s land, West by Ibrahim Samuel Dickson’s Land, and East by Pakachi Dick’s land.
v. That it is the 3rd Appellant’s portion of the land that the 2nd, 19th, 5th, 20th, 21st, 24th, 9th, 16th, and 23rd Respondents have trespassed into, and some of them even erected their buildings thereon.
vi. It is also on the 4th Appellants land that the 8th, 7th, 15th, 17th, and 22nd Respondents have trespassed into and some of them have built their houses on.
vii. When the 3rd and 4th Appellants asked the Respondents who have trespassed on their land, and why they are in the land without their consent, they claimed they were allocated the land by the 1st Respondent.
The 3rd and 4th Appellants were not called in evidence. The 5th Appellant also stated in paragraphs 12 (i – vii) contained at pages 11 – 13 of the Record of Appeal that:
i. That he acquired title to the piece of farmland from his father Nikyu Gbezeh after his demise and that his father also acquired same from his own father, Gbezeh in line with the Kaninkon native law and customs, and that they have been exhibiting acts of ownership and possession thereon exclusive of one another while giving out portions of same to other people to farm while leaving some other portions to fallow.
ii. That their grandfather was the one who upon founding the land, cleared the said land over 100 years ago while same was still a virgin land and he farmed on the land until his demise.
iii. That the land of the 3rd is bounded to the North by Chockson, West by Kaduna State University, South West by the Land of Ibrahim Dickson, East by Yakyo Nikyu, and East by the Railway line.
iv. That it is the portion of the land that the 4th, 14th, 3rd, and 18th Respondents have trespassed into and some of them even erected their buildings thereon.
v. It is also on the 4th Appellants land that the 8th, 7th, 15th, 17th, and 22nd Respondents have trespassed into and some of them have started building their houses on.
vi. When he asked the Respondents who have trespassed on their land and why they are in the land without his consent, they claimed they were allocated the land by the 1st Respondent.
During his evidence-in-chief, the 5th Appellant adopted his deposition as contained in Suit No. KDH/KAF/45/2009 wherein he also made mention of the fact that sometimes in 1982, staff of the Kaduna State Ministry of Lands Survey and Country Planning came to inform them that State Government was taking over their land for settling artisan from Kafanchan town and that since the takeover was for common use, the State Government would only pay them for economic trees on the land and so they did not object and when they later discovered that the land was no longer for settling artisan but was allocated to the 2nd – 23rd Respondents by the 1st Respondent to build residential houses and they were instead offered some other plots, they rejected. During his evidence under cross–examination, the 5th Appellant gave evidence that he had not had any confrontation with the 3rd, 4th, 14th, and 18th Respondents prior to instituting the suit and that he noticed the Defendant building on the land between 2007/2008.
From the above evidence of the Appellants, one thing that has been replaying in my mind is that there existed an earlier case in Suit No. KDH/KAF/45/2009 which was later discontinued by the Appellants and admitted in evidence at the trial Court. This Court must scrutinize it while considering the matter before it as proof and from the said suit, it is clear on the face of it that the Appellants were parties to the suit and they referred to the said suit in their statement of claim and some of them mentioned in their respective depositions, which were relied on at the trial Court that sometime in 1982, staff of the Kaduna State Ministry of Lands Survey and Country Planning came to inform them that the State Government was taking over their lands for settling artisans from Kafanchan town and that since the takeover was for common use, the State Government would only pay them for economic trees on the land and so they did not object but when they later discovered that the land was no longer for settling artisan but was allocated to the 2nd – 23rd Respondents by the 1st Respondent to build residential houses and they were instead offered some other plots, they rejected.
I also understand from the facts therein that the land referred to in that case is the same as the one referred to in the instant case. I now see why the 2nd to 23rd Respondents tried to direct the mind of the Court to the fact that one cannot sue an agent where the principal is known and that is why in Suit No. KDH/KAF/45/2009, the Appellants sued the Government and its agencies but later withdrew the suit.
Also looking at the evidence of the Respondents, DW1 gave evidence that the land was acquired by the 1st Respondent in 1982 and that it was for small scale artisan industry. DW2 gave evidence that the 1st Respondent came about acquiring those lands when sequel to Exhibit F, the 1st Respondent wrote a letter to the Ministry of Commerce and Industry, knowing that it was its owner, indicating its interest on the said land, for the purpose of the layout to satisfy Government’s request based on Exhibit F and consent was given to them over the said lands on the condition that compensation had been paid over the said land and whenever they required, they should be given a replacement.
These pieces of evidence have opened the eyes of the Court to the fact that there seems to be an acquisition of the land at some point and compensation in the same vein. I have now gotten to a point where I should state that if the trial Court properly evaluated the evidence before it, these issues should not be one that would go unnoticed. The trial Court cannot neglect its duty and shift same to the Appellate Court. With this salient discovery, the Court will not just jump to the conclusion as to who is entitled to the land in question without the clog being cleared first and it is the absolute duty of the trial Court to have done that with regard to the case on hand.
It is trite that the Court which heard the witnesses testify is in a better position to evaluate their testimonies and assign probative value thereto and evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in findings of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanor and evaluate the credibility or otherwise of their evidence. See the cases of OKPA VS. STATE (2017) 15 NWLR (PT. 1587) 1; KEKONG VS. STATE (2017) 18 NWLR (PT. 1596) 108 and EZEANI VS. FRN (2019) 12 NWLR (PT. 1686) 221.
However, since the trial Court has failed to perform its duty, it has become pertinent for this Court to exercise its discretion in that regard, and thus I am of the opinion based on my findings from the evidence of the Appellants and the Respondents as already stated somewhere in this judgment, that the trial Court could only have come to its conclusion, if it properly evaluated the case before it and in order to fill this vacuum which this Court has now noticed.
This Court cannot turn a blind eye to the earlier case by the Appellants tendered as Exhibit A before the trial Court which is now before this Court as it is clear from the said Exhibit that there are pending issues which can only be determined by a proper evaluation of the evidence and materials placed before the Court. There is a bridge and this gap can only be cleared by the Court that had the opportunity to see the witnesses, test the evidence before it, and to properly evaluate same.
I will re-state again, that the trial Court did not make good on its duty of evaluation of the evidence before it but haphazardly went ahead to hold that the Appellants after being served with the statement of defence and counter claim did not file a reply to both even though fresh facts were placed in the Statement of Defence and that even if the Appellants’ case is decided on the merit, the Appellants’ case would be caught up by the principles of latches and acquiescence and standing by considering that the Defendants went into their various houses without any legal challenge against them and he went ahead to even give judgment in favour of the 2nd to 23rd Respondents against the Appellants without considering the counter claim of the 2nd – 23rd Respondents on the merit.
Firstly, it is not compulsory to file a reply to a statement of defence or counter claim. By Order 19 Rule 20 of the Rules of the trial Court below, a plaintiff may file a reply if he so desires. Thus, when it is in the opinion of the Plaintiff that is unnecessary to file same then so be it. It is now left for the Court to properly consider and determine if the defence of the defendant raised new issues which would have required a reply.
Secondly, a counter-claim is a procedure in law that allows the Defendant to maintain an action against the Plaintiff, provided the counter-claim is directly related to the principal claim. See the case of NSEFIK VS. MUNA (2007) 10 NWLR (PT. 1043) 502.
Also, it is clear from the pleadings of the parties that the case of the parties are intertwined with regard to the action of the Appellants and the counter-claim of the Respondents. Thus, the mere fact that the Appellants failed to file a reply to the counter-claim of the Respondents did not automatically mean that the Respondents must succeed in their counter-claim. This is because the Respondents claimed a declaratory relief and therefore had the onus of adducing satisfactory evidence to prove the counter-claim. A declaratory relief is not granted on admission or failure to file a defence. It can only be granted based on satisfactory evidence led by the claimant. See the case of BELLO VS. EWEKA (1981) 1 SC 101.
Furthermore, in a claim for a declaration relating to land, the claimant (this includes a counter–claimant) must succeed on the strength of his own case and not on the weakness of the case of his opponent. In other words, in spite of the failure of the Appellants to file a reply, the Respondents still had the burden of proving their counter-claim. In the case of DABUP VS. KOLO (1993) 9 NWLR (PT. 317) 24, the Supreme Court while considering the effect of the plaintiff’s failing to file a defence to a counter-claim for title to land held as follows:
“There is no doubt that the facts from the pleadings of both parties are intertwined, interwoven as regards plaintiff’s action and defendant’s counter-claim. Had the plaintiff succeeded in his claim for damages the counterclaim would have failed since both parties could not at the same time be in exclusive possessive of the land in dispute. In my respectful view, therefore, this case would be an exception to that general rule that where a plaintiff fails to file a defence to a counter-claim the defendant is entitled to judgment on his counter-claim. Akpata, JSC correctly, in my view, stated the law when in OGBONNA V. ATTORNEY – GENERAL IMO STATE (1992) 1 NWLR (PT. 220) 647 698 he observed as follows: “Failure of a plaintiff to file a defence to a counterclaim may not be disastrous if he succeeds in his claim, his success may render useless the counter-claim depending on the nature of the counterclaim. However, where he fails in his claims, as in this case, and had filed no defence to the counter – claim, the defendants claim in his counter claim remains uncontroverted. If however, the claim in the counter-claim is for a declaratory right, the defendant will still have to satisfy the Court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”
It is thus my opinion that the trial Court below, not only choose the easy way out, it further based its findings on a wrong principle of law in this regard. Just as a form of re-statement to what I have already said before, it is my opinion that even though the 2nd – 23rd Respondents stated in their statement of defence that they acquired the land in dispute through proper process of acquisition by the State, the Court below should have directed its mind to the fact that there is a bridge in the case before it which cannot be filled until the salient issue which I have already referred to is resolved. It also follows that the trial Court made no finding of fact on the conflicting material evidence by the parties in the case of which resolution is essential to the just determination of the case. In view of all that has been said, I am of the firm opinion that the trial Court did not take into consideration due regard to law in evaluating the evidence of the parties before it.
In the circumstances, I hereby order that the case shall be remitted back to the trial Court to enable it properly evaluate the evidence of the parties before it and thus close the gap that has been created to effectively do justice to the case.
This Court has given enough guidance to the trial Court and it should definitely know what to do thereon. In the circumstances, therefore, all other issues herein raised appear premature in view of the present order of this Court, as same can only be determined when the gaps present in this case are filled upon a proper evaluation by the trial Court.
The appeal succeeds. The case shall be remitted back to the Court below for trial de novo. I make no further order as to cost.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusions reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
M. Abu Esq For Appellant(s)
M.P. Danjuma Esq for the 1st Respondent
B. B. Yashim Esq for the 2nd – 23rd Respondents For Respondent(s)