MAIDEN v. HASSAN (2022)

MAIDEN v. HASSAN

(2022)LCN/17051(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/G/356/2019

Before Our Lordships:

Ebiowei Tobi Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

Between

SAMBO MAIDEN APPELANT(S)

And

SABBI HASSAN RESPONDENT(S)

RATIO

FACTOR TO BE CONSIDERED IN DETERMINING WHETHER OR NOT AN ACTION IS STATUTE BARRED

The provisions of the law is very clear and unambiguous, therefore the evidence adduced by parties shall be applied in other to resolve this issue. Before I go further, I would like to state categorically that Respondent’s counsel’s contention that the Appellant did not challenge the findings and conclusions of the lower Court reached on laches and acquiesces or estoppel by standing by and watching the Respondent spending money developing the land is clearly misconceived. The Appellant’s ground one in his Notice of Appeal to this Court which is argued under this issue challenged the decision reached by the lower Court that the action of the Appellant is caught up by Section 4 of the Bauchi State Limitation Law. To my mind, this Limitation Law so challenged by the Appellant’s ground one is what is applicable by the equitable doctrine of laches and acquiescence, and to separate the two as the Respondent Counsel is praying this Court to do in his submission is to ask this Court to pick and choose between the statute of limitation and the doctrine of laches and acquiescence.

Now going back to the challenge of the Appellant under this issue, it is the law as rightly stated by the Appellant’s Counsel that in the determination of whether an action is statute barred in civil suits, it is only the writ and statement of claim filed by the Plaintiff that shall be considered by the Court. See the authority of UBA PLC v. Lawal & Anor (2021) LPELR 56286 (CA). PER HASSAN, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

It is settled law that the proof of cases in civil matter is by preponderance of evidence, as such, the evidence which has higher weight tilts the balance of probability to the party whom judgment shall be entered in his favor. See the case of Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246 at 369 – 370 where the Apex Court Per Niki Tobi JSC, stated on the issue of whom rests the burden of proof in any given proceeding as follows:
“This rests on the party whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the proceedings place it…”
It is equally the law that the party who alleges must prove that those facts and circumstance which he relies on for the Court to give him judgment exist by cogent and material evidence in other for judgment to be entered in his favor. PER HASSAN, J.C.A.

THE POSITION OF LAW WHERE A PLANTIFF CLAIMS TITLE TO THE DISPUTED LAND BY TRADITIONAL MEANS

WHETHER OR NOT EVIDENCE GIVEN BY A WITNESS IN A PREVIOUS CASE CAN BE TAKEN AS EVIDENCE IN A LATER CASE

The law is trite that evidence given by a witness in a previous case can never be taken as Evidence in a later case except where Section 34 (1) of the Evidence Act applies. See the authority of Elegushi & Ors v. Oseni & Ors (2005) LPELR 1111 (SC) where the Supreme Court held as follows:
“…Evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where Section 34 (1) of the Evidence ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is no higher value than that.” PER HASSAN, J.C.A.

MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Gombe State High Court sitting on appeal delivered by Hon. Justice Ibrahim Mohammad and Hon. Justice Abubakar Jauro in Appeal No. GM/106A/2016, on the 7th day of March, 2018, against the judgment of the Gombe State Upper Area Court Boh, delivered by Alhaji Idris I. Umar Reme in Suit No. CVFI/8/2015, on the 19/10/2016.

The Appellant was the Plaintiff at the Upper Area Court Boh, and the Respondent at appeals before the Gombe State High Court wherein he claimed and contended ownership over a plot of land against the Respondent herein who was the Defendant at the Upper Area Boh, and Appellant on appeal at the High Court of Justice, Gombe State. The claims of the Appellant as per his Statement of Claim at the Upper Area Court are as follows:
1. I sambo Maiden Probawure, I am suing Sabbi Hassan because of plot of land which I gave Sabo Mela in trust and went to the city when I come back I met a building on the plot.
2. I want the Court to collect back my plot from her. See page 7 of the Record.

The Upper Area Court in her findings agreed with the case of the Plaintiff who is now Appellant and granted his reliefs. (See pages 75 to 84 of the Record). The Respondent being aggrieved with the decision of the Upper Area Court Boh, filed a Notice of Appeal dated the 26th day of October, 2016, to High Court Gombe State. (See pages 1 – 6 of the Record).

The High Court of Justice Gombe State in her considered judgment delivered on the 7th day of March, 2018, found at Pages 142 to 145 of the Records allowed the Respondent’s appeal and set aside the judgment of the Upper Area Court Boh. The Appellant herein aggrieved by that decision filed a Notice of Appeal dated 21st day of March, 2018 to this Court, wherein he raised six grounds of appeal praying this Court to restore the decision of the Upper Area Court and set aside the judgment of High Court Gombe State. (See pages 182 – 186 of the Record).

The Record of Appeal was transmitted out of time to this Court on the 23rd September, 2019, and same was deemed proper before this Court on the 28th October, 2021. At the hearing of the Appeal on the 26th of January, 2022, the Appellant’s Counsel Emmanuel Nwaekwe adopted the Appellant’s Brief of Argument dated the 22nd day of March, 2021 and filed on the same date but deemed properly filed on the 28th day of October, 2021. Counsel equally relied on his reply brief dated the 1st of November, 2021, but filed on the 2nd of November, 2021. The Respondent’s Counsel P.A. Aki on his part adopted the Respondent’s brief dated the 27th day of October, 2021 and filed on the same date but deemed properly filed on the 28th of October, 2021.

Although the Respondent at pages 2 – 3 of her brief settled by P.A. Aki Esq., gave Notice of Preliminary Objection to the competence of Appellant’s Notice of Appeal, and argued same from pages 3 – 6 of the brief, same was withdrawn and effectively struck out by this Court on the 29th of November, 2021.

BRIEF STATEMENT OF FACTS
The Appellant’s case by his statement of claim and evidence before the Upper Area Court Boh was that the disputed plot of land was cleared by his father maiden wherein he built a room inside and lived with his family. Appellant stated that he was born and brought up there with his elder brother and they continued living there until their father died. After his father demise, Appellant inherited the land and was farming on it until he gave the said land to his Uncle Sabo Mela in trust when he decided to go to the city.

It is the Appellant’s case that when he came back from the city, he met a building on the land and when he asked, he was informed that an hospital was established in Pubawure and the land was requested for and given with the condition that the place belonged to the Appellant who gave it in trust and when he comes back and is in need of the place, it will be given back to him. Appellant stated that he now called Dr. Hassan, husband to the Respondent and he confirmed the position to be true.

The Appellant’s case further is that upon speaking with Dr. Hassan, he agreed to live together with him until one day when he came back from farm and he saw that a fence was constructed beyond where was given to Dr. Hassan. On that note, Appellant stated that he met Dr. Hassan who told him to be patient. The Appellant testified that he did not agree, so he went to the District head to confirm the place was his own, but the District head told Appellant to be patient and he came back home and continued staying with Dr. Hassan.

It is the Appellant’s case that on another occasion when he went for a wedding he was invited, he came back and met Dr. Hassan digging and when he asked, Dr. Hassan told him that he wanted to build a house for his son to marry. The Appellant’s case was that he took the matter to the village head and Dr. Hassan confirmed to the village head that the land belongs to him and that when he is leaving, the place will become Appellant’s own. See Pages 29 – 30 of the Record.

The Appellant’s case however is that after the demise of Dr. Hassan, his wife, the Respondent before this Court trespassed into the place and started raising a structure round hut and when he confronted her, she said the land was given to her late husband by the committee, hence, the Appellant commenced the suit to recover same. The Appellant in proof of his case testified for himself and called four other witnesses. See pages 11 – 28, and pages 60 – 66 of the Record.

The Respondent’s case on the other hand was that the plot of land does not belong to the Appellant, as she does not know the Appellant because he was not the person that gave her late husband the plot of land, but Chief of Kalmai by name Angongo with his people. The land was given to her late husband as a health worker and a hospital was built there. That at the time the land was given to her late husband, the place was a bush, and the ruminant of shrine things were still there.

The Respondent’s case was that when the land was given to her late husband, the Appellant was living at Pubawure as he did not go anywhere because his house was beside her house and there is a road in between them. The Respondent‘s case is that when they got the land, they cut trees and built three (3) round hurts and lived in the house for seven (7) years before the Appellant relocated to their side, built his house behind theirs and they continued living together for 30 years.

It is the Respondent’s case that when her late husband retired from government work, they lived with the Appellant for another 22 years and her husband has died for 8 years now, the Appellant never raised any claim. Until now that they started raising a fence that the Appellant reported her to the district head of Kalmai that she has trespassed into his land with 3 feet. The Respondent’s case is that the Chief of Kalmai came and saw she did not trespass into the land of the Appellant and he told her to continue her work. See page 8 of the Record of Appeal.

The Respondent called 3 other witnesses and led evidence to deny the claims of the Appellant that the land belongs to him. See pages 37 – 59 of the Record. The Upper Area Court in her findings entered judgment for the Appellant. The Respondent was aggrieved and she appeal to the High Court of Justice, Gombe State, and the Court in a considered judgment, set aside the decision of Upper Areas Court Boh, hence this Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the six grounds of appeal namely:
a. Whether the lower Court was correct to have applied Limitation Law and the Principle of Laches and Acquiescence in the circumstances of this case, reconciling the evidence on record of trial Court. Ground 1.
b. Whether the lower Court was correct to have set aside the trial Court’s judgment that flowed from a properly evaluated evidence. Grounds 2, 3, 4, & 6.
c. Whether the lower Court was correct in law to have held that evidence taken in Earlier proceedings is not relevant in a later case. Ground 5.

The Respondent in her brief adopted the three issues submitted by the Appellant but couched in a different language as follows:
i. Whether the Gombe State High Court was right in holding that even if the disputed land had originally belonged to the Appellant at the time he commenced this suit his action was caught up by the Limitation Law of Bauchi State applicable to Gombe State and by the doctrine of Laches and Acquiescence having stood by all this while and watched the Respondent developed the land to its present status. Settled from Ground One.
ii. Whether the Gombe State High Court was right in holding that evidence taken in an earlier proceeding is not relevant in a later case as to become permissible to treat such evidence in previous proceeding as the truth in preference to the evidence that is currently given before a Court. Settled from Grounds five.
iii. Whether the decision of the Gombe State in setting aside the judgment of the Trial Upper Area Court Boh in favor of the Appellant and confirming the Respondent with title over the disputed land based on the evidence on record can be justified, Respondent having proved a better title to the disputed land. Settled from grounds two, three, four and six.

I have considered the facts and circumstances of this appeal, the judgment of the Gombe State High Court, the findings of the Upper Area Court Boh, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the three issues distilled in the Respondent’s brief as the proper issues arising for the just determination of this Appeal. I have noted however that issue two formulated by Appellant is issue three on Respondent’s issues formulated, therefore, the submissions of Appellant on issues two shall be considered on issues three of Appellant and vis-a-vis. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.

ISSUE ONE
Whether the Gombe State High Court was right in holding that even if the disputed land had originally belonged to the Appellant at the time he commenced this suit his action was caught up by the Limitation Law of Bauchi State applicable to Gombe State and by the doctrine of Laches and Acquiescence having stood by all this while and watched the Respondent developed the land to its present status. Settled from Ground One.

APPELLANT’S COUNSEL SUBMISSIONS
Emmanuel Nwaekwe Esq., settled the Appellant’s brief and on issue one, Counsel submitted that a statute of limitation is one that creates time limit that bars a claim after a specific period for suing in a civil suit based on the date the claim accrued, so as to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs. Counsel relied on the authority of Sulgrave Holdings Inc v. FGN (2012) 17 NWLR P. 309 (SC).

Counsel submitted further that the yardsticks to determine whether an action is statute barred are the date when the cause of action accrued, the date of commencement of the suit as indicated in the writ of summons and the period of time prescribed to bring an action to be ascertained from the statute in question.

Counsel contended that by the authority of Adekeye v. Akim Olugbade (1987) 3 NWLR (Pt. 60) 214, a person who holds the property of another is not allowed to set up the statute of limitation against the beneficial owner, particularly when the claim is founded upon fraudulent breach of trust to which the trustee was a party or privy. The Appellant submitted that it is therefore clear that a claim against a person as a trustee in respect of a property held on trust is a claim for equitable relief which is not barred by any limitation period. Counsel referred the Court to the authority of Okafor v. BDU, Jos Branch (2017) 5 NWLR (Pt. 1559) SC.

Appellant Counsel went on to say that the defence that an action is statute barred like other specialized defence is required to be specifically pleaded and failure to so plead will deny the defendants the opportunity to rely on the said defence. Counsel submitted that Appellant has established from the onset of the case that his claim was for title of the land while Respondent in her defence claimed that the land was given to her by the chief of Kalmai. Therefore, while the burden on Appellant was to prove that he gave the land in trust, the Respondent has a corresponding obligation to prove her root of title, as once trust is established by Appellant, then limitation cannot stand.

Counsel submitted further that from the evidence of the witnesses he called at the trial upper Area Court, his case is well established against the Respondent’s case. Counsel contended that the adoption of the year 2000 as the year Dr. Hassan died so as to render Section 4 of the Limitation Law of Bauchi state applicable for purposes of when the cause of action accrued is not borne out of the record of proceedings. This is so because the Respondent stated that her husband died 8 years ago, while PW1 said 9 years, PW IV said less than 10 years and DW1 said 6 years.

Counsel went on to submit that on that note, if the 10 years of the lower Court is to be adopted and reconciled with the evidence on record before the Trial Upper Area Court, it is very obvious that Dr. Hassan died less than 10 years ago and as such, the Appellant’s claim is not caught up by the Limitation Law. Therefore, limitation may be invoked as beginning from when the Respondent denied ownership right in favor of the Appellant at page 30 paragraph 2.

On that note, Counsel submitted further and contended that limitation is determined by looking at the writ of summons and the statement of claim, alleging when the wrong was committed, which gave Plaintiff a cause of action and by linking that date with the date on which the writ of summons was filed. Plus the onus is on the defendant who relies on the defence of limitation to specifically plead the statute and the facts relevant to the defence and prove same. See the case of Savanah Bank v. Pan Atlantic Shipping (1987) 1 NWLR (Pt. 49) 212. Counsel added that it is trite law that the principle of continuing trespass is not caught up by statute of limitation and he cited the authorities of Ekweozor v. Registered Trustees SACN (2014) 16 NWLR (Pt. 1434) 433, and ONAGORUWA v. AKINREMI & ORS (2001) 13 NWLR (Pt. 729) 38 to his aid in urging this Court to resolve the issue in favor of the Appellant.

RESPONDENT’S COUNSEL SUBMISSION
The Respondent’s Counsel, P.I Aki Esq., who settled the Respondent’s brief on his part submitted that the Appellant’s claim in a nut shell is that he is seeking to recover from the Respondent a piece of land he once entrusted to Sabo Mela and travelled out but that when he came back he met a building on the land. There was no explanation as to when he came back and why he decided to sue the Respondent when he claimed to have entrusted the said land to one Sabo Mela.

Counsel submitted that in response to the Appellant’s claim the Respondent denied ever knowing the Appellant with any land there as the Appellant did not give any land to her husband but rather it was the Chief of Kalmia by name Ankongo with his people that gave her husband the said plot of land as a health worker in the village. Respondent further explained how the land was when it was given to them and the fact that they have spent over 30 years on the land and within which time they have developed the land by building thereon additional structures to the knowledge of the Appellant who was living close by and even had reason to resolve boundary disputes with them. That when her husband Dr. Hassan died he was even buried on the said land all to the knowledge of the Appellant.

On that note, Counsel submitted on behalf of Respondent that the essence of her evidence on record is that she counter-claimed her title to the said land and gave notice of statute of limitation by doctrine of laches and acquiescence based on the fact that same was given to them by the Chief of Katmai and his people coupled with the fact that they have exercised various acts of ownership over the said land for up to 30 years without let or hindrance to the knowledge of the Appellant.

Counsel contended that by the Supreme Court authority of Interdrill Nig. Ltd. V UBA Plc. (2017) 267 LRCN 108 AT 130, the Appellant before this Court has not challenged the High Court’s findings or conclusions reached on laches and acquiescence or estoppel by standing by and watching the Respondent spending money developing the land and settling boundary disputes with Dr. Hassan up to the time Dr. Hassan died and was buried there, hence, the specific findings therefore remain unchallenged till date. Counsel also referred the Court to the case of Onafowokan V Wema Bank Plc. (2011) 200 LRCN 33 AT 64.

It is Counsel’s contention on behalf of Respondent that while contesting the judgment of the Gombe State High Court, the Appellant on this issue argued solely on the inapplicability of the limitation law to the facts of this case. He contended that statute of limitation does not apply where the action is founded on fraudulent breach of trust where he cited the cases of Adekeye V Akin Olugbade (Supra) and Okafor V BDU Jos Branch (Supra). Respondent’s Counsel submit however that this was a serious misdirection as there was no trust between the Respondent and the Appellant talk less of fraudulently breaching same. If at all there was any trust (which is denied), it is between the Appellant and Sabo Mela or between Sabo Mela and the Hospital Committee or the District Head of Kalmai based on the Appellant’s story. But these persons mentioned by him were not made parties to this case as to have invoked the supposed breach of trust. Counsel submitted therefore that suing the Respondent instead of the above-mentioned people based on a purported trust was like leaving the substance to pursue the shadow.

Counsel contended further that Appellant’s reliance on the authority of Obika V Obika to argue that the defence to an action is statute-barred is required to be specifically pleaded is not the law as the proceedings before Area, Customary or Native Courts are not proceedings that are conducted based on rules of superior Courts of records where pleadings are filed and exchanged. He submitted that in this kind of proceedings, the claim and the reply thereto constitute pleadings in the layman sense of the word. Moreover the issue of pleading defences are procedural matters that are termed technicalities which under Section 61 of the Area Court Law cannot vitiate any proceedings of an Area Court which is conducted based on substantial justice.

It is Counsel’s contention that as to whether the Gombe State High Court was right to have reached the conclusion that the Appellant’s suit was caught by limitation law and the doctrine of estoppel by standing by, Appellant did not contest the holding that he stood by when the Respondent developed the land. Therefore, that fact remains settled as per the authorities of Interdrill Nig. Ltd. V UBA Plc. (Supra) and Onafowokan V Wema Bank Plc. (Supra). Counsel submitted that the Appellant only contended that by the limitation law, the Appellant had 10 years from the time the cause of action arose to institute this suit and that according to them, the time when the cause of action arose is 8 years which is less than 10 years.

Counsel on that note submitted that about 8 years is not the same thing as 8 years. This is more so as during the trial Court’s visit to locus on 18/6/2016, one Augustine showed the grave of Dr. Hassan where it is written that he died on 23/12/2000. This piece of evidence according to the Respondent’s counsel is in agreement with the evidence of PW2, Sabo Kish under cross-examination. Counsel submitted that he agrees that in determining the period of limitation you have to look at the writ and link the date of the suit to when the cause of action arose. Therefore, from 23/12/2000 when Dr. Hassan died to 2015 when this suit was filed is 15 years which is even more than 10 years provided for by S. 4 of the Limitation Law.

Counsel relied on the authority of Udoh Trading Co. V Abere (2001) 87 LRCN 1815 AT 1833 & 1843 ratio 3, to submit that it is the law that as soon as the combination of facts or circumstances giving rise to a suit emerges, a cause of action is said to have arisen. Thus in the present case, it is counsel’s contention that the lower Court was right that the earliest time the cause of action arose was when the Appellant had to resolve boundary issue with Dr. Hassan when he was still alive and the latest would have been when Dr. Hassan died in the year 2000 and was being buried on the land. Counsel submitted that it should be noted that it was the Appellant himself during his testimony that explained how they started boundary dispute with Dr. Hassan before his death. Thus at that point, a cause of action can be said to have arisen as rightly held by the Gombe State High Court.

Counsel contended further that it is clear that the Gombe State High Court used the available evidence on record to hold that the cause of action first arose since when Dr. Hassan was alive. It equally used the evidence on record to come up with the year 2000 as the year when Dr. Hassan died and was buried there. Invariably, Appellant’s counsel was wrong to insinuate as he did in their brief that year 2000 was an invention of Gombe State High Court which is not supported by the record. Consequently, Appellant’s Counsel was equally wrong when he submitted that the hostilities started only after the death of Dr. Hassan and when the Respondent was raising a round but structure when that time was never mentioned by the Appellant. Counsel referred the Court to Aremo II V Adekanye (2004) 121 LRCN 4853 AT 4871 & 4872 ratios 5 & 6; Williams V Williams (2008) 160 LRCN 109 AT 125, 126 & 140 ratios 5, 7 & 11.

It is Counsel’s contention that Appellant did not contest the finding that he stood by and watched the Respondent developed the land so is now estopped from contesting otherwise, as going by the testimony of his witness PW2 Kish Sabo, Dr. Hassan’s house was built since 1980 whereas the hospital itself was established since 1976. Therefore, assuming but without conceding that the limitation law Was improperly applied the Appellant is still estopped from making claims of same now after he had watched the Respondent and her husband Dr. Hassan developed the said land over these long years that he allegedly returned from the city.

Counsel submitted that the principle of standing by was laid down by Lord Penzance in the case of Wytcherley V Andrews (1871) L.R. 2 P&D 327 and same is predicated on one of the principles of Equity which states that Equity aids the vigilant and not the indolent. By the principle it is expected that anybody who has interest in a thing should complain or interfere on time when his interest is been adversely affected. Where he does not act on time he is said to have acquiesced he is therefore caught by laches and acquiescence and prevented from complaining. This principle was also incorporated in our evidence law which presently is found under Section 169 of the Evidence Act 2011 under the concept of Estoppel. Counsel cited and relied on the authorities of Adesina Oke & Anor V Shitu Atoloye & Ors (1986)1 SC 422 AT 426, Per Nnamani JSC, and Kayode V Odutola (2001) 87 LRCN 1.

Counsel in rounding up his submission under this issue submitted that even if the disputed land had originally belonged to the Appellant, the Gombe State High Court was justified in dismissing the Appellant’s suit on the ground that his action was statute barred and that he was estopped from putting up any claim of title to that land now having watched the Respondent develop same without complaint therefore deemed to have slept over his right to so claim and he urge this Court to uphold this submission and dismiss the Appellant’s appeal on this score.

RESOLUTION OF ISSUE ONE
The crux of this issue is essentially whether the action of the Appellant herein who was plaintiff at the Trial Upper Area Court Boh is caught up by Section 4 of the Bauchi State Limitation Law, applicable to Gombe State which provide for the Statute of Limitation, and the equitable doctrine of Laches and acquiescence of standing by and watching. For purpose of this judgment, it is apt to reproduce the provisions of Section 4 of the Bauchi State Limitation Law which provides as follows:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some persons through whom he claims to that person.”

The provisions of the law is very clear and unambiguous, therefore the evidence adduced by parties shall be applied in other to resolve this issue. Before I go further, I would like to state categorically that Respondent’s counsel’s contention that the Appellant did not challenge the findings and conclusions of the lower Court reached on laches and acquiesces or estoppel by standing by and watching the Respondent spending money developing the land is clearly misconceived. The Appellant’s ground one in his Notice of Appeal to this Court which is argued under this issue challenged the decision reached by the lower Court that the action of the Appellant is caught up by Section 4 of the Bauchi State Limitation Law. To my mind, this Limitation Law so challenged by the Appellant’s ground one is what is applicable by the equitable doctrine of laches and acquiescence, and to separate the two as the Respondent Counsel is praying this Court to do in his submission is to ask this Court to pick and choose between the statute of limitation and the doctrine of laches and acquiescence.

Now going back to the challenge of the Appellant under this issue, it is the law as rightly stated by the Appellant’s Counsel that in the determination of whether an action is statute barred in civil suits, it is only the writ and statement of claim filed by the Plaintiff that shall be considered by the Court. See the authority of UBA PLC v. Lawal & Anor (2021) LPELR 56286 (CA).

In the instant case which was commenced at the Upper Area Court Boh where exchange of pleadings does not apply, the evidence of the Appellant and Respondent at the Trial Upper Area Court shall constitute their pleadings, hence, I shall resolve this issue by making reference to the evidence adduced at the trial Court and borne out of the Record of Appeal before this Court.

The Appellant contended that the statute of limitation must be specifically pleaded by the Respondent for her to rely on same as her case before the Court by her response to his claim suggested another root of title which according to Appellant’s Counsel, she must prove same. I have carefully perused the evidence of the Respondent at page 8 of the record and even though the Respondent stated therein clearly that the land does not belong to the Appellant as same was given to her late husband by the Chief of Kalmai. The said response is only but the Respondent’s defence to the claim of the Appellant’s claim, same does not suggest a root of title in which the Respondent must prove, and I so hold.

I have perused the evidence of the Respondent in response to the Appellant’s claim again and she specifically stated thus:
“…Sambo was in Pubaware he did not go anywhere, his house was beside us, there is a road in between us. When we got the place we cut trees and built three (3) round hurts, we were in the house for seven years(7) sambo Maiden relocated to our side, he came and build behind our house and we continue living together with him without any problem for thirty (30) years when my husband retired from Government work, for about twenty two (22) years and he died for about eight (8) years now all this he was present, the burial was done with him, it was later when we started raising a fence (wall) that sambo reported me to the district head of Kalmai that I have trespassed into his land with 3 feets…”

I have taken pains to reproduce this part of Respondent’s evidence as recorded by the Trial Upper Area Court just to show the Respondent’s pleadings before the Trial Upper Area Court. The Appellant never denied this hard fact, therefore, it is clear to me by this evidence which represents the Respondent’s pleadings that the statute of limitation was clearly pleaded by her. This was further stressed by Counsel while addressing the trial Court before she delivered her judgment. Looking further into the records of the trial Court, the evidence of the date of dead of Dr. Hassan, the Respondent Husband as identified during the visit to locus being 23/12/2000, is vital to the determining factor of when the cause of action of the Appellant accrued for purpose of limitation of law as provided by Section 4 of the Bauchi State Limitation Law. With greatest respect, the evidence seen on the grave of Dr. Hassan is superior to the Respondent’s oral evidence when she said her husband died about 8 years now.

On that note, it is clear that for the purpose of when the time begins to runs to determine when the cause of action of the Appellant accrued for the statute of limitation to apply, the evidence of the Appellant vis a vis the evidence reproduced above must be considered. The Appellant Counsel contended that the cause of action accrued based on Appellant’s claim when his boundary dispute with respondent ensued as Dr. Hassan, Respondent’s late husband for all intent and purposes based on Appellant’s sole evidence which was never corroborated stated that the land belongs to Appellant and he promised to return same.

The Appellant here on his submission of computation of time wants to clearly separate the Respondent from her husband as if the two lived on the disputed land on two different occasions. This is however not so, the Respondent has stated that they had lived with the Appellant as neighbors for over 30 years, and this piece of evidence was not denied by the Appellant. She further stated that when her husband died, the Appellant was there, and the Appellant never denied same. I agree with the findings of the Lower Court that the right of action accrued to the Appellant when the husband of the Respondent was alive and at worst when he died in the year 2000. That to my mind should had been the best time for the Appellant to pull up ranks and notify the Respondent that her husband conceded that the land is his and the Respondent was not there when her husband promised to return the land to the Appellant. I therefore hold that the Appellant’s Cause of Action accrued since the year 2000, which is about 15 years counting from the year 2015, when Appellant commenced this suit.

The Appellant equally contended that he gave the land in trust, and a party who is given a land in trust cannot raise the objection of limitation. That would be the law as rightly relied upon by the Appellant if there is established any trust between the Appellant and the respondent herein. This would take me back to the evidence before this Court again. The Appellant’s evidence is that when he travelled to the city, he gave the land in trust to Sabo Mela and when he returned Sabo Mela told him the committee needed it for the health worker, that is Respondent’s husband. The Respondent’s evidence however was that it was the Chief of Kalmai that gave her husband the place to stay.

I agree with the submission of the Respondent’s counsel that there is no trust between the Appellant and the Respondent for Appellant to raise a claim of breach of trust for the exception of land given in trust to apply. If there is any trust as far as the Appellant is concerned, it would be between the Appellant and Sabo Mela. It is very clear from the evidence before the trial Court that there is no trust between Appellant and respondent, neither did the Appellant sue Sabo Mela and nor did he call the said Sabo Mela to testify on his behalf. More so the claim of fraudulent breach of trust as submitted by Appellant Counsel raises an allegation of crime in civil suit which must be proved beyond reasonable doubt, and same has not been established by the evidence of the Appellant herein.

The Appellant further contended that the statute of limitation does not operate for a party who is continuous possession. This would suggest that the Respondent was living on the disputed land at the pleasure of this Appellant. We have established that, is not the case in the instant case, as the Appellant has not established any land lord tenant relationship between himself and the respondent to suggest that the Respondent was in continuous possession at his pleasure.

On the whole, I resolve issue one against the Appellant and in favor of the respondent and affirmed the finding of the lower Court that the Appellant’s claims against the Respondent is caught by statute of limitation and doctrine of laches and acquiescence, the Appellant having stood by and watched the Respondent.

ISSUE TWO
Whether the decision of the Gombe State High Court in setting aside the judgment of the Trial Upper Area Court Boh in favor of the Appellant and confirming the Respondent with title over the disputed land based on the evidence on record can be justified, Respondent having proved a better title to the disputed land. Settled from grounds two, three, four and six.

APPELLANT’S COUNSEL SUBMISSIONS
On this issue, Appellant’s Counsel contended that the law is settled that where the decision of a trial Court is substantially based on the exercise of discretion, an appellate Court will not interfere with the discretion unless the trial Court failed to exercise its discretion judiciously or judicially. See Austin Eromosele v. FRN (2018) JSCNLR Vol. 4 P. 222, Para 10. Counsel relied also on the Supreme Court authority of Agbonifo v. Aiwereoba (1988)1 NWLR (Pt. 70) 325 where the Court stated that the function of an Appellate Court on question of fact is mainly limited to seeking:
1. Whether or not there was evidence before the trial Court upon which its decision on facts was based.
2. Whether it wrongly accepted or rejected any evidence admitted at the trial Court.
3. Whether evidence called by either party to the conflict was put on either side of the imaginary balance and weighed one against the other; in other words whether the trial Court correctly approached assessment of evidence before it.
4. Whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. See Anyaoke v. Adi (1981) 3 NWLR (Pt. 31) 731 at 742, Sarkin Yaki v. Bagudu (2015) 64 (Pt. 1) NSCQR 93 at 179.

Counsel submitted that it is also trite that when an Appellant alleges that a decision is against the weight of evidence, he means that when the evidence adduced is balanced against that of the Respondent, any judgment in the respondent’s favor is against the weight that should have been given to the totality of the evidence admitted.

Counsel contended that it is settled law that when a claimant pleads a primary method of establishing title such as traditional history, and he also pleads acts of ownership and possession which are dependent on that main method of establishing title, he cannot succeed if he fails to prove that main method of establishing title to land. In such a case, the acts of possession and ownership are done because and in pursuance of the ownership. Such alleged acts of possession, dominion and the like are mainly derivative from the title or ownership of the Land in dispute.

It is Appellant’s contention that no amount of use or the length of period of usage could confer ownership of land on such a user and it behooves such a party to prove his title in the first place in order to justify the use to which the land in dispute had been put to. Enjoyment of a land in dispute cannot precede title nor can it indicate same. Counsel referred the Court to the authority of Orlu v. Gogo Abite (2010) 8 NWLR (Pt. 1196) 307, Gbadamosi v. Okege (2011) 3 NWLR (Pt. 1233) 175.

Appellant’s Counsel submitted that the evidence of his witnesses are all direct, cogent and believable as they all testified on the firm foundation of truth and believability. Counsel equally submitted that the Trial Upper Area Court visited the locus in order to see things for herself and she resolved the ownership of the land to the Appellant.

Counsel submitted with respect that assessment of credibility of a witness is the exclusive preserve of a trial Court. The trial Court who saw the witnesses, heard them and watched their demeanor in the witness box is in a very peculiar vantage position to believe or disbelieve the witnesses. Counsel submits that this advantage can never be recaptured by an Appellate Court which, accordingly is thus bound to accept the judgment of the trial Court on matters of credibility. See FRN v. Borisade (2015) 61 (Pt. 2) NSCQR 1266 at P. 1299. It is counsel’s contention that the credibility of PW5 who gave conflicting testimonies over the parties can never be a convincing reason for the lower Court who had no opportunity of assessing his credibility to set aside the well considered judgment of the trial Court.

It is Counsel’s contention that a witness who gave two materially inconsistent evidence on oath is not entitled to the honor of credibility, as such a witness is not a faithful witness. See Ajose v. FRN (2011) 6 NWLR (Pt. 1244) 465. Therefore it is surprising that the lower Court would choose to believe the later testimonies of PW5 with all its inconsistencies against his earlier testimonies in favor of the Appellant which is more logical. Hence, Counsel urged the Court to allow the appeal as the judgment of the lower Court is unsustainable, reconciling the facts on record at the Trial Upper Area Court.

RESPONDENT’S COUNSEL SUBMISSION
On this issue, Counsel submitted that the trial Court heard the witnesses, visited the locus in quo, evaluated the same and found in favour for the Appellant by confirming him with title over a plot of land that he has never possessed. The Court disregarded the overwhelming evidence and legal defences that were in favour of the Respondent to the fact that from the time they were given the land by the District Head of Kalmia and his people they have been in occupation and exercising acts of ownership over same to the knowledge of the Appellant since 1980 which was about 36 years as at the time this suit started.

Counsel while relying on the authorities of Odiba V Azege (1998) 61 LRCN 4605 AT 4626 ratio 1 & 10 and Adimora V Ajufo (1988) 1 NSCC 1005 submitted and contended that while it is the law that findings of fact and the ascription of probative value thereto is the business of the trial Court which heard and saw the witnesses as they testified before it. However, where it is shown to the Court that such findings are perverse, it calls for interference by an appellate Court as was done in this case by the lower Court.

Counsel submitted further that in the case at hand the Appellant who was Plaintiff at the trial Court stated his claim, therefore, to have a declaration of title in his favour, he had the burden to prove his claim based on the preponderance of evidence instead of seeking to rely on the weakness of the defence. Thus, from the totality of the evidence led we can see that the Appellant’s claim for a declaration of title to the disputed land was based on evidence of traditional history. He was therefore under obligation to prove who founded land, how it was founded and the intervening owners until when and how the land eventually devolved to him. See Wachukwu V Owunwanne (2011) 197 LRCN 33 AT 67 ZEE.

Counsel contended that the Appellant was also under obligation to prove the alleged trust between him and Sabo Mela and how the disputed land got to the custody or possession of the Respondent. He was also under obligation to prove when he returned and discovered that the Respondent and her family were on the said land and the steps that he took to recover same from Sabo Mela before he decided to sue the Respondent who had no dealing with him over the said land. Therefore, Appellant’s evidence to his traditional root of title was manifestly contradictory ever as to who founded the disputed land. While Pw1, Pw3 & 4 maintained that it was Maiden that first cleared the land, Pw 2 said that it was Saudo the father of Maiden that cleared the land while Pw5 Jauro Katti said the place belongs to Sabo and that it was the Chief of Kalmai that gave Sabo the place.

Also in another breadth, one of the Appellant’s witnesses Pw2 Kish Sabo testified that the land was given to the committee on trust and they even reduced same into writing but same was never tendered in evidence before the present Court so as to be subjected to cross-examination which amounts to withholding evidence contrary to Section 167(d) of the Evidence Act. In another place, Pw3 stated that the place was borrowed from Baba Sabo Mela but in another place, he testified that the place was given to Mr. Hassan.

Counsel submitted that taking the case of the Appellant as a whole and his personal testimony as Pw4, a lot of contradictions can be seen in his case right from his initial claim before the Court vis-à-vis the other witnesses that testified before the Court, which were rightly pointed out by the lower Court in its findings. What more the Respondent had been in undisturbed occupation of the land and was developing same all to the knowledge of the Appellant and these facts have not discredited under cross-examination at the trial Court. Counsel referred this Court to the case of Nwokidu V Okanu (2010) 183 LRCN 114 AT 153 ratio 15 where the Court held that if evidence adduced by plaintiff is unsatisfactory, judgment should not be entered in his favor.

RESOLUTION OF ISSUE TWO
The complaint of the Appellant under this issue which arose from grounds two, three, four and six of the grounds of appeal is that he has led sufficient evidence to prove his title to the disputed land by traditional means. Appellant submitted that his evidence and that of his witnesses are believable and same has established his title to the land by traditional means.

It is settled law that the proof of cases in civil matter is by preponderance of evidence, as such, the evidence which has higher weight tilts the balance of probability to the party whom judgment shall be entered in his favor. See the case of Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246 at 369 – 370 where the Apex Court Per Niki Tobi JSC, stated on the issue of whom rests the burden of proof in any given proceeding as follows:
“This rests on the party whether plaintiff or defendant, who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings and it is settled as a question of law, remaining unchanged throughout the trial exactly where the proceedings place it…”
It is equally the law that the party who alleges must prove that those facts and circumstance which he relies on for the Court to give him judgment exist by cogent and material evidence in other for judgment to be entered in his favor.

Therefore, the Plaintiff who claim title to the disputed land by traditional means has the burden to establish by cogent and material evidence that the land belongs to him by virtue of inheritance in the traditional way. Plaintiff must explain in his evidence how the land was founded, how he inherited same, and how it came to be in the Respondent’s possession.
See the authority of Elebe & Ors v. Ayeni & Ors (2020) LPELR 51200 (CA) where this Court held as follows:
“…It is trite that where a party to an action for declaration of title to land relies on traditional history, as in the instant case, he has the duty to plead and prove a) the founder of the land b) the intervening owners through whom he derived his title and their particulars and how the land get unto him.”
See also the Supreme Court case of Chukwuemeka Anyafulu & Ors v. Maduegbuna Meka & Ors (2014) LPELR 22336 (SC), where the Apex Court had this to say:
“It is trite law that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleadings the original founder of the land, how he found the land and the particulars of the intervening owners through whom he claims. Where a party has not given sufficient information in his pleadings as regards the origin or ownership of the land and the line of succession, to himself, he has just laid foundation for the failure of his claim. See Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194.”

However, the Plaintiff only explained in his evidence that his father, Maiden cleared the land and he lived with his elder brother and his father on the land, and until his father died and he travel to the city leaving the land in Sabo Mela’s custody as a trust. Plaintiff stated that it was Sabo Mela that gave the land to the Hospital Committee. Whether it was the land that the Appellant left in trust to Sabo Mela that was given to Dr. Hassan, the evidence of the Appellant on this point is not clear. The Appellant only stated that when he came back, Sabo Mela said he gave the land to the hospital committee. However, the Respondent said the land was given to her husband by the Chief of Kalmai.

Other witnesses called by the Appellant whom the Appellant wants this Court to take as witnesses to be believed only stated that the disputed land belongs to the Appellant as he inherited same from his father. All the witnesses never stated how the father of the Appellant discovered the land and how it devolved to the Appellant. Moreover as noted by the Respondent’s Counsel, the evidence of the Appellant’s witnesses are contradictory as to who found the land in question and how it devolved to Sabo Mela, and this inconsistency brings to bear the veracity of the root of title to the disputed land the Appellant is putting forward. PW2 even testified that there is an agreement made between the Hospital Committee and Sabo Mela, but the said agreement was not tendered. I have no hesitation in agreement with the Respondent counsel that the failure of the Appellant from producing that agreement is that if produced, it will be harmful to the Appellant’s case, and in essences, the oral evidence of the said PW2 cannot be believed.

In the light of the lacuna in the evidence of the Appellant which was not verified by any other witness, it is clear that the Appellant has not discharged the burden on him by law to prove his title by cogent and verifiable evidence. I must state that the Respondent is not counter-claiming title with Appellant, she is only saying that she came to be on the land as a result of the gift of the land by the Chief of Kalmai to her husband. As that is not the case, it is the law that the burden of first proving a case is on the Plaintiff, and only after he discharged that burden, will the burden shift to the Defendant. I find that the Appellant herein has not discharged the burden of proving his title by traditional means for the burden to shift to the Respondent.

There is no doubt that the evaluation of evidence of witnesses is the exclusive preserve of the trial Court, and same can only be done by the Appellate Court where and when it is shown that the evaluation done by the trial Court is perverse. With due respect, the evaluation done by the lower Court was whether the Appellant has proved his claim and established his case by his evidence and that of his witnesses that the land belongs to him simplicita, wherein the lower Court founds that Appellant has not established his title by traditional means.

I agree with the findings of the lower Court that the Appellant has not proved his title to the land as his evidence before the trial Court has not established his root of title and I so hold. On the testimony of PW5 wherein Counsel made a case that PW5 who was his witness cannot be believed as a witness of truth, I shall deal with same under issue three as same aptly captured the whole issue on the propriety of the potency of PW5’s evidence as it affects the rights of the parties to the land.

On the whole, I resolve issue two against the Appellant and in favor of the Respondent, and find that from the evidence adduced before the trial Court, the Appellant has not established his title to the disputed land by traditional means.

ISSUE THREE
Whether the Gombe State High Court was right in holding that evidence taken in an earlier proceeding is not relevant in a later case as to become permissible to treat such evidence in previous proceeding as the truth in preference to the evidence that is currently given before a Court. Settled from Grounds five

APPELLANT’S COUNSEL SUBMISSION
On this issue, Counsel to the Appellant submitted that the lower Court is incorrect within the context of this case to hold at page 151 that “the law is no doubt trite that evidence taken in earlier proceedings is not relevant in a later trial except for the purposes of discrediting such a witness in cross-examination and for that purpose only, it is permissible to treat evidence in previous proceedings as truth.

Counsel referred the Court to Page 11 of EXH A which is a proceeding in Suit No. II/2014 wherein Jauro Katti Buba PW5 testified on Oath and states that this place in dispute belongs to Sambo Maiden, and Village Head of Kalmai begged Sabo Mela to give him the place because he wants to give someone whose name is Hassan to live in. Counsel Contends that the giving of a different testimony by PW5 in the present case as it were is out of malice.

Counsel submit that by the authority of Adelumola v. State (1988) 1 NWLR (Pt. 73) 683 SC, for a witness to be believed the following factors amongst others must be considered mainly:
a. The witness’s disinterestedness
b. His integrity
c. His veracity and
d. His being bound by his oath to speak the truth.

Counsel contended further that by the Supreme Court authority of Dogo v. State (2001) 1 SCNJ 315 at 316, the Court held that the character of a witness for habitual veracity is an essential ingredient of his credibility, because a man who is capable of uttering falsehood is in most cases capable of doing so under solemn sanctity of an oath. See also Balogun v. Attorney General of Ogun State (2002) FWLR (Pt. 100) 1287 at 1300.

On that note, Counsel submitted on behalf of Appellant that it is incorrect for the lower Court to suggest that discrediting a witness will not substitute the evidence given in the previous case, as a witness who is capable of double speaking cannot be a reliable witness and a Court of law cannot give him credit which he lacks. Counsel thereby urge this Court to resolve this issue in his favor as relying on the evidence of PW5 and using same to corroborate the evidence of DW1 as justification to deny Appellant of his land is with respect wrong.

RESPONDENT’S COUNSEL SUBMISSION
The Respondent on this issue laid the foundation of how EXH A emanated from a trial de-novo previously ordered by the Gombe State High Court which set aside an earlier proceeding that started at the Sabo Layi Area Court. The re-trial Upper Area Court Boh in confirming the Appellant with title over the disputed land wrongly relied on the previous evidence of his PW5 Jauro Kati which was given at Sabon Layi Area Court in the earlier proceeding that was set aside on appeal by the High Court where this retrial was ordered. That earlier record of the proceedings of Sabon Layi Area Court was nevertheless tendered and admitted before the present trail Upper Area Court as Exhibit A through PW5. Counsel submitted that the Lower Court set aside the findings of the Upper Area Court which relied on EXH A on the basis that evidence taken in previous proceedings is not relevant in a later case except for the purpose of discrediting such a witness in cross-examination and for the purpose only.

Counsel submitted that Appellant has contested this Part of the judgment of the Gombe State High Court and also argued that the lower Court was wrong by believing the testimony of Appellant’s witness PW5 Jauro Kati whose evidence before the trial Court was against their interest. The Appellant attempted to expunge the testimony of this witness by contesting that the testimony, of the said witnesses in the present case is inconsistent with his previous statement on the same issue previously made before another Court. That the lower Court was wrong to have chosen to believe the present testimony despite the inconsistency with the earlier statement made before another Court.

PW5 according to Counsel is 88 years and is not only older than any other witness that was called in the case but he is in fact the only surviving member of the Hospital Committee that was directly involved in acquiring the land in question for the building of the house for the health worker (Dr. Hassan), the Respondent’s husband who was sent to their village to run their Maternity clinic (Hospital). Counsel believed also that it was on the basis of his familiarity with the subject matter that the Appellant called him as his witness, and the fact that the Appellant chose to call him only after the Respondent close her case and the Court visited the disputed area underscores how important the Appellant considered his testimony.

It is Counsel’s contention that Appellant seems to be prevaricating by blowing hot and cold over the testimony of this witness when at some point he did not question the trail Upper Area Court Boh in using the testimony of the said witness to his advantage, but queries the part that does not favor him. Unfortunately, the Appellant is now questioning the rationale of the lower Court acting on the testimony of the same witness as given before the trial Court in the present case in preference to the previous testimony allegedly given at the Sahon Layi Area Court. Still in another breadth, the Appellant again picked a suitable portion in the testimony of the same PW5 in their brief of argument and urged this Court to believe as “the firm foundation of truth and believability.” Counsel while relying on the authority of Adone V Ikebudu (2001) 90 LRCN 2712 AT 2724 submitted that in law a party is not allowed to prevaricate at different stages of the proceedings as is been done in this case by the Appellant.

Counsel submitted that the position of the Gombe State High Court that evidence taken in previous proceedings is not relevant in a later case except for the purpose of discrediting such a witness in cross-examination and for the purpose only finds support under Section 39 & 46(1) of the Evidence Act 2011. The law in the said sections provides the circumstances when evidence given in a previous proceeding will be relevant in proving the truth thereof in a subsequent proceeding as –
(a) If the witness is dead;
(b) Cannot be found;
(c) Is incapable of giving evidence;
(d) Is kept out of the way by the other party; or
(e) When his presence cannot be obtained without some amount of delay or expenses which, in the circumstances of the case, the Court considers unreasonable.

Counsel referred this Court to the position of the law held by A. O. Ejiwunmi JSC (as he then was) in the case of Durosaro V Ayorinde (2005) 8 NWLR (Pt 927) 407 & Kasa V State (1994) 5 NWLR (Pt. 344) 261 which were cited by the Gombe State High Court in its judgment to support its findings on this point.

Counsel further referred this Court further to the authority of Shanu V Afribank Nig. Plc. (2002) 101 LRCN 1946 AT 1979 and submitted that, in the present case, the said witness Jauro Kati (PW5) was not only alive but was capable of giving evidence and he indeed came and gave evidence before the trial Court. He also explained away the perceived inconsistencies in his two statements, if any. It is the Respondent’s contention therefore that in the light of the above provisions of the Evidence Act and the judicial authorities, the Upper Area Court Boh was only on a frolic of its own to have ignored the un-discredited evidence of the said Jauro Kati that was taken right before it, being the only surviving member of the Hospital Committee that was responsible for acquiring the land in question for their hospital staff Dr. Hassan, as far back as 1980.

Counsel in urging this Court to dismiss this appeal, submitted that the Gombe State High Court was justified to have rejected or refused to use that evidence of Jauro Kati allegedly given in a previous proceeding that was even set aside. The lower Court was right to have considered his evidence now taken before the trial Court alongside with that of the four (4) Respondent’s witnesses to find in favour of the Respondent.

Counsel submitted that the trial Court shut its eyes to more important matters and consider issues that are of less importance thereby making its findings perverse until the lower Court rightly intervene when the matter came before it. Counsel relied on the Supreme Court authority ofOtanma v. Youdubagha (2006) 134 LRCN 362 at 385 to submit that where findings of a trial Court is perverse, such findings can be interfered with as the lower Court did.

RESOLUTION OF ISSUE THREE
Under this issue, the Appellant’s complaint is that the lower Court was wrong to have overturned the decision of the trial lower Court who relied on the evidence of the PW5 taken in a previous proceedings tendered as EXHIBIT A. The Respondent contended that the lower Court was right to have overturned the decision of the trial Court who relied on the evidence of PW5 taken in a previous case at Sabon Layi which has been set aside leading to the trial De novo in the present case on appeal before this Court.

The law is trite that evidence given by a witness in a previous case can never be taken as Evidence in a later case except where Section 34 (1) of the Evidence Act applies. See the authority of Elegushi & Ors v. Oseni & Ors (2005) LPELR 1111 (SC) where the Supreme Court held as follows:
“…Evidence given in a previous case can never be accepted as evidence by the Court trying a later case except where Section 34 (1) of the Evidence ordinance applies. The evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is no higher value than that.”

I have taken a good look at the evidence of PW5, the subject of complain by ground five of Appellant’s grounds in the record. It is a fact that PW5 was called by the Appellant whom his counsel examined and when Counsel discovered that the evidence of PW5 was not to his favor, he applied to tender EXHIBIT A to cross-examine PW5. Counsel cross-examined PW5, and Respondent’s Counsel equally crossed-examined PW5, and after the cross-examination, the evidence of PW5 was unshaken.

I have read the findings of the Trial Upper Area Court in the record of appeal, I have also read the reasoning of the lower Court in arriving at her decision and it is in pari material with the holding of the Supreme Court decision of Elegushi & Ors cited above. However a further exposition of the provisions of Section 39 and 46 (1) of Evidence Act, 2011, is apt in resolving this issue.
The provisions of Section 34 (1) of the Evidence Act 1990, which is in pari material with the provision of Section 39 and 46 (1) of the Evidence Act, 2011, provides for the circumstance in which a statements, whether written or oral of facts in issue or relevant facts made by a person may be admissible relied on as follows:
a. Person who is dead;
b. Who cannot be found
c. Who has become incapable of giving evidence or
d. Whose attendance cannot be procured without an amount of delay or expense which under the circumstance of the case appears to the Court unreasonable, are admissible under Section 40 to 50.
Section 46 (1) of the Evidence Act, 2011, specifically provides for admission of evidence made in a previous proceedings as follows:
“Evidence given by a witness in a judicial proceedings, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceedings, or in a later stage of the same judicial proceedings the truth of the facts which it states, when the witness cannot be called for any of the reasons specified in Section 39, or is kept out of the way by the adverse party…”
It is clear from the provision of the law above that the evidence of a party can only be used to verify the truth of what it states, but same cannot take the place of the testimony of a witness. In that regard, the evidence of a witness in a previous proceedings can only be used to test the credit of the witness, but same cannot take the place of the evidence of that witness in that proceedings.

In the instant case, PW5 was the person who testified before the Sabon Layi Court and he is still alive and available to testify before the Trial Upper Area Court Boh, upon the order of retrial of the said case. With due respect to the Appellant Counsel, the only time PW5’s evidence before the Trial Upper Court will not be taken as the truth is when and where he was able to discredit his evidence as he sought to do by tendering EXHIBIT A and cross-examining PW5.

It is glaring that Appellant’s Counsel was unable to discredit the evidence of PW5 under cross-examination as the record showed that PW5 stood with his testimony that the Land in dispute belonged to Sabo Mela and not Appellant.

To this end, the trial Court cannot use the evidence of PW5 in EXHIBIT A as tendered but his evidence before the Court which Appellant’s Counsel sought to discredit by tendering EXHIBIT A, but he was unsuccessful.

Therefore the submission of Appellant’s Counsel that PW5 is not worthy of honor of credibility is clearly misplaced and of no moment. The law does not pay attention to sentiment, but evidence adduced. Appellant Counsel having failed to discredit PW5 under cross-examination does not have the power to declare the witness as an unworthy witness.

That being said, I have no difficulty in resolving this issue as it is clear that the usage of the previous evidence of PW 5 in EXHIBIT A before a Court which has even been set aside is wrong in law, and same cannot have the blessings of this Court. I agree with the findings of the lower Court on the issue and therefore resolve the issue against the Appellant in favour of the Respondent.

That being said and having resolved the three issues against the Appellant, I find no merit in this appeal and it is hereby dismissed. I HEREBY AFFIRM the judgment of the lower Court presided by Hon. Justice Ibrahim Mohammed and Abubakar Jauro delivered on 7th day of March, 2019 in suit no.GM/106A/16.

I make no order as to cost.

EBIOWEI TOBI, J.C.A.: I have read in draft the lead judgment of my learned brother, Muslim Sule Hassan, JCA, I agree with the reasoning and the conclusion reached therein. This appeal in my view also lacks merit and therefore it is dismissed. I wish to however make a comment on the first issue formulated by the Appellant’s counsel. the first issue reads thus:
Whether the lower Court was correct to have applied Limitation Law and the Principle of Laches and Acquiescence in the circumstances of this case, reconciling the evidence on record of trial Court?

The lower Court has held that the action was caught by the Limitation Law which requires that the action for ownership of land should be commenced within ten years as shown in Section 4 of the Bauchi State Limitation Law. When a party challenges an action on the ground of limitation, he is effectively challenging the jurisdiction of the Court. The implication of this is that if the case in the Court of first instance is caught by the limitation law, the action is dead on arrival and the only option is to give it a burial. This is the position of the law I will refer to a few cases. Once an action is challenged on the premise that it is statute barred, it is effectively a challenge on the powers of the Court to adjudicate on same. The jurisdiction of a Court is conferred by statute and if a statute gives a party a time frame within which to institute an action, the action should be commenced within the time frame. A party should therefore be awake to its responsibility to ensure his grievance against a person should lead to legal action in Court within the time frame stated in the law for the action to be instituted. Failure to institute the action within the time frame deprives the party any right to be heard by the Court. Even if the party has the best of cases, if he approaches Court outside the time frame, he will be shut out of the doors of the Court because the statute has been violated and defiled. Once the action is not commenced within time, the party is barred by the Court, meaning the gates of the Court will be closed against him because by not acting within the time frame of the statute, the party is barred by the operation of the statute. The action will be statute barred and the proper order is to dismiss it. An action that is statute barred is dead on arrival, not just dead, but stone dead. No miracle can bring back such a matter. Miracle like the resurrection of Lazarus will not happen here as miracle is in the realm of spirituality and not legality. Not even the skill of the best lawyers put together can resuscitate an action that is statute barred. When an action is statute barred, the Courts will not delve into the merit of the case. In such a situation, the Claimant can only count his losses and cannot do anything about it. Permit me at this stage to make reference to one or two cases on the effect of an action that is statute barred. In Buremoh vs Akande (2017) LPELR-41565 (SC), the apex Court held:
“The effect of a limitation law on a cause of action is that it removes the right of action, the right of enforcement and the right to judicial relief. In other words, an action filed outside the limitation period renders the action unenforceable. See Yare vs National Salaries, Wages and Income Commission (2013) 5 SCNJ 406; Lafia Local Government vs Gov. of Nasarawa State & Ors (2012) 7 SCNJ 648. In effect, where an action is statute barred, the Court will lack jurisdiction to entertain it .
The settled position of the law is that the issue of Jurisdiction, being so fundamental to the Court’s power to adjudicate, can be raised at any stage of the proceedings, even before this Court. It can be raised orally. It can also be raised suo motu by the Court. This is because, no matter how well the proceedings are conducted or how erudite the judgment arising therefrom, it all amounts to a nullity where the Court lacks jurisdiction. See Madukolu Vs Nkemdilim (1962) 1 ALL NLR 587; Nnakwe Vs The State (2013) 7 SCNJ 179; Oloriegbe Vs Omotesho (1993) 1 SCNJ 30.”
Similarly, in Cil Risk & Asset Management Ltd vs Ekiti State Govt & Ors (2020) LPELR- 49565 (SC), the apex Court held:
“It is of course true, and the law is that where an action is statute barred the effect is that the cause of action is or becomes extinct by operation and it can no longer be maintained in the law Court: SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt.27) 241.
Consequently, a cause of action extinguished or statute barred cannot be a reasonable cause of action.”

To determine whether an action is statute barred or not, the Court will look at the statute to find out the period within which the action should be brought. Having determined that, the Court will determine from the pleadings when the cause of action arose, and then compare that with when the action was filed. A judge that is mathematically inclined, like Lord Denning of blessed memory will not need a calculator to do that. However, a judge not mathematically inclined may need a calculator to minus the date the action was filed from the date the cause of action arose or ceased. If after that little mathematical exercise, what the judge gets is beyond the period that the action should have been commenced, the action will be statute barred and the matter will be certified dead on arrival and only fit for burial. See Adejumo & Ors vs Olawaiye (2014) 5-6 S.C. (pt II) 122; Williams vs Williams (2008) LPELR-3493 (SC). One more case in this regard will be sufficient. This is the case of Cil Risk Asset Management Ltd vs Ekiti State Govt & Anor (supra) the apex Court held in this regards thus:
“The timeless decision of this Court in Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1 at P. 20, laid down the judicial formula for determining whether or not a right of action is alive or barred by the provision of the statute of limitation in force at the time of the institution of the cause or matter. In that case, this Court held as follows:-
“The period of limitation is determined by looking at the writ of summons and Statement of Claim ONLY, to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time on which the writ of summons or statement of claim was filed is beyond the period allowed by the limitation law, the action is statute barred. What needs to be emphasized is that the determining facts are the averments in the plaintiff’s writ of summons and statement of claim … “
Similarly, in WOHEREM v EMEREUWA (2004) 6-7 SC 161; (2004) 13 NWLR (Pt.890) 398 at 417, this Court held that:
“For the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim Only. I will however add, where one has been filed. It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiff’s cause of action. When that ascertained date is compared with the date of the writ of summons or originating process was filed in Court, it can then be determined whether the action was instituted within the period allowed by law or outside it. When it is found that the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain same.”
See also Savannah Bank of Nigeria Ltd v Pan Atlantic Shipping & Transport Agency Ltd (1987) 1 NWLR (Pt.49) 212, Araka v Ejeagwu (2000) 15 NWLR (Pt.692) 684, Egbe v Adefarasin (1987) 1 NWLR (Pt.47) 1, Ibrahim v Judicial Service Commission (1998) 14 NWLR (Pt.584) 1, Military Administrator, Ekiti State v Aladeyelu (2007) 14 NWLR (Pt, 1055) 619, A.G. Adamawa State & 15 Ors. v A. G. Federation (2005) 18 NWLR (Pt.958) P.581 at Pp.550, paras. B-E; 561. paras. E-F; 565, paras. E-G, Muhammed v Military Administrator, Plateau State (2001) 16 NWLR (pt.740) 570 and British Airways Plc v Akinyosoye (1995) 1 NWLR (pt.371) 722 .”

One of the challenges in this appeal is in determining when the cause of action arose or ceases. I will now return to what will amount to a cause of action in a case. The cause of action is referred to the dispute between the parties upon which the Court will have to determine the rights and liabilities between the parties. In defining what will constitute a cause of action the Supreme Court held in A. G. Federation vs A. G. of Abia State & Ors (2001) LPELR- 24862 (SC) thus:
“A cause of action has been defined to mean the fact or facts which establishes or gives rise to a right of action and that it is the factual situation which gives a person the right to judicial relief. (See Egbe v. Adefarasin (1987) 1 NWLR (Part 47) 1). It is sufficient for a Court to hold that a cause of action is reasonable once the Statement of Claim in a case discloses some cause of action or some questions fit to be decided by a Judge notwithstanding that the case is weak or not likely to succeed. The fact that the cause of action is weak or unlikely to succeed is no ground to strike it out.
(See Moore v. Lawson, 31 TLR 418 CA, Wenlock v. Moloney (1965) WLR 1238 and Irene Thomas & Ors v. Olufosoye (1986) 1 NWLR (Part 18) 669).”

The cause of action may be re-activated by some action or can be continued. In such a case, the time will start running from the last action, or when the cause of action ceases. The cause of action will begin to start counting from when the Appellant became aware that his right has been breached by the Respondents as time will not start counting when the Appellant is not aware of any cause of action. See UBA Plc vs BTL Industries Ltd (2006) 12 S.C. 63. I will make reference to one more case here, that is the case of Woherem vs Emereuwa & Ors (2004) 6-7 S.C. 167 where the apex Court held:
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached.
The duration of a right or cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party. It is therefore necessary when dealing with statutes of limitation to determine firstly the precise date the cause of action accrued because time will start to run from the moment the cause of action arose. See Eboigbe v N.N.P.C (1994) 5 NWLR (Pt. 347) 649, at 663. I think I ought to stress that the law is well established that it is not permissible, indeed it would be wrong, for a defendant relying on the defence of limitation of action to compute time from the date pleaded in his statement of defence as the date the cause of action arose unless such a date is admitted by the plaintiff in his reply to the Statement of Defence. See Savannah Bank Nigeria Ltd v. Pan Atlantic Shipping Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212 at 259, Jimo Odubeko v. Victor Fowler and Anor (1993) 1 NWLR (Pt. 308) 637. The law is firmly settled that the period of limitation is determinable by looking at the Writ of Summons and the Statement of Claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the Writ of summons was filed. If the time pleaded in the writ of Summons or Statement of Claim is beyond the period allowed by the Limitation Law, the action is statute-barred. See Egbe v. Adefarasin (1987) 1 MWLR (Pt. 47) 1. What needs to be emphasized is that the determining factor is the averment in the plaintiff’s Writ of Summons and Statement of Claim.”

To determine whether the action is caught by limitation law, the time the cause of action occurred will be compared with the date the action was filed. If by mathematical deduction, the date the cause of action accrued and when the action was filed exceed a period of 10 years, the action will be caught by the limitation law.

The dispute over the ownership of the land in dispute to a reasonable man started when the husband of the Respondent went beyond the limit of what was granted to him and further when he started digging foundation for another building outside the place assigned to him originally. The moment the Appellant realizes this, the time starts counting. I agree that the cause of action occurred in 2000 at the very worse. The action was commenced in 2015 which is 15 years after the cause of action accrued. On this ground alone, this appeal fails.

For the above and for the fuller reasons in the lead judgment of my learned brother, Muslim Sule Hassan, JCA this appeal fails and it is dismissed. I abide by the consequential order.

USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, MUSLIM SULE HASSAN, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.

Appearances:

EMMANUEL NWAEKWE, with him, MRS R. ANTHONY and MAHMOOK HARUNA UMAR For Appellant(s)

P.A. AKI, with him, R.B. LONDON and T. EKONG For Respondent(s)

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