UNUKOGBON & ANOR v. ERHEMUOMA & ORS
(2020)LCN/15772(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, November 20, 2020
CA/AS/146/2012
Before Our Lordships:
AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Between
1. PHILLIP OFOMALA UNUKOGBON 2. MRS. LYDIA OKPEGBORO (Substituted By Order Of Court Made On 18/3/19) APPELANT(S)
And
1. PETER ERHEMUOMA (Suing For Himself And On Behalf Of Erhemuoma Family) 2. MISS VERA ERHEMUOMA 3. MR. ALFRED ERHEMUOMA (Joined By Order Of Court Dated 23rd Day Of February 2004) RESPONDENT(S)
RATIO
THE POSITION OF THE LAW ON THE DECISION OF A COURT.
The settled position of the law is that a decision/judgment of a Court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by another Court of competent jurisdiction. See the case of BABATUNDE V. OLATUNJI (2000) LPELR-697(SC). Indeed, see the case of UZOCHUKWU V. ERI (1997) LPELR-3454(SC) wherein the Supreme Court long ago stated thus: “xxxx. There is always a presumption in favour of the correctness of a decision of a trial Court on the facts and an appellate Court requires an appellant to displace that presumption and show up the error arising from those facts which make the decision wrong before it will intervene.” AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE CLAIM FOR DECLARATION OF TITLE
The need for composite plan in a situation of this kind is clear in view of the conflicting evidence and litigation plan of the parties. The question now is on who lies the responsibility to file the composite plan. The law has answered this question. The answer is that it is on the plaintiff claiming title over the land since the law is that such a party has a duty to ascertain the land in dispute. Although there is no claim for declaration of title, the requirement for the identity of the land to be ascertain (sic) is also a burden for the party seeking an injunction either interlocutory or perpetual to discharge. See xxx
On who lies the burden to prepare and present a composite plan in ADEYORI & ORS. VS. ADENIRAN (Supra) the Court held:
“Where both parties are claiming the same piece of land and their surveyors only tender their respective plans without making any comparison between the two plans it is the duty of the plaintiff to file a composite plans in order to show the relative position and portion of the land claimed by either of the parties.” AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE RESPONSIBILITY OF FILING A COMPOSITE PLAN IS ON THE PLAINTIFF
The law is therefore clear, that the responsibility of filing a composite plan is on the plaintiff. Has the plaintiff done that. Clearly not as Exhibit A1 and C are not composite plan. This is therefore fatal to the case of the plaintiff. The case before this Court in my opinion is not whether the plaintiff is entitled to exercise ownership and possessing (sic) right over the 730.230 square meters leased to their father but rather where the Defendants are building falls within the 730.230 square meters. If the plaintiff can prove that it does then I will grant their whole claim except for the claim of damage which I will access. The duly is squarely on the plaintiff to ascertain the land in dispute. The plaintiff ought to show by composite plan the extent of the 730.230 square meter granted to their father and what portion of it is in dispute. He did that in Exhibit C but in view of Exhibit D the plaintiffs should have gone further to file a composite plan. This omission is fatal to the plaintiff’s case. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE PROOF OF A COUNTER CLAIM AND THE MAIN ACTION
Suffice it to say that this position of the law, cannot apply to a defendant who in his wisdom chooses to file a counter claim in an action brought by a plaintiff. It is settled law that a defendant need only react to the case of a plaintiff or claimant against him, by pleading the facts on which he relies in resisting the claims of the plaintiff or claimant. However, where the defendant is not only resisting the claims of the plaintiff or claimant, but wishes to advance a case of his own as well, he must in addition set up facts on which he relies for his case on the counter-claim, in his pleading. This is against the backdrop of the position of the law that a counter-claim though tried together with the main action, is a separate action that has its own pleading. It is for this reason as well that a plaintiff to the main action and who is the defendant in the counter-claim, if or where he intends to defend the counter-claim to the main action must file a reply to the new facts pleaded in the statement of defence as well as a defence to the averments relied upon by the defendant in the proof of the counter-claim. See the cases of JEJE V. ENTERPRISE BANK LTD (2015) LPELR-24829(CA) and OSAGIE & ORSV. OBAZEE & ORS (2013) LPELR-21994(CA). AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE POSITION OF THE LAW ON THE SUCCESS OF A COUNTER CLAIM
It is against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself, the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See the case of OLUBODUN V. LAWAL (2008) 35 NSCQLR 570 at 644. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 24/6/2011, by the High Court of Justice, Delta State, Ughelli Judicial Division presided over by Honourable Justice Ebiowei Tobi (as he then was) (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The case was tried on pleadings filed and exchanged by the parties. The respective cases of the parties as captured in the judgment of the lower Court which spans pages 234-256 of the records of appeal (hereafter to be simply referred to as “the records”), read: –
“This suit for a declaration of title to land commenced in 1995 at the Effurun Judicial Division as suit No. EHC/325/95. The original plaintiff was Ehermuoma Erheraghere. He sued the present defendants who were the original Defendants on the creation of the Otor-Udu Judicial Division, the case was transferred to the Udu Judicial Division in May 2004. In the Udu Judicial Division, the Plaintiffs changed as Peter Erhemuoma sued in a representative capacity. On 23/2/04 before the case was transferred to this Court, Miss Vera Erhemuoma, Miss Mabel Erhemuoma and Mr. Alfred Erhemuoma were joined as 2nd – 4th Plaintiffs. The Defendants remained as defendants.
The operative pleading in this suit is the 2nd further amended statement of claim filed on 5/10/04 and the 3rd further amended statement of defence filed on 2/12/04. There is the defence to the counter claim filed by the Plaintiff. In support of their case, the 2nd plaintiff testified in favour of the Plaintiffs and called one witness. On the side of the Defendants, the 2nd Defendant testified and called one witness.
The Plaintiffs claim against the defendants are for:
1. An order that the plaintiffs are entitled to remain and leave leasehold of all that piece or parcel of land (already built by the Plaintiff) measuring approximately 730.230 square meters lying and situate along Oye Street (Ogode Bush), Ovwian and which said piece or parcel of land is well known to all the parties.
2. An order that the plaintiffs and the Defendants are entitled to and bound by the terms, conditions and covenants entered into in the Deed Lease dated the 17th day of August, 1974 made between the plaintiff and the defendants in respect of the aforementioned piece or parcel of land.
3. An order of interlocutory injunction restraining the Defendants, their agents, servants or privies from trespassing and erecting any building, structure or structures on the said piece or parcel of land.
4. An order of perpetual injunction restraining the Defendants, their agents, servant or privies from putting up any building or buildings on the said piece or parcel of land.
5. Plaintiffs claim the sum of N5,000,000 (Five Million Naira) only for compensation and damages suffered by the Defendants act of breaking and entering Plaintiffs land without permission or regard to existing agreement.
The above is the claim of the plaintiffs. The Defendants also have claims against the Plaintiffs. This is by way of counter claim. The Defendants counter claim against the Plaintiffs as follows:
1. A declaration that the Defendants, for themselves and on behalf of the Unukogbon family of Ovwian, are the owners in possession of the portion of the land lying and situate along Oye Street, (within Ogode Bush) which said portion of land has common boundary with the piece of land measuring 730.23 square meter leased by the defendants to the plaintiffs’ father by deed of lease dated 17/8/74.
2. A declaration that the plaintiffs claim to a portion of land outside the piece or parcel of land measuring approximately 730.230 square meters granted by the defendants to the plaintiffs (sic) father is unwarrantable, frivolous, fraudulent and speculative.
3. The sum of N10 Million (Ten Million Naira) being damages for trespass and malicious damage to defendant’s building materials.
Having further stated that: –
“The above clearly shows that both parties have the responsibility to establish their claims by balance of probability. This means as regard the fire (sic) claims of the plaintiff, (sic) as required by law the onus is on the plaintiffs to establish their case. On the side of the defendants, their obligation is to prove their case as it relates to the 3 reliefs in the counter claim.
This is the appropriate place to review the evidence of the parties to establish their case. I will start with the plaintiff’s case.”
The lower Court after reviewing the evidence adduced by the parties, and having also averted its mind to the written addresses of the said parties, and having equally evaluated the evidence adduced before it, in respect of the main case and counter-claim, stated thus: –
“Learned counsel to the Defendant raised two issues for determination they are:
1. Whether the plaintiff have proved by preponderance of evidence that the activities of the defendant of the land in dispute amounted to an act of trespass and/or a breach of any of the covenants in the agreement between the parties to Exhibit A.
2. Whether by the plaintiffs claim as continued in paragraph 25(A)-(E), the Court can grant and/or make an order where there is no substantive relief.
xxxx
He finally submitted that the defendant has established the counter claim. He urged Court to dismissed the plaintiffs claim and give judgment as per the counter claim.
Learned counsel to plaintiff, B. Ugege Esq., submitted that the plaintiffs have proved their case and urged Court to give judgment to his client and dismiss the counter claim. He identified 4issues for determination.
1. Whether the plaintiffs went outside the land sold to them by the Defendant.
2. Whether the Defendant shall not be bound by the Terms and conditions of Exhibit (sic) A and A1.
3. Whether the Plaintiff’ has made out a case for an order of perpetual injunction.
4. Whether the Defendants have made out the claim against the Plaintiff (sic) in their counter claim.
He addressed the issues in the reverse. He started with issue 4.
xxxx.
Based on the pleadings and the evidence before this Court, the following are settled facts either based on common grounds of agreement between the parties or based on my evaluation of the evidence before me:
1. The original plaintiff, Mr. Ehrarnuoma Erheroghere is dead and he was substituted by Mr. Peter Erhemuoma. The 2nd – 4th plaintiffs were joined in this suit. AII the present plaintiffs on record are children of the original plaintiff.
2. The Defendants (sic) family is the original owner of a large piece of land including the land in dispute in Oye Street (Ogode Bush) Ovwian.
3. The Defendant leased a portion of their vast land measuring 730.230 square meters to the original plaintiff (sic), father of the plaintiffs.
4. The lease is evidenced by an agreement which states the terms and conditions of the leased (sic) which all the parties have agreed to comply with. This agreement is Exhibit A made in 1974.
5. Exhibit A1 which is the survey plan attached to Exhibit A was made in 1991 and therefore was not attached to Exhibit A when the Defendant (sic) signed it.
6. The 2nd Plaintiff who testified for the plaintiff was a little girl when the transaction look place and did not or could not understand the dimension of the transaction.
7. All the evidence presented by the 2nd plaintiff is based on what her father told her.
8. The Defendants are the landlord of the plaintiff (sic) for a 99 years lease from 1974.
9. The Defendant (sic) put the father of the Plaintiff (sic) on the land and based on that the plaintiff (sic) has (sic) exercised ownership and possessing (sic) right over the land.
10. The portion in dispute is not the whole land leased to the plaintiff (sic) but a portion of the730.230 square meters.
11. The plaintiff (sic) produced Exhibit C through their surveyor PW1 and the Defendant (sic) produced Exhibit D through their surveyor, DW1.
12. Exhibits C and D are different in all material respects as it (sic) relates (sic) to the issue at stake.
13. The defendant (sic) has (sic) an uncompleted building in the land in dispute.
14. The land leased to the Plaintiff’s (sic) father measures 730.230sq meters.
15. The counter claim was not assessed and paid for.
From the evidence before me and the submission of counsel, this judgment shall address the following issues.
1. xxx
2. Is Exhibit A1 binding on the defendants since it was prepared 17 years after Exhibit A was prepared and signed.
3. Is the evidence of 2nd plaintiff purely hearsay and what is the probative value to be attached to it.
4. When there are conflicting survey plans between the parties what is a Court supposed to do.
5. Is this a case where composite survey plan is required and if so, on which party is the responsibility to so file and what is the legal effectof the failure to file same.
6. Have the plaintiffs proved their case in their statement of claim and whether the Defendants have proved their counter claim:
This judgment shall attempt to provide answers to the above questions using the evidence and the law as the basis. I may not take the question in the order in which they appear above, before I zero down on specific answers to the above, it will not be out of place to bring to the front burner some established legal principles that will help in answering the above questions.
In the first place, the law is settled that the Onus in all civil matters is on the plaintiff to prove on a balance of probability to establish its case. See xxxx
To secure judgment, the plaintiff will succeed on the strength of his case and not depend on the weakness of the defendant’s case except that weakness support the plaintiffs case. See xxx
ln land matters, the plaintiff has a duty to show the exact land that he wants judgment on. It is the plaintiffs (sic) responsibility to presentbefore the Court an ascertainable land. A Court cannot grant a relief of declaration and injunction over land for an unascertainable land. See xxxx
The exception to this rule however is if the land is known to both parties. See xxxx
The plaintiffs therefore to prove their case against the defendants have to succeed on the strength of their case. When the attention of this Court goes to the counter claim, then the Onus to prove the counter claim now lies on the strength of the defendant’s case.
This may just be the appropriate time to address the issue raised in the address of the defence counsel to the effect that there is no substantive relief on which the live ancillary reliefs of the plaintiff call stand. I do not agree with submission of counsel to the Defendant that the absence of a claim for declaration of little (sic) makes all the relief ancillary. This is new learning and I am not ready to be involved in that new learning. The plaintiffs’ claim is for the enforcement of the leasehold agreement and for injunction and damages. In my opinion the above reliefs call stand on their own as substantive reliefsand not necessarily ancillary reliefs. I therefore do not accept the submission of learned counsel to the defendant (sic) in this regard. I must however mention that relief C for interlocutory injunction is not proper in the light of relief D which is for perpetual injunction. Relief C is therefore irregular and I have no difficulty to strike it out at this stage.
Secondly, all pleadings that are not backed up by evidence are deemed abandoned just as evidence not backed up by pleadings amount to no issue. Seexxxx
There are some issues that the parties in this suit want me to make pronouncements on but I am resisting the temptation because whatever I say on those issues will not materially affect this case. One of such issues is what the rent over other land in that area at that time goes for. That is a voyage of discovery that will not achieve any useful purpose. This is because Exhibit A, which is the lease agreement that evidence the lease is not disputed by any of the parties and so all tile parties are bound by the terms and conditions in Exhibit A. The law in agreement isthat a Court cannot read into a contract what is not intended and that the parties are bound by the terms they have willingly contracted to in a document. See xxxx
From Exhibit A, the following are agreed to by the parties:
1. The Defendant (sic) family is owner of the land in dispute which was leased to the father of the plaintiff (sic).
2. The portion lease (sic) is measuring 730.230 square meters and the lease is for a period of 99 years.
3. The consideration for the lease as N2,000 and this was paid by the Plaintiff’s (sic) father to the Defendant (sic).
4. The Plaintiffs (sic) father and his assigns are to observe the terms and conditions of the lease.
5. The survey plan is to be prepared later showing the correct dimension, boundaries and position.
6. The plaintiff’s (sic) father is to pay a yearly rent of N30 which must be paid on 31st day of December each year.
7. On the plaintiffs (sic) father fulfilling the terms and conditions, they are to enjoy peaceable possession.
The above is what the parties consented to in entering into the agreement.The issue therefore is not what is agreed but whether the plaintiff did not exceed the 730.230 square meters leased to their father. In converse, the issue is whether the uncompleted building of the Defendant is outside the 730.230 square meters agreed by both parties as the portion leased to plaintiff’s (sic) father. This is the main issue for determination. If I hold that the uncompleted building is within the 730.230 square meters granted to the plaintiff’s (sic) father then the plaintiff (sic) will succeed but if on the other hand, I hold that the uncompleted building is outside the 730.230 square meters, then the plaintiff’s action will fail and be dismissed. In deciding on that issue, I do not need to know how much the land was sold for or rented for at the location of the land in dispute at that time. I therefore will not go on a voyage but rather address the narrow issue, whose responsibility it is to show the exact measurement of 730.230 square meters in the land in dispute. This now brings in the suit which of the surveyor plans Exhibits C and D to believe. If I accept Exhibit C as the correct survey plan, the plaintiff’s case will succeed but if on theother hand, I believe that Exhibit D is the correct plan of the land in dispute then the plaintiff action will fail.
Let me now in addressing this singular and narrow issue, address the subsidiary or ancillary issues I had raise (sic) earlier. I will start with issue 2, which is whether Exhibit A1 is binding on the parties. Learned counsel to the plaintiff submitted that it is. I do not agree with him because I agree with the evidence of the Defendant (sic) that when Exhibit A was signed, Exhibit A1 was not attached. He said it was attached 17 years later. I believe that evidence because in Exhibit A which the plaintiff’s (sic) father signed, it was clearly stated that the survey plan will be filed later. On the face of Exhibit A, it was executed on 17/8/1974 while Exhibit A1 was prepared on 2/2/91. This means between when the Defendant (sic) executed Exhibit A and when Exhibit A1 was prepared a period of 17 years passed, there is nothing on the face of Exhibit A or A1 that shows that the Defendant (sic) had knowledge of Exhibit A1 when Exhibit A was signed. Exhibit A1 is therefore not binding on the Defendants.
Taking Exhibit A1 further, there is noevidence that before the survey was done, the plaintiff had secured the land one way or the other by placing some landmark so that when they came to survey, they could get the appropriate land. The plaintiff (sic) can therefore not use Exhibit A1 as an estoppel on the Defendant (sic).
At this stage, I turn to the 3rd issue raised as to whether the evidence of 2nd plaintiff who testified for the plaintiff (sic) does not amount to hearsay? The 2nd plaintiff who testified for the plaintiffs on 17/2/05 to 18/6/05 is the star witness of the plaintiffs. This means that the evidence of 2nd plaintiff is key and relevant for the case of the plaintiffs. This is more so that the only witness apart from 2nd plaintiff was the surveyor. The 2nd plaintiff under cross examination admitted that she was barely 4 years old at the time of the transaction in 1974 and that as a result she did not know the extent of the land involved in the transaction. She capped it all during cross examination that all her evidence in Court is based on what her father told her. This in my opinion places less probative value on the evidence of 2nd Plaintiff. In law, the evidence of 2ndPlaintiff is hearsay evidence and as such it is not admissible. See xxxx.The law on hearsay evidence is settled. A Court will not admit and act on hearsay evidence if such evidence is meant to establish the truth of a fact. See xxxx.The 2nd plaintiff by evidence wants to establish that her father got the land in dispute from the Defendant. I agree that for as long as her evidence relates to the facts in Exhibit A, as it relates to this case, this Court can act on Exhibit A as a Court will not allow oral evidence to contradict the content of a document. See xxxx. The evidence of 2nd plaintiff is far beyond the fact of the transaction but she wants to establish that the portion leased to her father which is 730.230 square meters is inclusive of the portion of the Defendants uncompleted building. This is not an information that can be established by hearsay evidence. There is no way she can establish trespass by the defendant when she had said she does not know the exact land involved in the transaction. With due respect, the evidence of the 2nd plaintiff is not very helpful for the case of theplaintiffs as her evidence is purely hearsay and therefore not admissible. There is no probative value in her evidence. She even said she knows nothing about Exhibit B-B2. With the nature of the evidence of 2nd Plaintiff, I make bold the (to) say that the plaintiff cannot establish his case with the evidence of 2nd plaintiff. The evidence of 2nd plaintiff is not useful in establishing the case of the plaintiff. If the 2nd plaintiff’s evidence is not useful, what then can the plaintiffs use to establish their case. The plaintiffs are left with Exhibit A1, C and PW1 evidence to establish their case. Let me now turn to 4th issue that what should a Court do when there is conflicting litigation survey plan between the parties. In this case, the plaintiff called PW1 who produced Exhibit C while the Defendant called DW1 who tendered Exhibit D. Exhibit’s C and D are in conflict as to whether the Defendant has trespassed into the land leased to the father of the plaintiffs measuring 730.230 square meters. In such a situation like this, the law requiresthat a composition plan be made. There are conflicting plans before this Court. The plaintiffshave a litigation plan and the defendants filed a counter plan. Exhibit D which is the counter plan to plaintiff plan Exhibit C is done to counteract the accuracy and correctness of the plaintiff’s plan. This is the requirement of a counter plan. See xxxx
This now takes me to the fifth issue, which is whether a composite plan is necessary in this case. My direct answer to the inquiry as the fifth issue is that this kind of situation where there are conflicting survey plans among the parties, it is the requirement of the law that a composite survey plan be prepared and presented to the Court. This is more so that PW1 and DW1 evidence in Court in interpreting their various plans are completely different. Each of them says, it is his plan that is correct and that the plan of the other party is not correct. In this confusion created by experts, the law says a composite plan is mandatory.
In NNADI VS. OKORO (SUPRA) the Portharcourt (sic) Division of the Court of Appeal.
“As the identity of the land could only be reaches by comparison of survey plans, to discharge the burden on therespondent a composite plan is mandatory.”
Similarly, in IGWE VS. KALU (2002) FWLR (Pt. 97) 677, the Supreme Court held: “The purpose of filling a plan is to fix and delimit the land in dispute. In the instant case, since the identity of the land in dispute is unascertained (sic) a composite plan ought to have been filed”.
The need for composite plan in a situation of this kind is clear in view of the conflicting evidence and litigation plan of the parties. The question now is on who lies the responsibility to file the composite plan. The law has answered this question. The answer is that it is on the plaintiff claiming title over the land since the law is that such a party has a duty to ascertain the land in dispute. Although there is no claim for declaration of title, the requirement for the identity of the land to be ascertain (sic) is also a burden for the party seeking an injunction either interlocutory or perpetual to discharge. See xxx
On who lies the burden to prepare and present a composite plan in ADEYORI & ORS. VS. ADENIRAN (Supra) the Court held:
“Where both parties areclaiming the same piece of land and their surveyors only tender their respective plans without making any comparison between the two plans it is the duty of the plaintiff to file a composite plans in order to show the relative position and portion of the land claimed by either of the parties.”
The Supreme Court Per NnaemekaAgu J.S.C. was clear and specific on the point of whose responsibility it is to file a composite plan. The case of BANKOLE & ORS. VS. PELU & ORS. (Supra). The Court at page 550 held:
“xxx”
The law is therefore clear, that the responsibility of filing a composite plan is on the plaintiff. Has the plaintiff done that. Clearly not as Exhibit A1 and C are not composite plan. This is therefore fatal to the case of the plaintiff. The case before this Court in my opinion is not whether the plaintiff is entitled to exercise ownership and possessing (sic) right over the 730.230 square meters leased to their father but rather where the Defendants are building falls within the 730.230 square meters. If the plaintiff can prove that it does then I willgrant their whole claim except for the claim of damage which I will access. The duly is squarely on the plaintiff to ascertain the land in dispute. The plaintiff ought to show by composite plan the extent of the 730.230 square meter granted to their father and what portion of it is in dispute. He did that in Exhibit C but in view of Exhibit D the plaintiffs should have gone further to file a composite plan. This omission is fatal to the plaintiff’s case.
The 6th issue now to be addressed is whether the plaintiff has proved their case to secure judgment. I will take the relief one after the other. On relief 1, since there is no dispute that the plaintiffs are entitled to 730.230 square meter based on Exhibit A, it will not be proper to refuse this relief. Even in the counter claim relief, the Defendant counter claim is based on the portion outside the 730.230 square meters that was granted to the plaintiff’s father.
The second relief is also granted since both parties agree that Exhibit A is the evidence of the transaction.
Relief C is struck out while relief D is not granted because of the omission of filing a composite plan whichwould have properly ascertain whether the land the Defendant is building on is outside the 730.230 square meters Defendant granted plaintiff’s father. I also cannot grant relief (d). Relief (a) and (b) in paragraphs 21 of the 3rd amended statement of claim is granted while relief C is struck out and reliefs D and E are not grantable.
Let me now turn to the counter claim. In law, for the purpose of the counter claim, the defendant becomes plaintiff and the plaintiff becomes Defendant. It therefore means that all the plaintiff in the main suit required to prove or do will be required from the Defendant since in the counter claim he is the plaintiff. See xxxx”
This means that for the purpose of the counter claim, they need to prove their case on a balance of probability. The claim of the Defendant in the counter claim is as follows:
1. A declaration that the defendants, for themselves and on behalf of the Unukogbo family of Ovwian, are the owners in possession of the portion of the land lying and situate alone Oye Street (within OgodeBush) which said portion of the land hascommon boundary with the piece of land measuring 730.230 square meters leased by the Defendants to the plaintiff father deed of leased dated 17/8/74.
2. A declaration that the plaintiff’s claim to a portion of land outside the piece or parcel of land measuring approximately 730.230 square meters contained in the deed of lease dated 12/8/74 granted to the defendants to the plaintiff father is unwarranted, frivolous, overreaching, fraudulent and speculative.
3. The sum of N10m (Ten Million Naira) being damages for trespass and malicious damage to defendant building.
A key factor to consider in this counter claim is that the defendants need to show that the portion in dispute is a portion outside the 730.230 square meters they granted the father of the plaintiffs. This is key in the determination of the counter claim. In the counter claim, the defendant is not struggling with the 730.230 square meters portion but the portion outside it. The duty is squarely on the defendant to properly ascertain the land in dispute outside 730.230 square meters leased to plaintiffs father. Just like it was required of the plaintiff, I make the same demandof the Defendant, which is the need to file a composite plan. In the absence of that, the defendant’s case will run into a brick wall. I make bold to say that Exhibit D is not a composite plan. The reliefs in the counter claim are ordinarily grantable. But how can the relief be enforced if what consistent 730.230 square meters is not identified and ascertained before this Court.
Before I make my final order on the plaintiff’s claim and the defendant’s counter claim, I need to consider issue 1 raised by this Court whether the absence of filing fees paid on the counter claim makes it incompetent. xxxx
Despite the above finding, I cannot see my way clear to grant the counter claim reliefs as in view of the conflicting survey plans, the Defendant should file a composite plan. It is now clear from my finding and decision above that while I grant plaintiffs relief A and B, relief C is struck out but reliefs D and E are not grantable. In the same vain, the Defendants reliefs in the counter claim are grantable because both parties have failed to file a composite planwhich was necessary in this case to decide the case one way or another. The parties were expected to compare the plan of the other party and prepare a new plan bringing out the land in dispute based on the comparison. Neither PW1 or (sic) DW1 said the plan of the other before preparing Exhibit C and D respectively.
At this stage, the question is what is the appropriate decision to take at this stage. As to whether the Defendant has gone within the 730.230 square meters to build their house or the plaintiff has exceeded the 730.230 square meters raised (sic) to her father, answer to which reliefs D and E of the plaintiff and all the relief of Defendant counter claim depends. I order a non suit.
To appreciate when a non-suit can be ordered by a Court and whether this is an appropriate case for same, the decision of the Supreme Court in GEORGE VS. U.B.A PLC (1972) 8-9 SC 264 AT 281 is apt.
“xxxx”
In the absence of composite plan by either of the parties, I do not have satisfactory evidence to give judgment to either of the parties since this case is dependent onspecifically what measurement actually constitutes 730-230 square meter so as to determine whether the plaintiff has exceeded it or defendant encroached.
Based on that I order a non suit and make no order as to Court.”
Before proceeding further, I consider it pertinent to state that it is clear from the portion of the judgment re-produced above, that while the instant action was initiated by a lone Plaintiff, the Plaintiffs therein as at the date of judgment, were 4 in number. They are: (i) Mr. Peter Erhemuoma (suing for himself and on behalf of the Erhemuoma family); (ii) Miss Vera Erhemuoma; (iii) Miss Mabel Erhemuoma; and (iv) Alfred Erhemuoma. The Defendants therein were (i) Mr. Victor Unukogbon and (ii) Patience Unukogbon. However, in the notice of appeal that was lodged against the judgment of the lower Court, only three of the Plaintiffs, were set out as Respondents. Miss Mabel Erhemuoma was dropped or omitted. The records of appeal (hereafter to be simply referred to as “the records”) compiled and transmitted to this Court, equally does not reflect the name of the said Miss Mabel Erhemuoma as one of the Respondents in theinstant appeal. Naturally, the brief of argument filed by the Appellants on record as substituted for the original Defendants pursuant to the order of this Court made on 18/3/2019, also does not reflect Miss Mabel Erhemuoma as one of the Respondents in the appeal. Be that as it may!
Being dissatisfied with the judgment of the lower Court re-produced above, the Defendants therein as Appellants initiated the instant appeal against the judgment of the lower Court particularly the part ordering a non-suit, by lodging at the registry of the said Court on 22/9/2011, a notice of appeal bearing the same date. The said notice of appeal contains 4 grounds of appeal. The grounds of appeal with their respective particulars read:
“GROUNDS OF APPEAL:
GROUND ONE
The learned trial Judge erred in law and thereby came to a wrong decision when he held at page 22 of the judgment as follows:
“In the absence of composite plan by either of the parties, I do not have satisfactory evidence to give judgment to either of the parties since this case is dependent on specifically what measurement actually constitutes 730 square metres so as todetermine whether the plaintiff has exceeded it or defendant encroached on it.
Based on that, I order a non suit and make no order as to Court (sic)
PARTICULARS
1. It was common ground that the entire land originally belonged to the appellants claimants including this 730.230 square metres which formed the subject matter of the suit.
2. The onus was on the respondents to establish by evidence how they became the owners of the said 730-230 square metres and to ascertain by clear evidence, the location of the said 730.230 square metres.
3. The appellants being admittedly the original owners, has no duty whatsoever, in law, to prove the land or extent of land leased to the plaintiffs.
4. In the circumstance of the suit, it was the duty of the plaintiff to file a composite survey plan in order to ascertain without dispute, the exact location of the land in dispute.
5. The learned trial judge ought to have dismissed the plaintiffs (sic) suit and entered judgment of the defendants/counter-claimant on their counter-claim.
GROUND TWO
The learned trial Judge misdirected himself and thereby came to a wrong and perversedecision when after he had held at pages 17 and 18 as follows:
“The plaintiff ought to show by composite plan the extent of the 730.230 square metres granted to their father and what portion of it is in dispute. He did that in Exhibit C but in view of Exhibit D, the plaintiff should have. (sic) This omission is fatal to the plaintiffs (sic) case.”
PARTICULARS
1. Having so held, the learned trial judge ought to have consequently out rightly dismissed the respondents’ case instead of an order of non-suit.
2. It is the duty of the respondents even in the face of a counter-claim to file a composite plan in the suit.
GROUND THREE
The learned trial judge misdirected himself and thereby came to a wrong decision when he held at page 19 of the judgment as follows:
“The duty is squarely on the defendant to properly ascertain the land in dispute outside the 730.230 square metres leased to plaintiffs’ father. Just like it was required of the plaintiff, I make the same demand of the defendant, which is the need to file a composite plan”.
PARTICULARS
1. The learned trial judge did not takeinto consideration the peculiar fact that the appellants were the original owners of the whole land including the disputed 730.230 square metres.
2. Having found out that the plaintiffs have not proved the location of the land leased to them by the appellants the effect is that title to the entire land still resided in the appellants who are the acclaimed original owners.
3. The appellants in the absence of an effective proof by the respondents of the location of the land they leased, remain the owners of the entire land including the 730.230 square metres.
GROUND FOUR
The judgment is against the weight of evidence.”
The relief which the Appellants seek from this Court as set out in the notice of appeal reads: “An order setting aside the judgment of the trial Court ordering a non-suit and thereafter dismissing the plaintiffs’ case and entering judgment in favour of the appellants on all the reliefs sought from the trial Court.”
The appeal was entertained on 15/9/2020. S. Udi of counsel in urging the Court to allow the appeal adopted and relied on the amended Appellants’ brief of argument filed on8/4/2019, pursuant to the order of this Court made on 18/3/2019. U.U. Akugha learned counsel for the Respondents, had nothing to urge in the appeal as the Respondents did not file a brief of argument therein.
At the hearing of the appeal, the Court asked Appellants’ counsel whether or not the notice of appeal in the instant appeal was filed out of time and his answer was that it was not.
The two issues that were formulated by the Appellants for the determination of the appeal in their brief of argument are: –
“1. Whether the trial Court was right to have made an order of non-suit where there is no provision for it in its rules of Court and having held that the respondents (sic) failure to show the extent of land granted to their father by the appellants was in dispute, was fatal to their case?
2. Whether the trial Court was right to have placed the evidential burden of proving the land in dispute outside the 730.230 square metres on the appellants when it is not in dispute that the Appellants are the owners of the adjoining land?
Dwelling on their issue 1, the Appellants in the main submitted that the lower Court lacks therequisite authority to order a non-suit. That it is settled law that the power of a Court to make an order of non-suit, is derived from or conferred by the specific provisions of its rules. That where no such power is conferred on the Court by its rules of practice, it follows that such Court cannot validly make an order of non-suit on a matter before it. That in the absence of any enabling provision in the Delta State High Court (Civil Procedure) Rules, 2009, empowering the lower Court to make a non-suit order in the instant case, the said Court has no power, competence and/or requisite jurisdiction to make such an order. The case of Khalid &Dibbo Transport Ltd v. Odumade (2000) FWLR (Pt. 17) 163 at 172 was cited in aid.
It is also the stance of the Appellants that it is settled law that before an order of non-suit is made; the Judge is required to call on counsel for the parties to address him on the propriety of making such an order. That where this procedure is not followed or no provision for making such an order is provided for in the applicable High Court Rules, such order will be set aside by the appellate Court. It is the stance of the Appellants that in the instant case, counsel to the parties were neither heard nor asked to address the lower Court on the propriety of making an order of non-suit. That in essence, the laid down procedure for the making of an order of non-suit, was never followed by the learned trial Judge. The cases of Adeleke v. Raji (2002) FWLR (Pt. 116) 817 at 825 and Okedion v. FAAN (2008) All FWLR (Pt. 441) 914 at 938, were cited in aid. In further arguing that there was need to interfere with the order of non-suit made in the instant case by the lower Court, the Appellants referred to what the lower Court found and held on pages 250-251 of the records. The Appellants submitted that from what the lower Court found and held on the aforementioned pages; the said Court was in error to have made an order of non-suit. This is because it is not in dispute that they (Appellants) are the owners in possession of the larger parcel/piece of land adjoining the 730.230 square meters leased to the Respondents’ father. That the evidence of the 2nd Plaintiff under cross-examination on page 160 of the records was very clear on this. That the admission contained in the evidence ofthe said witness is a clear indication that the burden of proving that the portion of land on which the Respondents are building their house is within the 730:230 square meters leased to the Respondents’ father by them (Appellants), is squarely on the Respondents and that burden does not shift. This Court was therefore urged to resolve this issue in favour of the Appellants and strike out the order of non-suit made by the lower Court.
Dwelling on their issue 2, it is the stance of the Appellants that the lower Court was wrong in law to have placed the burden of proving that the land forming the 730.230 square meters granted to the Respondents’ father (part of which is now in dispute) on them. This is because it is not in dispute that they (Appellants) are the original owners in possession of the larger portion of land adjoining the 730.230 square meters of land. That the Respondents are aware and were in agreement throughout the proceedings before the lower Court that the Appellants are not only their landlords but are the rightful owners in possession of the entire piece/parcel of land known as “Ogode Land” adjoining the 730.230 square meters of land granted to the Respondents by them (Appellants). The Appellants submitted that proof of ownership/possession of adjoining land to the land in dispute amounts to ownership of the land in dispute and no further proof is required from them (Appellants) regarding the land in dispute. Having made reference to Section 143 of the Evidence Act, 2011, the Appellants submitted that as they have been shown to be in possession of the land in dispute including the adjoining land, the burden of proving the contrary rests completely on the Respondents which said burden does not shift in the circumstances of this case. That the lower Court was wrong in placing the burden of proving the land in dispute on them, when the Respondents had little or no knowledge about the extent of land that was leased to their father. It is the position of the Appellants that the lower Court having found as a fact that the evidence of PW2, the star witness for the Respondents was hearsay and therefore not probative, the said Court ought to have dismissed the claims of the Respondents and entered judgment for them (Appellants) as per their counter-claim. That the lower Court failed in thiscase to avail itself of the opportunity of evaluating the evidence before it in accordance with the evidence adduced by the parties to the case and arrived at a wrong conclusion. That this Court is permitted by law to re-evaluate and reassess the evidence. The Appellants concluded by urging this Court to overturn the decision of the lower Court, dismiss the Respondents’ case and grant their (Appellants) counter-claim.
This is clearly an uncontested appeal inasmuch as the Respondents even though represented by counsel did not file a brief of argument and therefore had nothing to urge in support of the judgment of the lower Court. The position of the law is that the primary duty of a respondent who has not lodged his own appeal or filed a respondent’s notice, is to support the decision/judgment appealed against. That where a respondent is not comfortable with a finding, (not the entire judgment), which he considers fundamental, he can challenge same by filing a cross-appeal. And where a respondent supports the judgment, but wants it affirmed on grounds other than those relied upon by the lower Court, he must then file a respondent’s notice.
See ZAKIRAI V. MUHAMMAD (2017) LPELR-42349(SC) and KAYILI V. YILBUK (2015) LPELR-24323(SC)amongst many others. I am however of the considered view that whether or not a respondent files a brief of argument to support the decision of a Court appealed against, an appellant still has the duty of establishing that the lower Court is wrong in its decision upon his grounds of appeal as reflected by the issue or issues formulated for the determination of the appeal. See the case of BHOJSONS PLC V. KALIO(2006) LPELR-777(SC).
After all, the settled position of the law is that a decision/judgment of a Court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is void, until it is set aside by another Court of competent jurisdiction. See the case of BABATUNDE V. OLATUNJI (2000) LPELR-697(SC). Indeed, see the case of UZOCHUKWU V. ERI (1997) LPELR-3454(SC) wherein the Supreme Court long ago stated thus: “xxxx. There is always a presumption in favour of the correctness of a decision of a trial Court on the facts and an appellate Court requires an appellant to displace that presumption and show up the error arising from those facts which make the decision wrong before it will intervene.”
Indeed, in my considered view, it can safely be assumed that the Respondents herein who remained absolutely numb as it were, in the face of the Appellants’ dogged desire to have the judgment of the lower Court set aside, are tacitly in agreement that the said judgment be set aside; but cannot openly do so, because the law forbids this; as their primary duty in the circumstances of the instant appeal, is to defend the judgment of the lower Court.
Before embarking on the consideration and resolution of the issues formulated by the Appellants for the determination of the instant appeal, I consider it expedient to first comment on the question as to whether or not the instant appeal was lodged within time as raised by the Court at the hearing of the appeal. This is more so as the Court after the appeal had been reserved for judgment on 15/9/2020, received a letter dated 29/9/2020, under the hand of one Stanley Udi (presumably the same counsel who argued the appeal) in which he canvassed better argument to show that the notice of appeal in the instant appeal was lodged within time. This is because, it was filed within three months of the delivery of the judgment appealed against and not 90 days as required in a criminal appeal. The said letter was in the best tradition of the Bar copied to the Respondents’ counsel. Suffice it to say that I need not dwell much on the question the Court raised as learned counsel who appeared for the Appellants on the day of the hearing of the appeal, was never recorded as conceding that the appeal was filed out of time, by one day as portrayed in the letter under reference. What was recorded, is to the effect that counsel’s position is that the notice of appeal was lodged within the time provided by law for bringing the appeal. Perhaps if counsel had applied for a certified copy of the proceedings for the day on which the appeal was entertained, to see what was reflected in the record, he would have seen that there was no need to have written the letter he wrote the Court. Be that as it may!
Appellants’ issue 1 questions the legality of the order of non-suit entered in the instant case by the lower Court as the Delta State (Civil Procedure) Rules, 2009, do not provide for the making of the said order; and that in any case, the lower Court did not follow the procedure laid down by law in making the order in question. In other words, that the lower Court has no vires to make an order of non-suit; and that even it has the vires, the failure of the lower Court in following the laid down procedure in making the order rendered the same ineffectual or incompetent.
I must say that I have had cause to read many decided cases on the issue of non-suit and it would appear from many of them, particularly Supreme Court decisions I have read, that the making of an order of non-suit in a case, must be grounded in the rules of the Court in question. That is, that an order of non-suit is not made pursuant to the inherent jurisdiction of the Court. For example, in the notorious or well-known case CRAIG V. CRAIG (1966) LPELR-25302(SC), the question of non-suit was considered against the backdrop of the rules of the old Supreme Court. In the case under reference, the Supreme Court stated thus: –
“Order 45, Rule 1 of the Rules of the old Supreme Court which applied in the Lagos High Court at the time of this action provides as follows: -“The Court may in any suit, without the consent of the parties, non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.”
It seemed to us, when considering our judgment, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit, it is desirable that he should first ask counsel for the parties for their submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and Ors [1962] 1 All N.L.R. 214 and to Dawodu v. Gomez (1947) 12 W.A.C.A.”
I have also read the two cases of ELIAS V. DISU and DAWODU V. GOMEZ (both supra). I do not see any mention of non-suit, in the case of Elias v. Disu. However, this is what the Court had to say on non-suit in the case of DAWODU V. GOMEZ (supra): –
“There is only one ground of appeal of any substance in this case and it reads as follows: –
The learned trialjudge was wrong in ordering a dismissal rather than a non-suit as the case of Kodilinye vOdu, 2 W.A.C.A., page 336, does not apply.”
xxxxx. The appellant however failed to prove that the judgment had been given against the three persons as representing the Oloto family and it is therefore difficult to justify the selling of family land to satisfy the debt. On this ground, Counsel for appellant admitted that this claim must fail, but he argues that it should not be dismissed but a non-suit should be entered as it clearly comes within the intention of Order XLV, Rule 1, which reads as follows: “The Court may in any suit without the consent of the parties non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.”
xxxx
Order XLV, Rule 1 should, in our view, be used with great care for a variety of reasons, not least important being the necessity to bring land actions to some finality.
We havebeen invited to set out our views as to the proper occasions when a non-suit should be pr
erred to a dismissal. Obviously, it is quite impossible to lay down a hard and fast rule and each case must be considered on its merits, but we will state that where as in Kodilinye v MbanefoOdu (1), a plaintiff sets out to prove his title and fails the fact that the defendant also has no title to the land can never be a sound reason for a non-suit.
There are however circumstances which make it possible to distinguish this case from that quoted above and had the learned trial judge entered a non-suit we would not have disturbed his judgment. The Rule however leaves the matter in the discretion of the trial judge and we are not prepared to hold that he did not exercise his discretion judicially. This is just another example of parties rushing into litigation without the necessary evidence and when it is pointed out in the judgment where their case fails, they ask to be non-suited in order that they may have another bite at the cherry, hoping to do better at their next appearance, a procedure satisfactory perhaps to the particular plaintiff and lawyers generally,but most undesirable from every other standpoint.
The appeal is dismissed with costs assessed at ₤16 1s. 0d. Appeal dismissed.”
See also the case of OMOREGBE V. LAWANI (1980) LPELR-2655(SC) wherein the Supreme Court stated thus: –
“The power of the Court to enter a non-suit against the plaintiff is contained in Order 28 Rule 3 of the Bendel State 1976 which reads:
“The Court may in any suit, without the consent of the parties non-suit the plaintiff where satisfactory evidence has not be given entitling either the plaintiff or the defendant to judgment of the Court.”
By the provisions of this Rule, the decision to non-suit the plaintiff necessarily involves a consideration of the evidence adduced, its assessment and evaluation in order to determine whether it is just to order a non-suit than dismiss the action. To assist the Court in its determination, it was held in Craig v. Craig and Craig (1967) NMLR 52 by this Court that when the propriety of a non-suit had been argued, if a trial Judge should think of entering a non-suit, it is desirable that he should first askcounsel for the parties for their submissions. Elaborating on this point, Coker, J.S.C., delivering the judgment of the Court commented at p. 55: xxxx
The effect of an order of non-suit is to terminate the proceedings in which it is made and final nature of such decision is brought out vividly by the decision of the Federal Supreme Court xxxxx”
Still on the order of non-suit, is the case of ENIGWE V. AKAIGWE (1992) LPELR-1145(SC) wherein the Supreme Court per Akpata, JSC stated: –
“The order of a non-suit is a creation of statute. It is applied in accordance with the intendment of the provision of the relevant statute. The provisions for its application have been abrogated in a number of Commonwealth jurisdictions, particularly in the High Court in England. It has ceased to be applied in Lagos State. The High Court of Anambra State is still vested with the power to non-suit improper cases. By Order 48 Rule 1 of High Court Rules applicable in Anambra State, the High Court “may, in any suit, without the consent of parties non-suitthe plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court”.
In effect, a Court may non-suit the plaintiff in circumstances where neither the plaintiff nor the defendant is entitled to the judgment of the Court, not where “there is little to choose” between the evidence of the opposing parties. There are certain circumstances where either the plaintiff or the defendant will not be entitled to the judgment of the Court and that will therefore necessitate the non-suiting of the plaintiff’s case. For instance, the plaintiff will be non-suited where he has only failed to get judgment on account of a hitch of which the defence is not entitled to take advantage. See Odiete&Ors v. Okotie&Ors (1972) 6 SC. 83 at 90.xxxxx
In order words the Court has to decide what is fair and just to the parties in the circumstance of the ease (sic)”.
It is plain to me that where, as in this case, before an improper visit to the locus in quo was carried out, the plaintiffs in each of the consolidated cases appeared,for technical reason, not to have adduced sufficient evidence to establish their respective claims in respect of the same subject-matter and it is not in doubt that the subject-matter belongs to one side or the other; it would not meet the ends of justice to dismiss their respective claims. To do so would amount to saying that neither of the parties is entitled to the land. It would be a time-bomb of a judgment. The parties would no longer be able to have recourse to the Court of law as they would have been banned from so doing by the dismissal of their actions. The only alternative would be their taking the law into their hands. I allow the appeal and enter a non-suit in suits Nos.O/18/71 and O/133/71. I adopt the order as to costs made by my learned brother Uwais, J.S.C.
Appeal allowed.
Non-suit ordered.”
Again, on the order of non-suit in the case of NGWU V. ONUIGBO (1999) LPELR-1992(SC). Suffice it to say that in the said case, the Supreme Court dwelling on the nature of non-suit cited with approval its decision in ENIGWE V. AKAIGWE (supra) in aid of its position that an order of non-suit, is unambiguously a creation of statute. Another case that I consider very instructive on the order of non-suit is OKEDION V. FAAN (2007) LPELR-8678(CA) (cited in the Appellants’ brief of argument). In the said case, this Court per DalhatuAdamu, J.C.A.; (as he then was) dealing specifically on the issues: (i) whether the Court (Federal High Court) can make an order of non-suit where there is no provision for it in its Rules of Court; and (ii) whether the failure of the trial Judge to call on Counsel to address him before the Order of non-suit was entered does not amount to a denial of the Appellants’ right to fair hearing, stated thus: –
“From the above submission in the two briefs under the twin issues (considered together), my task has been made easy by the mutual concession and the agreement of the parties in their brief on the issues. xxx
It is pertinent in this regard to point out that there is no dispute on the absence of any provision in the Federal High Court (Civil Procedure) Rules 2002 permitting or authorizing the trial Court to make an order of non-suit. The effect of such an omission in the trial Court rules of practice (supra) is that it has no power, competence or jurisdiction to make such an order (of non-suit) as it erroneously made in its judgment in the present case. It is also pertinent to observe that neither of the parties to the suit (in their final written addresses) sought for or asked the trial Court for such an order to be made in the case. (See their final addresses respectively at pages 76 -84 and 86 -91 of the records of appeal). Thus the learned trial judge made the order (of non-suit) suomotu in his judgment. The issue or question of whether or not to non-suit the appellants suit was not sought for nor raised by either of the parties before the trial Court but was unilaterally raised by the learned trial judge who proceeded to resolve it in his judgment. This procedure adopted by the learned trial judge is against the settled norms and principles of justice in our adversary system which require him in the circumstances to call or recall the parties and their learned Counsel and to afford them with an opportunity to address him on the issue he raised suomotu of his own motion. The failure of the learned trial judge to hear the parties before making his order on an issue he raised by himself alone and in his judgment has been held in a number of decision of our superior Courts to amount to not only a mere procedural error but a breach of the parties right to fair hearing both under the rules of natural justice and as enshrined in our Constitution (Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999). The right to fair hearing is a fundamental right and is treated with such importance by our Courts and where, as in the instant case, a trial Court arrives at any decision without hearing the parties or giving them an opportunity of being heard an appellate will not hesitate to declare such a decision as a nullity – see xxxxx
An Order of non-suit is like other orders a discretionary one, which is to be exercised by the trial Court judicially and judiciously. Its purpose is to give a plaintiff who fails to obtain a judgment in his favour another opportunity or chance to relitigate the same cause or case instead or barring or preventing him from doing so if the Court dismisses his action. Such an incidence may arise where for example the Court finds the interest or right of a third party who is not a party to the suit is involved in the case or where the plaintiff on a technical ground fails to establish his claim before the trial Court and the defendant is not entitled to a judgment in his favour. In any case, the Courts are weary in making the order where the plaintiff fails to produce sufficient on (sic) necessary evidence to prove his case or claim as per the holding of the learned trial judge in the present case except where such a plaintiff (or litigant) is unassisted or unrepresented by Counsel. In other words, where the unsuccessful plaintiff is represented by a Counsel who conducts his case, he is bound by whatever evidence the Counsel presents to the trial Court and the proper order to be made at the end and where the case has not been proved or established should be that of dismissal rather than a non-suit – See xxx In any case, the two most be important aspects of the principles on the Court’s grant of an order of non-suit which should not be condoned or overlooked by the appellate Court are as they relate to the fundamental issues of jurisdiction and fair hearing namely – (a) whether the Court making the Order (of non-suit) has the power to do so under its rules of practice; and (b) whether the Court making the Order in its final judgment had heard the parties or afforded them the opportunity of being heard before making its order (of non-suit). – See xxxx. I will not conclude my resolution of the twin issues under review without making an emphasis on the fundamental issue of jurisdiction raised in the two briefs in the present case. It is trite that the issue of jurisdiction is regarded or treated by the Courts (including the appellate Court) as a very fundamental one that goes to the root of the Courts power or competence to adjudicate in any matter presented or filed before it. Because of this threshold nature of the issue, any case or proceedings heard or decided by the Court in absence or lack of jurisdiction amounts to a mere nullity, however well it might have been conducted – See xxxx<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
It is a common ground in the present case that the trial Court (Federal High Court) is not empowered by it rules of practice (Federal High Court Civil Procedure Rules 2002 – supra) to make an Order of non-suit. On the above cited authorities, the trial Court therefore lacks the requisite jurisdiction to make an Order of non-suit. Where a Court lacks jurisdiction to make an Order and it proceeded to make it, an appellate Court should strike it out – See xxxx
Another point raised which is also linked to the issue of jurisdiction arising from the respondents brief is on the trial Courts lack of jurisdiction or competence to make the Order (of non-suit) that has not been sought or asked for by the parties. This is contrary to the well settled principle of law that a Court should confine itself to the claims or reliefs sought or asked for by the parties before it and does not therefore make a practice of granting reliefs or orders not sought. The effect of granting such reliefs or Orders not sought for is that the Court making it is lacking or has gone outside its powers; jurisdiction and competence in making or granting such a generous order or relief. Where that happens, an Appellate Court will also set aside such a lavish and generous order of the trial Court that is unauthorized. – See xxxx
In view of my above consideration of the twin issues (issues 1 and 2), the said issues as formulated in the appellants brief must be resolved together with their corresponding grounds (ground 1 and 2) in favour of the said appellants. Consequently, the order of non-suit made by the learned trial judge without jurisdiction or power to make such an order which was made without hearing the parties and in breach of their right to fair hearing should be struck out. I accordingly hereby strike it out.”
Finally, on the order of non-suit, is what is stated on pages 717-718 of Civil Procedure in Nigeria by Fidelis Nwadialo (Second Edition). It goes thus: –
“Normally, a judgment is either given for the plaintiff or for the defendant. In the former case, the Court grants the plaintiff’s claim while in the latter that claim is dismissed.
In addition to these two usual forms of judgment, there is also a third one known as an order of non-suit. By that order, the plaintiff’s claim is neither allowed nor dismissed. The order of non-suit is made where there is no satisfactory evidence before the Court entitling either the plaintiff or defendant to the judgment of the Court. Its effect is to terminate the proceedings in which it was made. The plaintiff may bring the same action again thus making the defendant answerable to it once more. An order of dismissal puts an end to the claim while an order for non-suit or an order striking out, keeps the claim alive. A non-suit is a final decision which decides that none of the parties has won but preserves the plaintiff’s right of another action on the same subject matter and the same issues. To this extent non-suit is in the plaintiff’s favour.
The power to order non-suit must be statutorily conferred on the Court, by the Rules. There was no such power in the 1972 Rules of the Lagos State High Court and accordingly that Court could not under those Rules order a non-suit. But it now has the power under Order 37 of its present Rules. There is no power to non-suit in the Uniform Rules High Court Rules. In Faleye v. Otapo, the Supreme Court noted the absence of the power in the current High Court Rules of Ogun State which are the Uniform High Court Rules applying in that State.”
The case of FALEYE V. OTAPO referred to in the passage re-produced above, is reported in (1995) LPELR-1235(SC), (1995) 3 NWLR (Pt. 381) 1. Therein, the Supreme Court stated thus: –
“Both parties complained about the order of non-suit entered by the Court below the defendants on the ground that that Court had no jurisdiction to do so and the plaintiffs on the ground that if the Court below had considered the other issues raised before it, it would not have entered an order of non-suit but would have given judgment to the plaintiffs on their claims. I think therefore that I should at this stage dispose of this issue.
Section 16 of the Court of Appeal Act which states: “The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction” only empowers the Court of Appeal to make an order which the Court below could have made. The question that arises is this: could the trial High Court have made an order of non-suit if the circumstances so called for it? Mr. Lasisi Jimoh of counsel for the defendants submitted that under the High Court Civil Procedure Rules 1988 of Ogun State, there is no provision for a High Court to order non-suit unlike in the 1977 Rules of Court. Learned counsel then argued that the Court therefore, would have no jurisdiction to make an order of non-suit. A fortiori, the Court of Appeal would have no jurisdiction to enter an order of non-suit in an appeal coming before it from Ogun State. Chief Ohwovoriole, SAN, leading counsel for the plaintiffs, in reply, submits that by virtue of Section 16 of the Court of Appeal Act,1976 , the Court of Appeal had full jurisdiction over the whole proceedings and had power to make the order that it made. With profound respect to the learned Senior Advocate, I do not share his view. The Court of Appeal by virtue of Section 16 can only make an order which the Court of trial (did and from which appeal had come to it) could make. The provision of Order 30 Rule 3 of the High Court Civil Procedure Rules 1977 of Ogun State which read:
”The Court may in any suit without the consent of parties non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court” had been deleted from the 1988 Rules as there is no rule in that latter Rules similar to Order 30 Rule 3 of the 1977 Rules. That being so, the High Court of Ogun State would no longer have power to order a non-suit in any civil matter before it. The submission here is the same as the submission in the case of John Orekie Anyakwo v. African Continental Bank Ltd. (1976) 2 S.C. 41, 59 where this Court Per Fatayi-Williams, J.S.C. (as he then was) observed:
“Until the new High Court of Lagos State (Civil Procedure) Rules, 1973 came into force on 1st September, 1973, the position in the High Court of Lagos State was not unlike that of the County Court in England. In the old Supreme Court (Civil Procedure) Rules which was in force in the High Court of Lagos State until the new Rules came into force, it is provided in Order XLV rule I therein as follows:
’The Court may in any suit without the consent of the parties, non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.’
Since there is no provision in the new High Court of Lagos State (Civil Procedure) Rules for an order of non-suit because the above rule has been deleted from the new Rules, it would appear that the power of the judges of the High Court of Lagos State to non-suit a plaintiff has been taken away. They are now in the same position as a judge of the High Court of Justice in England.
We think that the learned trial Judge, at the time he non-suited the plaintiffs on 31st July, 1974, had no power to do so.”
If the trial Court had no power to order a non-suit, the Court of Appeal could not do so either. See: Jadesimi v. Okotieboh (No.2) (1986) 1 NWLR (Pt. 16) 264, 276 D-E. The conclusion I reach therefore is that the Court of Appeal was in error to have entered an order of non-suit. The defendants ground (1), therefore, succeeds.xxxx”
In my considered view, it is an incontrovertible position that the territorial area now known as Delta State, was part and parcel of the then Bendel State of Nigeria. This being the case, the Rules of Bendel State wherein provisions were made for non-suit as recognised in the case of OMOREGBE V. LAWANI (supra) would have been applicable in the lower Court, if it the entity known and called Bendel State, was still in existence. However, Edo State and Delta State have since been created out of Bendel State or Bendel State has since been split into the aforementioned States. I have taken the pains of perusing both the Civil Procedure Rules of the High Court of Edo State, 2012 and those of Delta State of Nigeria, 2009, (as contained in Law Pavilion Prime) and there is no provision therein in respect of non-suit. Against the backdrop that it is not the position that the concept of non-suit was unknown to the parent Rules of Court, i.e. Bendel State High Court (Civil Procedure) Rules, the non-inclusion of any provision in respect of non-suit in the Delta State High Court (Civil Procedure) Rules, 2009, therefore in my considered view is a conscious effort of the Chief Judge of Delta State (who made the 2009 Delta State High Court (Civil Procedure Rules), to break away from the past (just as was done in England many years ago), as well as a deliberate expression that the concept of non-suit is no longer applicable in Delta State. In any event as it is clear as crystal that the concept of non-suit is not provided for in the Rules of Civil Procedure of the lower Court, it becomes glaring from the many cases cited hereinbefore in respect of “non-suit”, that there was no legal basis the lower Court could be said to have properly founded entering a judgment of non-suit, in the instant case. Furthermore, I cannot but say that even if the lower Court could have made an order of non-suit in the instant case pursuant to its inherent powers (which is not conceded), it is glaring that the order of non-suit made in the instant case by the lower Court, having been made suomotu and without hearing the parties at all on the desirability of making the said order, cannot stand having regard to the cases cited hereinbefore.
Flowing from all that has been said is that Appellants’ issue 1, must be and is hereby resolved in their favour.
The case before the lower Court was a land matter in which the lower Court in effect found the Respondents not to have proved the identity of the parcel of land the subject matter of the litigation with precision or exactitude. It is obvious from the claims of the Respondents that without doing this– i.e., proving the identity of the land their case is all about with exactitude or with precision, (and which as rightly held by the lower Court they can only do through a composite plan), their (Respondents’) claims cannot be said to have been made out on the evidence before the said Court talk less of the said claims being grantable or granted. Accordingly, the lower Court should have without much ado dismissed the claim of the Respondents and should not have made an order of non-suit to enable the said Respondents have a second bite at the sherry. This is because the lower Court had no power to make the order of non-suit under its Civil procedure Rules and in any event never heard the parties before making the said order.
Now to Appellants’ issue 2.
I have hereinbefore highlighted the submissions of the Appellants in respect of their issue 2. I am of the considered view that all the Appellants are trying to do given their submissions, is to ride rough shod on the position of the law that where the claim for a plaintiff is dismissed, then judgment should be entered for the defendant. Suffice it to say that this position of the law, cannot apply to a defendant who in his wisdom chooses to file a counter claim in an action brought by a plaintiff. It is settled law that a defendant need only react to the case of a plaintiff or claimant against him, by pleading the facts on which he relies in resisting the claims of the plaintiff or claimant. However, where the defendant is not only resisting the claims of the plaintiff or claimant, but wishes to advance a case of his own as well, he must in addition set up facts on which he relies for his case on the counter-claim, in his pleading. This is against the backdrop of the position of the law that a counter-claim though tried together with the main action, is a separate action that has its own pleading. It is for this reason as well that a plaintiff to the main action and who is the defendant in the counter-claim, if or where he intends to defend the counter-claim to the main action must file a reply to the new facts pleaded in the statement of defence as well as a defence to the averments relied upon by the defendant in the proof of the counter-claim. See the cases of JEJE V. ENTERPRISE BANK LTD (2015) LPELR-24829(CA) and OSAGIE & ORSV. OBAZEE & ORS (2013) LPELR-21994(CA). It is against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself, the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See the case of OLUBODUN V. LAWAL (2008) 35 NSCQLR 570 at 644. In other words, evidence adduced in a case with a counter-claim is freely used by the Court to resolve the matters in respect of which parties are in disagreement. Hence, the position of the law is to the effect that where common questions determinative of a claim and counter-claim arise in a case, the trial Court in the circumstance is not expected to consider the said question separately in relation to the counter-claim. See the case of AJIDAHUN V. OJO (2014) LPELR-41108(CA).
The Appellants in arguing that they are entitled to judgment granting the claims in their counter-claim, upon the dismissal of the Respondents’ case would appear to have forgotten that their claims are for declarations for possession (and which are analogous to declarations for title). The Appellants in the circumstances, are enjoined by or in law to establish their claims with credible and acceptable evidence. The Appellants can only be entitled to judgment in respect of their counter-claim, based on the strength of their case and not upon the weakness of the case of the Respondents.
Flowing from all that has been stated hereinbefore is that if the Appellants were not in clear misapprehension of their case, (and particularly as the various parcels of land in respect of which they seek for declarations as well as the parcel of land in dispute were not described by any specified land mark or marks), they would have seen that the requirement of a composite plan from them to show the identity of the land which they are claiming possessory right over, and showing the relative position (i.e. location) of the Respondents’ land outside the said land over which they seek possessory right, was a sine qua non for them to succeed in respect of their claims. Against this backdrop, the finding of the lower Court after a thorough and painstaking evaluation of the evidence (documentary and oral) placed before it, that without evidence in this regard (i.e. a composite plan), the claims of the Appellants cannot succeed, becomes unassailable. Indeed, I am of the considered view that the making and tendering of a composite plan by the Appellants (as plaintiffs in their counter-claim) was more incumbent on them. This being the case, the counter-claim of the Appellants ought to have failed for the reason of the failure of the said Appellants to prove by credible and acceptable evidence the identity of the parcels of land to which their claims relate with precision and or exactitude. In the circumstances, not only must Appellants’ issue 2 be resolved against them but the order of non-suit ordered by the lower Court in respect of their counter-claim must now be set aside and an order dismissing their counter claim substituted therefor.
In the final analysis, the instant appeal succeeds in part inasmuch as the order of non-suit entered by the lower Court in respect of the Respondents’ case and the Appellants’ counter-claim (and which has no basis or foundation in the Rules of Civil Procedure of the High Court of Delta State; and in any event having been made suomotu by the lower Court in the judgment appealed against without affording the parties an opportunity to address it as to the propriety of the said order), must be and is hereby set aside or struck out, as being incompetent. Furthermore, having regard to the faultless evaluation of the evidence adduced by the parties in the proof of their respective cases, the proper order to make as the lower Court rightly found to the effect that the identity or identities of the parcels of land in dispute were not proved by the parties with precision or exactitude as required by law, is one dismissing the respective cases of the parties. In other words, the order of non-suit made in the instant case is set aside, and one dismissing the claims of both the Respondents in the main case and Appellants in their counter-claim, is substituted therefor.
I make no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the leadjudgment in its draft form before now and agree with my Lord AYOBODE OLUJIMI LOKULO-SODIPE, JCA that the Appeal herein be allowed.
That is to say that the order of non-suit entered at the trial Court was wrongful as it is not provided for under the Civil Procedure Rules applicable to Delta State.
Accordingly, the order of non-suit is set aside and in its place, an order substituting a dismissal both the main claim of the Plaintiff/Respondent and the counter claim of the Defendant/Appellant unsubstituted as the area of the land was neither proved nor did the counter claimant prove the merit of his counter claim on the strength of his counter claim.
In other words, both the main and counter claim ought to have been dismissed as none of them was proved. Appeal allowed.
I abide by the order relating to costs as made in the lead judgment.
I abide by the decision setting aside the said Judgment of the trial Court and also concur in the order relating to costs as entered in the lead Judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. and I agree with the reasoning and conclusion contained therein. I have nothing to add as the judgment has covered the field. The appeal succeeds in part. I agree with the orders made.
Appearances:
S. Udi For Appellant(s)
U. U. Akugha For Respondent(s)
