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WHITE TRUTH INVESTMENT LTD v. ALOBI & ORS (2022)

WHITE TRUTH INVESTMENT LTD v. ALOBI & ORS

(2022)LCN/16616(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, August 31, 2022

CA/A/377/2016

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

WHITE TRUTH INVESTMENT LIMITED APPELANT(S)

And

1. MR. LAWRENCE ALOBI 2. THE HON. MINISTER, FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 4. THE INSPECTOR GENERAL OF POLICE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON WHEN A REPLY BRIEF IS SAID TO BE FILED

 Thus Augie JSC, in Awusa vs. Nigeria Army (2018) LPELR–44377 (SC) opined that:
“A reply brief is filed when issues of law or arguments raised in the Respondent’s brief call for a reply; it deals with new points. Thus a reply brief is limited to finding answers to questions raised in the Respondent’s brief which the Appellant had not addressed or dealt with in the main brief”.
To avail a response to the issue whether the issues in contention are competent or not, such must be by way of motion on notice. That having not done, that leg of argument is hereby discountenanced. Further still, the learned counsel for the Appellant replied extensively to the issues raised by issues 1 and 2 in the brief from pages 5–16 of the reply brief. I shall refer to it as the situation unfolds. In the recent case of Garga vs. The State (2022) LPELR–57677 (SC), Ogunwumiju JSC, summarized the position of the law with regards to the duties of the trial Court and the Court of appeal with regards to the evaluation of evidence having stated that:
“..it is trite that the evaluation of evidence and the ascription of probative value to such evidence is the primary function of the trial Court. This much was given judicial credence by my lord, Iguh JSC in Oguonze vs. The State (1998) 4SC 110 AT 121-122, when his Lordship held thus: “before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need to re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial Court and no question of misdirection arises, an appellate Court will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the Appellate Court, it would not have come to the same decision as the trial Judge, see Ike vs. Ugboaja (1993) 6 NWLR (pt. 301) 539, Odofin vs. Ayoola, (supra), Ogberi Egri vs. Ukperi (1974) 1 NMLR 22; Ogundulu & Ors vs. Philips & Ors (1973) NMLR 267 etc. this as already stated is because findings of fact made by a trial Court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an Appellant satisfactorily proves that they are wrong, such trial Courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See Adelumola vs. The State (1988) 1 NWLR (pt. 73) 683. An appellate Court may however interfere with such findings in circumstances such as where the trial Court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See, Okpiri vs. Jonah (1961) 1 SCNLR 174; Maja vs. Stocco (1968) 1 ALL NLR 141 AT 149; Woluchem vs. Gudi (1981) 5SC 29”.
PER BARKA, J.C.A.

THE POSITION OF LAW ON WHEN A PARTY DECIDES TO RELY ON A DOCUMENT TO PROVE HIS CASE

It is the law established through numerous cases that when a party decides to rely on documents to prove his case, there must be a link between the document and the specific area(s) of the petition. He must relate each document to the specific area of his case. On no account must counsel dump documents on a trial Court. The cases of Aliucha & Anor vs. Elechi & Ors (2012) LPELR–7823 (SC), ANPP vs. INEC (2010) 13 NWLR (pt. 1212) 549, Ogah vs. Ikpeazu & Ors (2017) LPELR-42372 (SC).
I find the decision in ANPP vs. Usman (supra) cited by Mr. Oka very helpful and apt, and therefore reproduce it thus:
“A party relying on documents as part of its case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of relating each of the documents or bundle of documents tendered in evidence to specific aspects of the case for the party. It is the duty of the party to do so for itself. It will be an infraction of right to fair hearing if the Court or tribunal engages itself in the recess of its chambers to fish out or guess which document relates to a particular aspect of the case of a party. such a duty ought to be carried out in open Court by the party. in the instant case, the tribunal was of the opinion that exhibits R4, R10, R11 and P19 (A) (B) and (C) have no probative value because they were dumped on it without any explanation from the parties who tendered them. The tribunal was right in attaching no probative value to the documents and ignoring them in its judgment… admitted documents’ usefulness as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport”.
PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal arose from the judgment of the High Court of the Federal Capital Territory in suit with No. FCT/HC/CV/2232/2012, delivered on the 29th day of April, 2016, by the Hon. Justice O.A. Adeniyi.

History of the case.
The claimant sometimes on the 27th of January, 2016 instituted the action before the lower Court seeking for the following reliefs:-
i. A declaration that the plaintiff is entitled to the Statutory Right of Occupancy over all the property lying, being, situate and known originally as plot No. 105A but subsequently numbered as plot No. 4252 within Cadastral Zone A04 Asokoro District, Abuja measuring approximately 2,300m2, by virtue of offer of Right of Occupancy dated 12th May, 2005 with Reference No. MFCT/LA/KN. 4867 and conveyed by the Certificate of Occupancy No. 186ew-e0dz-584br-852au-10 with file No. misc 54645 of 8th day of April, 2009 for Residential purposes.
ii. A DECLARATION that the 1st Defendant unconstitutionally, illegally and maliciously encroached on the Plaintiff’s portion of the plot stated in relief No. 1 measuring approximately 600sqm as Captured in the site satellite imagery of the plot in dispute, constitute a reckless and provocative trespass against the Plaintiff’s Right of Occupancy and possession of the entire plot No. 105A but subsequently numbered as plot No. 4252 within Cadastral Zone A04 Asokoro District, Abuja measuring approximately 2,300m2, by virtue of offer of Right of Occupancy dated 12th May, 2005 with Reference No. MFCT/LA/KN. 4867 and conveyed by the Certificate of Occupancy No. 186ew-e0dz 584br-852au-10 with file No. misc 54645 of 8th day of April, 2009 for Residential purposes.
iii. A DECLARATION that the reckless, deliberate, malicious and illegal use of the men of the Nigeria Police Force by/and or the 1st Defendant’s personal harassments, assaults and intimidation of the Plaintiff and its officers over the possession and use of the portion of its land in dispute is unconstitutional, illegal and oppressive.
iv. An order commanding the 1st Defendant to abate his encroachment on the portion of the Plaintiff’s land in dispute.
v. POSSESSION of the Plaintiff’s portion of the plot stated in relied No. 1 measuring Approximately 600sqm as captured in the site satellite imagery of the plot in dispute, numbered as plot No. 4252 within Cadastral Zone A04 Asokoro District, Abuja measuring approximately 2,300m2, by virtue of offer of Right of Occupancy dated 12th May, 2005 with Reference No. MFCT/LA/KN. 4867 and conveyed by the Certificate of Occupancy O186ew-eOdz-584br-852au-10 with file No. misc 54645 of 8th day of April, 2009 for Residential purposes.
vi. AN ORDER of perpetual injunction restraining the 1st Defendant whether by himself, privies, servants, agents and workmen whomsoever and however defined from further encroaching, annexing and/or trespassing on the portion of the Plaintiff’s land measuring approximately 600qm2 as captured on the site satellite imagery contained in this claim.
vii. AN ORDER of perpetual Injunction restraining the 1st and 4th Defendants whether by themselves, agents, privies, servants whomsoever and however defined from intimidating, harassing and assaulting the Plaintiff’s land in dispute.
viii. GENERAL DAMAGES of N500,000,000.00 (Five Hundred Million Naira) only for Trespass committed by the 1st Defendant on the portion of the Plaintiff’s plot in dispute and for the use of the 4th Defendant’s agents and servants in an oppressive and abusive manner against the plaintiff.
ix. Cost of this action as shall be assessed by the Honorable Court at the trial”.

The 1st defendant Mr. Lawrence Alobi, now the 1st respondent entered a memorandum of appearance on the 26th day of March, 2012, and filed a statement of defense, denying the entirety of the claim, and further counterclaimed against the claimant/ appellant and the 2nd and 3rd respondents herein as follows:
i. A declaration that the 1st defendant/counterclaimant is entitled to the statutory right of occupancy over all the property lying, situate and known as plot 3775 AO4 measuring 3595.01 M2 at the Asokoro district of the Federal Capital Territory Abuja with beacon stone numbers PB92728, PB92730, PB90163 and PB94315 as shown in the site plan signed by the Deputy Director Survey and Maps of the 3rd defendant.
ii. A declaration that the replacement due to previous occupancy dated 19/02/2008 and issued to the 1st defendant/counterclaimant in August, 2010 is not one of the grounds for revocation or replacement of a statutory right of occupancy by the 2nd defendant under the provisions of the Land Use Act.
iii. An order setting aside the offer of statutory right of occupancy dated the 19th of February, 2008 and issued to White House Investment Limited over plot 4252 Cadastral Zone A04 in Asokoro in the Federal Capital Territory, Abuja.
iv. An order setting aside the change of offer of statutory right of occupancy for non-compliance with the relevant provisions of the Land Use Act.
v. An order reaffirming the earlier grant dated the 13th of January, 2006 granting the 1st defendant/counterclaimant plot 3775 A04 measuring 3595.01m2 at the Asokoro district of the Federal Capital Territory, Abuja with beacon stone numbers PB92728, PB92729, PB92730, PB90163 and PB 94315 as shown on the site plan signed by the Deputy Director Survey and Maps of the 3rd Defendant.
vi. The sum of Fifty Million Naira (N50,000,000.00) only as damages for trespass and destruction of 1st defendant/counterclaimants’ fence and interlocking tiles.

​The 2nd and 3rd respondents responded to the counterclaim filed by the 1st respondent, wherefore the 1st respondent filed replies to the defense filed by the 2nd and 3rd respondents to the counter-claim, and issues having been joined the case proceeded to a protracted trial at the end of which, written addresses were ordered, filed and adopted. It was the case of the appellant as claimant before the lower Court that she was at a point in time donated a power of attorney over a piece of land owned by one Alh. Musa Fari with respect to a plot of land with No. 4252 within Cadastral Zone AO4, Asokoro District, Abuja measuring an area of approximately 2300M2 covered by a Certificate of Occupancy dated the 8th of April, 2009, tagged exhibit P9. It was her case also that the said plot originally belonged to the said Alh. Musa Fari based on a grant dated the 12th of May, 2005, and that she derived title from him through the power of Attorney granted as aforesaid dated April, 2005 as shown by exhibit P4. She accused the 1st respondent of encroaching on the said land and fencing an area thereof measuring 600 square metres out of her land.

​The 1st respondent however denied the appellant’s claim in its entirety, counterclaimed stating that he is the person lawfully entitled to be granted the portion of land claimed and referred to by the appellant as plot 4252 which formed a larger plot of land granted to him in the year 2006 as plot 3775 AO measuring 3595.01square metres at the Asokoro District of the Federal Capital Territory Abuja, though mistakenly referred to as plot 3375, which mistake was subsequently corrected, the land developed and had been in his possession since.

The Court on the 29th day of April, 2016 based on the evidence oral and documentary placed before it and having listened to arguments by the learned counsel on both sides, deliberated on the issues agitated upon, dismissed the appellant’s case, while finding merit in the counterclaim of the 1st defendant now 1st respondent and granted the reliefs sought in the counterclaim.

​Totally displeased with the decision of the lower Court, the appellant appealed the said judgment vide a notice of appeal filed on the 18th of May, 2016 predicated on 13 grounds of appeal. The record of appeal was subsequently transmitted to this Court on the 30th of June, 2016, upon which the learned appellant’s counsel filed a brief of argument on the 30th of August, 2016 deemed properly filed on the 3rd of February, 2021. The 1st respondent in opposing the appeal filed the 1st respondent’s brief on the 8th of March 2021, incorporating a preliminary objection argued from pages 2–4 of the brief. Appellant filed a reply brief on the 15th of June, 2021. On the 7th day of June, 2022, being the date scheduled for the hearing of a pending application brought on notice on the 7th of March, 2019 seeking for order of Court striking out certain grounds of appeal as being incompetent for which written addresses were ordered, filed exchanged and adopted, parties proceeded thereafter to adopt their respective briefs. While Mr. Josiah Danie-Ebune, the learned counsel who appeared for the appellants urged upon the Court to allow the appeal, Mr. Efa Otu Oka the learned counsel who appeared for the 1st respondent urged the Court to uphold the preliminary objection filed and to dismiss the appeal. Even though there was evidence of service on the 2nd, 3rd and 4th respondents by the bailiff of Court, the aforementioned respondents failed to show up in Court, and also failed and or neglected or elected to file no arguments in the matter.

​In the brief settled by Josiah Daniel Ebune for the appellant, the following issues were distilled for the determination of the appeal:
1. Whether the trial Judge was right in his approach and consideration of evidence in relation to the Claim before him, that is whether he considered and weighed the case of both sides on the imaginary case before giving the judgment dismissing the Appellant’s case
2. Assuming (without conceding) that the answer to issue No 1 is in the affirmative, is the entire judgment not perverse, having regard to all the facts and circumstances of the case and as a consequence was the learned trial Judge not in error in dismissing the Appellant’s case and granting the 1st Respondent’s Counterclaim, in that:
(a) He lacked the vires to overrule himself or sit on appeal over his finding that the Appellant proved by Exhibit P.9 its entitlement to a substantial portion of the plot it claimed.
(b) He lacked the vires to exclude evidence which were admitted by consent and not inadmissible from his consideration of appellant’s case and in the process made perverse findings and entered the arena.
(c) He failed to invoke the presumption of withholding evidence against the 1st Respondent on the facts of the case.
3. Having regard to the critical issues on error of law and facts raised and argued on the first two issues and all the facts of this case, is it not clear that the instant judgment delivered in breach of Appellant’s Right to Fair Hearing and outside the statutory period of three months has occasioned the Appellant a miscarriage of justice in addition to its being a constitutional nullity and should it not be set aside?

Also in the brief settled on behalf of the 1st respondent by Mr. Efa Out Oka, a preliminary objection to the hearing of the appeal was raised and argued from pages 2–4 of the brief, urging the Court to strike out the records as transmitted by the Appellants Counsel having been compiled and transmitted prematurely, irregularly and thereby incompetent. That notwithstanding, the learned counsel identified the following issues capable of determining the appeal, on merit:
i. Whether the Court below in evaluating the evidence before it raised the discrepancies and contradictions in exhibit P4 and P5 on the one hand and the competence of exhibit P4 as a document of title suo motu without the appellant having an opportunity to respond to same.
ii. Whether the Appellant is entitled to a declaratory and injunctive relief based solely on the perceived admission and/or weakness of the case of the Respondents without first discharging her evidential burden of proof entitling her to the claim.
iii. Whether the 1st respondent proved his case in the Court below entitling him to the award of damages in the sum of N2,000,000.00 (Two Million naira).
iv. Whether the Court below rightly exercised its discretion in refusing to attach weight to the documents admitted as exhibits P19–P29.
v. Whether from the records of the Court appellant’s counsel was forced to adopt the final written address and whether delay in delivery of judgment within 90 days has occasioned a miscarriage of justice as to warrant declaring the judgment a nullity.

​Before venturing to the determination of the merit of the appeal, should the need be, let me start by considering the application brought by the respondent pursuant to Order 6 Rule 1, Order 7 Rules 2 (2) & (3) of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court. The application filed on the 7th of March, 2019 is for order of this Court striking out grounds 1, 3, 5, 6, and 10 of the Notice of Appeal filed by the Appellant on the 18th May, 2016 for being incompetent. The grounds upon which the application is premised are hinged on the application together with an affidavit of 17 paragraphs deposed to by Raymond Ndomah, a legal practitioner in the firm of Lawrence Alobi & Co, solicitors to the applicant. Further hinged on the motion paper is one exhibit, the notice of appeal bearing the grounds of appeal, some of which forms the subject of the present application. There is a written address filed in support of the application on the 17th of March, 2022.

In opposing the application, the appellant filed a counter affidavit of six paragraphs deposed to by one Esther Michael, the litigation clerk in the law firm of the appellant’s counsel. There is a written address filed on the 31st of March 2022 in support of the counter affidavit. The two processes and the accompanying annexure were adopted before the hearing of the appeal.

​In the written address in support of the motion, learned counsel argued that the application brought pursuant to Order 6 Rule 1, Order 7 Rule 2 (2) and (3) of the Court of Appeal Rules 2016, now Order 7 Rules 2 (2) & (3) and 3 of the Court of Appeal Rules 2021, and also under the inherent jurisdiction of the Court, is to strike out grounds 1, 3, 5, 6 and 10 of the Notice of Appeal filed by the appellant in the appeal.

With respect to ground one, the complaint thereon is that same is that of error in law and on facts and thus improper and therefore incompetent. He further complained that the particulars are vague, augmentative, and general in terms speculative and does not disclose a reasonable ground of appeal, thus throwing up spurious unsubstantiated allegations against the person of the Judge which does not arise from the decision. He relied on CBN vs. NDIC (2016) 3NWLR (pt. 1498) 1 AT 20, and therefore called on the Court to strike out the ground being incompetent.

​With respect to ground 3, it was argued that particulars ii, v, vii and viii are clearly argumentative and thus offend the provisions of Order 7 Rule 2 (3) of the Court of appeal rules 2021, as in the main ground complains about the discrepancies with regards to exhibits P4 and P5 and has no connecting with particulars vii and viii. On ground 6, the complaint borders on the holding by the lower Court that exhibits P17 and P129 were inadmissible complaining that the ground does not arise from the ratio decidendi of the case. Reliance was placed on the case of CPC vs. INEC & Ors (2011) 18 NWLR (pt. 1279) 493 AT 532. The complaint against ground 10 is similar to the complaint that the ground does not arise from the judgment appealed. He urged the Court to be bound by the records, citing SBM Serv. Nig Ltd vs. Okon (2004) 9 NWLR (pt. 879) 529 and Magaji vs. Nigerian Army (2008) ALL FWLR (pt. 420) 603 in that regard. He therefore urged the Court to strike out the grounds mentioned as well as the arguments hinged on same.

​In response thereto by the appellant/respondent is a counter affidavit and a written address. Learned counsel identified two issues arising from the application made on notice as follows:
i. Whether having withdrawn its two earlier briefs on the 14th March, 2022 upon which both parties joined issues upon the instant motion, having a pending preliminary objection which ground one forms the subject matter of the instant motion, the instant motion constitutes an abuse of Court process
ii. Whether the entire objection is misconceived having regard to the entire facts and circumstances of this case.

On issue one; learned counsel was of the contention that the objection was diversionary and an abuse of judicial process. He submitted that the 1st respondent having by their previous processes filed on the 20/9/16, and having sought for the same prayers now being replicated in the present application, and arguments canvassed in the previous briefs now withdrawn, as well as in the preliminary objection filed, the present issue becomes an abuse of the process of the Court. He argued that where two processes are filed as in the present case, such amounts to an abuse of the judicial process and relied on a host of cases: Abubakar vs. B.O.& A.P Ltd (2007) 18 NWLR (pt. 1066) 319 AT 377, Agwasim & Anor vs. David Ojichie & Anor (2004) 10 NWLR (pt. 882) 613 AT 622. With respect to the 2nd issue, learned counsel submits that ground one is not incompetent and the particulars neither vague nor argumentative as they capture the basis of the error alleged. He urged the Court to depart from the era of technicalities and since none of the grounds can be said to be incompetent, urged the Court to dismiss the objection. In the determination of whether the grounds of appeal being complained about are competent or not, I find the decision of the Supreme Court in Ladoja vs. Ajimobi & Ors (2016) LPELR – 40658 most illuminating. It was held therein that in the determination of whether a ground of appeal is competent or not, the proper approach is to focus on the substance of the complaint with a view determining whether the ground contains a genuine complaint which correctly arises from the judgment. The paramount intention being to ensure that the adverse party is in clear understanding of the exact complaint against the judgment. See also Sosanya vs. Onadeko (2005) 8 NWLR (pt. 926) 185 AT 226. In so doing, the Courts are admonished to view the totality of the grounds in union, see Pam vs. Mohammed (2008) LPELR–2895 (SC). I agree with the learned counsel that the Courts have since moved away from the era of technicalities to a regime of doing justice within the dictates of the rules. See Yusuf vs. Adegoke & Anor (2007) LPELR–3534 (SC).

​Against the backdrop of the cases referred to, and having carefully studied the complaints of the 1st respondent with respect to grounds 1, 3, 5, 6 and 10, the grounds cannot be said to be incompetent as prayed and the objection dismissed.

The Preliminary Objection.
The 1st respondent also on the 20th of September, 2016 filed a notice of preliminary objection, predicated on two grounds. On the date of hearing, learned counsel sought for the withdrawal of ground one, which dealt with the competence of some grounds of appeal and the application having been granted unopposed was struck out. The Objection is argued from pages 2–4 of the 1st respondent’s brief, and in particular paragraphs 2.1–3.14, wrongly tabulated as 2.14 at page 4 of the brief. The substance of the argument is that the record of appeal was transmitted to the Court by the learned counsel for the appellant without first waiting for the refusal or neglect of the Registrar of the Court below to transmit same as provided by the rules within 60 days, and thereby irregular. Counsel cited Order 8 Rule 1 of the Court of Appeal Rules, making it mandatory for the Registrar to transmit records within 60 days of the filling of the notice of appeal, contending that it is only where the Registrar defaults, that appellant can transmit. He cited the case of Brittania-U (Nig) Ltd vs. Seplat Pet. Dev. Co. Ltd (2016) 4 NWLR (pt. 1503) 541 AT 595 on the duty placed on the Registrar in the compilation of the records relying on Ikoli Ventures Ltd vs. SPDCN Ltd (2008) 12 NWLR (pt. 1101) 422 AT 443-444, urged the Court to strike out the records as transmitted by the appellant’s counsel before the expiration of the 60 days and thereby compiled prematurely and thereby incompetent. This Court faced with a similar situation in the case of FRN vs. Bankole (2014) 11 NWLR (pt. 1418) 337 AT 380 per Tine Tur of blessed memory, held that: “I do not see how the records compiled and forwarded to this Court is in violation of the above provisions. In any case, assuming for the sake of argument that the records were compiled and transmitted to this Court in violation of the provisions of Order 17 Rule 1, 7 and 9 of the Court of Appeal Rules 2011, should this Court close its eyes to the records and decline to entertain the appeal on the merit? I do not think that that would be justice. That will be taking refuge in unnecessary technicality, the sole aim being to delay the speedy hearing of this appeal. I think this Court can suo motu deem the records as properly compiled and forwarded to this Court for the appeal to be determined..”
The decision cited makes a lot of sense to me, and I adopt the same, for even though rules of Court are meant to be obeyed, there being no complaint with regards to the correctness of the record, nor was there any complaint that the records were compiled in a violent departure from the rules, further still, 1st respondent having compiled additional records to the records in issue depicts that he is comfortable with the records transmitted, and therefore lacks the basis to complain. I am inclined to act on the certified copies of the record, curiously certified by the registry of the lower Court and accordingly discountenance the preliminary objection raised. Having disposed of the application and the preliminary objection, I now proceed to the determination of the main appeal. 

The Main Appeal.
Having therefore studied the grounds of appeal and the submissions of the learned counsel as well as the record of proceedings, it appears to me that all that the complainant by this appeal is doing is to question the propriety of the decision of the lower Court with regard to the claim before it. This is what the learned counsel for the respondent sought to respond to, by raising five issues as against the three raised by the appellant. In the determination of the appeal however, I find it expedient entertaining the appeal based on the issues crafted by the appellant.

Issue One.
Whether the trial Judge was right in his approach and consideration of the evidence in relation to the claim before him, that is whether he considered and weighed the case of both parties on the imaginary scale before giving the judgment dismissing the Appellant’s case.

​It was the submission of the learned counsel for the appellant that the issue seeks to attack the improper evaluation of the evidence placed before the lower Court on the matter as well as the wrong approach adopted by the lower Court to the judgment. He argued that the trial Court prejudged the issues contending that an uneven balance of the scale between the parties occasioned coupled with the failure of the Court to consider a vital aspect of the appellant’s case. Citing the cases of Woluchem vs. Gudi (1981) 5SC 291 AT 206, Victoria Aduke & Anor vs. Solomon Aiyelobola (1942) 8 WACA 43 AT 45 and Mogaji vs. Odofin (1978) 4SC 91 as well as Kwan vs. Sha (1994) 4 NWLR (pt. 338) 365 AT 381, counsel accused the lower Court of abandoning his primary duty of evaluating all the pieces of evidence led. He posits that the lower Court instead of considering the entirety of the evidence led, merely parried and relied on the submissions of the learned counsel for the 1st defendant’s counsel in reaching his verdict. He insists that there was no consideration of the evidence led by both parties before making conclusive findings having rejected the appellant’s case on the basis of the PW1’s evidence. It was his contention that the Court can still evaluate the evidence before it regardless of the discrepancies in the pleadings and relied on Basil vs. Fajebe (2001) 11NWLR (pt. 725) 592 AT 631. He maintained that the method employed by the lower Court in the consideration of the facts and evidence was very simplistic denying it of any intellectual commitment and cited Ewulu vs. Nwankpu (1991) 8 NWLR (pt. 210) 487 AT 507 and Imogiemhe & Ors vs. Alokwe & Ors (1995) 7 NWLR (pt. 409) 581 AT 592-593 in that regard. He accused the Court of having prejudged the issue, particularly as to the size of the land claimed and the contested portion of the land. Learned counsel also complained about the lower Court’s failure to appraise vital issues of a fundamental nature leading to an inconclusive review of the evidence of the parties for which the Court of appeal has a duty of allowing the appeal. He urged the Court to interfere with the decision of the lower Court on the first leg of the submission i.e issue one and to set aside the judgment below, further commending to the Court the judgment of Olatawura JSC in Alh. Oladola Sanusi vs. Oreitan Ameyogun (1992) 4 NWLR (pt. 237) 527.

In his response on the issue, the learned counsel for the 1st respondent, argued that in determining whether which of the parties is entitled to a declaration of title to land, the Court was duty bound to look at the documents placed before it vis a vis the testimony of the parties. In such a case, the Court can only be accused where it raises an issue suo motu without calling on the parties an opportunity to address on the issue. He relied on Ikenta Best (Nig.) Ltd vs. AG Rivers State (2008) 6 NWLR (pt. 1084) 612 AT 642. On whether from the records, it can be said that the Court raised the issue of discrepancies suo motu with regard to exhibit P4, it was posited that the 1st respondent in his final written address pointed out the clear discrepancies in exhibits P4, P5, P9, P11, P11A, and P26 being the documents of title appellant sought to rely upon, and to show that the documents couldn’t have transferred title to the Appellant. Counsel goes on to contend that the issue of a power of Attorney not being a document that can validly transfer title, were all ignored by the appellant and thereby deemed admitted. He submits further that the Court based on the authority of Ikenta Best (Nig) Ltd vs. AG Rivers State (supra), rightly drew inferences and conclusions based on the evidence placed before it, in which case it had the duty of scrutinizing the documents of title, in order to form its opinion and draw conclusions thereon based on the pleadings of the parties. Also relying on the decision of Tumo vs. Murana (2001) FWLR (pt. 33) 369, counsel argued that one of the documents the Court had to look at and rightly determine whether it could validly transfer title was exhibit P4 and exhibit P5 which clearly were in conflict as to the size and the date of the grant of the property. Further still, counsel argued that where a litigant bases his right over a piece of land on documents of title, and desires the Court to make a declaratory and injunctive order over the piece of land, on the contention that the land belongs to him, he must place before the Court such valid title documents showing his entitlement to the piece of land in dispute. Further relying on the decision of Mini Lodge Ltd vs. Ngei (2007) 4 WRN 54 AT 74-75, submitted that the pleadings and the evidence before the Court required the Court to look at the documents before it and to give effect to them which the Court did. He urged the Court to resolve the issue against the appellant.

​In the Appellant’s reply brief, learned counsel sought to raise the issue of the incompetency of the 1st respondent’s issues 1 and 2, heavily relying on the cases of Adah vs. NYSC (2001) 1 NWLR (pt. 693) 65 AT 74 and Eze vs. FRN (1987) 1 NWLR (pt. 51) 506 AT 521. I have no doubt whatsoever that the cases represented the correct decision owing to the facts and circumstances under which they were made. Indeed no issue is permitted to be couched in the abstract, but must be on concrete terms relative to the grounds of appeal filed and representing the area of complaint. However, such a complaint such as this cannot validly be raised in a reply brief, thus shutting out any response thereon.  The law is clear in that the purpose of a reply brief is circumscribed. It is filed in reply to issues of law or arguments raised in the respondents’ brief. To tackle those new issues that were not canvassed in the appellant’s brief but were found included in the respondents’ brief. See, Mozie & Ors vs. Mbamalu & Ors (2006) 15 NWLR (pt. 1003) 466. Thus Augie JSC, in Awusa vs. Nigeria Army (2018) LPELR–44377 (SC) opined that:
“A reply brief is filed when issues of law or arguments raised in the Respondent’s brief call for a reply; it deals with new points. Thus a reply brief is limited to finding answers to questions raised in the Respondent’s brief which the Appellant had not addressed or dealt with in the main brief”.
To avail a response to the issue whether the issues in contention are competent or not, such must be by way of motion on notice. That having not done, that leg of argument is hereby discountenanced. Further still, the learned counsel for the Appellant replied extensively to the issues raised by issues 1 and 2 in the brief from pages 5–16 of the reply brief. I shall refer to it as the situation unfolds. In the recent case of Garga vs. The State (2022) LPELR–57677 (SC), Ogunwumiju JSC, summarized the position of the law with regards to the duties of the trial Court and the Court of appeal with regards to the evaluation of evidence having stated that:
“..it is trite that the evaluation of evidence and the ascription of probative value to such evidence is the primary function of the trial Court. This much was given judicial credence by my lord, Iguh JSC in Oguonze vs. The State (1998) 4SC 110 AT 121-122, when his Lordship held thus: “before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need to re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial Court and no question of misdirection arises, an appellate Court will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the Appellate Court, it would not have come to the same decision as the trial Judge, see Ike vs. Ugboaja (1993) 6 NWLR (pt. 301) 539, Odofin vs. Ayoola, (supra), Ogberi Egri vs. Ukperi (1974) 1 NMLR 22; Ogundulu & Ors vs. Philips & Ors (1973) NMLR 267 etc. this as already stated is because findings of fact made by a trial Court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an Appellant satisfactorily proves that they are wrong, such trial Courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See Adelumola vs. The State (1988) 1 NWLR (pt. 73) 683. An appellate Court may however interfere with such findings in circumstances such as where the trial Court did not make proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See, Okpiri vs. Jonah (1961) 1 SCNLR 174; Maja vs. Stocco (1968) 1 ALL NLR 141 AT 149; Woluchem vs. Gudi (1981) 5SC 29”.

The plaintiff before the lower Court, now appellant, sought for a declaration that he is entitled to the Statutory Right of Occupancy over all the property lying, being, situate and known originally as plot No. 105A but subsequently numbered as plot No. 4252 within Cadastral Zone AO4 Asokoro District, Abuja Measuring approximately 2,3000 m2 by virtue of offer of Right of Occupancy dated the 12th May, 2005 with reference No. MFCT/LA/KN.4867 and conveyed by the Certificate of Occupancy No. 186ew-e0dz-584br-852au-10 with file No. 54645 of 8th day of April, 2009 for residential purposes.

Doubtless, ownership or a claim for declaration of title to land can be established through documents of title duly executed. See Goddy Edosa vs. Eguagie Ehimwenma & Ors (2022) LPELR–56869 (SC). It is also postulated in the case cited, that in such a situation, the production and reliance on such instruments which the Plaintiff seeks to place reliance on, equally places a duty on the Court to inquire, whether the documents are genuine or not; whether they were duly executed; whether the grantor had the capacity and the authority to make the grant; whether the grantor in fact had what he purported to grant and whether it had the effect claimed by the holders of the instrument. See Goddy Edosa vs. Eguagie Ehimwenma & Ors (supra), Tumo vs. Murana (2001) FWLR (pt. 33) 369.

In the instant case, appellant’s complaint is hinged on the way and manner the evaluation of evidence was carried out by the trial Court, and in particular with regards to the size of the plot in contention. The Supreme Court decision in Woluchem vs. Gudi (1981) LPELR – 3501, and all other related cases establish the fact that civil matters are decided on the balance of probability, which presupposes a consideration of the totality of the evidence adduced by the parties as against placing weight on a one-sided presentation. See Anya vs. Anya (2020) LPELR–49386 (SC).

In the same vein, declaratory reliefs are not granted as a matter of course and on a platter of gold. A declaratory relief is only granted in consequence of a finding of fact made by the Court. Thus in the absence of sufficient evidence to make the finding of fact that must precede the grant of the relief, the Court will be slow if at all in exercising its discretion granting the relief. The Court must be satisfied that from the statement of claim and the evidence adduced in support, the claimant has a strong and cogent case. He succeeds wholly on the strength of the case made by him, and rarely on the weakness of the case made by the defense. See, Etim vs. Akpan (2019) ALL FWLR (pt. 995) 778 AT 803.

The learned counsel for the appellant, alluding to the holding of the lower Court at pages 486-487, and 496 thereof submits that the Court below failed to consider the totality of the evidence placed before it, heavily relying on the submissions of the 1st defendant in reaching its conclusion. I have carefully looked at the portion of the judgment being complained about, to the effect that judging from the record before it, it was observed that plot 105A and plot 4252 were not and could not have been one and the same plot of land, and thereby failed in establishing his case. It’s clear from the pleadings that appellant founded his case on documents of title. That being so, he has the evidential duty of placing the documents ensuring to his favor before the Court for its examination in line with the authority of Tumo vs. Murana (supra), and where the Court finds that the documents fail any of the conditions set out there under, and such discrepancy not reconciled by evidence, his case must fail. Apparently, upon a careful perusal of exhibits P4, the irrevocable power of Attorney, and exhibit P5, being the schedule contained therein conflict with each other. At pages 475–476 of the record, the lower Court noted as follows:-
“Now, upon proper examination of Exhibits P4 and P5, it becomes pertinent to further examine whether it is the same plot referred to in exhibit P5 that was subsequently donated by exhibit P4; and whether indeed the power of Attorney, exhibit P4 can validly convey or transfer ownership of land. Mr. Oka of Counsel for the 1st defendant had contended that there is a marked variance between exhibit P4 and P5 respectively.
The recital to the said irrevocable Power of Attorney, Exhibit P4, states as follows:
“By virtue of Letter of Grant of Statutory Right of Occupancy referenced No. MFCT/LA/KN. 4867 dated 5th September, 2001 (hereinafter referred to as “the Grant”), the DONOR became entitled to right of Occupancy over Plot No. 105A within Asokoro District, Abuja for a term of Ninety-nine (99) years according to the true intent and meaning of the Land Use Act”
(underline Portion for emphasis )
The plot to which the Power of Attorney relates is more specifically described in a Schedule contained therein, as follows:
“SCHEDULE
All that piece or parcel of land laying (sic), situate and known as plot No. 105A within Asokoro District, Federal Capital Territory (F.C.T) Abuja containing an Area of approximately 1,800 square metres covered by Letter of Grant of Statutory Right of Occupancy referenced No. MFCT/LA/KN. 4867 Dated 5th September, 2001”
(Underlined Portions for emphasis)
Now, whereas Exhibit P5, the document of Offer of grant of Plot 105A to Alhaji Gambo Musa Fari was clearly dated 12/03/2003; the Plot 105A to which the Power of Attorney, Exhibit P4 related is stated to be covered by Letter of Grant of Statutory Right of Occupancy dated 05/08/2001.
Again, whereas, the size of Plot 105A granted according to Exhibit P5 is stated to be about 2,300 square metres. In Exhibit P4 it is clearly stated that the size of Plot 105A donated by Alhaji Fari to the Plaintiff is approximately 1,800 square meters.
The PW1 did not offer any evidence whatsoever to explain or clarify the fundamental and material discrepancies between Exhibit P4 and P5, as highlighted in the foregoing.
The position of the law applicable to the circumstances here was clearly laid out in the authority of Mini Lodge Ltd. Vs. Ngei (2007) 4 WRN 54 AT 74-75, where it was held as follows:
“Where a party in a case has tendered a document in proof of his case and the contents of the document is inconsistent with the content of another document equally tendered in proof of the same fact, and the inconsistency remain unexplained, the Court should, as was done by the Court below, regard the contents of the two documents as evidence that is far from being reliable … A decision not to rely and act on any of the documents is not only logical but a necessity occasioned by the uncertainty as to what version the Court would choose and believe out of the two.”
See also Audu Vs Guta (2004) 4 NWLR (Pt. 864) 463; Onoche Vs. Elumelu (2014) LPELR 22969 CA.
In the present action, the Plaintiff tendered Exhibits P4 and P5 to establish that the plot referred to in Exhibit P5 was donated to her vide Exhibit P5; whereas the two documents contained material inconsistencies. The contradictions or unsettled discrepancies in the content of Exhibits P4 and P5 are material I that they go to an issue of fact which must be determined before a proper decision can be arrived at as to the Plaintiff’s claim that Plot 105A referred to in Exhibit P5 was the same as the one Exhibit P4 purported to donate to her”.

I cannot see how the lower Court can be faulted in that regard. I agree with the 1st respondent’s counsel that the issue pertaining to the discrepancies in the title documents, which ultimately points to the fact that they cannot by themselves transfer title raised by the 1st respondent in the final written address for which appellant willfully failed to address. The lower Court having scrutinized the documents and drawn conclusions thereon cannot lawfully be accused of raising the issue of discrepancies in the title documents.

On the proper approach to judgment writing, I have been referred to the decision of Olatawura JSC in Alh. Oladoja Sanusi vs. Oreitan Ameyogun (1992) 4 NWLR (237) 527. Therein the learned jurist re-emphasized the proper procedure to adopt in the quest of reaching a fair judgment. Good as that practice may be, does not translate to voiding any other procedure adopted in the determination of matters before the Courts. For instance, Ngwuta JSC of blessed memory held in the case of Chukwuemeka Ezeuko (Alias Dr. Rev. King vs, The State (2016) 6NWLR (pt. 1509) 529, that: “Judgment writing is an art and once the essential elements are present in the judgment, it will not matter what method was employed in writing the judgment. Also whether the Appellants case or the prosecution’s case was considered first will not affect the trial Court’s resolution of the issues in contention between the parties”.

The 1st respondent having failed to establish his case, his case at that stage must fail, as the need to balance the unproven facts against any other facts does not arise. The consequence of all that has been said is that the issue is resolved against the appellant.

Issue Two.
Assuming (without conceding) that the answer to issue 1 is in the affirmative, is the entire judgment not perverse, having regard to all the facts and circumstances of the case and as a consequence was the learned trial Judge not in error in dismissing the appellant’s case and granting the 1st respondent’s counterclaim in that:
(a) He lacked the vires to overrule himself or sit on appeal over his finding that the Appellant proved by exhibit P9 its entitlement to a substantial portion of the plot it claimed.
(b) He lacked the vires to exclude evidence which were admitted by consent and not inadmissible from his consideration of Appellant’s case and in the process made perverse findings and entered the arena.
(c) He failed to invoke the presumption of withholding evidence against the 1st Respondent on the facts of the case.

This issue argued by the learned appellant’s counsel correlates with issues 2–4 argued by the learned counsel for the 1st respondent. It is submitted by the learned counsel that the judgment of the lower Court was perverse. He argued that the lower Court having found that at page 485 of the record that appellant proved by its exhibit 9 its entitlement to a substantial portion of 1644.27 sq. metres, somersaulted to hold that the 1st respondent proved his counterclaim. He argued also that the trial Court’s holding that appellant had no claim against the 2nd and 3rd respondents as being perverse. He alluded to the holding of the lower Court at pages 319–320 of the record, contending that evidence elicited from cross-examination is as valid and authentic as that given in examination in chief, and relied on the cases of Dagash vs. Bulama (2004) 14 NWLR (pt. 892) 144 AT 241, Okene vs. Orianwo (1998) 9 NWLR (pt. 566) 408 and Ogbeide vs. Osuala (2004) 12 NWLR (pt. 886) 86 amongst many others.

He complained that the trial Court disregarded some vital documents i. e exhibits P17 – P29 as well as exhibits P30–P33A on the flimsy excuse that they were dumped on the Court, whereas they were admitted without objection. He went on to complain that the lower Court failed to advert its mind to the vital evidence rendered by the Dw1, and alluded to the decision of the trial Court at pages 493–496 of the record contending that the basis for the exclusion of those pieces of evidence is unfounded. He is of the view that witnesses on subpoena are witnesses of Court and whether sworn in or does not diminish the fact that once produced become documentary evidence. Further still it was argued that exhibits P17 – 33A were consequent upon a signed subpoena duly tendered in evidence by consent, contending that the trial Court was in error disregarding the evidence contained in exhibits P17 – P33A.

​Without much ado I must say that the learned appellant’s counsel misconstrued the law. It is the law established through numerous cases that when a party decides to rely on documents to prove his case, there must be a link between the document and the specific area(s) of the petition. He must relate each document to the specific area of his case. On no account must counsel dump documents on a trial Court. The cases of Aliucha & Anor vs. Elechi & Ors (2012) LPELR–7823 (SC), ANPP vs. INEC (2010) 13 NWLR (pt. 1212) 549, Ogah vs. Ikpeazu & Ors (2017) LPELR-42372 (SC).
I find the decision in ANPP vs. Usman (supra) cited by Mr. Oka very helpful and apt, and therefore reproduce it thus:
“A party relying on documents as part of its case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. The Court cannot assume the duty of relating each of the documents or bundle of documents tendered in evidence to specific aspects of the case for the party. It is the duty of the party to do so for itself. It will be an infraction of right to fair hearing if the Court or tribunal engages itself in the recess of its chambers to fish out or guess which document relates to a particular aspect of the case of a party. such a duty ought to be carried out in open Court by the party. in the instant case, the tribunal was of the opinion that exhibits R4, R10, R11 and P19 (A) (B) and (C) have no probative value because they were dumped on it without any explanation from the parties who tendered them. The tribunal was right in attaching no probative value to the documents and ignoring them in its judgment… admitted documents’ usefulness as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport”.

This is against the backdrop that a party who did not make a document is not competent to give any evidence on it as the maker must be called in order to test its credibility and veracity. Ikpeazu vs. Oti (2016) 8 NWLR (pt. 1513) 38 AT 93.

Mr. Daniel-Ebune, of learned counsel for the appellant dwelt at length on the contention that the documents afore stated were documents ordered by the Court by way of a subpoena ad testificandum, and therefore the need to link the documents tendered unnecessary. That argument does not represent the position of the law. In the case of INEC vs. Action Congress (2009) 2 NWLR (pt. 1126) 524, this Court settled the issue thus:
“Section 192 of the Evidence Act merely authorizes a subpoena duces tecum to be issued to a person to deliver a document to the Court either personally or through any other person he may consider suitable for the assignment. Once such a document is delivered or caused to be delivered to the Court, the person’s obligation is discharged and he cannot be sworn or cross-examined. But the delivery of the document in Court pursuant to Section 192 of the Evidence Act does not relieve the person who summoned an adverse party to produce a document the burden of proving the document by having it admitted in evidence by tendering it through a person who has the capacity to do so… A person who brings forward a document cannot be said to have given it in evidence and he does not have the capacity to give or tender it in evidence.”
​It flows therefrom that the fact that a document has been admitted in evidence with or without objection does not necessarily mean that the document has established or made out the evidence contained therein. See, Abubakar vs. Chuks (2008) ALL FWLR (pt. 408) 207 AT 221. The holding of the lower Court at pages 493–496 with respect to exhibits P17–P29 is therefore well founded. This is because Mr. Olowu Alexander (PW2) who appeared on subpoena and put in evidence the documents afore mentioned, lacked the capacity to give evidence with regards to the contents of the documents which can only be tied to the Appellants case by calling the authors thereof. The same applies to the evidence of Michael Musa (Pw3) who tendered exhibits P30–P33. I am happy the learned counsel for the appellant cited Adike vs. Obiareri (2002) 4NWLR (pt. 758) 537, to the effect that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence to led by the parties explaining its essence. Thus as held in Baban-Lungu vs. Zarewa (2013) LPELR–20726 (CA), a document produced in Court must be examined in open Court for the purposes of testing its veracity and credibility. A critical examination of the case of Famakinwa vs. Unibadan (1992) NWLR (pt. 255) 608, cited by the learned counsel for the Appellant will clearly show that it cannot avail the appellant. It is the law that any party tendering documentary evidence has the bounden duty of linking such documentary evidence to the specific aspects of the case for which the document was tendered, except where the document is an official gazette, and other sundry exceptions to which these documents do not form part of. The lower Court to my mind fully appreciated the law in that regard and cannot be faulted for discountenancing the documents so brought to Court by way of subpoena, but was not linked to the Appellant’s case by evidence. A subpoena only helps a party to have before the Court documents which ordinary the party might have problem in getting it to Court. It does not automatically when brought become evidence. This issue is similarly resolved against the Appellant.

Issue Three.
Having regard to the critical issues on error of law and facts raised and argued on the first two issues and all the facts of this case, is it not clear that the instant Judgment delivered outside the statutory period of three months has occasioned the Appellant a miscarriage of justice in addition to its being constitutional nullity and should it not be set aside?

The grouse of the appellant with regards to the issue bothers on what he termed the constitutionality and impact of the judgment vis a vis the justice of the case. He complained that the notice for the judgment was transmitted by the plaintiff’s Director and later instructed to go to Court without the case file, and thereby coarsed into adopting the address from the Court’s copy. Yet again, counsel complained that whereas the case was concluded on the 18th February, 2014 and adjourned to the 8th of May, 2014 for adoption of written addresses which did not take place until the 11th of November, 2014, the judgment was only delivered on the 29th of April, 2016. He submits that even though the Court had stated that he was on special assignment throughout 2015, the peculiar and cumbersome nature of election petitions, coupled with the loss of memory on some salient points must have impeded his remembering some salient points in the evidence and submissions adduced. He insists that the Court with the lapse of time might have lost trend of the entire proceedings and the evidence before him hiving failed to make findings on some salient and fundamental allegations on the illegality of the 1st respondent’s counterclaim. Counsel based on the foregoing, urged the Court to resolve the issue in favor of the appellant.

Responding on the issue, learned counsel for the 1st respondent posited that the purpose of a hearing notice is to bring to the attention of the parties the business of the day on a named date in which parties have interest. He stated that on the date in question, parties were called upon to readopt their final written addresses, which their counsel did, thus presupposing that she was fully briefed. He argued also that the trial Judge was on special assignment throughout the year 2015, and that there was nothing in the judgment to support that the trial Court lost its memory of salient facts in the case. He continued to argue that an appellate Court will not allow an appeal if from the judgment the summary and evaluation of evidence by the Court cannot be said to be blurred and inadequate, and that the Court had lost the impression made on him by the witnesses because of the length of time it took him to write the judgment. He relied on the case of Owoyemi vs. Adekoya (2004) 1MJSC Vol. 1, and accordingly urged the Court to resolve the issue against the appellant.

The Apex Court in the case of Compact Manifold & Energy Services Ltd vs. Pazan Services Nigeria (2019) LPELR–49221 (SC), emphasized the essence of service of a hearing notice, being to notify the party of the date fixed for the hearing of the matter. This service on the parties has been held to be fundamental and confers jurisdictional competence on the Court. To that extent, the Court has a duty to ensure service of hearing notice on the parties. Appellant in the instant case is not complaining that they were not served, having stated that the lead counsel on being notified called on the counsel that appeared to appear in the case. It is trite law therefore that once a legal practitioner appears in a case and announces his appearance; the Court will normally assume that he has the mandate or authority of the person he appears for, and more so that he is possessed of the competence and knowledge to address the Court in any given situation. The contention of the appellant therefore that their counsel who appeared without the case file was coursed into addressing the Court without more, cannot be sustained.

It appears unfortunate, that the Court which heard and concluded the hearing of the case before it sometimes on the 11th of November, 2014, was unable to give its judgment on the matter until the 29th of April, 2016. This ordinarily offends Section 294 (1) of the Constitution. However, Subsection (5) thereof is designed to save those judgments delivered outside the 90 days period where it has not occasioned any miscarriage of justice. Okoro JCA, now JSC, in Alh. Danasabe Abdullahi & Anor vs. Group Captain Stephen Ezra Hedima (2010) LPELR-3556 (CA) on the issue stated that:
“As was rightly observed by this Court in Dahiru vs. Kamale (2005) 9 NWLR (pt. 929) 8, it is not the law that once a delay in the delivery of judgment is established, an appeal will be allowed and an order of retrial made. However if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Court’s perception, appreciation and evaluation of the evidence such that it can easily seen that he has lost the impression made on him by the witnesses, then in such a case there might be some fear of a possible miscarriage of justice and then but only then will an appellate Court interfere. It should be noted that the emphasis is not on the length of time alone but on the effect it had produced in the mind of the trial Court… as it is, it is on the party complaining to show that he has suffered a miscarriage of Justice”.
I have been referred to the cases of Nwankwo Okoye Leventis Motors Ltd Onitsha in suit with No. FCA/E/208/78, reported as (2017) CA (pt. II) 214. Per Olatawura JCA, and Renascent Consult Ltd vs. Media Trust & Ors, appeal with No. CA/A/154/2013 delivered on the 20th of November, 2020, per Dongban-Mensem PCA, all urging that judgments be delivered soon after addresses due to the failure of human memory over time. I wholly agree with my learned brothers on the point that where the length of time taken from final addresses to the time of the delivery of the judgment is far beyond the limit allowed by law, evokes the fear of miscarriage of justice. It seems to me however that to so qualify as held in the case of my lord the Honourable President of this Court, the party complaining must show to the Court the miscarriage suffered by such constitutional lapse. That much has not been shown. This is more so as the entire case is mainly hinged on documentary evidence. In the event, I hold that this is not a case that ought to be returned for fresh hearing and accordingly resolve the issue against the appellant.

Having therefore resolved all the issues against the appellant, this appeal must fail for want of merit and it is hereby dismissed by me. The judgment of A.O. Adeniyi J, of the Federal Capital Territory High Court, delivered on the 29th of April, 2016 is hereby affirmed. I make no order on costs.

PETER OLABISI IGE, J.C.A.: I have read before now, the draft judgment of my learned brother, BARKA, JCA.
I agree with his reasoning and conclusion that the appeal lacks merit.

The judgment of the lower Court Coram: A. O. Adeniyi, J. in suit No. FCT/HC/CW2232/2012 delivered on the 29th day of April, 2016, is hereby affirmed.

​I also abide by the consequential order as to costs as contained in the lead judgment of my learned brother. 

BATURE ISAH ​GAFAI, J.C.A.: I have before now read in draft, the judgment delivered by my learned brother Barka, JCA. I am in full agreement with the well founded reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find this appeal lacking in merit, in the manner all the three Issues formulated and argued by the appellant revealed no merit whatsoever.
In consequence, the appeal is dismissed by me too.

Appearances:

Josiah Daniel-Ebune, with him, Onyeabuchi Obeta, For Appellant(s)

Efa Otu Oka, with him, W. Okpara, – for 1st Respondent For Respondent(s)