ZAAGUBO v. PAREPARE
(2021)LCN/15887(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, December 10, 2021
CA/ABJ/CV/431/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
HASSAN ZAAGUBO (On Behalf Of The Members Of Zaagubo Family Of Ashiriwe Village) APPELANT(S)
And
TANKO PAREPARE RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
The law recognizes two distinct ways of proving identity of land in dispute and the ways are:
1. By the claimant/plaintiff adducing oral description of the land in dispute that a surveyor, acting on the strength of the description, can make a plan of the land; or
2. By the claimant/plaintiff filing a survey plan showing the land in dispute with its boundaries.
See the cases of Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Michael Odunze & Ors v. Nwosu Nwosu & Ors. (2007) 13 NWLR (Pt. 1050) 1.
It should be noted that before the identity of land in dispute can be raised as an issue, the party complaining or raising it must have first denied, in his pleadings, knowledge of the location of the land. See Afolarin Adenie v. Folarin Olude (2002) 18 NWLR (Pt. 799) 413 and Mr. P. Ogunyanwo v. M/S Augusta Oluwole (2009) 16 NWLR (Pt. 1167) 391. PER ADUMEIN, J.C.A.
THE EFFECT OF AMENDMENT ON ORIGINAL COURT PROCESSES FILED
I think that it is settled law that where a process, such as a statement of claim or statement of defence, is amended the amended process automatically replaces the original process effectively from the date the original process was filed. Thus, the Supreme Court stated, the effect of amendment on the original process, in Victor Adegoke Adewumi & Anor v. The Attorney-General of Ekiti State & 6 Ors (2002) 2 NWLR (Pt. 751) 474 at 506, per Wali, JSC; as follows:
“The principle is that an amendment duly made takes effect from the date of the original document sought to be amended, and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning.”
See also Sneade v. Watherton (1904) 1 K.B.295 and Unity Bank Plc v. Edward Bouari (2008) 7 NWLR (Pt. 1086) 372. PER ADUMEIN, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT
The law is quite clear that where a trial Court had exercised its discretion, on the basis of the facts and the law placed before it, it is not open for an appellate Court to substitute its opinion or views for that of the trial Court. See Solanke v. Ajibola (1969) 1 NLR 259, Alhaji Amodu Olaleye Oyeyemi & 7 Ors. v. Irewole Local Government & 6 Ors (1993) 1 NWLR (Pt. 270) 462 and Federal Republic of Nigeria v. Senator Adolphus N. Wabara & 2 Ors (2013) 5 NWLR (Pt. 1347) 331. PER ADUMEIN, J.C.A.
WHETHER OR NOT FINDINGS OF FACT BY THE COURT ARE DEEMED BINDINF ON THE PARTIES
The findings of facts, based on the trial Court’s belief of the evidence of DW4 and its evaluation thereof have not been appealed against by the appellant. The effect, in law, is that these findings of fact by the trial Court are deemed to have been accepted to be correct by the appellant and indeed the respondent. The law is trite that decisions or findings not appealed against are deemed to be correct and are binding on the parties. See Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364, Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Alhaji Adeyemi & Anor v. Chief Olakunri & Ors (1999) 12 SCNJ 224, Chief Biariko & Ors. v. Chief Edeh-Ogwuile & Ors (2001) 12 NWLR (Pt. 726) 235, Udegbunam v. FCDA (2003) 10 NWLR (Pt. 829) 487, Madam Adunola Adejumo & 2 Ors v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252, Wike N. Nyesom v. Hon. (Dr.) Dakuku A. Peterside & ors. (2016) 1 NWLR (Pt. 1492) 71, Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors (2018) 10 NWLR (Pt. 1627) 320 and Attorney-General, Imo State & Anor v. Imo Rubber Estates Ltd. & 2 Ors. (2020) 13 NWLR (Pt. 1741) 209 at 240, per Mbaba, JCA, where this Court held:
“The law is that, where there is no appeal against the findings of a Court, the same remains binding and conclusive.” PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant, as the plaintiff in the lower Court, instituted Suit No. NSHC/MN/283/2017 by way of a writ of summons in the High Court of Niger State, holden at Minna, where in his amended statement of claim he sought the following relief:
“a. A declaration that the plaintiff is entitled to the deemed/customary Right of Occupancy over the disputed land described at paragraph 3 of the statement of claim.
b. An order of perpetual injunction restraining the Defendant, his agents, privies, successors-in-title personal representatives or any other person claiming through him from interfering with the plaintiff’s quiet possession and peaceful enjoyment of the disputed land.
c. General damages of Ten Million Naira (N10,000,000.00k)
d. Punitive, exemplary and aggravated damages of Five Hundred Thousand Naira (N500,000.00k) only.
e. The cost of litigation of Five Hundred Thousand Naira (N500,000.00k) only
f. Any other order(s) that meets the interest of justice.”
As defendant to the said suit, the respondent filed a statement of defence wherein he also counter-claimed as follows:
“a. A declaration of title to the land in dispute lying and situate at Wulu as described in paragraph 28 of the statement of defence in favour of the counter-claim.
b. A perpetual injunction restraining the plaintiff/defendant to counter-claim, his privies, agents and assigns or whosever claiming through him from further trespassing on the land of the defendants/counter claimant.
c. Five Hundred Thousand Naira (N500,000.00) as against the plaintiff/defendant to counter-claim as general damages.”
At the close of pleadings, the appellant called two witnesses – Umar Gomna (PW1) and Ahmadu Garba (PW2) in proof of his case. The respondent called three witnesses: Jibo Jagaba (DW1), Jagaba Pada Minna (DW2) and Musa Suleiman (DW3) and testified for himself as DW4. Upon the close of evidence and after the addresses of learned counsel for the parties, the trial Court delivered a reserved judgment on the 21st day of April, 2020 whereby the appellant’s claim was dismissed and the respondent’s counterclaim was granted. This appeal is against the said decision.
In the appellant’s brief filed on 26/06/2020, Philip K. Emmanuel, Esq., learned counsel who settled the brief, raised the following issues for determination:
“a. Whether in the circumstances of this case, the trial Court was right/justified in entering judgment for the respondent on the rule in Kojo II v. Bonsie (1957) 1 WLR 1223.
Distilled from ground 1 of the notice of appeal.
b. Whether the respondent clearly and precisely ascertained or identified the land being claimed by him as required by law.
Distilled from ground 2 of the notice of appeal
c. Whether the trial Court breached the appellant’s right to fair hearing enshrined under Section 36(1) of the 1999 Constitution, when it failed and neglected to make a pronouncement or return a verdict on the 1st issue formulated for its determination.
Distilled from ground 3 of the notice of appeal.
d. Whether proper evaluation was given to the evidence adduced to warrant the conclusion that the respondent’s case was proved.
Distilled from ground 4 of the notice of appeal.”
The respondent’s brief was settled by E. O. Ebonodje, Esq., and it was filed on 09/09/2020 but it was deemed as properly filed on 21/09/2021. The issues raised by the appellant were adopted by the respondent. I also adopt the issues agreed upon by the parties to determine this appeal. However, the third issue will be taken and treated first. The issue is:
Whether the trial Court breached the appellant’s right to fair hearing enshrined under Section 36(1) of the 1999 Constitution, when it failed and neglected to make a pronouncement or return a verdict on the 1st issue formulated for its determination.
Learned counsel submitted that although two issues were formulated for determination in the appellant’s final written address but the Court “treated” the issues by reviewing the appellant’s arguments and authorities cited in support thereof but at the end, failed and neglected to return a verdict or make an authoritative pronouncement on same”. Counsel cited the cases of Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) 1 at 22 and Tanko v. U.B.A. Plc (2010) 17 NWLR (Pt. 1221) 80 and contended that “the trial Court was….. duty bound to make a pronouncement on same.”
Relying on the case of Katto v. C.B.N. (1991) 9 NWLR (Pt. 214) 126 at 149, learned counsel for the appellant submitted further that:
“…since the issue was rightly and competently formulated from the facts and evidence on the record, it is incumbent on the trial Court to resolve same by making a definite pronouncement on same.”
Counsel argued that the appellant’s issue 1, in the lower Court, was “premised on the legal effect of admission in pleadings which the Court failed to pronounce upon”. After citing and relying on the cases of Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330 and Owners of MV “Arabella” v. N.A.I.C. (2008) 11 NWLR (Pt. 1097) 182, the learned counsel argued that “it is the constitutional right of a party before any Court established under the 1999 Constitution to have his matter/issues resolved/determined.”
Learned counsel referred to paragraphs 1 and 2 of the appellant’s amended statement of claim which, according to him, were admitted by the respondent in his paragraph 1 of his statement of defence. Counsel referred to the case of Trioversal Design Associates v. Comm. Health & Human Services, Yobe State (2020) 4 NWLR (Pt. 1714) 243 to contend that:
“The rule in civil proceedings is that when parties have in their pleadings agreed on some facts, there is no issue in dispute between them on such agreed matters. This means that when a fact pleaded by the claimant is admitted by the defendant, evidence on the admitted facts is irrelevant and unnecessary.”
In urging the Court to resolve this issue in favour of the appellant, counsel submitted as follows:
“Put differently, the respondent having admitted appellant’s ownership of the disputed land and him (respondent) being a stranger thereon, by virtue of the admission of radical title vesting on the appellant, the burden of proof shifted on the respondent to prove a valid grant to him.”
In response, the learned counsel for the respondent stated that the appellant formulated two issues for determination in his final address and the two issues were “treated/reviewed” by the trial Court in its judgment. Learned counsel specifically referred the Court to pages 238 to 242 and pages 242 to 251, respectively, of the record of appeal. In urging the Court to resolve this issue against the appellant, learned counsel for the respondent referred to the case of FRN v. Borishade (2015) NSCQR (Pt. 2) 1266 and contended that: “….in any case, it is trite that the Honourable Court is empowered to either treat/consider issue as formulated by counsel or reformulate such issues for proper consideration or even treat some issues as subsumed by some other more serious/compelling issues.”
The general principle of law is that, save the Supreme Court which is the apex Court, all other Courts and Tribunals in Nigeria have a duty to resolve all issues articulated by the parties. See Bello v. Diocesan Synod of Lagos (1973) 3 SC 102; (1973) 1 All NLR 247 and Ifeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322.
Where, however, there is a failure by a Court or Tribunal to consider and pronounce on the issues submitted by the parties for determination or resolution, the failure may not necessarily amount to a denial of fair hearing or even a miscarriage of justice. See Union Bank of Nigeria Limited & Anor v. Benjamin Nwaokolo (1995) 6 NWLR (Pt. 400) 127 and Ogundare Osasona v. Oba Adetojinbo Ajayi & 3 Ors. (2004) 14 NWLR (Pt. 894) 527.
In its judgment, the trial Court, after summarising the evidence of the witnesses, who testified before it, stated on page 229 of the record of appeal, inter alia, as follows:
“In their final written address, the learned counsel to the plaintiff, Philip K. Emmanuel Esq., (Notary Public) formulated two 2 issues for determination, it is –
1. Whether from the state of pleadings before the Court, the ownership of the disputed land can be said to be in serious dispute.
2. From the pleadings and totality of evidence adduced before the Court, who between the plaintiff and the counter-claimant could be said to have established his case on a preponderance of evidence as to entitle him to a declaration of title to the land in dispute.”
The learned trial Judge, Hon. Justice Zainab Aliyu Sadat, then proceeded to consider issue 1, from pages 229 to 242 of the record of appeal, and concluded on page 242 as follows:
“It is clear that from the proceedings and the evidence led by both parties, that the parties know the subject matter of this suit, that is the land lying and situate at Wulu village of Ashirieve under Shiroro Local Government Area of Niger State very well. The identity of the land in dispute is therefore not in doubt as both parties to the suit referred to it in their evidence and on visit to locus in quo.
The plaintiff in paragraph 3 of his amended statement on oath gave the description of the land as being situate at Wulu village of Ashiriwe under Shiroro Local Government. PW4 described the land as being situate at Wulu which is named after river Wulu. The foregoing confirms that there is no dispute as to the identity of land in dispute.
In an action for declaration of title to land, where the identity of the land and all parties pointed at the same land and the boundaries of the land proved, and features thereon being controverted and not in issue, must under the circumstance be treated as established as in the instant case.”
Upon the resolution of issue 1, the trial Court immediately proceeded to consider issue 2, from pages 242 to 250 of the record of appeal, and pronounced on pages 249 to 250, inter alia, as follows:
“Now, the question is who amongst the parties established traditional histories in relation to the recent acts of possession and ownership from the facts of the case that is more probable?
The answer to his question can be found from the evidence of DW4 where he stated thus –
“….. It was not Durumi that borrowed the land to Zaagubo, it was Pada Minna (defendant’s father’s younger brother). My father Tunga Parepare first cultivated the disputed land. Zaagubo grave is on the land because when he died, they came to my father and asked him how they were going to do. My father (Tunga Parepare) said they should bury him on the land, Chetu’s rave is not on the land. I know the land in dispute, from East is bounded by one Wambai, South is bounded by one Hassan Zaagubo, West is bounded by one Minna, North is bounded by Bidiwa Road.
The plaintiff’s farm is within the description when my father died, the land was not shared because Pada Minna was entrusted with the land. They later met Pada Minna that we wanted to share our land in the presence of witnesses. After the sharing Hassan Zaagubo said since one of the defendant is far, if we cannot use the land, they (plaintiff) will want to use the land and the portion of Isiyaku was leased to him (plaintiff) at the rate of N20,000 and the following year, he paid N30,000 because Isiyaku said he was not going to give him the land at N20,000 I am surprised that plaintiff is now claiming the land”.
I am of the view that by the above statement which is not contradicted, the defendant has established acts of ownership and possession in recent years. This piece of evidence therefore resolves the conflict.
In the circumstance, I am of the view that the plaintiff’s claim for title to the disputed land fails.”
As can be seen from the portions of the judgment reproduced above, the trial Court duly considered the two issues submitted by the appellant and elaborately pronounced on them.
In any case, the appellant has not shown that the alleged failure by the trial Court to pronounce on his first issue occasioned any miscarriage of justice against him or at all or that the purported failure breached his right to fair hearing.
Without more, I hereby resolve this issue in favour of the respondent and against the appellant.
The next issue to be determined is the second issue identified by the parties, which:
Whether the respondent clearly and precisely ascertained or identified the land being claimed by him as required by law.
Learned counsel referred to paragraph 3 of the appellant’s amended statement of claim, where the disputed land was described by the appellant, and paragraph 1 of the respondent’s statement of defence, where the respondent denied paragraph 3 of the amended statement of claim and went ahead to describe the land in paragraph 28 of the statement of defence. Relying on the cases of Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328 and Karimu v. Lagos State Government (2012) 5 NWLR (Pt. 1294) 620, learned counsel argued that “By the rule of pleadings, by the above traverse, the identity of the disputed land is automatically put in issue”.
Relying on the case of Addah v. Ubandawaki (2015) 7 NWLR (Pt. 1458) 325, learned counsel submitted as follows:
“My Lords, the summary of our contention on this issue is that the respondent has woefully failed to prove the averment contained at paragraph 28 of his statement of defence and is therefore erroneous for the trial Court to rely on the event at the locus visit in reaching its decision that the identity of the land is not in doubt. In fact, the trial Court granting the respondent title to such unidentified land without evidence led on same amounts to descending into the arena of the conflict.”
The respondent, in urging the Court to resolve this issue in his favour, referred to the pleadings of the parties and contended that “where the disputed land is well known to both parties, the land’s identity can no longer be made an issue”. In support of this contention, learned counsel referred the Court to the cases of Kabiru Pada v. Galadima (2018) 3 NWLR (Pt. 1607) 436 and Garkuwa Pina v. Jagaba Mai Angwa (2018) 15 NWLR (Pt. 643) 431.
In this case, it was the respondent’s counter-claim that was granted by the trial Court. In paragraph 28 of his statement of defence, the statement of defence which the respondent anchored his counter-claim, the respondent pleaded thus:
“The defendant states that the land in dispute is situates(sic) at Wulu bonded by Jika Wanbayi farmland by the East, by the West it shares boundary with Minna Baidato farm, by the North it is bounded by Wanji Zarmai Zaria farm, while the farmland of the plaintiff shares boundary with the defendant’s farmland by the South/ West.”
The appellant filed a “Reply to Statement of Defence and Defence to counter-claim”, which spans pages 54 to 57 of the record of appeal. In paragraph 2 of the said reply to statement of defence and defence to counter-claim, the appellant averred as follows:
“The plaintiff denies paragraphs 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of the defendant’s statement of defence. The said averments in the statement of defence are “Stories” and the statements are not true.”
In his specific defence to counter-claim, the appellant pleaded in paragraph 1 thereof as follows:
“1. The plaintiff put the defendant to strictest proof of his counter-claim and plead that the defendant is not entitle(sic) to the reliefs sought in the counter-claim.”
As can be seen from the appellant’s pleadings, in relation to the respondent’s counter-claim, the appellant’s averments in respect of the respondent’s description of the land are general in nature and not specific. The law is that a traverse, by a defendant, must not be general but should be specific. A denial must clearly allude to the fact pleaded and should not be ambiguous or evasive. See Attorney-General of Anambra State v. C.N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547.
It is also settled that a Court of law has no duty to infer denial and, therefore, a fact which has not been specifically denied or traversed remains unchallenged. See Eko Odume v. Ume Nnachi & Ors. (1964) 1 All NLR 329, Ajibade v. Mayowa & Anor (1978) 9 – 10 SC 1 and Attorney-General of Anambra State v. C.N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt. 66) 547.
In this case, the appellant, as the defendant in the respondent’s counter-claim did not specifically deny nor traverse the description of the land in dispute as averred in paragraph 28 of the respondent’s statement of defence and counter-claim, and the respondent’s pleading as to the identity of the land in dispute remained unchallenged by the appellant.
The law recognizes two distinct ways of proving identity of land in dispute and the ways are:
1. By the claimant/plaintiff adducing oral description of the land in dispute that a surveyor, acting on the strength of the description, can make a plan of the land; or
2. By the claimant/plaintiff filing a survey plan showing the land in dispute with its boundaries.
See the cases of Udofia v. Afia (1940) 6 WACA 216; Kwadzo v. Ajei (1944) 10 WACA 274 and Michael Odunze & Ors v. Nwosu Nwosu & Ors. (2007) 13 NWLR (Pt. 1050) 1.
It should be noted that before the identity of land in dispute can be raised as an issue, the party complaining or raising it must have first denied, in his pleadings, knowledge of the location of the land. See Afolarin Adenie v. Folarin Olude (2002) 18 NWLR (Pt. 799) 413 and Mr. P. Ogunyanwo v. M/S Augusta Oluwole (2009) 16 NWLR (Pt. 1167) 391.
In this case, the appellant, in his reply to statement of defence and defence to counter-claim, did not deny knowledge of the location of the land counterclaimed by the respondent.
The trial Court undertook a visit to the land in dispute where it was evident that the parties were ad idem as to the identity and location of the land in dispute.
Having regard to the settled principles of law, relating to identity of land in dispute and the facts of this case, the appellant has not displayed any genuine grievances as to persuade me to resolve this issue in his favour.
For all the reasons given above, this issue is hereby resolved against the appellant and in favour of the respondent.
Issues (a) and (d) raised by the parties can be streamlined into one issue as follows:
Whether or not the trial Court was right, based on the rule in Kojo II v. Bonsie (1957) 1 WLR 1223 and upon a proper evaluation of the evidence before it, to have entered judgment in favour of the respondent.
The learned counsel argued that by his pleadings and evidence, the appellant proved his title to the disputed land by traditional history. The learned counsel for the appellant, however, complained that:
“What the trial Court did (which we humbly submit is wrong in law) was to reproduce the appellant’s traditional history as pleaded and deposed to in the frontloaded witnesses statements on oath and also reproduced the respondent’s traditional history as pleaded and deposed to in the frontloaded witnesses statements on oath without recourse to answers elicited during cross-examination of witnesses and erroneously held that since the storylines of the parties are different, then the traditional history is conflicting and thus the rule in KOJO Il V. BONSIE (supra) is applicable.” Referring to and relying on the case of Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460, learned counsel for the appellant stated that:
“The appellant’s complaint on this is that having satisfactorily pleaded and proved his claim to the land by traditional history, then it is wrong for the trial Court to invoke the rule in Kojo II V. Bonsie (1957) 1 WLR 1223. In other words, where traditional history is cogent, credible, consistent, uncontradicted and conclusive, the rule has no place and same is inoperative and inapplicable. We humbly refer to AYORINDE V. SOGUNRO (2012) 11 NWLR (Pt. 1312) 460 at 480, paras A-B, E-H.
Similarly, his two witnesses PWI (Umaru Gomna) and PW2 (Ahmadu Garba) who are boundary men to the disputed land also led cogent, uncontradicted and credible testimony on the 4/6/2018 and 20/6/2019 respectively and were not discredited or contradicted on any material point what whatsoever.”
Learned counsel also contended that from “the entire gamut of the judgment”, there was no proper evaluation or assessment of the evidence by the trial Court, as all that the Court did “was just a restatement of evidence which has gravely occasioned a miscarriage of justice to the appellant”. Counsel further contended that:
“…there is no doubt that the appellant’s traditional history as we stated at paragraph 2.1 above was not challenged at all. Equally, both parties are consensus ad idem on the features on the land as we stated at paragraphs 2.2 and 2.3 above and yet the trial Court held that the respondent has proved his case on a preponderance of evidence.”
Philip K. Emmanuel, Esq., learned counsel who settled the appellant’s brief submitted that if the trial Court had properly evaluated the evidence before it, the Court would have concluded that “the appellant’s case weighs heavily more than that of the respondents”, because:
“Unlike the respondent, the appellant’s traditional history was not broken, he called boundary men to testify, he is in actual physical possession, he is in occupation and farming thereon, the graves of his ancestors are on the land, the trees planted by them were all seen, witnesses also attested to all these facts; on the 24-1-2020, the Court also visited and saw these features.”
On behalf of the respondent, learned counsel stated the rule in Kojo II v. Bonsie (supra) and submitted that:
“The Appellant’s case is not as cogent, consistent and without contradictions as the Appellant would want this Honourable Court to believe. Indeed, we submit that the Appellant’s case is bedevilled by inconsistencies and contradictions “abi initd’ from the stage of pleadings.”
Learned counsel then extensively referred to the appellant’s original statement of claim, especially paragraphs 3, 4, 5(a) & 5(b) and 12 thereof and, after relying on Order 15 Rule 8 of the Niger State High Court (Civil Procedure) Rules, 2018 and the case of Amana Suite Hotels v. PDP (2007) 6 NWLR (Pt. 1031) 453, contended, inter alia, that:
“From the above averment, it is clear that the names of KPABAAZA who allegedly succeeded Nayyi (founder of land) and Aziza who later succeeded KPABAAZA on the disputed land were subsequently omitted/deleted in the plaintiff’s Amended pleadings without any explanation at all.
The above inconsistencies in plaintiff’s pleadings puncture and cast doubt on his root of title and we invite your Lordships to query how Zaabugo (initially presented as the grandson of Nayyi (founder) could subsequently become his biological son and succeed Nayyi on the disputed land. Apparently, the plaintiff is playing some games to mislead the Honourable Court and quite economical with the truth.
On the other hand, the Defendant never changed his root of title at the stage of pleadings. He remained consistent throughout.”
Counsel further contended that “as between the plaintiff/appellant and defendant/respondent, defendant/respondent was clearly more consisted at the state of pleadings vis-a-vis the disputed land’s location, location and root of title”.
The learned counsel argued that the respondent proved his case, by preponderance of evidence. For example, learned counsel submitted that it was “only the defendant led evidence of payment of tribute to him/his proxy by borrowers.”
After analysing the pleadings and evidence of the parties, learned counsel for respondent submitted, inter alia, that:
“1. Whereas the plaintiff was inconsistent at stage of pleadings, the Defendant remained consistent.
2. Whereas the Defendant pleaded and proved evidence of payment of tribute to him/ his proxy by tenants (including plaintiff) on the disputed land, the plaintiff never did so.
3. Whereas the plaintiff withheld evidence by failing to produce/tender documents pleaded by him or testify as per his Statement on Oaths, the defendant never did so.
4. The plaintiff appeared confused at the locus, Defendant remained composed at the locus.
5. The Plaintiff called two (2) witnesses and refused to testify. The Defendant called four (4) witnesses and testified so as to be cross-examined.”
In urging the Court to resolve the issue against the appellant, E. O. Egbonodje, Esq., learned counsel who settled the respondent’s brief argued, inter alia, that “the trial Court carefully evaluated the evidence adduced by both parties…..before reaching conclusions in it(sic) judgment”.
Learned counsel for the respondent, in his brief, made copious references to the averments in the appellant’s statement of claim, prior to its amendment.
I think that it is settled law that where a process, such as a statement of claim or statement of defence, is amended the amended process automatically replaces the original process effectively from the date the original process was filed. Thus, the Supreme Court stated, the effect of amendment on the original process, in Victor Adegoke Adewumi & Anor v. The Attorney-General of Ekiti State & 6 Ors (2002) 2 NWLR (Pt. 751) 474 at 506, per Wali, JSC; as follows:
“The principle is that an amendment duly made takes effect from the date of the original document sought to be amended, and this applies to every successive further amendment of whichever nature and at whatever stage it is made. Therefore when a writ of summons is amended, it dates back to the date of the original issue of such writ and consequently the action will continue as if the amendment has been inserted from the beginning.”
See also Sneade v. Watherton (1904) 1 K.B.295 and Unity Bank Plc v. Edward Bouari (2008) 7 NWLR (Pt. 1086) 372.
Therefore, the appellant’s amended statement of claim superseded his statement of claim and references by the respondent to averments in the appellant’s original statement of claim and his submissions thereon are irrelevant and they are hereby discountenanced.
Learned counsel for the respondent also referred the Court to Order 15 Rule 8 of the Niger State High Court (Civil Procedure) Rules, 2018 which provides as follows:
“No pleading shall raise any new ground of claim or contain any allegation of fact not consistent with the previous pleadings of that party pleading the same.”
With respect, the above provisions of the said rule of the lower Court ought to have been used in raising an objection, if any, before the trial Court at the hearing of the motion for amendment of the appellant’s pleadings and not as answer to the appellant’s issue and arguments in this Court. The trial Court having granted the appellant’s application for amendment, without an objection or an appeal against that decision, the extant pleadings of the appellant are those contained in his amended statement of claim. Therefore, the reference to Order 15 Rule 8 of the Niger State High Court (Civil Procedure) Rules, 2018 is as irrelevant to this appeal as it is most unhelpful to the respondent. The discretion to grant or refuse the appellant’s application for amendment of his statement of claim was that of the trial Court, which had duly exercised same, more than one year before it delivered its judgment, which is the subject of this appeal. As stated earlier, the respondent did not appeal against the decision of the trial Court to permit the amendment sought by the appellant.
The law is quite clear that where a trial Court had exercised its discretion, on the basis of the facts and the law placed before it, it is not open for an appellate Court to substitute its opinion or views for that of the trial Court. See Solanke v. Ajibola (1969) 1 NLR 259, Alhaji Amodu Olaleye Oyeyemi & 7 Ors. v. Irewole Local Government & 6 Ors (1993) 1 NWLR (Pt. 270) 462 and Federal Republic of Nigeria v. Senator Adolphus N. Wabara & 2 Ors (2013) 5 NWLR (Pt. 1347) 331.
Now, to the merits of this issue, the Rule in Kojo II v. Bonsie (1953) 14 WACA 242 is as follows:
“Where there is a conflict of traditional history, which has been handed down by word of mouth, one side or the other must be mistaken, yet both may be honest in their belief. In such a case the demeanour of witnesses is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence, and by seeing which of the two competing histories is the more probable.”
The above rule only applies where there is a conflict between the evidence adduced by one side against the evidence adduced by another party.
The rule in Kojo II v. Bonsie (supra) also applies to inconclusive or ineffectual documents of title produced or tendered by contending parties. See Steven Omo Ebueku v. Sunmola Amola (1988) 2 NWLR (Pt. 75) 128.
Of paramount importance, which should be kindly noted, is that the rule in Kojo II v. Bonsie (supra) is a persuasive authority and a Court in Nigeria has the freedom not to follow: it, as it is not a binding precedent under the principle of stare decisis. See Chief N. T. Okoko v. Mark Dakolo (2006) 14 NWLR (Pt. 1000) 401 at 441, per Niki Tobi, JSC where the Supreme Court held that:
“Assuming he did not follow Kojo II, should his judgment be penalised on appeal by way of rejecting his findings? I think not. After all Kojo II is of persuasive authority and a Judge has the freedom of the air not to follow an authority which is not binding on him.”
Under the first issue resolved in this judgment, I referred to and reproduced the decisions or pronouncements of the trial Court especially on pages 249 – 250 of the record of appeal, where the learned trial Judge held, inter alia, that:
1. The respondent established his title to the land in relation to recent acts of possession and ownership.
2. The respondent’s evidence as DW4, as to the location and boundaries of land in dispute and ownership of the land by the respondent, which the trial Court believed, was not contradicted by the appellant.
3. The appellant failed to establish his claim for title to the disputed land.
The findings of facts, based on the trial Court’s belief of the evidence of DW4 and its evaluation thereof have not been appealed against by the appellant. The effect, in law, is that these findings of fact by the trial Court are deemed to have been accepted to be correct by the appellant and indeed the respondent. The law is trite that decisions or findings not appealed against are deemed to be correct and are binding on the parties. See Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364, Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129; Alhaji Adeyemi & Anor v. Chief Olakunri & Ors (1999) 12 SCNJ 224, Chief Biariko & Ors. v. Chief Edeh-Ogwuile & Ors (2001) 12 NWLR (Pt. 726) 235, Udegbunam v. FCDA (2003) 10 NWLR (Pt. 829) 487, Madam Adunola Adejumo & 2 Ors v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252, Wike N. Nyesom v. Hon. (Dr.) Dakuku A. Peterside & ors. (2016) 1 NWLR (Pt. 1492) 71, Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors (2018) 10 NWLR (Pt. 1627) 320 and Attorney-General, Imo State & Anor v. Imo Rubber Estates Ltd. & 2 Ors. (2020) 13 NWLR (Pt. 1741) 209 at 240, per Mbaba, JCA, where this Court held:
“The law is that, where there is no appeal against the findings of a Court, the same remains binding and conclusive.”
In this case, the appellant’s notice of appeal spans pages 252 to 257 of the record of appeal and it contains the following four grounds, where are hereunder reproduced, shorn of their particulars:
“GROUND ONE
The learned trial Judge erred in law when he held thus:
“In the instant case, both parties based their root of title on 1. Traditional history 2. Act of ownership and possession enough to warrant the inference that they are the owners.
From the evidence before Court, the traditional history appears conflicting thus: The plaintiff in paragraph 4 of his amended statement of claim averred that:
“Paragraph 4 – The plaintiff avers that through his parental lineage (ancestors), he became entitled to the deemed customary right of occupancy over the disputed land described above, as same was first cultivated and founded by his grandfather Nayyi who in those days left Bodo area of Kuta Hills in search of fertile farming land and having fortunately discovered the land, he settled thereon thereby founding the place”.
PWs 1 and 2 also testified to the effect that the plaintiff came about the land through his parental lineage. On the other hand, the defendant averred in paragraph 2 of his statement of defence that:
“Paragraph 2 – The defendant stated that the entire land now in dispute was first founded and cultivated by the defendant’s father by name Tunga Parepare during his farming expedition to Wulu village named after river Wulu”.
DWs 1 and 2 gave evidence to the effect that the disputed land belongs to the defendant by inheritance from a set of prior possessions of the land. See the case of IDUNDUN V. OKUMAGBA (2002) 26 WRN 127 and Section 46 Evidence Act 2011.
Now, from the evidence before the Court, the traditional history of the land in dispute is in conflict, both parties having based their root of title on traditional history and numerous positive acts of ownership”.
“GROUND TWO
The leaner trial Judge erred in law when he held thus:
“It is clear that from the proceedings and the evidence led by both parties, that the parties know the subject matter of this suit, that is the land lying and situate at Wulu village of Ahiriwe under Shiroro Local Government Area of Niger State very well. The identity of the land is therefore not in doubt as both parties to the suit referred to it in their evidence and on visit to locus in quo”.
“GROUND THREE
The learned trial Judge erred in law when he failed and neglected to determine/resolve an issue validly and competently formulated by the plaintiff/appellant for determination thereby denying the plaintiff/appellant the constitutional right to fair hearing and thus occasioning a substantial miscarriage of justice”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“GROUND FOUR
The judgment of the trial Court is against the weight of evidence.”
As can be seen from the grounds of appeal, reproduced above, the appellant did not appeal against the decision of the trial Court based on its specific and conclusive findings on the evidence of DW4 which evidence and findings were substantially reproduced under the first issue discussed and determined in this judgment.
Just as a party is bound by the averments in his pleadings – statement of claim, statement of defence, statement of counterclaim, etc, a party to an appeal is bound by the grounds in his notice of appeal or notice of cross-appeal. Thus, relying on the cases of Robert I. Ikweki & Ors v. Mr. James Ebele & Anor (2005) 11 NWLR (Pt. 936) 397, the Supreme Court, per Ariwoola, JSC; held inPrince Biyi Poroye & 8 Ors v. Senator A. M. Makarfi & 3 Ors (2018) 1 NWLR (Pt. 1599) 91 at 123 as follows:
“..just like pleadings in the commencement of an action tried on pleadings, parties are bound by their grounds of appeal …”
In this case, the respondent, having conclusively proved his entitlement to the land in dispute by acts of ownership and possession of the land in dispute, was rightly awarded the relief sought in his counter-claim.
For all the reasons given on this issue, I hereby resolve same also in favour of the respondent.
The conclusion of the matter is that, having resolved all the live issues against the appellant, I find no merit in this appeal.
This appeal, being unmeritorious, is hereby dismissed.
The judgment of the trial Court in Suit No. NSHC/MN/283/2017 between Hassan Zaagubo (for himself and on behalf of all the members of Zaagubo family of Ashiriwe Village) v. Tanko Parepare, delivered on the 21st day of April, 2020 per Honourable Justice Zainab Aliyu Sadat, is hereby affirmed.
The sum of N200,000.00 (Two Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondent and against the appellant.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading the draft of the judgment just delivered by my learned brother MOORE A. A. ADUMEIN, JCA.
I am in complete agreement with the reasoning and conclusion that this appeal is lacking in merit. I too do dismiss the appeal and I abide by the consequential orders inclusive of the order of cost as made thereat.
BATURE ISAH GAFAI, J.C.A.: I have before now read the draft judgment just delivered by my learned brother Adumein, JCA. I agree with his reasonings and the decision he arrived at on the appeal. In consequence, I too hereby dismiss this appeal as being unmeritorious and abide by the order on cost.
Appearances:
Philp K. Emmanuel, Esq. with U. C. Okani, Esq. and H. U. Eze, Esq. For Appellant(s)
E. O. Egbonodje, Esq. For Respondent(s)