PASTOR WILLIAMS BALOGUN v. ALHAJI ABDULLAHI SIANO SALIHU
(2019)LCN/13241(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/IL/137/2017
RATIO
WITNESS STATEMENT OR AFFIDAVIT: EFFECT OF NONE INCLUSION OF OATH TAKING IN THE WITNESS STATEMENT OR AFFIDAVIT
In the resolution of this singular issue, I find the reasoning of this Court in the case of Bona Oraekwe & Anor vs. Obiora Chukwuka & Anor (2010) LPELR 9128 (CA) per Augie JCA (as he then was) most illuminating. Therein the Court on the effect of the non-inclusion of oath taking in a witness statement or affidavit, proceeded as its being argued here that by the provisions of Section 180 of the Evidence Act, all oral evidence in any proceedings must be given upon oath or affirmation administered in accordance with the oaths Act. In obedience to the provisions of Section 2 (2) of the rules of the lower Court, a written statement on oath is the evidence upon which the party relies upon in proof of his case. The reasoning of my learned brother is that the form prescribed in the 1st Schedule to the Oaths Act is expected to act as a guide as to the form and the acceptable oath within the provisions of the Oath Act should take. It is not expected to be rigidly followed word for word or letter for letter. What is required is to ensure that there is substantial compliance with the requirement of the Act. I have closely looked at paragraph 12 of the respondents written statement of oath, and as indicated by the appellants, the deposition located at page 8 of the record which reads;
That I make this affidavit in good faith and in accordance with the Oath Act 1990.?
It proceeded at page 9 of the same record to bear;
Sworn to at the registry of the High Court, Ilorin, this 8th day of April 2014. Before me commissioner of Oaths signed.
PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
PASTOR WILLIAMS BALOGUN Appellant(s)
AND
ALHAJI ABDULLAHI SIANO SALIHU Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of S. M. Akanbi J of the Kwara State High Court sitting in Ilorin, Kwara State in suit No. KWS/96/2014, between Alhaji Abdullahi Siano Salihu vs. Pastor Williams (AKA Mr. Balogun Folorunsho) wherein the Claimant?s claim was granted.
In brief, the claimant before the trial Court, Alhaji Abdullahi Siano Salihu on the 8th day of April, 2014 took out a writ of summons against the defendant therein, Pastor Williams (aka Mr Balogun Folorunsho) wherein he claimed for the following reliefs:-
1. A Declaration that the Defendant?s unauthorized occupation and use of the claimant?s land measuring approximately 0.091ha and covered by Statutory Right of Occupancy No. KW17929 of 6th August, 2012 constitutes trespass.
2. An Order for possession of the Claimant?s land aforesaid.
?3. An Order of perpetual injunction restraining the Defendant, either by himself or through his agents, servants, principals, or privies from further trespass and interference with the Claimant?s quiet and peaceful possession of his
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land aforesaid.
4. Punitive and exemplary damages in the sum of N5,000,000. 00 (Five Million Naira) for the Defendant?s unrepentant acts of trespass.
Upon being served the claimant?s statement of claim, the defendant filed in a statement of defense dated the 31st day of August, 2015, whereof the Court was urged upon to dismiss the claim in its entirety with substantive costs for lacking in merit, the defendant insisting that he is the rightful owner of the stated land which is in dispute.
Parties having joined issues by their respective pleadings, proceeded to adduce evidence; and at the close of evidence, written addresses were ordered filed and adopted.
The learned trial judge, in a judgment dated and delivered on the 10/7/2017, considered the totality of the evidence placed before him, and conclusively held that:-
In the light of all these the claimant is in better title than the defendant, afortori the claimant is entitled to damages for trespass committed by the defendant. See Olugbenro vs. Ajana Ohin Supra, Adebanjo vs. Brown, Adim vs. NBC LTD & Anor (2010) 3 117, Rockonoh Property Co. LTD vs. Nitel (2001) 7SC
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(part 111) 154. Apart from admission by the defendant on trespass and contradictory evidence of the defendant, considering also all other pieces of evidence and development on the claimant?s land. See Exhibit D3, DII, DIII, DIV, no doubt the claimant having proved this leg of claim.
Dissatisfied with the judgment of the lower Court, the defendant now appellant, caused a Notice of Appeal to issue against the said judgment to this Court on the 25th day of 2017, predicated on two grounds. The extant Notice of Appeal is the amended notice of appeal filed on the 19th day of April, 2018 predicated on three issues with the leave of Court.
The record of appeal was subsequently compiled and transmitted to this Court on the 8th day of December, 2017, and duly regularized on the 21st day of February, 2018.
The appellant?s brief of argument dated the 2nd day of October, 2018, was filed on the 3rd day of October, 2018. Upon receiving the respondent?s brief of argument, appellant filed the appellant?s reply brief on the 22nd day of March, 2019.
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In opposing the appeal, the respondent filed a brief of argument incorporating a
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preliminary objection dated the 2nd of November, 2018 but filed on the 5th day of November, 2018.
On the 25th day of March, 2019 being the scheduled hearing date, parties identified their respective briefs, adopted the same in urging the Court to grant their respective prayers. Whereas the appellant is of the view that premised upon his submissions made in the brief, the appeal should be allowed and the decision of the lower Court set aside, the respondent prayed that the appeal be dismissed in its entirety.
In the appellant?s brief settled by Oluronke Adeyemi (Mrs) of Ronke Adeyemi and Co., the learned appellant?s counsel, four issues were formulated for the determination of this appeal. The issues thus formulated are as follows:-
1. whether the lower Court was right in holding that the Defendant/Appellant?s acquisition of the land in dispute is invalid (Ground two)
2. Whether the lower Court was right in holding that the Defendant/Appellant has committed trespass.
3. Whether the lower Court was right in expunging Exhibit D3 and D4 from the Appellant?s Evidence.
4. Whether the lower Court was right in
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sustaining the competence of the statements on oath of the Claimant/Respondent which are obviously not in compliance with the law.
The respondent on his part, and in the brief settled by M. A. Bello with T.T. Bello, Muhammed Muhammed Raji, A.M. Mohammed and Hazzan Isa, the learned counsel representing the respondent, raised a Notice of Preliminary Objection embedded in the respondent?s brief, and argued at page 2-10 thereof.
Alternatively, learned counsel identified four issues for the resolution of the Court, namely:-
1. Whether the lower Court was wrong in holding that the Respondent?s acquisition of the land in dispute predated the Appellant?s acquisition of the same land? This issue arises from Ground 1.
2. Whether the lower Court can be faulted for holding the Appellant liable in trespass on ground that his acquisition of the land is invalid? This issue arises from Ground 2
3. whether the trial Court was wrong in expunging Exhibits D3 and D4 on the ground that they are inadmissible in evidence? This issues arises from Ground 3
4. Whether in the circumstance of this case the lower Court was wrong in placing
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reliance on the Respondent?s statement on oath in reaching a decision in the case? This issue arises from Ground 4.
The purpose of a preliminary objection has been stated as being the termination of the hearing of the appeal on the ground of incompetence. See Wechie vs. Okwuworlu (2015) 11 NWLR (pt. 1469) 95. And being a thresh hold issue to the hearing of the appeal, requires that it be disposed of before any further step is taken in the hearing of the appeal. See Rabiu vs. Adebajo (2012) 15 NWLR (pt. 1322) 125. When and where a preliminary objection is raised to the competence of the appeal as is the case at hand, the jurisdiction of the Court to entertain the appeal becomes an issue, and therefore it is fundamental that the Court determines the objection first, before going into the merits of the issues in the appeal. See PPA vs. INEC (2012) 13 NWLR (pt. 1317) 201, UBA vs. ACB (2005) 12 NWLR (pt. 939) 232, NPA vs. Eyamba (2005) 12 NWLR (pt. 939) 409, NNB Plc vs. Imonikhe (2002) 5NWLR (pt. 760) 294. It is against this fundamental position of the law, that I consider it expedient to determine the preliminary objection raised by the respondent to
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the hearing of the appeal first in time.
The Preliminary Objection.
The Respondent?s preliminary objection located at page 1 of the brief, contended that the instant appeal is incompetent and thereby amounting to the fact that the Court lacks the jurisdiction to entertain it. The grounds of objection are listed as follows:-
i. By an order of this honorable Court obtained on the 21st day of February, 2018, the Record of Appeal was deemed transmitted on that day.
ii. The Appellant had 45 days thereafter within which to file his Brief of Argument but failed to do so, as the 45 days stipulated/allowed elapsed on the 9th day of April, 2018.
iii. The appellant?s brief of argument herein was filed on the 3rd day of October, 2018 almost six (6) months after due date, in contravention of the mandatory provision of Order 19 Rule 2 of the Court of Appeal Rules, 2016.
iv. The Appellant also obtained an order of this honorable Court amending the Notice of Appeal by addition of an additional ground but failed to compile and transmit a Supplementary Record of Appeal in respect thereof, or to comply with the mandatory provision of
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Order 19 Rule 3 of the Court of Appeal Rules, 2016 in filing his brief, among others.
v. Ground One of the Appellant?s grounds of appeal is incompetent as the particulars of error alleged do not relate to or have any bearing with the ground of appeal.
vi. The same Ground One of appeal has been abandoned, as no issue for determination has been formulated or distilled therefrom.
vii. Issue (a) and (b) formulated by the Appellant are incompetent, having apparently been distilled from a single ground of appeal (ground two), thus contravening the rule against proliferation of issues.
viii. Issues (b), (c) and (d) formulated by the Appellant are incompetent as the Appellant did not indicated from which grounds of appeal they were formulated or distilled.
ix. The additional ground of appeal is incompetent, being a fresh issue raised for the first time on appeal without leave of Court.
Mrs Adeyemi in quick response raised the issue that the preliminary objection raised by the learned counsel for the respondent is equally incompetent and liable to be struck out by this Court. Learned counsel leaned heavily on the provisions of
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Order 10 of the Court of Appeal Rules 2016, to the effect that a respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days? notice thereof before the hearing, setting out the grounds of the objection?.
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Learned counsel relying on the decision of Ameen & Ors vs. Amos Amao & Ors (2013) LPELR ? 20086 (SC), argued that even though a preliminary objection can be raised at any stage of the appeal before judgment, it cannot operate where the appellant is not accorded adequate notice, and in particular, three clear days before the hearing of the appeal, to avoid ambushing the appellants. The further case of Adedoyin vs. Oniyide (2012) LPELR ? 7954 was referred to.
I agree that the law resents a party ambushing the opposite party, and I must say this is exactly what the learned counsel for the appellant has succeeded in doing by this objection. I say so because, the respondent now cannot reply to the objection made without turning the Court into a moot Court. None the less, the apex Court in the case of Patrick D Magit vs. University of Agriculture, Makurdi & Ors
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(2005) LPELR ? 1816 (SC), also reported as (2005) 19 NWLR (pt. 959) 211 has come to the respondent?s rescue, by holding that:
?However on a more serious note, the method of raising a preliminary objection, apart from giving the appellant three clear days? notice before the date of hearing, is now firmly settled. It may be in the respondents brief, by a formal separate notice or written objection or both. But there is the need for the respondent or his counsel with the leave of Court to move the objection before the hearing of the substantive appeal?. See also Oforkire vs. Maduike (2003) LPELR ? 2269 (SC)
In Okwuagbala vs. Ikwueme (2010) 19 NWLR (pt. 1226) 54 SC, it was also held, per Onnoghen JSC, (as he then was):
?I hold the considered view that the essence of giving the notice of the objection either in the respondents brief or by way of notice of preliminary objection is to notify the appel
