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ZAMFARA STATE JUDICIARY & ORS v. MAIGORO & ORS (2021)

ZAMFARA STATE JUDICIARY & ORS v. MAIGORO & ORS

(2021)LCN/15842(CA)

In the Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Thursday, December 02, 2021

CA/S/40/2020

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

 

Between

1. ZAMFARA STATE JUDICIARY 2. SHARIA COURT OF APPEAL, ZAMFARA STATE 3. THE GRANDKHADI, SHARIA COURT OF APPEAL, ZAMFARA STATE 4. THE CHIEF REGISTRAR, SHARIAH COURT OF APPEAL, ZAMFARA STATE APPELANT(S)

And

1. AMINU BUBA MAIGORO 2. NAMADI BUBA MAIGORO 3. ALH. UMARU BUBA MAIGORO 4. ISAH BUBA MAIGORO 5. ALH. NASIRU BUBA MAIGORO RESPONDENT(S)

 

RATIO:

THE DOCTRINE OF LACHES AND ACQUIESCENCE

I will not fail to mention that the law is that a defence of laches and acquiescence must be specifically pleaded and proved and full facts and particulars must be pleaded. See the case of ADENIRAN VS. ALAO (2001) 12 SCNJ 337. The person relying on the defence must plead that the Respondent fraudulently, knowingly and deliberately stood by while he changed his position. See the case of EZEKWESILI VS. AGBAPUONWU (2003) 9 NWLR (PT. 825) 337 @ 381.
The above captures and explains the concept of the defence of laches and acquiescence. However, does it apply in this case? The answer is in the negative. Apart from the fact that the Appellant failed to plead this defence in their joint statement of defence, the facts of the case shows that the Respondents’ late father notified the Appellants of his interest to demarcate his land. So, even assuming that the Appellants pleaded the defence in their statement of defence, the Respondents will still not be guilty of the defence. On this note, it is my finding that the defence of laches and acquiescence as raised by the Appellants does not avail them as the Respondents’ late father took steps to ensure the demarcation of the land. This issue is thus resolved against the Appellants in favour of the Respondents and I hereby agree with the decision of the trial Court on this point. Per MOHAMMED BABA IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated the 6th day of December, 2017, the Respondents herein as Plaintiffs, prayed the Court below for the following reliefs:
1. A declaration that the actual portion of the land acquired by the Zamfara State Government from Late Alhaji Buba Mai Goro for the purpose of Construction of the Upper Sharia Court Unguwar Yarima, Gusau is 100/100 feet and not 100/100 meters.
2. A declaration that any purported occupation, trespass, appropriation, development, usurpation, encroachment on the land, the subject matter of this action, by the Defendants or any other person outside the acquired 100/100 feet is illegal, null and void.
3. An order of this Honourable Court directing the Defendants to immediately vacate and surrender to the Plaintiffs, for onward devolution to the heirs, all the remaining parcel of land not acquired by the Zamfara State Government from Late Alh. Buba Mai Goro for the building of the upper sharia Court Unguwar Yarima, Gusau, the Plaintiffs being the lawful heirs to Late Alh. Buba Mai Goro.
4. An order of perpetual injunction restraining the Defendants, their agents, servants, assigns or workmen and any other person from further trespass into the land in question.
5. Cost of this action to be assessed by this Honourable Court.

It was the claim of the Respondents at the trial Court that they are the lawful heirs of Late Alh. Buba Mai Goro who died on the 30th day of December, 2015 and left behind twenty–eight (28) children and three (3) housewives and that their late father was the bonafide owner of the farmland situate at Unguwar Yarima, Gusau and had occupied the said farmland for almost five (5) decades without any hindrance or interferences throughout his life time.

The Respondents also claimed that sometime in 2000, their late father was approached by the Zamfara State Government that a portion (100/100 feet) of his land, the subject matter of this appeal was needed to construct an Upper Sharia Court, Unguwar Yarima, Gusau. The Respondents further claimed that their late father agreed to the government’s proposal, subject to payment of compensation to be determined by the government and to be paid to their late father at a later time. However, no payment has been made to either them or their late father as compensation.

The Respondents also claim that the 5th Respondent attempted to construct a mosque within their late father’s remaining land but was stopped by the Appellants and when their late father realized the disposition of the Appellants, he wrote the Appellants a letter dated the 13th day of October, 2010 requesting them to come forward for the demarcation of the land to allow him continue his building on his remaining land but the Appellants refused and neglected to come forward which made their late father to lodge a complaint at the Ministry of Lands and Survey, Zamfara State and the Ministry scheduled a demarcation exercise which ended at a deadlock. The Respondents also claimed that despite all efforts, the Appellants still went ahead with the development of the land.

In other to establish their claims, the Respondents opened their case on the 12th day of November, 2018 wherein they called four witnesses i.e. PW1 – PW5 and tendered five exhibits marked Exhibits 1 – 5 as follows:
Exhibit 1 – Document addressed to Chief Inspector Sharia Court of Appeal dated 13/10/2010 signed by Late Alh. Buba Mai Goro.
Exhibit 2 – The document dated 30/06/2015 written by the Ministry of Lands and survey to the Chief Registrar Sharia Court of Appeal.
Exhibit 3 – Document written on 21st October, 2015 in respect of demarcation written by the Chief Registrar Sharia Court of Appeal, Zamfara State.
Exhibit 4 – Letter of Re-complain on area demarcation dated 23/11/2017 and addressed to the Hon. Khadi Zamfara State Judiciary.
Exhibit 5 – Letter written by Deputy Chief Registrar Sharia Court of Appeal and addressed to Alh. Nasiru Buba Maigoro.

The Respondents then closed their case on the 23rd day of May, 2019 and the matter was adjourned to the 8th day of May, 2019 for defence.

The Appellants as defendants in the Court below, opened their defence on the 11th day of July, 2019 calling two witnesses i.e. DW1 and DW2, and tendered one document admitted and marked as Exhibit D1 which is the Report attached to the evidence of the DW2. The Appellants then closed their case and the case was adjourned to the 15th day of August, 2019 for the adoption of final written addresses.
The parties adopted their respective final written addresses and the trial Court delivered judgment in the case on the 12th day of December, 2019 in favor of the Respondents herein.

Dissatisfied with the judgment thus delivered by Honourable Justice Mukhtar Yusha’u in the Suit No: ZMS/GS/64/2017, the Appellants filed a Notice of Appeal dated the 31st day of December, 2019 comprising of three (3) grounds of appeal.

The parties to the appeal filed and exchanged their respective Briefs of Argument. The Appellants filed their Brief of Argument on the 25th day of July, 2020 which brief was settled by their Counsel, Muhammad Sadis Suleiman Esq., wherein three issues for determination were formulated as follows:
1. Whether the learned trial Judge erred in law to hold that the testimonies of PW1, PW2, PW3 and PW4 were not completely hearsay evidence, regard being heard that all what they informed the lower Court was derived from their late father Buba Maigoro who was not called as a witness before the Courts. (Distilled from ground one)
2. Whether the learned trial Judge erred in law to hold that the doctrine of larches and acquiescence does not avail the appellants regard being had that the appellant were in occupation of the land in question since in the year 2000 and the owner of the land late Buba Maigoro did not institute an action before the Court of law for non-payment of compensation or encroachment. (Distilled from ground two)
3. Whether the lower trial Court have the jurisdiction to entertain the matter even though necessary parties were not joined in the Suit No: ZMS/GS/64/2017 and grant all the reliefs sought by the respondents. (Distilled from ground 3)

On issue one, counsel for the Appellants submitted that the PW1, PW2, PW3 and PW4 gave hearsay evidence in their written statement as defined under Section 37 of the Evidence Act, 2011 and thus urged this Court to hold that the trial Court erred in law when it held that their testimonies were not hearsay and that assuming without conceding that the testimonies were not hearsay evidence, the defence of laches and acquiescence will avail the Appellants.

On issue two, the Appellants’ Counsel argued that the trial judge erred in law when he held that the defence of laches and acquiescence did not avail the Appellants despite the evidence before him.

On issue three, the Appellants’ Counsel submitted that Zamfara State Government is different from the Appellants and that the failure of the Respondents to join the Zamfara State Government as a necessary party, due process of law and condition precedent to the exercise of jurisdiction has not been followed thus the Court lacks the jurisdiction to entertain the suit.

On the other hand, the Respondents filed their brief of argument on the 2nd day of February, 2021 and settled by their Counsel, Bello Galadi Idris Esq., wherein the following three issues for determination were raised thus:
1. Whether the learned trial Judge was right in law to hold that the testimonies of PW1, PW2, PW3 and PW4 respectively were not caught by the rule of ‘Hearsay Rule’?
2. Whether the learned trial Judge was right in law to hold that the case was not defeated by the ‘doctrine of larches and acquiescence’?
3. Whether the trial Court lacked jurisdiction to adjudicate on the matter for the absence of necessary parties?

On issue one, counsel to the Respondents submitted that from the evidence before the Court, it is clear that the evidence of PW1, PW2, PW3 and PW4 respectively falls within the exception to the general rule on hearsay and counsel referred this Court to paragraph 4 on page 172 of the record of proceedings.

On issue two, the Respondents’ counsel argued that the action of the Respondents against the Appellant at the trial Court was not for compensation on the land but for exceeding the boundary of the land and that it is trite that land matters can be brought within twelve years of its cause of action. It was further submitted that from the available evidence before the Court, the cause of action started in 2010 when the late Alhaji Buba Maigoro was prevented by the Appellants from constructing a mosque in the land in question. Counsel further argued that from 2010 to 2017 when the suit was instituted at the lower Court, it was seven (7) years and therefore the argument of the Appellants is misplaced and immaterial.

On issue three, counsel for the Respondents argued that the center of argument by the learned counsel for the Appellants was that the Respondents ought to join the Zamfara State Government in the action, which in his understanding, is a necessary party and that the Appellants has turned the law on its head. It was the contention of counsel that the argument is highly misplaced as the case can be dealt with fairly and judiciously without the Zamfara State Government. On this point, counsel cited the case of AZUBUIKE VS. PDP & ORS (2014) 3 SCM, 1 at P. 13 – 14, PARAS. G – I.

The Appellants also filed their Appellants’ reply Brief of Argument on the 1st of April, 2021 and same was settled by their Counsel Muhammad Sadis Suleiman Esq.

The Appellants’ Counsel in response to the argument of the Respondents’ Counsel as contained in the Respondents’ Brief of Argument, argued that there is no statement made by the late Alhaji Buba Maigoro either written or oral which established that the Appellants encroached on the land belonging to Alhaji Buba Maigoro and as such the testimonies of PW1, PW2, PW3 and PW4 are at best hearsay evidence. Counsel urged this Court to discountenance the submission of the Respondent’s counsel that the testimonies of PW1, PW2, PW3 and PW4 are not hearsay evidence as Section 46(1) did not avail the Respondents.

The Appellants’ Counsel also argued contrary to the argument of the Respondents and submitted that the act of the Respondents wherein they failed to institute an action against the Appellants for an act which occurs in the year 2000, the defence of laches and acquiescence will aid the Appellants and counsel urged this Court to discountenance the submission of the Respondents and hold that the Court below erred in law and to also hold that the defence of laches and acquiescence will aid the Appellants and to resolve the 2nd issue for determination in favour of the Appellants and set aside the judgment of the Court below and allow the appeal.

The counsel for the Appellants further submitted that it is not fair and just to institute an action against the Appellants without joining the Zamfara State Government who allocated and granted the land in question to the Appellants. Counsel referred this Court to the case of AZUBUIKE VS. PDP & ORS (2014) 3 S.C.M. 1 AT P. 13 – 14 PARAGRAPH G – I.

Having summarized the briefs filed by counsel to the parties herein, I will now proceed to determine the appeal and in doing so, I shall adopt the issues formulated for determination by the Appellant which is reproduced hereunder again thus:
1. Whether the learned trial Judge erred in law to hold that the testimonies of PW1, PW2, PW3 and PW4 were not completely hearsay evidence, regard being heard that all what they informed the lower Court was derived from their late father Buba Maigoro who was not called as a witness before the Courts.
2. Whether the learned trial Judge erred in law to hold that the doctrine of larches and acquiescence does not avail the Appellants regard being had that the Appellant were in occupation of the land in question since in the year 2000 and the owner of the land late Buba Maigoro did not institute an action before the Court of law for non-payment of compensation or encroachment.
3. Whether the lower trial Court have the jurisdiction to entertain the matter even though necessary parties were not joined in the Suit No: ZMS/GS/64/2017 and grant all the reliefs sought by the Respondents.

ISSUE ONE
Whether the learned trial Judge erred in law to hold that the testimonies of PW1, PW2, PW3 and PW4 were not completely hearsay evidence, regard being had that all what they informed the lower Court was derived from their late father Buba Maigoro who was not called as a witness before the Courts.

On this issue, the Appellants’ Counsel has argued that the evidence of PW1, PW2, PW3 and PW4 at the trial Court are hearsay evidence. At this juncture, it is pertinent to make reference to the Evidence Act on what hearsay evidence is. By Section 37 of the Evidence Act “hearsay” means a statement: –
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Furthermore, Section 39 of the Evidence Act, 2011 provides as follows:
Statements, whether written or oral of facts in issue or relevant facts made by a person –
(a) Who is dead;
(b) Who cannot be found;
(c) Who has become incapable of giving evidence; or
(d) Whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are admissible under Section 40 to 50.
Section 46 of the Evidence Act, 2011 also provides as follows:
(1) Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness cannot be called for any reasons specified in Section 39, or is kept out of the way by the adverse party.
Provided that –
(a) The proceeding was between the same parties or their representatives in interest;
(b) The adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) The questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the defendant within the mean of this section.
Reading the above reproduced Sections together, it is clear that even though hearsay evidence is generally inadmissible, Section 46(1) when read together with Section 39(a), has provided an exception to the general rule of inadmissibility of hearsay evidence.

Before I proceed, I will like to reproduce the evidence of PW1, PW2, PW3 and PW4 to determine whether their evidence is hearsay. In his oral evidence before the Court below contained at pages 140 – 141 of the record of appeal, the PW1 gave evidence as follows:
“Yes, I am under oath to state the truth. I am 58 years old. The land in dispute is situated at roundabout of JB Yakubu Secretariat. The land is big and its from it that a house was built for my younger brother. There are neighbors to the land. There are many houses built near the land. I do not know the names of the owners of those houses. At the west there is the house of my brother Nasiru Buba Maigoro and a road leading to INEC. The house of Nasiru was built from inside the original land. From the South there is a road leading into the area. From the north there is a primary school. The land was in possession of our father for quite long. I am 58 years I grew up and saw my late father in occupation of the land. My late father died in November, 2017. The land was acquired by the government but I cannot say precisely when the land was acquired from our late father. My younger brother Alh. Nasiru has the record of all the dealing in respect of the land. I was not around when the ministry of land acquired the land from our late father but my younger brother was there. I was not able to know the exact land acquired because I was not around until I was told. Yes I will not be able to know if any compensation was paid unless I am told but there was no payment made.” (Emphasis Mine)

From the above evidence, it is clear that the PW1 does not have any knowledge about the dealing of the land leading to this appeal but kept on mentioning that his brother does and anything he knew about the dealings in respect of the land was what was told to him by his younger brother Alh. Nasiru.

Also, the above piece of evidence by PW1 is in contradiction with that in his witness statement on oath particularly as contained in page 19 of the record of appeal at paragraphs 9 and 10 of his witness statement on before the trial Court and same should be treated as unreliable. The evidence of PW2 is reproduced hereunder as follows:
“Yes I affirmed the state the truth. I am 48 years old. The land in dispute had neighbors. At the western part of the land, I cannot recall who are the neighbors. East-south and north I cannot remember the neighbors to the land. My father died on 31/12/2015. To my knowledge the government of Zamfara State never acquired the land of my late father because I saw the sharia Court of Appeal constructed on the land of my late father, that is why we came to Court. The first building was made about 2010. The 2nd building was done in this year 2018. The land in question initially belonged to my father. Now after his demise I have a stake in it being one of his heirs. When the 1st Construction was conducted my late father was alive. It is not true that the land upon which the 1st construction was made did not belong to my late father. It is through him that Ministry of Lands and Housing acquired the land in respect of which the second construction was made. I have no answer to that question my father told me what they requested from him. It is not true that the answer I gave in my deposition are at variance with the oral evidence I gave before the Court.”

The above evidence of PW2 clearly shows that he gave evidence based on his personal knowledge and on what his father had told him as well. See also page 39 of the record of appeal particularly paragraphs 8 and 9 of his witness statement on oath.

The evidence of the PW3 is also reproduced hereunder as follows:
“Yes I affirmed to say the truth. I am 45 years old. The land, the subject matter of this litigation belongs to our late father Alh. Buba Mai Goro. He is late now. He died three years ago. When he was alive the land had been in his possession but I cannot say for how long. The land was acquired by Zamfara State Government since the year 2000 that is about 19 years ago. I was around when the acquisition was made. I cannot remember the precise time in 2000 when the acquisition by Zamfara State Government was made. It was a contractor that met my father and I was there. He said he was given a contract to build a Court on the land of my late father. There was no letter given to us by the Government, no payment was made to us by the Government. The Government never officially took the land. Never paid us a dime. The contractor told us the measurement of the land he will use in the construction of the Court. The Contractor told us the measurement of the land he will use in the construction of the Court. The Contractor is one Alh. Sanusi Nalado Gusau. To my knowledge, he is still alive. When compensation is to be paid it will be paid to the owner of the land. I will not be able to know whether the owner of the land was paid until he told me. I was told that no compensation was paid by the government. There is no document which my late father wrote complaining that he was never paid any compensation by the government. Yes, my late father never went to Court to challenge either the acquisition or complaining for non-payment of compensation.”

From the evidence of PW3, it is very clear that the PW3 was aware of the dealings in respect of the land and that he was around when the acquisition was made. See also his witness statement contained at page 24 of the record of appeal particularly paragraphs 8 and 9 of his witness statement on oath.

I wish to also reproduce the evidence of PW4 hereunder as follows: “… I was not around when the land was acquired from my late father but he told me. I can be able to know the measurement of the land acquired. The defendant acquired 100 meters. Yes my father told me that I will not be able to know whether compensation was paid unless I was told. And I was told all the documents in respect of the land in dispute are with Alh. NASIRU Buba Maigoro. Part of the evidence I gave was driven from the documents in the hands of Alh. Nasiru Buba Maigoro. Yes part of my evidence is driven from what my father told me. My late father never filed any case before a Court of law to recover the land in dispute. There is no time where my late father went to a Court claiming that he was never paid compensation for the land in dispute.”

Again, it is clear that the PW4 had knowledge of the dealings in respect of the land from what his father had told him. See also page 29 of the record of appeal particularly paragraph 9 and 10 of his witness statement on oath.

Looking at the evidence of the PW1 – PW4 which I have reproduced hereinabove, it will be right to say that the evidence of PW2, PW3 and PW4 falls under the exception to the admissibility of hearsay evidence since their father who could have been witness, is dead and cannot be called to give evidence. However, the evidence of PW1 in his oral evidence is at best what I can describe as hearsay evidence because from the evidence of the PW1, he was not around at the time of the dealing in respect of the land and all he knows about the dealing is what he was told by his brother. The evidence of the PW1 being hearsay evidence is not admissible as same did not fall within the exceptions provided for in the Evidence Act and thus has no weight at all in law. Secondly, the evidence given by him i.e. PW1 in his witness statement on oath is at variance with his oral testimony before the trial Court and thus unreliable. See page 19 of the record of appeal particularly at paragraph 9. The evidence of PW1 which the trial Court placed reliance on are unreliable hearsay and inadmissible. Before I conclude on this issue, it is also important to state that because the Plaintiff witnesses i.e. PW2, PW3 and PW4 at the trial Court gave evidence both in their witness statement on oath and their testimonies before the Court on what they were told by their father does not in any way make their evidence hearsay evidence as the evidence falls under Section 39(a) and 46(1) of the Evidence Act, 2011.

In conclusion, the evidence of PW2, PW3 and PW4 being under the exception provided for in the Evidence Act for the admissibility of hearsay evidence, is admissible and having been admitted in evidence is sustained. After all, a dead man cannot speak or defend himself but that does not mean that his heirs cannot fight for what has become theirs by virtue of his death. Only based on my findings above do I now disagree with the trial Court. This issue therefore succeeds only with regards to the argument of the Appellants against the evidence of PW1.

ISSUE TWO
Whether the learned trial Judge erred in law to hold that the doctrine of larches and acquiescence does not avail the Appellants regard been hard that the Appellant were in occupation of the land in question since in the year 2000 and the owner of the land late Buba Maigoro did not institute an action before the Court of law for non-payment of compensation or encroachment.

First, I will reproduce the reliefs of the Respondents at the trial Court hereunder thus:
1. A declaration that the actual portion of the land acquired by the Zamfara State Government from Late Alhaji Buba Mai Goro for the purpose of Construction of the Upper Sharia Court Unguwar Yarima, Gusau is 100/100 feet and not 100/100 meters.
2. A declaration that any purported occupation, trespass, appropriation, development, usurpation, encroachment on the land, the subject matter of this action, by the Defendants or any other person outside the acquired 100/100 feet is illegal, null and void.
3. An order of this Honourable Court directing the Defendants to immediately vacate and surrender to the Plaintiffs, for onward devolution to the heirs, all the remaining parcel of land not acquired by the Zamfara State Government from Late Alh. Buba Mai Goro for the building of the upper sharia Court Unguwar Yarima, Gusau, the Plaintiffs being the lawful heirs to Late Alh. Buba Mai Goro.
4. An order of perpetual injunction restraining the Defendants, their agents, servants, assigns or workmen and any other person from further trespass into the land in question.
5. Cost of this action to be assessed by this Honourable Court. Taking a look at the above reliefs claimed by the Respondents at the trial Court, one thing that is settled is that the Respondents did not in their reliefs seek for compensation for the land in question from the Zamfara State Government or from any other. Also looking at Exhibits A – E, all that was the bone of contention is the demarcation of the land allocated for the building of the Court.

In the case of RUFUS ISAAC VS. JOHN ODIGIE IMASUEN (2016) LPELR – 26066 (SC), the Supreme Court per John Inyang Okoro, JSC held thus:
“The principle governing the defence of laches and acquiescence has been judicially explained in a long line of cases. In an old case of Ramsden v. Dyson L.R. IH.L 129, 140, 141 which was cited in A.G to the Prince of Wales v. Collon (1916) 2 KB 203, Lord Cranworth explained as follows: “If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to preserver in his error, a Court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that, when I saw the mistake into which he had fallen, it was my duty to be active and to state my adverse title, and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented. But, it will be observed that to raise such equity, two things are required: first, that the person expending the money supposes himself to be building on his own land, and secondly, that the real owner at the time of the expenditure knows that the land belongs to himself and not to the person expending the money in the belief that he is the owner. For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it. There would be nothing in my conduct, active or passive, making it inequitable in me to assert any legal rights.” See Wilfred Okpaloka & Ors v. Ben Umeh & Anor (1976) 9-10 SC (Repot) 167, Moss v. Kenrow Nig. Ltd (1992) 11/12 SCNJ 71, (1992) NWLR (Pt. 264) 207, Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12.”
I do not agree with the defence of laches and acquiescence raised by the Appellants in this case as first of all, the Appellants witness stated in his witness statement on oath that a demarcation exercise was carried out on the 14th day of January, 2005 of which he prepared a report – an evidence before this Court as Exhibit D1, but it is also clear on record that the Respondents’ late father Alhaji Buba Maigoro wrote a letter dated 13th day of October, 2010 (Exhibit 1), to the Chief Inspector, Sharia Court Division, Sokoto Road, Gusau, Zamfara State requesting for the demarcation of the Sharia Court premises and on 30th day of June, 2015 the Ministry of Land and Survey, Zamfara State wrote to the Chief Registrar, Zamfara State Judiciary, Sharia Court of Appeal, Gusau, Zamfara State (Exhibit 2) requesting them to send representative to witness the demarcation for the extent of the land required for building the Sharia Court.

The Appellants even made reference to the letter written by the late Alhaji Buba Maigoro on the 13th day of October, 2010 and in that same letter at paragraph (d), the demarcation was conducted which enabled the Respondents’ father to erect his building as requested. However, there is nothing on record to show that after the Respondents’ Late father’s request for demarcation in 2010, any demarcation was made. The Appellants in a letter written to the Permanent Secretary, Ministry of Lands and Survey, Zamfara State, acknowledged an invitation for another exercise that was slated for Tuesday, the 27th day of October, 2015 (Exhibit 5) but still it is not on record that a demarcation exercise was conducted after the complaint of the Respondents’ late father and the Appellants still referred to a demarcation exercise conducted in 2005.

I will not fail to mention that the law is that a defence of laches and acquiescence must be specifically pleaded and proved and full facts and particulars must be pleaded. See the case of ADENIRAN VS. ALAO (2001) 12 SCNJ 337. The person relying on the defence must plead that the Respondent fraudulently, knowingly and deliberately stood by while he changed his position. See the case of EZEKWESILI VS. AGBAPUONWU (2003) 9 NWLR (PT. 825) 337 @ 381.

The above captures and explains the concept of the defence of laches and acquiescence.

However, does it apply in this case? The answer is in the negative. Apart from the fact that the Appellant failed to plead this defence in their joint statement of defence, the facts of the case shows that the Respondents’ late father notified the Appellants of his interest to demarcate his land. So, even assuming that the Appellants pleaded the defence in their statement of defence, the Respondents will still not be guilty of the defence. On this note, it is my finding that the defence of laches and acquiescence as raised by the Appellants does not avail them as the Respondents’ late father took steps to ensure the demarcation of the land. This issue is thus resolved against the Appellants in favour of the Respondents and I hereby agree with the decision of the trial Court on this point.

ISSUE THREE
Whether the lower trial Court have the jurisdiction to entertain the matter even though necessary parties were not joined in the suit No: ZMS/GS/64/2017 and grant all the reliefs sought by the Respondents.

Looking at the statement of claim and the record of appeal before me, it is clear and I will not hesitate to agree with the Respondents that the Zamfara State Government, who allegedly donated the land in question to the Appellants, cannot be a necessary party in this case because with or without the Zamfara State Government the case can be dealt with fairly and judiciously.
There are no claims against the Zamfara State Government, at best the Zamfara State Government can only be a nominal party without whom the matter can be effectively dealt with. The Black’s Law Dictionary defined a nominal party to be:
“a person who is joined as defendant in an action, not because he is immediately liable in damages or because any specific relief is demanded against him, but because his connection with the subject matter is such that the Plaintiff’s action would be defective, under the technical rules of practice, if he were not joined.”
However, in a case where the principal parties sued or are sued instead of the nominal parties, it will only amount to an irregularity that can be waived. In conclusion, I will lightly touch on the argument of the Respondents’ Counsel especially at paragraphs 3.32 – 3.34 and in doing so, I have looked at the said witness statement on oath and it is evident on the face of it that the same was sworn to before a Commissioner for Oaths, Zamfara State High Court Registry and the stamp of the said Commissioner for Oaths is contained therein. On this note and on this issue, it is my finding that the trial Court had the jurisdiction to entertain the matter before it as necessary parties were joined in the Suit No: ZMS/GS/64/2017 wherein the Court granted all the reliefs sought by the Respondents. This issue is therefore hereby resolved in favour of the Respondents against the Appellants herein.

On the basis of my findings above, I hold that this appeal succeeds only in part as it relates to the argument of the Appellants’ Counsel to the evidence of PW1 being hearsay evidence. Apart from which, this Court sustains the judgment of the trial Court.

SAIDU TANKO HUSSAINI, J.C.A.: I agree.

MOHAMMED DANJUMA, J.C.A.: I have the honour of reading in draft, the lead judgment just delivered by my learned brother M. B. Idris JCA. I agree with the reasoning and conclusion. This appeal succeeds only in part. I abide by the consequential order in the lead judgment.

Appearances:

M. S. Suleiman, Esq. For Appellant(s)

S. M. Busari, Esq. For Respondent(s)