ULEGEDE v. MBAPUUN
(2021)LCN/15764(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, May 18, 2021
CA/MK/189/2014
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
BARR. SAMUEL ULEGEDE (SUING THROUGH HIS LAWFUL ATTORNEY PROMISE ULEGEDE) APPELANT(S)
And
TYONA MBAPUUN RESPONDENT(S)
RATIO
THE POSITION OF LAW REGARDING MATTERS STRUCK OUT
The legal position concerning matters struck out is as held in a plethora of apex Court decisions such as the case of OWOH & ORS V ASUK & ORS (2008) LPELR-2853(SC) where it held thus:
“Striking out of the Plaintiffs/Appellants’ action certainly does not finally determine the respective rights of the parties in the action, nor does it adjudicate ultimate rights of the parties in the dispute placed before the trial Court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or right effectively remain pending and can be revived by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order for relisting under the appropriate rules of the trial Court on such terms as may be granted on application. See WOLUCHEM v. WOKOMA (1974) 3 S.C. 153 at 170-171 where this Court said – “We simply draw attention to the well-known rule of practice that the Court is without power to review any matter which it has been struck out save on the application of either party.” Per MOHAMMED, J.S.C.
See also the case of PANALPINA WORLD TRANSPORT (NIG.) LTD. V J.B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR-2902(SC) which said:
“At this juncture, it is imperative, that I amplify on the position of the law as supported by the Rules. When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that, while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor v. Ngene (2007) All FWLR pt.362 pg.1836; Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88.” Per ADEKEYE, J.S.C.
See also the following: AJIJOLA V RASAKI (2019); DUROSIMI V ADENIYI & ANOR (2017) LPELR-42721(CA) and IYOHO V EFFIONG & ANOR (2007) LPELR-1580(SC) where the apex Court held thus:
“I am, all the same, to observe pointedly even though briefly that where as in this instance an application as per suit No. C./Misc.68/98 has been struck out as constituting an abuse of process it goes without more that the said case has terminated; the bottom having been knocked off the case. And on the authorities of Amaefule v. State (1988) 2 NWLR (Pt. 75) 156, (1988) 1 NSCC (vol. 19) 669 LL 3550; Woluchem v. Dr. Inko-Tariah (1974) ECSLR (vol. 4) 616; Registered Trustees of Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 75 E-F; and A.M. Soetan v. Total Nig. Ltd. (1972) 1 SC 20, the Court cannot, however much it tried, revive the matter which it has struck out save on the application of either of the parties. PER NIMPAR, J.C.A.
THE POSITYION OF THE LAW ON THE JURISDICTION OF A COURT TO HEAR AND ADJUDICATE ON A MATTER
The issue is not because the Court below lacked jurisdiction but because the new suit in the form of counterclaim is an abuse of process. The Court could not have lost jurisdiction because a party abuses the process of Court. Jurisdiction is bestowed either by the Constitution or statute; see ONYENOBI V. AMADI & ORS (2013) LPELR-22041(CA) where the Court held that:
“Now, it is trite law that Courts of law are creation of either the Constitution or statute; and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In that respect, no Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1.” Per TSAMMANI, J.C.A
Furthermore, there is procedural jurisdiction which is different from substantive jurisdiction. The Court had substantive jurisdiction but the counterclaim was abuse of process and being the later suit, it should have been struck out for being so. The fact that time to reapply for relisting has expired notwithstanding, because the trial Court has the power to extend the time provided under the Rules for the taking of a step. Therefore, the contention that time has lapsed and the suits are not pending is not tenable, they can be activated by an application. PER NIMPAR, J.C.A.
DIFFERENCE BETWEEN A SUIT STRUCK OUT AND A MATTER DISMISSED ON THE MERIT
It is trite that there is a difference between a suit struck out and a matter dismissed on the merit, see IN RE: APEH & ORS (2017) LPELR-42035(SC) wherein the apex Court held thus:
“… I observe that the motion, though treated elaborately, was only STRUCK out and not DISMISSED. Thus, as the said motion was not dismissed by this Court, I find myself in agreement with the submission of learned counsel for the applicants in his reply brief that the applicants are at liberty to bring the application over and over again. Unfortunately, the law has not set any time limit for presentation or representation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when an action is struck out, it is still alive and could be resuscitated by the plaintiff/appellant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a suit/case/application/appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally, where a matter is dismissed on ground of abuse of Court process, it is subject to be dismissed and it cannot be relisted. Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted. See: Jimoh v Starco Nig. Ltd. (1998) 7 NWLR (Pt 558) 523; Harriman v Harriman (1989) 5 NWLR (Pt 119) 6; Jadesimi v Okotie Eboh (1986) 1 NWLR (Pt 16) 276. On the other hand, where a matter is simply struck out for a reason non-compliance with a provision of law, rule and or practice; where a point of objection is raised (which point can be complied with, thereafter), where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to re-file that process after same has been brought in compliance with the correct position of the law, rule or practice as may thereof be required.” Per MUHAMMAD, J.S.C.
And furthermore, the case of MULTICHOICE NIGERIA LTD. V. AKPAN (2014) LPELR-22681(CA) where the Court held thus:
“In law, there is a distinction between an order of “striking out”, and “dismissal” of an action by a Court. Striking out means disposing of an action or matter, temporarily, and not on the merit. Depending on the reason(s) for such an order and the law, an action or matter may be re-filed or restored in another Court or by the Court. An order of dismissal, ordinarily, means disposing of a matter or case on the merit of the issues heard and determined finally as between the parties before the Court. The order is final and subject only to an appeal and cannot, in the absence of statutory provisions, be re-opened or reviewed by the Court that made it. See Okeke v Modu (1969) (470) 121 at 127. From the meaning of and effect of the two distinct orders, it is clear that where a case or matter is incompetent in law, the defect goes to the jurisdiction of the Court before which it was brought and renders it incompetent to adjudicate over it. The incompetence of the case robs the Court of the requisite competence/jurisdiction to entertain the case and without jurisdiction, the basis for the exercise of judicial authority and power to conduct proceedings in the case by way of determination on the merit, would be absent. In such situations, the only order that can properly be made is one striking out the case for want of jurisdiction. See Bronik Motors Ltd. v Wema Bank Ltd. (1983) 6 SC, 158; Ajomale v Yarduat (1991) 5 NWLR (191) 257, (91) 5 SC, 200.” Per GARBA, J.C.A. PER NIMPAR, J.C.A.
WHETHER OR NOT THE PROSECUTION IS BOUND TO CALL A HOST OF WITNESSES TO PROVE ITS CASE
The trial Judge also questioned why the Appellant did not call other family members to affirm the fact of gift, it is settled that a party is not bound to call a host of witnesses as long as he can prove his case before the Court, see AFOLALU V. STATE (2010) LPELR-197(SC) wherein the apex Court held thus:
“The law does not impose any obligation on the prosecution to call a host of witnesses to prove its case, all it needs to do is to call enough material witnesses to prove its case and in doing so, it has a discretion in the matter. The right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Where the prosecution fails to call a particular witness there is nothing stopping the defence from calling that witness. Olayinka v. State (2007) 9 NWLR pt. 1040 pg. 561, Imhanria v. Nigerian Army (2007)14 NWLR pt. 1053 pg. 76.” Per ADEKEYE, J.S.C.
And the case of SHOBOWALE & ANOR V. ADEBANJO & ANOR (2018) LPELR-444109(CA) wherein the Court held thus:
“…a party does not need to call a host of witnesses to prove its case. It is enough if learned counsel chooses to call even a sole witness if the evidence adduced would establish the party’s case. It is at the discretion of a party or his counsel. A party can pick and choose which witness to call and is not bound to call a particular witness. It is not the number of witnesses called by a party that determines the success or failure of a case but the quality of the evidence of the witnesses that have testified. See, A.G KWARA STATE VS. ALAO (2000) 9 NWLR (PART 671) P. 84 and AGIH V EJINKEONYE & BROTHERS LTD. and ANOR (1992) 3 NWLR (PART 228) P.200 at PP. 211 – 213.” Per UWA, J.C.A. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering The Leading Judgment): This Appeal is against the decision of the High Court of Justice, Benue State sitting in Makurdi delivered by HON. JUSTICE E. N. KPOJIME on the 30th May, 2014 wherein the lower Court dismissed the case of the Appellant on the grounds that he failed to prove his case and struck out the counterclaim of the Respondent. The Appellant, dissatisfied with the judgment, filed a Notice of Appeal dated 10th July, 2014 setting out 8 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. I shall do so shortly. The Appellant bought a property known as Plot No. 1666 at No. 28 Inikpi Street, High Level, Makurdi from one Terese Mbapuun by a deed of conveyance dated 1st August, 2006. The assignor was given the property as a gift from his father in his life time before the father died intestate and the assignor later extended the Letter of Administration to include the property sold to the Appellant. The gift by the father was not through a gift deed and so it was not registered. There were 3 initial Defendants who allegedly interfered with Appellant’s right of ownership claiming that the property was not allocated to the assignor by elders of the larger family who shared the deceased’s estate to his children. One of the initial Defendants died in the course of trial and the second one went underground so their names were struck out of the suit, thus, leaving the present Respondent. The challenge and interference by all the initial Defendants led to the filing of the suit where the Appellant claimed the following reliefs:
a. DECLARATION that by Deed of Assignment between Terese Mbapuun entered into on the 1st August, 2006, the property known as No. 1666 located at No. 28 Inikpi Street High Level, Makurdi was assigned to the plaintiff.
b. DECLARATION that the unnecessary interference of the defendants with the plaintiff’s legal right to the property is unwarranted illegal and malicious.
c. DECLARATION that the actions of the Defendants particularly the 1st Defendant leading the pack in chasing Plaintiff and his agents out of the main flat and putting the same under lock and keys and going on to rent the same out and collecting rents therefrom are acts of trespass for which the Plaintiff is entitled to damages.
d. DECLARATION that the actions of the Defendants preventing the Plaintiff from taking rentage on the property since the property was assigned to the Plaintiff has worked financial loss to the Plaintiff.
e. AN ORDER of the perpetual injunction restraining the Defendants, by themselves, agents, servants, privies, through and by whomsoever from further interference with the rights and peaceful enjoyment of the property for whatsoever reasons.
f. Special damages of N2,377.000.00 representing rentage on the main flat of 3 bedrooms for the period November, 2006 to August, 2010 at a yearly rent of N500,000,00 and mesne profit in the sum of N41,666.67 monthly from September, 2010 until possession is given to the Plaintiff.
g. AN ORDER of the Court directing the Defendants to vacate and cause to be vacated the said main flat of 3 bedrooms on the said property by themselves, or through any person that is on the same at the instance of the Defendants.
h. AN ORDER of perpetual injunction restraining the Defendants by themselves, agents, assigns, servants, through and by whomsoever, from further interference with the Plaintiff’s quiet enjoyment of the property and trespass on the property.
i. General Damages of N10,000.000.00 for trespass.
j. Legal fees of N500,000.00 for prosecuting this case.”
Issues were joined in the pleadings, the Defendant denied liability and counterclaimed. The matter went to full trial with parties calling 2 witnesses each in proof of their respective pleading. They are PW1: HENRY TERESE MPAPUUN; PW2: ULEGEDE PROMISE; DW1: MIRACLE TERSOO MBAPUUN; DW2: TORKENDE IKWE GBOR. The following documents were tendered as Exhibits 1, 1A, 2, 3, 4, 4A, 5, 5A, 5B, 6, 7, 8, 9, 10, 11, 11A, 11B, 11C, 11D, 11E, 12, 13, 14, 14(1), 14A, 15, 15A, 15B, 16, 16A, 16B, 17, 17A, 17B and 17C. After hearing and adoption of Counsel’s address and consideration, the Court below struck out the counterclaim and dismissed the case of the Appellant, thus, the appeal.
Pursuant to rules of the Court, parties filed and adopted their briefs at the hearing of the appeal. The Appellant’s brief settled by OCHA P. ULEGEDE, ESQ., dated 24th day of October, 2014, filed on the same day and it distilled 6 issues for determination as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
1. Whether the counter claim of the Respondent at the trial Court is competent and the trial Court has jurisdiction to entertain the same in the circumstances of this case. (Distilled from Ground 2)
2. Whether Exhibit 14A (1) gave the property, plot No. 1666 (a three bedroom flat and a boys quarters), at No. 28, Inikpi Street, High level, Makurdi, Benue State to the Respondent. (Distilled from Ground 5)
3. Whether there is any evidence before the trial Court to support the holding of the learned trial Judge that property in plot No. 1666 (a three bedroom flat and a boys quarters) at No. 28 Inikpi Street High Level Makurdi, Benue State was given to Respondent in the purported distribution of the properties of late Timothy Teryima Mbapuun carried out on 29th December, 2001 by the elders of the family including DW2. (Distilled from Ground 6)
4. Whether the Appellant established his case to be entitled to the reliefs sought from the Court. (Distilled from Ground 1, 4 and 7).
5. Whether the learned Judge was right to have struck out the counterclaim rather than dismiss the counter claim in the circumstances of the case. (Distilled from Ground 3)
6. Whether the learned trial Judge was right to have set aside the assignment of property, plot No. 1666, 28 Inikpi Street, High Level, Makurdi, Benue State to the Appellant in the circumstances of case. (Distilled from Ground 8).
The Respondent failed and neglected to file a brief and did not appear to contest the appeal despite being served with all relevant processes and hearing notices. Consequently, with leave of Court, the appeal was heard on Appellant’s Brief alone.
APPELLANT’S SUBMISSION
ISSUE ONE
The Appellant in arguing issue one submitted that, the trial Court lack the requisite jurisdiction to entertain the Respondent’s counterclaim and also to grant the reliefs therein because, the counterclaim was incompetent. The Appellant reproduced the relief sought in the counterclaim to submit that the reasoning behind the learned trial Judge’s decision to entertained the counterclaim is because the dismissal as represented by Exhibit 2 dated 11th June, 2010 was not on the merit and same was liable to be set aside upon application by the Respondent within 6 days from the day the judgment was delivered, consequently, the trial Judge held that he had jurisdiction to determine the counterclaim. The Appellant also reproduced the holding of the trial Judge at pages 407 of the Record of Appeal to submit that the learned trial Judge erred when he found for the Respondent even when the period the Respondent had to apply to have the judgment of the 11th June, 2010 set aside and restore it to the cause list had elapse as provided for under Order 30 Rule 4(3) of the Rules of the High Court, therefore, the Respondent cannot competently file the counterclaim except and until the order of the trial Court which dismissed the Respondents’ claim in Exhibit 2 is set aside. The Appellant relied on OBARO V. HASSAN (2013) ALL FWLR (PT. 697) 677; ONU V. STATE (2013) ALL FWLR (PT. 683) 2019; OKOYE V. NIGERIAN CONST. AND FURNITURE CO. LTD. (1991) 6 NWLR (PT. 199) 501; MAFIMISEBI V. GOVERNOR, ONDO STATE (2013) ALL FWLR (PT. 705) 294 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587 wherein the principle of what constitutes jurisdiction is restated. According to the Appellant, the reliefs sought by the Respondent in the counterclaim are the same reliefs named in Exhibit 2 which was dismissed on the 11th June, 2010 and that order was never set aside by any Court of competent jurisdiction before filing the counterclaim, therefore, the trial Court lacked jurisdiction to entertain the counterclaim and the Appellant urge the Court to so hold and to allow the appeal.
ISSUE TWO AND THREE
The Appellant argued that the trial Judge’s failure to evaluate the evidence before him particularly as it relates to the alleged sharing of the properties left by Timothy Teryima Mbapuun at his death. He submitted that the trial Judge held that both Exhibit 14 and 14A were tendered by the Appellant’s Counsel therefore and that the documents belong to the learned Counsel who is not a party to the suit. According to the Appellant, Exhibits 14/14(1) and 14A/14A (1) are both the same document and were never part of the Plaintiff’s case, Exhibit 14(A) was introduced by the Respondent into the case vide paragraphs 4, 5 and 6 his counterclaim and the basis for which he claimed the property was given to him in the sharing that was allegedly carried out by elders on 29th December, 2020 (See Pages 165, 172-183 of the Record of Appeal). The Appellant contested both the alleged distribution and authenticity of Exhibit 14A in his defence to the counterclaim (see pages 220-221 of the record of appeal) and submits that Exhibit 14 and 14A are documentary evidence and should be taken as they are and for what they contain, that the law does not permit admission of oral evidence to vary, add or alter, citing Section 128(1) of the Evidence Act, 2011. Thus, a look at the contents of the two documents confirm that they are not one and the same particularly Exhibit 14A. He submits further that Exhibit 14 which was given to PW1 on 12th January, 2002 is supposed to be photocopy of Exhibit 14A when the handwritten additions on the right hand margins were not made.
The Appellant reproduced the content of Exhibit 14 and 14A for the Appellate Court to compare. And referred to the holding at page 409 of the record of appeal where the trial Court admitted there were additions to Exhibit 14A(1) with a biro and the Appellant submitted that such addition can only be made by the Respondent because, he was the one that tendered it after realizing that without such addition, it cannot link it to the property and could not sustain the contention that it gave the property to him. DW1 under cross examination said that no amount of alterations made to Exhibit 14A that can assist the case of the Respondent and sustain the decision of the trial Court because, neither of the two Exhibits represented the distribution list of the properties of late T. T. Mbapuun made on the 29th December, 2001 by 5 elders of the family and signed by them which gave the property in question to the Respondent. Appellant argued that the finding occasioned injustice to the Appellant.
Continuing, the Appellant submits that PW1 led evidence to show that the handwritten additions made on the right hand margins of Exhibit 14A were made by the Respondent after the assignment of the property to him and for the purpose of the series of Court cases embarked upon by the Respondent as represented by Exhibit 2, 3, 16, 16A, 16B, 17, 17A, 17B and 17C before the trial Court. According to the Appellant, this evidence is in line with the Statement of defence of the Appellant to the Counterclaim which the Respondent did not traverse and the Appellant was not obligated to lead evidence on, as the same is taken as admission, citing Section 20 of the Evidence Act, 2011 and SODIPO v. OGIDAN (2007) ALL FWLR (PT. 393) 67. The Appellant reproduced the holding of the trial Court at page 408 to submits that it confirmed the forgery contention of the Appellant to the effect that Exhibit 14A (1) is indeed a forgery of Exhibit 14(1). Therefore, it is wrong for the trial Judge to hold that there was no forgery established because, both documents are documents of the Appellant’s Counsel who tendered them. The Appellant avers that in answer to issues 2 and 3, that Exhibit 14A (1) did not give property to Respondent, neither did Exhibit 14. The Respondent did not place any evidence before the trial Court that the property was given to him in the alleged distribution and there is therefore no evidence before the trial Court to support the trial Judge’s finding to that effect and the Court is urged to so hold and allow the appeal.
ISSUE FOUR
The Appellant submits that he acquired the property from PW1 after carrying out the required investigation at the probate registry of the High Court of Benue State which issued Exhibit 5 in favour of PW1. According to the Appellant, PW1 told him that the property was given to him as a gift after which he took possession and exercised acts of ownership over the same by putting tenants and engaging agents who managed the property for him and were collecting rents and remitting same to him even before the death of the common father to him and the Respondent, with the knowledge of the family members, Exhibits 5, 6, 15, 15A-B, 17, 17A-17C were admitted in evidence and the Respondent never contested the authenticity of any of these Exhibits. The Appellant reproduced the main reason why the trial Judge disbelieved PW1’s testimony and they are that:
1. PW1 did not believe that the gift made to him by Exhibit 6 would stand and thus applied for extension of the letters of administration to cover the property before going ahead to assign the same to the Appellant. However, PW1 debunked that fact by his answer under cross examination at page 331 of the Record of appeal, therefore the trial Judge was wrong to hold that PW1 has by the totality of his evidence created doubt on the authenticity of Exhibit 6. The trial Judge did not give the reason for his decision even when PW1’s evidence stands unchallenged, citing ONAFOWOKAN V. THE STATE (1987) 7 SCNJ 233.
2. The gift made to him by the late father as shown by Exhibit 6 was known to the members of the family but PW1 could not bring any member of the family to testify to that fact, however, it is trite law that a party is not bound to call a particular witness to prove his case if he could do so otherwise, citing UBN PLC V. CHIMAEZE (2007) ALL FWLR (PT. 364) 303. PW1 is not bound to call members of his family to testify, the evidence placed before the Court is overwhelming.
3. The trial Court raised a query on why PW1 failed to challenged Exhibit 14 which was made available to him on the 12th January, 2002, however, by his disposition at page 218 of the Record of Appeal, he had informed the family of the gift his father gave but they accused him of over indulgence by their father.
4. The trial Judge personal opinion of the unfairness of the action of the late T. T. Mbapuun, for giving all the properties which he had in Makurdi town to PW1 who is neither the eldest nor the youngest son. The trial Judge displayed displeasure and unhappiness to the said act of the late T. T. Mbapuun in making gift of all his properties in Makurdi town to PW1 to the exclusion of the other children which the Court below translated into self induced doubt of the gift of PW1.
The Appellant contends that the Respondent’s counterclaim is based on Exhibit 14A and the trial Judge held that no evidence was led in support of the counterclaim and went on to strike it out. Consequently, the only document before the trial Court on who owned the property is Exhibit 6 which is in favour of the PW1, therefore, it is an error in law for the trial Judge to rely on Exhibit 14A to hold that the property belongs to the Respondent and set aside Exhibit 10. The Appellant submits that the Respondent alleged that PW1 obtained Exhibit 5 by fraud, however, the trial Judge did not set aside Exhibit 5, so it remains valid and binding on the parties, Exhibit 5 is the authority of the PW1 to assign the property and the trial Court did not fault it. Therefore, the trial Judge was wrong to hold that the Appellant failed to prove his case and proceeded to dismiss the Appellant’s case which occasioned a miscarriage of justice on the Appellant. It is trite that, proof in civil cases is on preponderance of evidence or balance of probability as held in OBIAZIKWOR V. OBIAZIKWOR (2007) ALL FWLR (PT. 371) 1602. The Appellants avers that he proved his case as required by law and trial Judge erred in law when he dismissed the Appellant’s case. The Appellant urge the Court to resolve issue four in his favour.
ISSUE FIVE
The Appellant reproduced relief 4 of the Respondent’s counterclaim which is at page 167 of the Record of Appeal to submit that the relief is based on the alleged distribution list of the properties of late T. T. Mbapuun (Exhibit 14 and 14A) purportedly carried out by elders of the family on 29th December, 2001 and by which the property was given to him along with his late brother, Terzungwe, however, DW2 Respondent’s witness confirmed that Exhibit 14 and 14A are not the distribution list for the sharing of the properties of T. T. Mbapuun carried out on 29/12/2001 by 5 elders of the family and which gave the property to the Respondent, therefore, there was no evidence of the sharing before the trial Court. The Appellant reproduced the holding of the trial Court at page 417 of the records which struck out the counterclaim of the Respondent instead of dismissing same. He argued that, assuming without conceding, that the trial Judge considered the counterclaim by not discarding the testimony of the Respondent and his witness, was there any evidence in proof of the counterclaim before the Court, on which the trial Judge would rely on to grant the reliefs 1 -3? The Appellant referred to the reliefs sought in the counterclaim, pages 167, 165, 172-183, testimonies of DW1 and DW2 at pages 342-345 and 347 where they tendered Exhibit 14A which was admitted without objection from the Respondent. Under cross examination, DW2 knocked out the credibility of both Exhibits 14 and 14A. The question is upon which evidence would the trial Judge rely upon to grant all the reliefs it said it would have granted. There was absolutely no evidence to support same, the trial Judge was descending into the arena rather than being neutral in the circumstances of the case.
ISSUE SIX
The Appellant submits that the trial Judge struck out the counterclaim filed by the Respondent which included a relief which sought to set aside the assignment of the property (Exhibit 10) tendered by the Appellant (See p. 167 of the record of appeal) and having struck out the counterclaim, the trial Judge went ahead to set aside Exhibit 10, a relief not before him. The Appellant avers that the trial Judge has no power to do so and his action is not supported in law. The Appellant reproduced the evidence and answers given under cross examination by DW2 which knocked out Exhibit 14 and 14A and submit that the holding of the trial Court on Exhibit 14 and 14A relied upon to set aside the Exhibit 10 and declare it null and void was wrong in law (See p. 416 of records).
According to the Appellant, the trial Judge doubted Exhibit 5 which is unfounded and unsupported, Exhibit 6 is a valid and subsisting document which the trial Judge did not set aside because, the Respondent could not prove that it was obtained by fraud and Exhibits 14 and 14A, from the testimony of DW2 are not the distribution list made and signed by 5 elders of the family on 29th December, 2001 which allegedly gave the property to the Respondent. The Appellant also submits that the order to set aside the assignment of the property occasioned a miscarriage of justice to the Appellant. The Appellant reproduced the content of Exhibits 14A/14A(1) and highlighted the differences but the trial Judge relied on it in holding that the property in dispute is given to the Respondent and therefore rejected the case of the Appellant (see p. 64-72/583-591 of the Record). The Appellant urge the Court to set aside the order of the trial Judge nullifying Exhibit 5, the assignment of the property to the Appellant and to resolve issue six in his favour.
As observed earlier, the Respondent did not file any Brief contesting the Appeal
RESOLUTION
Despite the fact that the Appeal is not contested, the Court shall still determine the appeal on the merit. The issues donated by the Appellant shall however be adopted for determination and I shall do so seamlessly for expediency and to avoid repetition in view of the challenge to evaluation of evidence that runs through all the issues for determination. I shall from the onset consider issues 1 and 5 together because they both touch on the counterclaim while the other issues shall be determined in the order presented by the Appellant.
ISSUES ONE & FIVE
It is evident on record that the Respondent had previously instituted two separate suits concerning the same property in question, however, both suits were struck out and the Respondent did not take any step to relist same as required by Rules of Court below. The processes filed in both suits were admitted as Exhibits 2 and 3 before the trial Court. The legal position concerning matters struck out is as held in a plethora of apex Court decisions such as the case of OWOH & ORS V ASUK & ORS (2008) LPELR-2853(SC) where it held thus:
“Striking out of the Plaintiffs/Appellants’ action certainly does not finally determine the respective rights of the parties in the action, nor does it adjudicate ultimate rights of the parties in the dispute placed before the trial Court for determination. In this situation, where the claims or rights of the parties have not been examined or looked into by the trial Court and appropriate findings made thereon resulting in a determination, these claims or right effectively remain pending and can be revived by any of the parties in any other Court of concurrent jurisdiction or even the same Court that handed down the striking out order for relisting under the appropriate rules of the trial Court on such terms as may be granted on application. See WOLUCHEM v. WOKOMA (1974) 3 S.C. 153 at 170-171 where this Court said – “We simply draw attention to the well-known rule of practice that the Court is without power to review any matter which it has been struck out save on the application of either party.” Per MOHAMMED, J.S.C.
See also the case of PANALPINA WORLD TRANSPORT (NIG.) LTD. V J.B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR-2902(SC) which said:
“At this juncture, it is imperative, that I amplify on the position of the law as supported by the Rules. When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that, while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor v. Ngene (2007) All FWLR pt.362 pg.1836; Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88.” Per ADEKEYE, J.S.C.
See also the following: AJIJOLA V RASAKI (2019); DUROSIMI V ADENIYI & ANOR (2017) LPELR-42721(CA) and IYOHO V EFFIONG & ANOR (2007) LPELR-1580(SC) where the apex Court held thus:
“I am, all the same, to observe pointedly even though briefly that where as in this instance an application as per suit No. C./Misc.68/98 has been struck out as constituting an abuse of process it goes without more that the said case has terminated; the bottom having been knocked off the case. And on the authorities of Amaefule v. State (1988) 2 NWLR (Pt. 75) 156, (1988) 1 NSCC (vol. 19) 669 LL 3550; Woluchem v. Dr. Inko-Tariah (1974) ECSLR (vol. 4) 616; Registered Trustees of Ifeloju Friendly Union v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 75 E-F; and A.M. Soetan v. Total Nig. Ltd. (1972) 1 SC 20, the Court cannot, however much it tried, revive the matter which it has struck out save on the application of either of the parties.
The quarrel here is that, since the two previous suits are technically alive on the cause list of the Court below and was only in a sleep mode to be reactivated by an application, the pertinent question the Appellant asked is: could the Respondent be right to file a counterclaim seeking the same reliefs as done in this case? The trial Judge held that the Respondent is allowed to do so. My opinion as informed by the authorities cited above is that the previous suits being substantive suits or action and not just applications that could be easily abandoned and a fresh one filed, filing fresh actions with the same reliefs would amount to abuse of Court process since the 2 previous suits are still pending and not withdrawn and which could be activated on an application. The respondent could have applied to discontinue the two previous suits to enable him conveniently counterclaim in the suit of the Appellant. As it is, inspite of the judgment here, the Respondent still has 2 suits still pending. I think it is clumsy and not clean in the circumstances of this case. The advantages of a counterclaim could make the Court below countenance the counterclaim but steps should have been taken to finally remove the previous suits from the cause list. I agree with the Appellant that the trial Judge erred. However, the error is not one that divests the Court below of jurisdiction. The issue is not because the Court below lacked jurisdiction but because the new suit in the form of counterclaim is an abuse of process. The Court could not have lost jurisdiction because a party abuses the process of Court. Jurisdiction is bestowed either by the Constitution or statute; see ONYENOBI V. AMADI & ORS (2013) LPELR-22041(CA) where the Court held that:
“Now, it is trite law that Courts of law are creation of either the Constitution or statute; and therefore, their jurisdiction is circumscribed or limited to those conferred on it by the Constitution or the statute. In that respect, no Court has jurisdiction to hear and adjudicate on a matter brought before it, unless it has such jurisdiction donated or conferred on it by the Constitution or other statute. See EHUWA v O.S.I.E.C. (2006) 18 NWLR (Pt.1012) p.544: IWUAGOLU v AZYKA (2007) 5 NWLR (pt.1028) p.613 and UWAZURIKE v A.G. FEDERATION (2007) 8 NWLR (Pt.1035) P.1.” Per TSAMMANI, J.C.A
Furthermore, there is procedural jurisdiction which is different from substantive jurisdiction. The Court had substantive jurisdiction but the counterclaim was abuse of process and being the later suit, it should have been struck out for being so. The fact that time to reapply for relisting has expired notwithstanding, because the trial Court has the power to extend the time provided under the Rules for the taking of a step. Therefore, the contention that time has lapsed and the suits are not pending is not tenable, they can be activated by an application.
It is trite that there is a difference between a suit struck out and a matter dismissed on the merit, see IN RE: APEH & ORS (2017) LPELR-42035(SC) wherein the apex Court held thus:
“… I observe that the motion, though treated elaborately, was only STRUCK out and not DISMISSED. Thus, as the said motion was not dismissed by this Court, I find myself in agreement with the submission of learned counsel for the applicants in his reply brief that the applicants are at liberty to bring the application over and over again. Unfortunately, the law has not set any time limit for presentation or representation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when an action is struck out, it is still alive and could be resuscitated by the plaintiff/appellant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a suit/case/application/appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally, where a matter is dismissed on ground of abuse of Court process, it is subject to be dismissed and it cannot be relisted. Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted. See: Jimoh v Starco Nig. Ltd. (1998) 7 NWLR (Pt 558) 523; Harriman v Harriman (1989) 5 NWLR (Pt 119) 6; Jadesimi v Okotie Eboh (1986) 1 NWLR (Pt 16) 276. On the other hand, where a matter is simply struck out for a reason non-compliance with a provision of law, rule and or practice; where a point of objection is raised (which point can be complied with, thereafter), where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to re-file that process after same has been brought in compliance with the correct position of the law, rule or practice as may thereof be required.” Per MUHAMMAD, J.S.C.
And furthermore, the case of MULTICHOICE NIGERIA LTD. V. AKPAN (2014) LPELR-22681(CA) where the Court held thus:
“In law, there is a distinction between an order of “striking out”, and “dismissal” of an action by a Court. Striking out means disposing of an action or matter, temporarily, and not on the merit. Depending on the reason(s) for such an order and the law, an action or matter may be re-filed or restored in another Court or by the Court. An order of dismissal, ordinarily, means disposing of a matter or case on the merit of the issues heard and determined finally as between the parties before the Court. The order is final and subject only to an appeal and cannot, in the absence of statutory provisions, be re-opened or reviewed by the Court that made it. See Okeke v Modu (1969) (470) 121 at 127. From the meaning of and effect of the two distinct orders, it is clear that where a case or matter is incompetent in law, the defect goes to the jurisdiction of the Court before which it was brought and renders it incompetent to adjudicate over it. The incompetence of the case robs the Court of the requisite competence/jurisdiction to entertain the case and without jurisdiction, the basis for the exercise of judicial authority and power to conduct proceedings in the case by way of determination on the merit, would be absent. In such situations, the only order that can properly be made is one striking out the case for want of jurisdiction. See Bronik Motors Ltd. v Wema Bank Ltd. (1983) 6 SC, 158; Ajomale v Yarduat (1991) 5 NWLR (191) 257, (91) 5 SC, 200.” Per GARBA, J.C.A.
The suits covered by Exhibits 2 and 3 were not determined on the merit and therefore, they could be reopened on an application.
On the order of Court below striking out the counterclaim after issues were joined in the pleadings, evidence proffered and due consideration of the claim, that is, after a full trial, the trial Judge duly evaluated evidence and having found that the evidence adduced by the counterclaimant was incompetent merely struck out the counterclaim instead of a dismissal order. It is curious why the Court below could, after finding that a party failed to prove his case as a Claimant (in the counterclaim), that the claim will be merely struck out. The Respondent had sought for the following reliefs by the counterclaim:
“a. An order setting aside the extended letters of administration granted to the 3rd Defendant for want of title in favour of the 2nd defendant over plot No. 1666.
b. An order setting aside the purported sale of plot No. 1666 by the 2nd defendant to the 1st defendant for want of title.
c. An order of permanent injunction restraining the 1st and 2nd defendants from trespassing/ or laying claim to plot No. 1666 and
d. N10,000,000.00 general damages.’’
The Respondent in proof called 2 witnesses in support of the allegation, that the distribution did not give the property in question to the assignor (PW1) and was given to Terzungwe and the Respondent. He alleged that the extended Letter of Administration (Exhibit 6) was fraudulently obtained. The written statements on Oath of the two witnesses were struck out for being incompetent. Therefore, there was no evidence before the trial Court in support of the counter claim and it was left without evidence, thus not proved. It was not withdrawn but went to full trial and upon evaluation, there was no evidence upon which the reliefs sought could be granted. Arising from the backdrop of the fact that a counter claimant is like a Plaintiff, the burden is on him to prove his case and succeed on the strength of his case. All his pleadings had no evidence to support same which meant his claim was not proved. If not proved, the duty of the trial Judge was to dismiss the claim because at that stage, issues had been joined and evidence called. The evidence struck out was done at judgment stage upon the objection of Defendant to counterclaim. It is different from a party abandoning his claim for failure to call evidence, it cannot be abandoned when evidence was called and evaluation of evidence disclosed, there was no legally admissible evidence to establish the claim. The trial Judge at pages 417 said:
“that if I had considered the counter claim, I would have granted the reliefs sought, except for the amount claimed as general damages.”
It is strange for the trial Judge to say “if I had considered the counterclaim” after the consideration of the counterclaim. The above remark attracted the attention of the Appellant. I do not see the need to waste the valuable time of the Court on a statement made per incurium. It is not the basis of the decision appealed against and was merely a wish which was not materialized. The reliefs in the counterclaim all failed for lack of proof and therefore the Court shall not go into discussing an issue that is of no utilitarian value. The arguments on these mere wish of the trial Judge is discountenanced. The point in issue is not a live issue. I shall however state clearly that the trial Judge fell into error by striking out the counter claim. Where a counter claim is not proved, the only order the Court is empowered to make is dismissal of the counterclaim. The order striking out the counterclaim is hereby set aside. I hereby dismiss the counterclaim for lack of merit having not been proved. The Respondent failed to establish same. I resolve issue one and five in favour of the Appellant.
Going ahead with the resolution, the trial Court notes that the Appellant treated issues two and three together. Upon a careful review the two issues. I find both issues talking about the same thing and the main question is whether there was evidence before the trial Court showing that the Respondent was given the property in question. Starting from Exhibits 14 and 14A which were supposedly meant to be the same document and the Appellant contended in the pleadings that Exhibit 14A was a forgery because of obvious alterations made in long hand which purported to give the Respondent and his brother Terzungwe the property in issue. I agree with the Appellant that the finding made by the trial Court that Exhibit 14 A was the document of the Appellant is wrong, it was pleaded by the Respondent though tendered under cross examination through DW2 by the Appellant. The Appellant pleaded and tendered Exhibit 14. The Court below having found that Exhibit 14A had alteration, thereby making it different or a forgery in legal terms to Exhibit 14 should have simply declared it so and discountenanced it. Furthermore, DW2 completely destroyed the two documents, that is Exhibit 14 and Exhibit 14A when he said he witnessed the distribution list and affixed his thumb print on it, both do not bear his thumbprint. What was against his name is a signature not thumbprint and he denied it. The trial Judge found that the two documents are not the same and found that Exhibit 14 was obviously first in time and Exhibit 14A came in subsequently. The Court below asked pertinent questions which should have convinced the Court below to make relevant findings concerning the alterations but it was shy of doing so. The obvious conclusion is that Exhibit 14A is a forgery and cannot be relied upon. The details of forgery were highlighted by the Appellant’s counsel at pages 8 of the Appellant’s Brief as follows:
“EXHIBIT 14 AND EXHIBIT 14A:
Item on page 2 is of the both Exhibits shows that late Timothy T. Mbapuuun left two flats at Inikpi St. High Level, Makurdi town and is so stated as follow:
“1. Two [2] flats at Inikpi Street, High level, Makurdi, Benue State.”
The sharing by which the Respondent alleged the property in question was given to him relates to the properties in Makurdi town and are items 2 and 3 on page 8 of Exhibit 14 and 14A admitted by the trial Court as Exhibits 14[1] and 14A[1] as follows:
Exhibit 14[1], item 2:
“2. Terzungwe/Tyona. Three bedrooms located at Inikpi Street, [B] High Level, Makurdi, Benue State.” See P. 517 of the Record.
Exhibit 14A [1], item 2: “2. Terzungwe/Tyona. Three bedrooms located at Inikpi Street, No. 28 [B] High Level, Makurdi, Benue State.” See P. 517 of the Record.
Exhibit 14[1], item 3: “3. Terese-Three bedrooms flat located at Inikpi Street, [A] High Level, Makurdi.” See P. 517 of the record.
Exhibit 14A [1], item 3: “3. Terese-Three bedrooms flat located at Inikpi Street, [A] High Level, Makurdi.” See P. 517 of the record.”
Therefore, when Exhibit 14A is knocked off, there is no evidence to justify or support the contention that the property in dispute was given to the Respondent because even Exhibit 14 did not allocate the property to him. The Respondent had averred to his ownership of the property courtesy of the distribution made by elders reflected on Exhibit 14A which he also frontloaded but was tendered under cross examination. Obviously, it contrast the copy tendered by the Appellant-Exhibit 14, which is a copy and that was after the Respondent failed to produce the original copy and it has no handwritten additions that are on Exhibit 14 A.
The Respondent also confessed when in answer to a question under cross examination said he has no evidence to prove that the property was given to him. When shown Exhibit 14 he admitted that it is the distribution list of his father’s estate and the property in contention is not listed in Exhibit 14 and so the Respondent cannot say he was given the property by virtue of the distribution list as he contended. This is because, Exhibit 14A is obviously an altered list and cannot be relied upon to make a finding in favour of the Respondent. It is hereby discountenanced.
The Appellant contested both documents and his contention was that exhibit 14A was made after the sale of the property to the Appellant and after interest had been transferred to the Appellant. This was not challenged and PW1 told the Court below that he informed the Elders distributing the estate of his father that the said property had been given to him by the late father before he died. Equitably, the sale to the Appellant took place before the distribution of the deceased’s Estate and the elders knew the house had been sold, can title still go to another person? The Appellant acquired equitable title and was in possession before the Respondent pushed him out. There was no evidence of distribution to the Respondent and therefore his interference with the Appellant’s possession and ownership of property was unlawful and a clear case of trespass, the trial Judge erred in not appreciating that the claim was not challenged according to law as there was no evidence from the Respondent to contest the claim of the Appellant, the reliefs sought for by the Appellant should have been granted other misgivings not backed by law notwithstanding.
On whether the Appellant established his case before the Court below as argued under issue four, the claim by the Appellant stems from the gift of the property in issue given to PW1 by his father in his life time and this was backed by Exhibit 6 and PW1 took steps to make it part of the letter of administration issued to administer the father’s estate since the gift deed was not registered, though documented during the father’s life time and Exhibit 5 shows the inclusion of the property on the letter of administration to enable legal title pass onto the Appellant. These two documents have not been set aside nor nullified. PW1 told the trial Court he exercised acts of ownership such as putting tenants, collecting rents and general management of the property even before the death of the father without any challenge from anybody. The interference by the Respondent started after their father died. The trial Judge disbelieved PW1 concerning the gift without any basis. The Court below premised the disbelief on the action of PW1 in formalizing the gift by including it as one of the properties in the letter of administration. The simple explanation is, since the donor was dead, he cannot register the gift of the property which was not in a deed form because he died intestate, PW1 can only acquire a legal title through a letter of administration and since one was already issued, it was only expedient to apply to extend it to cover the property before a valid assignment, the property and registration at the Lands Office. The assignment cannot be valid without a legal instrument authorizing PW1 to deal with the property. The trial Judge missed the point and it occasioned a miscarriage of justice. The Probate Registry viewed all documents and found them valid for the extension which was granted. More so, the letter of administration was not nullified, so it remains valid and it was not challenged by evidence from the Respondent, who ultimately did not have evidence before the Court. It is obvious the Court below digressed from the live issues before the Court on sentimental grounds. To doubt Exhibit 6 without other facts is perverse, to believe or disbelieve a witness is not off handed but must be backed by facts, see OKORO V. STATE (1998) LPELR-2493 (SC) wherein the apex Court held thus:
“It is trite that a trial Court must give the reason to believe the evidence of a witness and disbelieve the other. There is no magic in the expression ‘believe’ or ‘disbelieve.” Per OGUNDARE, J.S.C.
And the case of AKPORIAYE V. OKUMAGBA & ORS (1998) LPELR-5235(CA) where the Court held thus:
“There is no doubt that there are a number of irreconcilable conflicts in the pieces of evidence which the learned trial Judge just lumped up and believed or disbelieved without giving any reason for his stand. The law is settled that it is not enough for a trial Judge to merely dismiss evidence of witnesses under the guise of saying that he believes or disbelieves any evidence led before him without giving reasons for coming to that conclusion. Failure to give good reason for believing or disbelieving any particular evidence, particularly when there are material conflicts in the pieces of evidence which the learned trial Judge believed or disbelieved, as in the instant case, could constitute an improper evaluation of the evidence led at the trial which could give the appellate Court the power to interfere with the evaluation of the evidence or findings made by the trial Court. See CHUKWUOCHA V. ONUOHA (1991) 4 N.W.L.R. (Pt. 184) 234; and HIGHGRADE MARITIME SERVICES LTD. V. F.B.N. LTD. (1991) 1 N.W.L.R. (Pt. 167) 290.” Per AKINTAN, J.S.C.
A document that has not been challenged cannot be basis of disbelief by the trial Court, in doing so the trial Judge will argue the case for one of the parties and he is impartial umpire. A document generally speaks for itself and oral evidence cannot be added to it. Exhibit 6 was not challenged and there is no contrary evidence to make it look doubtful neither was it looking altered and therefore the trial Judge erred in concluding it was not true. That was a Judge making a case for a party when it held as follows:
“PW1 has by the totality of his evidence created doubt on the authenticity of Exhibit 6”.
The Court below was under a duty to evaluate the evidence and highlight exactly what made Exhibit 6 doubtful. The evidence of the Appellant was not challenged. The simple expression “it created a doubt” without identifying the particulars of doubt from the evidence before the Court was a fundamental error. The fundamental question is, how could PW1 transfer title to another without a letter of administration when the registered titleholder died intestate? And Exhibit 14A could not also entitle whoever was given the property competence to change the title not being an instrument of title. To enable PW1 manage or deal with the property after the death of the father intestate, a letter of administration is the vehicle to use and maybe the Court below wanted PW1 to process a separate letter of administration but that is certainly not expedient, it is illogical waste of time. I hereby set aside the finding and holding that Exhibit 6 is invalid.
The trial Judge also questioned why the Appellant did not call other family members to affirm the fact of gift, it is settled that a party is not bound to call a host of witnesses as long as he can prove his case before the Court, see AFOLALU V. STATE (2010) LPELR-197(SC) wherein the apex Court held thus:
“The law does not impose any obligation on the prosecution to call a host of witnesses to prove its case, all it needs to do is to call enough material witnesses to prove its case and in doing so, it has a discretion in the matter. The right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Where the prosecution fails to call a particular witness there is nothing stopping the defence from calling that witness. Olayinka v. State (2007) 9 NWLR pt. 1040 pg. 561, Imhanria v. Nigerian Army (2007)14 NWLR pt. 1053 pg. 76.” Per ADEKEYE, J.S.C.
And the case of SHOBOWALE & ANOR V. ADEBANJO & ANOR (2018) LPELR-444109(CA) wherein the Court held thus:
“…a party does not need to call a host of witnesses to prove its case. It is enough if learned counsel chooses to call even a sole witness if the evidence adduced would establish the party’s case. It is at the discretion of a party or his counsel. A party can pick and choose which witness to call and is not bound to call a particular witness. It is not the number of witnesses called by a party that determines the success or failure of a case but the quality of the evidence of the witnesses that have testified. See, A.G KWARA STATE VS. ALAO (2000) 9 NWLR (PART 671) P. 84 and AGIH V EJINKEONYE & BROTHERS LTD. and ANOR (1992) 3 NWLR (PART 228) P.200 at PP. 211 – 213.” Per UWA, J.C.A.
The Court below breached that rule when the trial Judge specifically named witnesses it was only ready to believe. The question is, these family members that the trial Judge demands they must testify, they are to prove which point? The Respondent also did not call family members to disprove the assertion of the Appellant. The Court below was fishing for reasons to disbelieve clear and uncontradicted evidence adduced before the Court. It is not the business of the Court below or any trial Court for that matter to choose and pick evidence adduced by a party when the law has not disqualified such evidence.
Undoubtedly, the distribution by the elders could not have given the property to PW1 because it had been given out by the father before his death and going by the evidence before the Court below, the distribution did not also give the property to the Respondent, nor was it given to anybody. It therefore acknowledged the fact that it was given to PW1. The equitable right of PW1 was first in time, it attached to the property in the life time of the father and no other equitable interest was established before the trial Court to warrant comparing the equities. It is trite that when the equities are equal, the first in time gets priority, it is ranked in order of creation, see AYANWALE V. ODUSAMI (2011) LPELR-8143(SC) which held as follows:
“Where two contending parties in a land in dispute derive title from a common vendor the first in time takes priority. This is summed up in the latin maxim “quo prior est tempore, potior est jure” meaning the first in time has the strongest title.” Per ADEKEYE, J.S.C.
See also ZACCALA V. EDOSA & ANOR (2017) LPELR-48034(SC) and EJUETAMI V. OLAIYA & ANOR (2001) LPELR-1072(SC).
Furthermore, the evidence of DW2 under cross examination disqualified both Exhibits 14 and 14A when he said he thumb printed the distribution list and none of the two is thumb printed. It therefore means there is no evidence of any sharing of the estate of the PW1 and Respondent’s late father before the Court.
The Court below questioned why PW1 did not challenge Exhibit 14 since he was given a copy earlier. I do not see the logic in the query because, the said Exhibit 14 did not distribute the property in dispute as established by DW2. The trial Judge erred when it held that PW1 was given Exhibit 14A. He never said so, instead it was Exhibit 14 that he was given on the 12th January, 2002 going by evidence before the trial Court. Exhibit 14A only surfaced when the Respondent frontloaded it in support of the counter claim. Therefore, it was not the document of the Appellant, neither was it that of PW1. It was the document of the Respondent. The reasoning of the Court below is faulty because the evidence of PW1 was not challenged in any way and had told the Court below that he gave notice to the elders that he was not going to be part of the exercise they were embarking upon or honour their resolution as it concerns the property in issue. In any case, what was there to challenge? There was no genuine copy of the distribution tendered before the Court. If DW2 who witnessed the sharing told the Court that neither Exhibit 14 nor 14A have his thumb print and he thumb printed the distribution list. There was no need to proceed against a forged document, it will be an exercise in futility. Furthermore, there was no evidence before the Court that the deceased Mr. T. T Mbapuun had a property known and described as 3 bedrooms at Inikpi Street, High level, Makurdi Benue State and Exhibit 6 does not mention any property with such description, so Exhibit 14A referred to a different property and reason why PW1 could not have questioned the distribution of a property not given to him by his father. That being the case, any document having such property is invalid since no such property exist and PW1 had no obligation to challenge a non-existent property.
The Appellant also drew the Court’s attention to the comments and opinion expressed by the trial Judge that the deceased father over indulged PW1. That is the prerogative of a father and nobody can question such a discretion, whether he has several children or not. He made a choice on whom to give the property in his life time. A person can, in his life time, give out his property and the Court has no power to frown at such a gift not in number of what was given to PW1 or their location. The Court below erred because, that conclusion was not supported by evidence and it was perverse, it occasioned a miscarriage of justice.
The Appellant became owner of the property in question by virtue of Exhibit 5 which was not challenged and was not set aside by the Court. The assignment was duly registered and there was no relief in the main suit seeking its nullification and with the collapse of the counter claim, the Court below erred in granting a relief that was not sought for by any of the parties before the Court and the setting aside of the assignment was done without jurisdiction and gratuitous. The Court below discountenanced the evidence adduced by the Respondent and struck out the counter claim, so on which evidence did it rely on to make an order nullifying the assignment over the property in issue? The order was at large and not in favour of any party before the Court which makes it the more intriguing as to the source of the order. The trial Judge just went on a frolic and made the order after expressing displeasure that PW1 got choice properties located in Makurdi to the detriment of his brothers, well, like Joseph who got the coat of many colours and it became his albatross, the trial Judge should have allowed the brothers to fight PW1 and not pick up the battle on their behalf. A Judge is an independent arbiter to decide matter before it dispassionately, that attribute was not fully deployed in this case.
I hereby set aside the order made nullifying the assignment made to the Appellant by virtue of Exhibit 5 and hold that the assignment is valid.
The claim of the Appellant included special and general damages whereby its relief 6 claim as follows:
“Special damages of N2,377.000.00 representing rentage on the main flat of 3 bedrooms for the period November, 2006 to August, 2010 at a yearly rent of N500,000,00 and mesne profit in the sum of N41,666.67 monthly from September, 2010 until possession is given to the Plaintiff.”
Special damages by its nature must be particularized in the statement of claim and supported by evidence before the Court, see ONYIORAH V. ONYIORAH & ANOR (2019) LPELR-49096(SC) wherein the apex Court held:
“Special damages must be specially pleaded and strictly proved by the claimant. To succeed in a claim for special damages, the claimant must plead the special damages and give necessary particulars and adduce credible evidence in support. The claimant must satisfy the Court as to how the sum claimed as special damages was quantified.”
Per RHODES-VIVOUR, J.S.C.
Going by the pleadings of the claimant, he pleaded the issue of rent and the yearly rent over the property and what the monthly amount which he made under the mesne profit was also specified. The evidence of PW2 also in details supported the pleadings in respect of the special damages. There was no defence to the claim. The evidence of PW2 was not challenged. The Court therefore has no justification to deny the award for the Appellant having done what the law required of him. I hereby award the special damages.
Having resolved all the issues in favour of the Appellant, the appeal is meritorious and succeeds. The judgment of the trial Court delivered by HON. JUSTICE E. N. KPOJIME on the 30th day of May, 2014 is hereby set aside. And in its place I enter judgment for the Appellant as follows:
i. A DECLARATION that by the Deed of Assignment between Terese Mbapuun entered into on the 1st August, 2006 over the property known as No.1666 located at No. 28 Inikpi Street High Level Makurdi, the property was assigned to the Appellant (Plaintiff).
ii. A DECLARATION that the unnecessary interference from the Respondent (defendant) with Appellant’s (Plaintiff’s) legal right to the property is unwarranted and illegal.
iii. A DECLARATION that the actions of the Respondent (Defendant) preventing the Plaintiff from taking rent on the property since it was assigned to him has caused financial loss to the Appellant (Plaintiff).
iv. AN ORDER of perpetual injunction restraining the Respondent (Defendant) by himself, agents, servants, privies, through and by whosoever from further interference with the rights and peaceful enjoyment of the property for whatever reasons and against further trespass on the property.
v. AN ORDER is made directing the Respondent (Defendant) and/or his proxies to vacate and cause to be vacated the property by themselves or through any person that is on the property at his instance.
vi. I hereby award special damages in the sum of N2,377,000.00 (Two Million, three hundred and Seventy-Seven thousand Naira) only representing rent on the main flat of 3 bedrooms for the period of November, 2006 to August, 2010 at a yearly rent of N500,000,00.
vii. I hereby award mesne profit in the sum of N41,666.67 monthly from September, 2010 until possession is given to the Appellant.
I reject the claim for legal fees which was not proved, it is also a special claim being special damages it must be strictly proved.
I make no order as to cost.
IGNATIUS IGWE AGUBE, J.C.A.: Having read in advance, the draft of the leading judgment delivered by my learned brother, Hon. Justice Y.B. Nimpar, JCA; I am in total agreement with his reasoning and conclusions which are in line with the trite positions of the law as established in a plethora authorities of the Apex Court and this Honourable Court. I have nothing more to add than to adopt the position taken by my noble brother on all the issues formulated for determination.
Accordingly, I am in total agreement with my noble Lord that the learned Trial Judge was wrong and without justification in coming to the conclusion that the Appellant did not prove his case wherein the Appellant’s case was dismissed and the counterclaim of the Respondent struck out. I am also in complete agreement with my learned brother’s order granting the reliefs sought by the Appellant against the Respondent in the lower Court.
On the whole, this Appeal succeeds and is hereby allowed. I also set aside the judgment of the learned Trial Judge and I abide by the order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead judgment just delivered by my learned brother NIMPAR, JCA., and I agree with the reasoning and conclusions reached therein.
The appeal is imbued with merit and is accordingly allowed by me.
The judgment of the High Court of Benue State, sitting in Makurdi, per Hon. Justice E. N. Kpojime, J., and delivered on 30th May, 2014 is also set aside by me.
I abide by the consequential order made in the leading judgment.
Appearances:
O.D. Obande For Appellant(s)
…For Respondent(s)