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MR. V.A. ONATOYE & ANOR v. PASTOR JACOB VILLARS (2019)

MR. V.A. ONATOYE & ANOR v. PASTOR JACOB VILLARS

(2019)LCN/13417(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2019

CA/K/08/2011

 

JUSTICES

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

1. MR. V. A. ONATOYE
2. MRS. V. ONATOYE Appellant(s)

AND

PASTOR JACOB VILLARS Respondent(s)

RATIO

BURDEN OF PROOF IN DECLARATORY RELIEFS

Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. See Nduul v. Wayo & Ors. LPELR-45151 (SC). PER ABUNDAGA, J.C.A.

THE FUNCTION OF AN APPELLATE COURT ON QUESTIONS OF FACTS

Finally, on this issue, I may have to reiterate the function of an appellate Court on question of facts. It is mainly limited to seeking whether or/not there was evidence before the trial Court upon which its decision was based, whether it wrongly accepted or rejected any evidence tendered at the trial, whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial Court properly evaluated the evidence, whether the trial Court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. This is the only way and procedure open to an appellate Court in the consideration of an appeal before it.? Per Mohammad JSC (P. 30, Paras A-E). PER ABUNDAGA, J.C.A.

WHETHER OR NOT A COURT MUST CONSIDER ALL DOCUMENTS PLACED BEFORE IT

A Court of law is bound to consider all documents placed before it?. Counsel misconceived the holding of the Court. Of course, a Court of law is bound to consider all documents placed before it, but evidence must first be adduced to tie the documents to the specific aspects of the party?s case to make the document relevant.
As held by the Supreme Court in Omisore v. Aregbesola (supra) it is not for counsel to use his address in Court to do what should have been done through a relevant witness in Court, as done by the appellants? counsel in this case.
Therefore all the submissions of the appellants? counsel on documents in Exhibit 7 go to naught, and are hereby discountenanced. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the decision of the High Court of Kano State delivered by Hon. Justice Mohammed Abdullahi Haliru in Suit No. K/677/94 on 31st December, 2009.

In the said suit, the plaintiffs/appellants in their further joint Amended Statement of Claim, claimed against the defendants jointly and severally as follows:
1. A declaration that the plaintiffs are the rightful owners of the said house at No. 77 Yoruba Road, Sabon Gari, Kano.
2. A declaration that the defendants are trespassers on the said house at No. 77 Yoruba road, Sabon Gari, Kano.
3. An order giving the plaintiffs possession of the property in question.
4. N150,000.00 being general damages for trespass.
5. An order of perpetual injunction restraining the defendants, either by themselves, agents, servants, privies and or representatives from trespassing into or disturbing the plaintiff?s peaceful possession and quiet enjoyment of the said house at No. 77 Yoruba Road, Kano.

?The claims of the plaintiffs/Appellants were denied in their entirety. Rather, the

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defendants/Respondents counter claimed as hereunder stated in their further Amended joint statement of defence:
(1) A declaration that there was never a sale of property lying and situate at No. 77 Yoruba road, Sabon Gari, Kano.
(2) A declaration that since there was never a sale of property lying and situate at No. 77 Yoruba Road, Sabon Gari, Kano an order of this Honourable Court be made that the said property remain with the defendants or their dependents based on the above mentioned facts.
(3) A declaration that Mrs. Anna Villars being a wife cannot to the exclusion of the members of the family of late Mr. J. G. Villars sell or purport to sell the property lying and situate at No. 77 Yoruba Road, Sabon Gari Kano.
(4) An order of perpetual injunction restraining the plaintiffs either by themselves or their agents servants and/or representatives from trespassing into or disturbing or harassing the defendants and their families peaceful possession and quiet enjoyment of the said house lying and situate at No. 77 Yoruba Road, Sabon Gari, Kano.

?The case went into trial at which the plaintiffs/appellants and defendants/Respondents called

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two witnesses each. Documents were tendered and admitted in evidence. At the end of the trial counsel to both parties addressed the Court through final written addresses and the Court adjourned for judgment.

In its judgment which can be located at pages 356-372 of the record of appeal, the Court dismissed the plaintiffs/appellants? claims and entered judgment for the defendants/counter claimants by declaring as follows:
(1) That there was never a sale of the property lying and situate at No.77 Yoruba Road.
(2) That the property remains joint property of the defendants and Mrs.Anna Villars, the vendor to the plaintiffs.
(3) That Anna Villars, being a widow cannot to the exclusion of members of the family of J. G. Villars sell or report (sic) the property at No. 77 Yoruba road, and
(4) An order of perpetual injunction restraining the plaintiffs either by themselves or their agents, servants etc from trespassing into the said premises at No. 77 Yoruba Road, is hereby made.

Aggrieved by the judgment of the Court, the plaintiffs/appellants filed a Notice of appeal against it on 15th March, 2010 containing 6 grounds of appeal

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including the omnibus ground of appeal.

The plaintiffs/appellants subsequently sought and obtained leave of Court to amend the Notice of Appeal by substituting the erstwhile Respondents with Pastor Jacob Villars. I shall hereafter refer to the plaintiffs/appellants and defendants/Respondents as simply, ?Appellants? and ?Respondent?.

I hereunder reproduce the grounds of appeal without necessarily stating their particulars since the grounds are in themselves elaborate to project the complaints in them. The grounds of appeal are:
1. The learned trial judge misdirected himself upon the evidence before the Court when he held inter alia as follows:
?Now from the pleadings of the plaintiff they admitted that the vendor, Mrs. Anna Villars was only an administratrix appointed by the other family member. It is therefore part of the burden on the plaintiff to prove the administration given to the vendor, it being granted that administrator of Estate need not by probate alone. That notwithstanding it remains an administration and not a power of Attorney. The plaintiffs in my view have not proved the administration given to

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their vendor, Mrs. Anna Villars.?
2. The learned trial judge also misdirected himself on the evidence before the Court when he held as follows:
?The Plaintiffs are relying on Exhibit 2 the Certificate of Occupancy in the name of the Vendor. This should be considered in the light of the challenge to the joint title of the Defendants with the Vendor for which reason the position of the certificate remains that of prima facie evidence of title to the vendor which can be voided through an action like that of the Defendants counter claim.?
3. The learned trial judge misdirected himself on the evidence before the Court when he held inter alia as follows:
?I shall consider the counter-claim in this regard the fact I have held the plaintiffs to have completely failed in the claim to title and trespass based on their admission on their pleading about the Vendor being an administratrix and consequent to hold that with Exhibit 7A, the Defendants did timeously challenged the action of the Vendor and are therefore entitle to all their counter-claims.?
4. The learned trial judge further misdirected himself on the

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evidence before the Court when he held inter alia as follows:
?This case is applicable to the case at hand having regard to the pleadings and exhibit 5 which pleads?

AUTHORITY OF SALE
I, Mrs. Anna Villar hereby dispose of my property Situated as plot No. 77, Yoruba Road, Sabon Gari, Kano.

Now even by the learned plaintiffs address, it was conceded that remedy to the fundamental defect was for the Defendant to sue to set aside the charge of title to the Vendor. I am of the view that the Defendants Counter-claim fits into that suggestion and the fact that the plaintiffs are assenting (sic) their title through the Vendor makes the issue of joining or making the Vendor a party unnecessary.?
5. The learned trial judge erred in law in clear violation of S. 294(1) of the Constitution of the Federal Republic of Nigeria when he proceeded to deliver the judgment in this Suit 30 (thirty) months after the adoption of the addresses and thereby occasioned a miscarriage of justice to the Plaintiffs.
6. The learned trial judge erred in law when he held as follows:

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?In all learned plaintiff?s counsel submitted that the Defence witnesses? evidence is hearsay since the clients who instructed DW1 were not called. I do not think so hearing regard to the position of solicitors and client as to overstretched (sic) that relationship to the extent of calling the client will be an attempt to rewrite the common law and statutory position of legal practitioners in Nigeria.?

The record of appeal was compiled and transmitted on 16th March, 2018 and deemed duly compiled and transmitted on 26th November, 2018.

The Appellants? brief of argument settled by E. P. Mgbeojirikwe, Esq, was filed on 16th March, 2018 and deemed properly and served on 20th March, 2018. Therein 5 Issues were distilled for determination. The Issues are as follows:
ISSUES FOR DETERMINATION
(1) Whether having regard to the pleadings of the parties and the totality of the evidence adduced the fact that Mrs. Anna Villars is the administratrix of the estate of her later husband had not been established.
?(2) Whether the institution by the Respondents of their counter-claim in challenge of Mrs. Anna Villars title simpliciter and

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without any evidence in support thereof can lawfully void the Certificate of Occupancy in the name of the vendor and entitle the Respondents to judgment being delivered in their favour based on their counter-claim.
(3) Was the learned trial judge right in applying the case of Fayehun v. Fadoju (2000) FWLR (Pt. 7) P. 1218 to this suit?
(4) Whether a miscarriage of justice was occasioned on the Appellants by reason of the delivery of the trial Court?s judgment 30 months after final addresses were adopted.
(5) Whether the evidence of D.W.1 amounts to documentary hearsay and thus inadmissible.

Arguing issue one, it was submitted for the appellants, that the averment in the further amended statement of claim that Mrs. Anna Villars is the administratrix of the estate of her late husband was established.

?Counsel relied on the evidence of the 2nd Appellant who testified as PW2 to the effect that she knew the property in question. Counsel contended that there is no evidence, oral or documentary which goes to effectively deny the truth of the 2nd Appellant?s evidence that the said Mrs. Anna Villars was the administratrix of the

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estate of late Mr. J. G. Villars. Counsel placed reliance on the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v. Eke-Spiff (2009) ALL FWLR (Pt. 467) 1 @ 35 Para B for their submission that the averments in the Respondent?s statement of defence are without evidence to support it and therefore deemed abandoned. Reliance was also placed on Exhibit 7.

Relying on the case of University of Ilorin v. Adesina (2009) ALL FWLR (Pt. 487) 56 @ 129 Paras G-H, it was contended that the lower Court failed to discharge the duty considering Exhibit 7 which is proof of the said Mrs. Anna Villars? capacity as administratrix who carried on the management of the property. Counsel urged the Court to resolve issue one in favour of the Appellants.

On issue two counsel faulted the holding of the lower Court on the counter claim of the Respondent. He submitted that the lower Court elevated the Respondent?s counter claim over and above a legally admissible documentary evidence that formed part of the crux of the appellants? case, and that this was done even when Exhibit 2 was not challenged by any concrete

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evidence by the Respondent. He went further to contend that Exhibit 2 was approved by Kano Municipal Council on 20th May, 1983 and same was not challenged for about 22 years, and as a result of the suit filed by the Appellants. He thus submitted that the Respondent is caught by doctrine of laches and acquiescence.

It was further contended that there is no evidence to void Exhibit 2, and therefore relying on Edebiri v. Daniel (2009) 8 NWLR (Pt. 1142) 15, counsel submitted that there is no evidence to rebut the presumption that Exhibits 2 (Certificate of Occupancy) is prima facie evidence of the 2nd Appellant?s exclusive possession of the property in contention in this appeal. Counsel relied on S. 135(1) of the Evidence Act, 2011 to submit that the Respondent did not give evidence in support of averments in their counter-claim. That the lower Court was in error in refusing to accept the Appellants? evidence which was not challenged. He placed reliance on the case of Oyewole v. Akande (2009) ALL FWLR (Pt. 491) 813 @ 831 Para E.

?The contention of counsel on issues three is that the evidence given by DW1, is documentary hearsay in that he only

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tendered the letter he wrote on the instruction of his client to Hakimi Waje (the land Registrar in charge of Sabon Gari). That the contents of the letter were not within his personal knowledge. He contended that what DW1 did was to give evidence of his own free will of what his informant, Paul Villars, who did not give evidence told him, and which was reduced into writing. He held the lower Court in error in his reliance on the said evidence which he submitted is hearsay contrary to Section 77 of the Evidence Act, 2011. That being inadmissible evidence, he urged the Court to expunge it from the record of the Court. He relied on the following cases Union Bank of Nigeria Plc v. Ishola (2002) FWLR (Pt. 100) 1253 @ 1276 Paras A-B, Kankia v. Mai Gemu (2004) ALL FWLR (Pt. 206) 460 @ 476 Paras A-B. He submitted that the statement made by the trial judge on the evidence of DW1 is vague.

On issue 4, it was submitted for the appellants that the trial judge was wrong in his application of the case of Fayehun v. Fadoju (2000) FWLR (Pt. 7) 1218 to the case at hand. He contended that facts of this case is different from the facts in Fayehun v. Fadoju (supra).

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Making reference to the evidence on record, particularly of the 2nd appellant, counsel submitted that Mrs. Anna Villars rightly sold the property for not only for her own beneficial interest but the proceeds was shared amongst members of the family. That the intention to do this was declared even before Exhibit 5 was prepared. We were referred to several aspects of the evidence of the 2nd appellant, particularly pages 137, 138 and 148 of the record. Further contention by counsel is that the aggrieved members of the family did not bring any action to set aside the sale of the family land. He relied on Odusoga v. Ricketts (1997) 7 SCNJ 135.

Dealing with issue 5, it was contended that a thorough examination of the findings and conclusions of the learned Judge reveal that by reason of delivering the judgment 30 months after the close of counsels? final written addresses had affected the trial Judge?s perception and evaluation of the defence both oral and documentary. Reliance was placed on the case of Ojo v. Federal Republic of Nigeria (2009) ALL FWLR (Pt. 494) 1461.

Counsel in his argument also relied on Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

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He submitted that the delay had occasioned injustice to the appellants and urged us to set aside the judgment.
?To sum up counsel accused the trial judge of improper evaluation, and urged us to allow the appeal and set aside the judgment of the lower Court.

?In the Respondent?s brief of argument, settled by H. O. Ben Umar, Esq, and filed on 9th April, 2018 four issues were formulated for determination. They are:
?(1) Whether from the totality of the evidence adduced by the appellants in support of their pleadings they have established the appointment of Mrs. Anna Villars as an administratrix to her late husband?s estate.
(2) Whether the Respondent?s counter claim challenging the certificate of occupancy containing the name of the vendor Mrs. Anna Villars is a sufficient ground for the trial Court to deliver its judgment in favour of the Respondent.
(3) Whether pronouncement of judgment 30 months after the adoption of the final addresses solely occasioned a miscarriage of justice to the appellants.
(4) Whether the evidence of DW1 is admissible”

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In counsel?s argument on issue one, counsel referred to the holding of the lower Court at page 369 of the record of appeal and submitted that the appellants, to fault the finding of the lower Court supra are required to prove the following:
(i) The nature of title claimed by her;
(ii) The evidence establishing her title of the nature claimed. He placed reliance on the case of Mrs. Okelola v. Adebisi Adeleke (2004) ALL FWLR (Pt. 224) 1290 @ Page 1991 ratio B-C, Emegwara & Ors. v. Nwaira & Ors 14 WACA 347. Counsel submitted that Mrs. Anna Villars acted as administratrix as she claimed but exceeded her limit and disposed of the property as her own. He referred to page 337 of the record of appeal. Counsel contended that it is trite law that where there are several personal representatives all of them must concur to the conveyance of the property unless there is an order of Court; and that where there is no concurrence, one party cannot execute a conveyance for the others. Reliance is placed on the case of Olajide Ibrahim v. S. A. Ojomo & 4 Ors (2004) FWLR (Pt. 199) 1285 @ 1299 Paras F-H. That the main

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point in Fayehun?s case is that the consent of the family members must be obtained by the head of the family before the disposal of the land.

Counsel pointed out that Mrs. Anna Villars described herself a sole owner to the exclusion of the other members of the family as shown in the Authority of Sale without disclosing the interest of the remaining members.

This act impeached the validity of Sale even if she had the power to sell the property, hence the similarity between this case and Fayehun?s case (supra). Counsel went further to submit that nowhere in the appellants? pleading showed that the family members appointed Mrs. Anna Villars as the administratrix of the Estate of her deceased husband. That Mrs. Anna Villars did not adduce evidence to show her root of title nor the consent of the family members to sell the property. Counsel submitted that the trial judge was right in his application of the principle of Nemo dat qua non habet since she was not an absolute owner. He also submitted that the appellants failed woefully to prove the appointment of Mrs. Anna Villars as the administratrix of the Estate of the deceased, Mr. J.

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G. Villars. That she also failed to give the names of the Principal members. He submitted that the appellants in their submission conceded this point in their brief of argument when they submitted that not all the Principal members will have to give their consent, but that it is enough if the majority of the accredited representatives or principal members of the family authorize the sale.
Counsel urged us to resolve this issue in favour of the Respondent.

The argument of the Respondent on issue two is that the Counter claim of the Respondent is support by their pleading and evidence that the property belongs to the legal heirs of the deceased Mr. J. G. Villars, and not exclusive to Mrs. Anna Villars; and submitted in reference to the appellants counsel?s submission on Exhibit 2, that a Certificate of Occupancy is not conclusive evidence of title in favour of its holder. He placed reliance on Grace Modu v. Dr. Betram Modu (2008) 2-3 S.C (Pt. 11) 109, and Sunmonu Olohunde & Anor v. Professor S. K Adeyoju (2000) 6 SCNJ 470, (2000) 6 SC (Pt. 111) 118.

?Counsel further submitted that the appellants? evidence that the property belongs

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to the heirs of Mr. J. G. Villars works in favour of the Respondent. On the appellants? reliance on the doctrine of laches and acquiescence, counsel submitted that it cannot operate in favour of a party who is a defendant in a case.

The submission of the Respondent?s issue 3 is that the mere fact that the judgment was given 30 months after the close of counsel?s address in contravention of S. 294(1) of the 1999 Constitution (as amended) is not sufficient to have the judgment voided unless it had occasioned miscarriage of justice. Counsel placed reliance on S. 294 (5) of the Constitution (supra), and the case of Nagebu Company (Nig) Ltd v. Unity Bank Plc (2013) ALL FWLR (Pt. 698), 871 @ Paras E-F. He submitted that the onus is on the appellants to show the miscarriage of justice occasioned thereby. He went further to submit that the trial judge properly evaluated the evidence as shown on the face of the record at pages 356-372. Counsel urged us to dismiss this issue as the appellants were not able to properly and clearly identify the miscarriage of justice done to them.

?On issue 4, the contention of counsel is that the trial judge

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was right in holding that DW1 was a competent witness, and his evidence admissible counsel premised his submission on Section 41 of the Evidence Act, 2011.

It was pointed out that DW1 as counsel was briefed by his client on which basis he prepared Exhibit 7A written to Hakimi Waje, and sent a lawyer from his office to attend the meeting as scheduled. That in order to view the relationship between a lawyer and his clients as hearsay the appellants must show a disconnect between the client and his counsel to the extent that the counsel was not briefed by the client and that he was not the one that drafted the lawyer to Hakimi Waje. On the relationship between a lawyer and his client, counsel relied on the cases of Niger Benin Transport Co. Ltd v. Okeke (2005) ALL FWLR (Pt. 256) 1286, and Iortyer Gyara & 2 Ors. v. Tsafa Amiachgh & 3 Ors. (2005) ALL FWLR (Pt. 243) 730 @ 744. It was submitted that on the above authorities, once a counsel is briefed his statement is binding on his client, who needs not be called to prove or disprove any statement credited to the lawyer so briefed. Counsel also placed reliance on Rule 20(2) and (d) of Rules ofProfessional Conduct for Legal Practitioners 2007. ?

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We were thus urged to resolve this issue in favour of the Respondent.

In his conclusion, counsel submitted that Exhibit 7 was dumped on the Court without any reference made to any page in the bulky document, with the Court given the assignment of fishing through it to gather the pieces of evidence to aid the appellants? case.
Counsel urged us to dismiss this appeal as it lacks supportive grounds.

The issues formulated by the two counsel are in substance the same. However, for me, the following issues comprehensively accommodate the issues formulated by the two counsel and are apt for the determination of this appeal. The issues are:
?1. Whether the Appellants have proved a valid sale of the land to them and therefore entitled to the declarations and other reliefs claimed.
2. Whether the Respondent has effectively rebutted the Appellants? claims and are therefore entitled to the declaratory and other reliefs claimed.
3. Whether the delivery of the judgment beyond the 90 days mandated by S. 294(1) of the Constitution of the Federal Republic of Nigeria, 1999(as amended)

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has rendered the judgment a nullity.?

RESOLUTION OF THE ISSUES
ISSUE ONE
Whether the Appellants have proved a valid sale of the land to them and therefore entitled to the declarations and other reliefs claimed.

To begin with, it is important to appreciate the standard and burden of proof in this case, being one principally declaratory. The other claims are dependent on the grant of the declaratory reliefs.

Where a claimant seeks declaratory reliefs, the burden is on him to prove his entitlement to those reliefs on the strength of his own case. A declaratory relief will not be granted even on admission. The claimant is also not entitled to rely on the weakness of the defence, if any. See Nduul v. Wayo & Ors. LPELR-45151 (SC).

This is exactly the burden on the appellants in this appeal. The appellants have faulted the evidence adduced by the Respondent, especially the evidence of the Respondent?s witness Nelson Uzuegbu, who testified as DW1. Their burden to prove their case is not diminished by the merit of their submission in that regard.

?The appellants case is founded in Exhibits 1, 2, 3, 4 and 7.

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It is therefore imperative to look at the relevant pleadings of the parties pertaining to those Exhibits. On the side of the Appellants, the relevant paragraphs are paragraphs 2, 4, 5, 6, 7, 8, 9 and 10 of the further amended statement of claim.

On the part of the Respondent Paragraphs 2, 4, 5, 6, 7, 8, 9, 10 and 11 of the Further Amended Statement of defence meet the above averments in the Appellants further statement of claim head on.

Thus, the following are put in issue and required to be proved to the tilt by the Appellants on the burden and standard stated in the case of Nduul v. Wayo & Ors Supra:
(i) That Mrs. Anna Villars was appointed the Administratrix of the estate of her late husband Mr. J. G. Villars;
(ii) The authority the process and acquire the certificate of Occupancy in respect of the property, lying and situate at No. 77 Yoruba Road, Sabon Gari, Kano (that is Exhibit 2)
(iii) That on conclusion of the Sale the Respondent?s predecessor-in-title, Joseph Villars who was the 1st defendant at the trial Court asked for 30 days to enable him quit the said house at No 77 Yoruba Road, Kano but subsequently reneged.<br< p=””

</br<

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(iv) The power of the said Mrs. Anna Villars to sell the property, and particularly as her own property as evidenced by Exhibit ?5?.
(v) The file in respect of the property (Exhibit 7).
How did the appellants fare in the proof the aforesaid items at the lower Court?

Two witnesses testified for the appellants. The first witness is Mrs. V.A. Onatoye (the 2nd Appellant). Her evidence is located at pages 81-82, 85-88 of the record of appeal. In her evidence she told the Court that she knows the 1st defendant Mr. S and as well Mrs. Felicia. She said she also Knows Mrs. Anna who is wife of one J. G. Villars. She told the Court that Mrs. Anna Villars was a wife to Mr. J. G Villars (late). She said she knows the property known as No. 77 Yoruba Road Kano which she bought from Mrs. Anna Villars in 1991. Under cross-examination, she told the Court that she came to know Mrs. Anna Villars at the time she went to buy the property land when she went back to complain to Mrs. Villars, she found that she had gone back to Ghana, (see page 87, lines 5-6 of the record).

?The effect of this piece of evidence is that she was at the time she

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bought the property not armed with first hand information about how Mrs. Anna Villars became the administratrix of the property. It is on record that Mrs. Anna Villars did not testify in this case, as to how she was made the administratrix of the property, and on whose consent, or rather, whether she had the consent of any of the family members to sell the property on their behalf and for their mutual benefit. Even though it was averred in the further amended statement of claim that on the conclusion of the said sale by Waje Area Court that the 1st defendant asked for 30 days to enable him quit the house, there is no evidence to that effect. PW1 (Mrs. Onatoye) told the lower Court in her evidence under cross-examination that after making full payment for the house, she travelled and returned in 1993 and had collected the title documents but not the house since she (Mrs. Villars) was still living there. She further told the Court under cross examination that when she went there (to the house) in 1993, she met nobody there.

?She went to her father who told her that the tenant refused to allow him to enter and carry out renovation. See pages 87-88 of the

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record of appeal.

Save for the evidence of Mrs. V. A. Onatoye on her purchase of the house, all other averments are not supported by evidence or the evidence given is at variance with the pleading. This include pleading as to the fact that Mrs. Anna Villars was appointed administratrix of the property, that she had the consent of other members of the family to sell the property or to process for Certificate of Occupancy for the house. Also affected is the averment that Joseph Villars (the 1st defendant), asked for 30 days to quit and deliver possession to the 2nd appellant but later reneged. It is trite law that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the Court. See the case of Emegokwue v. Okadigbo (1973) LPELR-1124 (SC).

It is also the law that any pleaded fact that is not substantiated by way of evidence goes to no issue. See Kighir v. Aande & Anor (2016) LPELR-42919 (CA).

?The complaint of the appellants is that the judgment of the lower Court is not supported by the evidence adduced before it. It is the error of the

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lower Court that an appellate Court is called to correct, and to properly do it, this Court must bring to bear the function of an appellate Court as stated thus in the case of V.A.B. Petroleum Inc. v. Mr. Mike Momah (2013) LPELR-19770 (SC):
?Finally, on this issue, I may have to reiterate the function of an appellate Court on question of facts. It is mainly limited to seeking whether or/not there was evidence before the trial Court upon which its decision was based, whether it wrongly accepted or rejected any evidence tendered at the trial, whether evidence called by either party to the conflict was put on either side of the imaginary scale and weighed one against the other. In other words, whether the trial Court properly evaluated the evidence, whether the trial Court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn therefrom. This is the only way and procedure open to an appellate Court in the consideration of an appeal before it.? Per Mohammad JSC (P. 30, Paras A-E)
?The statement of the law above mandates me to do

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what I have done, to isolate the legally acceptable evidence upon which to carry out the proper evaluation and assessment in order to see whether the decision of the lower Court is justified.

The second witness who testified for the appellants at the lower Court was Mohammed Abdullahi, a Senior Scribe to the District Head of Fagge whose duty includes keeping custody of land documents for properties in Sabon Gari, Kano, where No. 77 Yoruba Road, Sabon Gari Kano is located.

He tendered file of No. 77 Yoruba Road in obedience to the subpoena served on him. The file was admitted in evidence and marked as Exhibit 7, and taken as read. He was not permitted to be cross-examined on it. (See pages 90-94 of the record). Learned counsel for the Respondent submitted that Exhibit 7 was dumped on the Court. I have no hesitation in accepting his submission. No probative value can be attached to it. This was settled in the case of Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 @ 224 ratio 19 and 225 ratio 20. This is what the Supreme Court said in ratio 19:
?A Court is not permitted to embark on an inquisitorial examination of documents outside the

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Court room. The Court is not allowed to act on what it discovered in such a document in relation to an issue when it was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure. A Court or tribunal should not embark upon cloistered justice by making enquiry into the case outside the Court, not even by examination of documents which were in evidence when same had not been examined in the open Court. A Judge is an adjudicator not an investigator. In the instant case, the appellants dumped the documents on the trial tribunal. The tribunal was right in not placing premium on such dumped documents and the Court of Appeal was right in affirming the decision of the tribunal.?
In ration 20, the Court further held:
?Documentary evidence, no matter its relevance cannot speak for itself without the aid of an explanation relating its existence. The validity and reference of documents to admitted facts or evidence is when it is done in the open Court and it is not a matter for counsel?s address. It is not the duty of a Court to speculate or work out either mathematically or

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scientifically a method of arriving at an answer on an issue which could only be elicited by credible and tested evidence at the trial.
Where a party dumps documents on the Court without showing how the documents affect his case, it is not the duty of the court to embark on an independent enquiry to fix the documents on the evidence, more so, when it is outside the hearing in Court. In the instant case, PW1 tendered Exhibits 188 and 204 in evidence. However, the witness who was the maker of the report could not also proffer explanation of what specific relevance each document was to serve.?
I have gone through the rigours of quoting the holding of the Supreme Court in that case because of the submission of appellants? counsel, on the strength of the holding of the Court in the case of University of Ilorin v. Adesina (supra) that ?A Court of law is bound to consider all documents placed before it?. Counsel misconceived the holding of the Court. Of course, a Court of law is bound to consider all documents placed before it, but evidence must first be adduced to tie the documents to the specific aspects of the party?s case to

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make the document relevant.
As held by the Supreme Court in Omisore v. Aregbesola (supra) it is not for counsel to use his address in Court to do what should have been done through a relevant witness in Court, as done by the appellants? counsel in this case.
Therefore all the submissions of the appellants? counsel on documents in Exhibit 7 go to naught, and are hereby discountenanced.

Having earlier said that there is no evidence to support the averments in the further amended statement of claim of the appellants in relation to Mrs. Anna Villars? appointment as administratrix, the consent given to her to process a certificate of Occupancy in her name, and consent to sell the property, the Certificate of Occupancy (Exhibit 2) stands on sinking sand, and so is the sale of the property to the appellants by Mrs. Anna Villars.
?Exhibit 2 is therefore not conclusive proof that title to the property is vested in Mrs. Anna Villars, the law being trite that a Certificate of Occupancy made under the Land Use Act is not conclusive evidence of any interest or valid title to land in favour of the grantee, and may in appropriate cases

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be effectively challenged and rendered invalid, null and void. SeeAdole v. Gwar (2008) LPELR-189 (SC).
It was submitted by Appellants? counsel that the case of Fayehun v. Fadoju (supra) is not applicable. I can?t see why not. Mrs. Villars claimed that she was the administratrix of the estate of late J. G. Villars for herself and other legal heirs, and yet there is not an iota of evidence to support her claim that she did it with the consent of the majority of the members of the family or the principal members of the family. In the Fayehun v. Fadoju case, (supra) it was held per Karibi Whyte, JSC:
?It is essential for the validity of Sale of family land, the Chief or Head of the family must join in the conveyance and the Principal members must consent to the transaction. See Agbloe v. Sappor (1947) 12 WACA 187. Such a combination of parties to the conveyance of family land by Chief or head of the family and the principal members is in my opinion unimpeachable.?
?In this case, Mrs. Anna Villars who claimed that she has administratrix of the property for herself and other legal heirs sold the property as hers

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alone, on the strength of Exhibit 5 which states:
?I Mrs. Anna Villars hereby dispose of my property situated at Plot 77 Yoruba Road, Sabon Gari (Nasarawa Local Government) to Mr. Victor Adeleke Onatoye on 9th September, 1991.?
It is apparent that she sold the property without the consent of any member, not to talk of principal members. The case of Fayehun v. Fadoju (supra) is fittingly applicable, I hold.

Learned counsel for the appellants has urged this Court to invoke the doctrine of laches and acquiescence against the Respondent. I accept the submission of the Respondent that the doctrine operates as a weapon of defence, and the appellants who sued cannot call it in aid as a weapon of attack.

I like to also state that the Respondent?s predecessors-in-title were at all material times in possession. Shouldn?t it therefore be that the appellants who claimed that they bought the property but were prevented from taking possession would be the ones to go to the Court at the earliest possible time? This is especially so, when they averred in their pleading that 1st defendant pleaded for 30 days to quit and give

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possession but later reneged? I therefore reject this submission, as the doctrine cannot operate in the appellants? favour.

In view of my findings on all the incidental issues considered under issue one the said issue one is firmly resolved in favour of the Respondent and against the appellants. This is in tandem with holding of the Court at page 370, of the record of appeal that even without the evidence on the defence side the plaintiffs have woefully failed to prove their case.

ISSUE TWO
Whether the Respondent has effectively rebutted the appellants? claims and are therefore entitled to the declaratory and other reliefs claimed.

The Respondent?s claims are in the main declaratory. The standard and burden of proof on him is the same with that placed on the appellants.

?The parties are on common ground that the property at 77 Yoruba Road Sabon Gari Kano is the joint property of the legal heirs, Mrs. Anna Villars, inclusive. What is in issue is whether Mrs. Anna Villars was appointed an administratrix, and had the consent of the family members to sell same. In respect thereto, Respondent?s predecessor averred

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inter alia in paragraph 3 of their counter-claim that the property did not devolve on Mrs. Anna Villars, as she was just holding the property in trust for the members of the family, particularly the children of late Mr. J. G. Villars. In paragraph 4, it was averred in the Respondents? further amended statement of defence and counter-claim (here I refer to paragraph 4 of the Counter claim) that since the death of their father, no letter of Administration has been issued, and none of his properties was ever shared or given to any of them as his or her own share and same remained the family property.

?The counter claim is inextricably related to the appellants? claims in such a manner that the success of one means the failure of the other and vice versa. As found in relation to issue one which deals with the appellants, the appellants were unable to establish the appointment of Mrs. Anna Villars as the Administratrix of the property. Similarly, they could not establish that Mrs. Anna Villars validly acquired the Certificate of Occupancy (Exhibit 2) on which strength she purportedly sold the property to them. In the same vein the appellants failed

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to prove that Mrs. Anna Villars had the consent of other legal heirs or family members to sell the property to them.

The defendants at the lower Court called one witness, Nelson Uzuegbu, who in addition to his evidence tendered Exhibit 7A. Exhibit 7A titled:
Re: The protest of Mr. Paul Villars against possible attempt to sell the property at 77 Yoruba Road, Sabon Gari Kano; is the protest against the sale of the property at 77 Yoruba Road, Sabon Gari, Kano, same being held as family property and that other heirs and beneficiaries of the deceased estate are not in support of the move to sell it. The submission of appellants? counsel that the evidence of DW1 is inadmissible is totally lacking in merit. Mr. Nelson Uzuegbu is the author of the document, and wrote it on the instruction of Mr. Paul Villars who engaged him as counsel.
In addition to Exhibit 7A, he also testified. His evidence cannot be regarded as hearsay and is perfectly admissible under Section 41 of the Evidence Act, 2011. I also place reliance on the case of Makun & Ors. v. FUT Minna & Ors (2011) LPELR-15514 (SC) where it was held:
?Once counsel is briefed

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to handle a case, he had complete control over the case, to decide on his own understanding of the law how to conduct the case or handle the brief. He can compromise the case or submit to judgment. The remedy open to the litigant is to withdraw the brief from him and seek service of another counsel or sue for professional negligence?.
Per Rhodes-Vivour, JSC (p. 53 Paras B-C).

The appellants having completely failed in their claims, and on the evidence of DW1, the Respondent is entitled to succeed on their counter claims, I hold.

ISSUE THREE
Whether the delivery of the judgment beyond the 90 days mandated by Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has rendered the judgment a nullity.

Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that every judgment of a Court established under the said Constitution shall be delivered within 90 days of final address also provides in Subsection 5 that the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of

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Subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. I have in the course of determining this appeal meticulously read the entire proceedings in relation to the appeal, particularly the grounds thereof in relation to non-compliance with Section 294(1) of the Constitution. The appellants have not pinpointed to any aspects of the judgment in which they have suffered injustice in the real sense of the word ?injustice?. Counsel to the appellant is just being speculative. Perhaps, if the appellants? grounds of appeal have been directed to the credibility of the witnesses, one might be tempted to hold that due to lapse of time the trial judge might have lost impression of the demeanor of the witnesses while testifying under cross examination. But this is not the case. Going by the appellants counsel?s submission that due to lapse of time the trial judge did not properly evaluate the evidence before him, what do we make of appeals in this Court and Supreme Court in which the

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evaluation of evidence is challenged and some of which last for even a decade?
The appellants have not satisfied us that they have suffered any injustice as a result of non-compliance with Section 294(1) of the Constitution (supra).
At the end of his judgment, the trial judge gave reason for the delay. He stated that the delay was caused by his engagement at election petition tribunal at Bayelsa and Sokoto and Kano State Local Government Election Appeals. With this explanation he cannot be accused of any improper and untoward conduct in the delay.

Based on the foregoing, I resolve this issue in favour of the Respondent and against the appellants.
This appeal is therefore devoid of merit, and is hereby dismissed. The judgment of the lower Court is hereby affirmed. Parties are to bear their respective costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother JAMES GAMBO ABUNDAGA, JCA. I agree.

?OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Gambo Abundaga, JCA, where the issues

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in contention have been set out.
I also dismiss this appeal and affirm the judgment of the lower Court.

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Appearances:

E. P. Mgbeojirikwe, Esq.For Appellant(s)

H. O Ben Umar, Esq.For Respondent(s)

 

Appearances

E. P. Mgbeojirikwe, Esq.For Appellant

 

AND

H. O Ben Umar, Esq.For Respondent