SEBASTIAN AHE DEKE & ANOR v. INSPECTOR JONATHAN ATOGBON
(2019)LCN/13877(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/MK/170/2016
RATIO
DOCTRINE OF LACHES AND ACQUIESCENCE: WHEN THIS DOCTRINE WILL DEPRIVE A MAN OF HIS LEGAL RIGHT
In other words, the doctrine of laches and acquiescence which will deprive a man of his legal right must amount to fraud. Put another way, a man must not be deprived of his legal rights unless he has acted in such a way as it would make it fraudulent for him to set up such rights.
Indeed, the Supreme Court put it more graphically in the decision relied upon by the Appellant in Isaac V Imasuen (2016) Vol. 258 LRCN 217, 240 & 241, per Okoro JSC:
“The principle governing the defence of laches and acquiescence has been judicially explained in a long line of cases. In an old case of Ramsden V Dyson L.R. IH.L 129,140,141 which was cited in A-G to the Prince of Wales V Collon(1916) 2 KB 203, Lord Cronworth explained as follows:
“If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to persevere in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title, and that it would be dishonest of me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But, it will be observed that to raise such equity, two things are required: First, that the person expending the money supposes himself to be building on his own land, and secondly, that the real owner at the time of the expenditure knows that the land belongs to himself and not to the person expending the money in the belief that he is the owner. PER JUMMAI HANNATU SANKEY, J.C.A.
PLEADINGS: CONTENT OF PLEADINGS
It is a notorious principle of our system of civil litigation that pleadings are to contain only succinct statements of facts the parties rely upon in the claim and in defence of the claim, and not evidence by which those facts will be proved. Similarly, law is not pleaded. In Okoebor V Police Council (2003) LPELR-2458(SC) 30, A-E, the Supreme Court, per Tobi (JSC) held ?
?It is not the law of pleadings that laws must be pleaded before a party can rely on them. While the law of pleading requires that some specific laws should be pleaded (e.g. statutory defence like the Limitation Statute), it is not the province of the law of pleadings that any law to be relied upon by a party, must be pleaded. As a matter of law, pleadings essentially contain facts relied upon by the parties and they are stated positively, precisely, distinctly and briefly? As a matter of law, a good pleading should contain facts not law. There is a distinction between pleading law, which is not permitted by the law of pleadings, and raising a point of law in a pleading, which is permitted by law. Pleading law obscures and conceals the facts of the case, while raising a point of law defines or isolates an issue or question of law on the facts as pleaded? In similar vein, the law of pleadings does not require pleading a principle of the Common Law, but the law requires pleading of customary law because by our law of evidence, customary law is a fact which must be pleaded and proved. PER JUMMAI HANNATU SANKEY, J.C.A.
WHETHER A RECORD OF CRIMINAL PROCEEDINGS CAN BE ADMITTED IN CIVIL PROCEEDINGS
The law is that a record of criminal proceeding should not be admitted in evidence in a civil proceeding. See Abubakar V Joseph (2008) 13 NWLR (Pt. 1194) 307; &Osemwenkha V Oemwemkha (2012) LPELR-9580(CA) 25, C-D. Also, the invitation of the Police to intervene in a matter that is purely civil in nature and any such intervention by the Police in civil matters has always been deprecated by the Courts. The duties of the Police are as provided under Section 4 of the Police, Act Cap P19, Laws of the Federation of Nigeria, 2004; and it does not include the settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties. In recent times, the Police has portrayed itself as a more responsible organization which is alive to its duties and responsibilities of law enforcement, and so the Courts have consistently encouraged that it should turn down matters not statutorily assigned to it. See Anogwie V Odom (2016) LPELR-40214(CA) 18; Skye Bank Plc V Njoku (2016) LPELR-40447(CA) 29; Arab Contractors (O.A.O.) Nig. Ltd V Umanah(2012) LPELR-7927)(CA) 10; Igwe V Ezeanochie (2009) 11885) (CA) 38.
PER JUMMAI HANNATU SANKEY, J.C.A.
WHEN FACTS WILL BE ADMISSIBLE IN LAW
Consequently, the facts having been duly pleaded, and having also passed the test of relevance and admissibility, were always admissible in evidence. See Agbi V Ogbe(2006) 11 NWLR (Pt. 990) 65; & Atanda V Ifelagba(2003) 17 NWLR (Pt. 849) 274, 288. Therefore, the lower Court rightly admitted the statements to the Police of DW2, DW3 and DW4/Respondent as well as the Police Report in evidence as Exhibits 9, 10, 11 and 12. I also resolve issue two in favour of the Respondent. PER JUMMAI HANNATU SANKEY, J.C.A.
APPEAL: WHEN THE APPELLATE COURT CAN EVALUATE EVIDENCE IN A MATTER
Thus, it is only where the trial Court abdicates its sacred duty of evaluation of the evidence and approbation of the weight to be attached thereto, or when it demonstrates that it had not taken proper advantage of his having seen and heard the witnesses testify, that the matter becomes at large for the appellate Court to evaluate the evidence, provided the evidence does not involve the credibility of witnesses. See Wachukwu V Owunwanne(2011) LPELR-3466(SC) 48; Yadis Nig. Ltd V GNIC Ltd(2007) LPELR-3507(SC); Gbadamosi V Dairo (2007) LPELR-1315(SC) 17; Ale V Adeleye (2014) LPELR-22782(CA)29; Lawal V Ohida(2009) LPELR-8372(CA) 57. PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. SEBASTIAN AHE DEKE
2. MR. AHE GABRIEL NYITAR DEKE Appellant(s)
JUMMAI HANNATU SANKEY, J.C.A.(Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Benue State holden at Makurdi, delivered on 30-06-16 by Itodo, J. The Appellants, as Plaintiffs, sued the Respondent before the trial High Court seeking, amongst other reliefs, a declaration of title to land and an injunction as well as damages. The Respondent joined issues with the Appellants and also Counter-claimed for the land in dispute and damages.
From the perspective of the Appellants, the facts leading to the Appeal can be summarized as follows: In a suit filed at the trial High Court sitting in Makurdi, the Appellants, as Plaintiffs, sought a declaration of title over a plot of land situate in Makurdi against the Respondent. The dimension of the land was not pleaded but evidence was adduced through witnesses who stated that the land was measured variously as 70ft x 50ft and 100ft x 150ft respectively. The Plaintiffs contended that the land was given to the Defendant on a temporary basis but that he had refused to vacate the land despite entreaties to him to do so, and instead, he was setting up permanent structures thereon and claiming ownership thereof. At the close of trial, the lower Court dismissed the Plaintiffs? claim and found in favour of the Defendant/Counter claimant mainly on the ground of laches and acquiescence.
From the Respondent?s perspective, the facts which led to the dispute over the land is as follows: The Respondent purchased a parcel of land measured at 100ft2 x 50ft2 situate besides Benue Breweries Makurdi in Benue State, from the 2nd Appellant sometime in the year 2003. He has since then been in full possession, built an apartment followed by a three-room apartment. It was while he was erecting a four-bedroom apartment, after being on the land for nine (9) years undisturbed, that the Appellants came up with the claim that they had only put the Respondent on the land temporarily, as they did not out rightly sell the land to the Respondent. The Appellants? had argued that if they had actually sold the land to the Respondent, he would have produced a written agreement and/or acknowledgment of receipt in that regard. However, the Respondent contend that despite their best efforts, the 2nd Appellant from whom he transacted, failed to issue him with a receipt of purchase of the land and that the dispute was taken before elders of the area where the 2nd Appellant admitted to receiving payment for the land and the area purchased was further delineated and agreed upon.
The trial High Court, in its Judgment of 30th June, 2016, dismissed the Appellants’ claims and granted the Counter-claim of the Respondent. Aggrieved, the Appellants filed their Notice of Appeal on 16-08-16, wherein they complained on appealed on four grounds.
At the hearing of the Appeal on 05-03-19, the Court?s attention was drawn to the Notice of death o
