ZUBAIRU MOHAMMED v. MODU GBUGBU & ORS
(2018)LCN/11385(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of May, 2018
CA/IL/113/2017
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ZUBAIRU MOHAMMED Appellant(s)
AND
1. MODU GBUGBU
2. ADAM BABA DANMANSANI
3. SHAABA NDAWONDI GBUGBU
4. ABUBAKAR LOKITA MADAWAKI
5. ADAM YUKUBU BONI
6. UMORU ALHAJI T-SHIRT
7. EBANNA TSADZA
8. JIBRIL MUHAMMED
9. JIBRIL YAMAN
10. IBRAHIM AL-HASSAN Respondent(s)
RATIO
WHETHER OR NOT THE FACT THAT A CLAIMANT PRODUCES WHAT HE CLAIMS TO BE AN INSTRUMENT OF TITLE MEANS HE IS AUTOMATICALLY ENTITLED TO A DECLARATION THAT THE PROPERTY IS HIS OWN
In fact it is settled law that, the fact that a claimant produces what he claims to be instrument of title does not mean that he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own, rather production and reliance upon such an instrument carries with it the need for the Court to inquire into some or all of a number of questions:
1. Whether the document is genuine or valid.
2. Whether it has been duly executed and stamped.
3. Whether the grantor had the capacity and authority to make the grant.
4. Whether the grantor had in fact what he purported to grant.
5. Whether it had the effect claimed by the holder of the instrument.
See Kyari v. Alkali (2001) FWLR (PT 60) 1481 @ 1501; Romaine v. Romaine (1992) 4 NWLR (PT 238) 650. A Right of Occupancy wrongly procured over a piece of land remains invalid. See Ogunleye v. Oni (1990) 2 NWLR (PT 135) 745. PER UGO, J.C.A.
WHETHER OR NOT A COUNTERCLAIM IS A SEPARATE AND DISTINCT ACTION
It is settled that a counterclaim is for all intents and purposes a separate, independent and distinct action and the counterclaimant, like all the claimant in the main action, must prove his counterclaim with credible and convincing evidence to obtain judgment: see Ogbonna v. A. G. of Imo State (1992) 1 NWLR (PT 220) 674; Obmiami Brick & Stone (Nig.) Ltd v. A.C.B. Ltd (1992) 3 NWLR (PT 229) 260; Dabup v. Kolo (1993) 9 NWLR (PT 317) 254. For this reason, the fact that the main claim has failed (or succeeded) does not mean that the counterclaim must succeed (or fail), it all depends on the evidence in support of the counterclaim: see Jeric Nig. Ltd v. Union Bank of Nigeria (2001) FWLR (PT 31) 2913 @ 2929 ? 2930 H-B (S.C.); Usman v. Garke (2003)14 NWLR (PT 840) 261 @ 288. PER UGO, J.C.A.
WHETHER OR NOT AN AUTOMATIC JOINDER OF ISSUES ON STATEMENT OF DEFENCE AND EVERY AVERMENT CONTAINED IS DEEMED DENIED
This is even more so because there is in law an automatic joinder of issues on the statement of defence and every averment contained in it is deemed denied. This is settled law. See Bakare & Anor v. Ibrahim (1973) 6 S.C. 205, Akeredolu v. Akinremi (1989) 3 NWLR (PT 108) 164 @ 172; Spasco v. Alraine (1995) 9 SCNJ 288 @ 301; Ishola v. S.G.B.N. (Nig.) Ltd (1997) 2 NWLR (PT 488) 405 @ 421 ? 421; Obot v. C.B.N (1993) 8 NWLR (PT 310) 140 @ 159-160. Even the Civil Procedure Rules of the Kwara State High Court 2005 further made this clear in its Order 27 Rule 8 by stating that. If there is no reply to a defence, there is an implied joinder of issues on that defence. PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): What triggered this action is the true ownership of a parcel of land measuring 150ft by 100ft situate at respondents? Gbugbu village, apparently in Lafiagi Emirate, in Edu Local Government Area of Kwara State. The appellant, a native of Lafiagi Town in the same Edu Local Government Area of Kwara State and Lands Officer of same Local Government, and the respondents, Youths of Gbugbu village, lay competing claims to the said parcel of land. Appellant hinged his claim on approval of his request of the said parcel of land by the Emir of Lafiagi, which request he claimed to have rooted through the Hakimi (District Head) and Village Head of respondents? Gbugbu village. Land in Lafiagi and villages ?under it? including Gbugbu, he claimed is owned communally and acquisition/transfer is with the approval of the Emir of Lafiagi on request made through Hakimi and Village Head. There is no individual or family ownership of land in Lafiagi and its environs including Gbugbu, that the Hakimi and the village head are the custodians of all land within those villages and
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they can allocate same on approval by the Emir of Lafiagi, he asserted.
On the strength of that acquisition, appellant who had already secured a Customary Right of Occupancy No. EDU 948 (Exhibit 1) over the said land from Edu Local Government tried to develop it but was resisted by the respondents who as earlier said staked a competing claim to the same piece of land. They founded theirs on grant from the two families of Babala and Jibril both of their Gbugbu village in the years 1999 and 2004, those two families being its owners, according to them. Land in Gbugbu is not owned by community but by families and individuals and the Emir of Lafiagi has no role to play in acquisition of land in their Gbugbu village, they claimed.
?
The amount of force – and or no force – employed by respondents in resisting appellant, and its consequences, became another issue at the trial and has remained so even in this appeal. Appellant claimed that in resisting his entry into the land on 12/11/2013, respondents who had by then wrongfully entered the land and cleared it also beat him to a state of coma, tore his shirt and smashed the windscreen of his BMW car.
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For this assault and trespass on his chattel, he had made a direct criminal complaint against respondents in the Area Court and later caused their arrest by Police who in turn caused a First Information Report (F.I.R.) to be made against them in the Magistrates Court. All that culminated in his instituting this action in the High Court of Kwara State claiming from and against respondents:
1. Declaration that the grant of a parcel of land measuring 100 feet by 150 feet lying, being and situate at Gbugbu/Ilorin Road, Gbugbu Village in the Edu Local Government of Kwara State by the village head of Gbugbu and approved by the Emir of Lafiagi to the claimant is valid, extant and subsisting.
2. Declaration that the Right of Occupancy in respect of the said parcel of land which is covered by the a Customary Right of Occupancy No: EDU No. 984 issue by the Edu Local Government of Kwara State dated 1st October 2007 in respect of a parcel of land measuring 100 feet by 150 feet located at Gbugbu/Ilorin Road, Gbugbu Village in the Edu Local Government of Kwara State is valid, extant and subsisting.
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3. An order of perpetual injunction restraining the defendants either by themselves, their servants, privies or any person or body or authority claiming through them from further disturbing the claimant, tampering with or in dealing with the parcel of land granted to him and approved by the Emir of Lafiagi and covered by a Customary Right of Occupancy No: EDU No. 984 issued by the Edu Local Government of Kwara State dated 1st October 2007 in respect of a parcel of land measuring 100 feet by 150 feet located at Gbugbu/Ilorin Road, Gbugbu Village in the Edu Local Government of Kwara State.
4. An order of perpetual injunction restraining the defendants either by themselves, their servants, privies or any person or body or authority claiming through them from further tampering with, destroying or dealing with the claimant and his property in an illegal manner.
5. Special damages in the sum of ?105,000.00 (One Hundred and Five thousand Naira) only being the general damages for the claimant?s BMW car?s windscreen and cloth destroyed by the defendants.
6. General damages in the sum of ?1,000,000.00 (One Million Naira) for trespass to the claimant?s land.
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7. General damages in the sum of ?1,000,000.00 (One Million Naira) for assault and battery.
His claim was met with a counterclaim by the respondents who not only prayed to be declared rightful owners of the disputed land but also sought setting aside of his Customary Right of Occupancy as well as damages for trespass to the same land. I deem it necessary to also reproduce their counterclaim in its exact terms as whether the evidence they adduced in proof of it was in line with their endorsements regarding the extent of the land claimed by them and whether the lower Court was correct to grant it in its un-amended state, is an issue. Their counterclaims ran as follows:
1. A Declaration that the counterclaimants are the owners in possession of a parcel of land measuring 150 feet by 200 feet being along Ilorin/Gbugbu Road, Gbugbu Village in the Edu Local Government of Kwara State.
2. An order nullifying and setting aside the Customary Right of Occupancy EDU No. 948 issued to the claimant purporting to be in respect of land in issue at along Ilorin Road, Gbugbu Village in the Edu Local Government of Kwara State.
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3. ?1,000,000.00 (One Million Naira) against the defendant to counterclaim for trespass.
The case went to trial before Oyinloye J. of the Kwara State High Court. Appellant testified and called seven other witnesses while the respondents called two witnesses. Neither party, it should be mentioned, produced any document in support of its acclaimed grant. Appellant was nevertheless able to acquire a Right of Occupancy from Edu Local Government Council as earlier indicated, which he tendered as Exhibit 1.
At the close of evidence, final addresses were taken, at the end of which His Lordship in his judgment of 29/06/2017 dismissed all the claims of appellant having held that he failed to establish the foundation of his claim of communal ownership of land in Gbugbu and or that he was granted the said land as he claimed. His Lordship dismissed appellant?s case on this note:
.the testimonies of the claimant and his witnesses are not cogent, convincing, believable and probable to the degree that can sustain the projected native law and custom that there is no individual or family ownership of land in Lafiagi and its environs including Gbugbu.
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That being the case, there is no ground again to grant the first two Reliefs sought by the claimant in this case.?
Appellant?s claim for general damages for trespass to the said land also died with that finding.
As for the special damages claimed by him for his torn shirt and damaged windscreen, His Lordship held that they were not strictly proved as required by law. His claim of damages of ?100,000.00 for assault and battery did not fare better either as His Lordship held that the evidence he adduced in respect of it was ?too general, nebulous and no specific respondent was fingered by appellant as the one that assaulted him.?
?
Respondents were luckier: His Lordship did not only believe their assertion that land in Gbugbu village is owned by individuals and families and not by community; he also made a finding that they were actually granted the disputed land by the two families of Babala and Jibril of Gbugbu they claimed granted them. That is also even as I shall add that no evidence whatsoever was led by them of the root of title of those two families to the said land, even when appellant frontally denied that the said two families ever owned it.
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Appellant is dissatisfied with that judgment hence this appeal. In his brief of argument of 27/12/2017 prepared by Dr. D.A. Ariyoosu, he framed the following four issues for determination by this Court:
1. Whether the learned trial judge was not wrong in his failure, refusal and/or neglect to consider and give effect to vital issues raised in the appellant?s case in relation to the claims of assault and battery and damage to his car and cloth claimed to have been committed against the appellant by the respondents.
2. Whether regards being had to the facts and circumstances of this case, the learned trial Judge was not wrong in dismissing appellant?s case as it relates to the land in dispute.
3. Whether the learned trial judge was right in dismissing the appellant?s case for assault, battery and in relation to his torn cloth and smashed windscreen.
4. Whether the learned trial judge was right in granting the respondents? counterclaim when they have failed woefully to so prove it.
On their part, the respondents in their brief settled by Mr. Wahab Ismail compressed the four issues of appellant into the following two:
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1. Whether having regards to the pleadings, evidence, facts and circumstances of this case the Court below was not right in dismissing the case of the appellant.
2. Whether given the facts and circumstances of this case as well as the evidence before the trial Court, the Court below was not right when it granted the reliefs of the respondents in the counterclaim.
Much as the respondents? two issues also sufficiently address the four issues distilled by appellant, I wish to decide the appeal on the basis of the appellant?s four issues. I think they are more precise and will make for easier resolution of the rightness or wrongness of the judgment of His Lordship of the lower Court.
In doing that, I intend to start from the issue of the ownership of the disputed land and the rightness or otherwise of the decision of the lower Court on it, after all that is the genesis of the whole case. That issue covers issues 2 and 4 of appellant. I shall thereafter come to the issues of proof of assault on appellant and damage to the windscreen of his BMW car by respondents, both of which are the fallouts of the land ownership tussle.
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In respect of issue 2, Dr. Ariyoosu for appellant argued that appellant was able to prove his ownership of the disputed land by preponderance of evidence, documentary and oral. Dr. Ariyoosu referred us to the five ways of proof of ownership of land as set out in the landmark case of Idundun v. Okumagba (1976) 10 NSCC 445 @ 454 and submitted that appellant is not mandated to establish all five ways to prove his title; that proof of even one of those methods suffices. In this case, learned counsel argued, appellant proved his title by two of those ways, namely, by traditional evidence and by production of documents of title.
On traditional evidence, learned counsel pointed out that appellant?s case was that ownership of land in Lafiagi and its environs including Gbugbu where the land is situate is communal. By that system, he submitted, a request for land is made to the Emir of Lafiagi through the District head called Hakimi and the village Head and once approval is granted, ownership is acquired. Referencing the sworn witness statements of appellant and his witnesses, counsel submitted that appellant by himself and through his
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witnesses led credible evidence of how this tradition was observed in his acquisition of the disputed land; that their evidence remained unshaken even under cross-examination. The trial judge, he said, also appreciated appellant?s case but attacked, unfairly, in counsel?s opinion, the evidence of his 6th witness (C.W.6) Alhaji Aliyu Baba whom the trial judge said swore in his witness statement of 03/02/2014 that he was the Hakimi appellant approached in 2007 for allocation of the disputed land, only for the same C.W.6 to admit under cross-examination that he was actually made Hakimi only in 2013. Dr. Ariyoosu argued that in reaching that conclusion the trial Judge did not properly evaluate the evidence, that if he did, he would have realized that C.W.6 deposed to an additional witness statement on oath on 26/7/2016 contained at p. 158 ? 159 of the records where he corrected his earlier statement and admitted his error in claiming that he was appointed Hakimi in 2007 and that the true position was that he was actually appointed Hakimi of Gbugbu in 2013 and not 2007 and his earlier deposition on that was done in error.
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The trial judge, counsel argued, was duty bound to properly evaluate evidence and his failure to do that in this case by overlooking C.W.6?s additional witness statement on oath occasioned a miscarriage of justice, especially as that was the cause of his conclusion that C.W.6 contradicted himself on appellant?s root of title.
Learned counsel next attacked the trial judge?s conclusion that the same C.W.6 further contradicted himself and created a big doubt in appellant?s case when he also admitted under cross-examination that there were titles and transfer of titles of land in Gbugbu for over 50 years before he became Hakimi and even before the first Hakimi was appointed yet offered no explanation for the procedure for acquisition of the said over 50 years lands when there was no Hakimi of Gbugbu through whom request for land as asserted by appellant could have been made. Learned counsel submitted that no doubt was created in the said admission of C.W.6 and it is of no moment as according to counsel the important issue before the Court was whether the approval of the Emir of Lafiagi was needed for acquisition of land in Lafiagi and its environs including Gbugbu where the land is situate.
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Appellant?s case, counsel argued, was simply that before there can be family or individual ownership of land in Lafiagi and its environs including Gbugbu, approval of the Emir of Lafiagi must be obtained and once that is done the land so approved becomes the land of the individual or the family to which approval was given, so there is no contradiction in the answer of C.W.6 that there was individual ownership of land in Gbugbu before the introduction of appointment of Hakimis of Gbugbu. Dr. Ariyoosu also argued that the trial judge was wrong in suggesting that there was a burden on appellant to explain to the Court the Hakimi that was involved in the grant of land used for the admitted construction of fuelling stations, shops before the era of appointment of Hakimis. Such issue, he said, was not raised in the pleadings so His Lordship was wrong in countenancing it. It did not matter, he submitted, that the said evidence was elicited from C.W.6 during cross-examination; it remained inadmissible, he argued, citing the cases of Adenle v. Olude (2002) 9 SCNJ 94 @ 109; Okwejiminor v. Gbakeji & Anor (2008) ALL FWLR (PT 409) 405 @ 424; Nwawuba v. Enemuo (1988) 19 NSCC (PT 1) 930.
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Counsel also contended that the trial judge was wrong in saying that the failure of appellant to call the Village Head of Gbugbu and Emir of Lafiagi as witnesses was fatal to his case. He said appellant actually intended calling these two gentlemen and even frontloaded their sworn witness statements but respondents ?glaringly? bought over the village Head and made him swear to an affidavit and a handwritten letter contained at pages 94- 95 of the records denying the witness statement he had earlier made for appellant. Respondents having so ?prevented? the Village Head from testifying for appellant, counsel submitted, the trial judge was wrong in blaming appellant for not calling him. The burden, according to counsel, was rather on respondents to call the said village head of Gbugbu to tender his two denials to support their case. For failing to produce the said two documents, counsel prayed us to invoke Section 167(d) of the Evidence Act and hold that they were not produced because if produced they would have been against the respondents.
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As for the failure to call the Emir, it was argued by Dr. Ariyoosu that a party is not obliged to call a host of witnesses to establish his case; that in this case the evidence adduced on record by appellant sufficed to establish his case even without calling the Emir and we should so hold.
On the second method relied on by appellant for proof of his title, namely production of title documents, learned counsel argued that that was also proved by the documents tendered by the appellant including the Customary Right of Occupancy issued him by Edu Local Government over the said land.
?
In response, Mr. Wahab Ismail for respondents submitted that appellant failed to prove the custom of communal land ownership he pleaded; that rather, even his witnesses contradicted his position and themselves so the verdict of the trial Judge dismissing his case was the right one and we should not interfere. Counsel took us through the pleadings and evidence adduced by appellant and his seven witnesses to buttress his argument. Appellant having failed to prove his purported grant, counsel submitted, his subsequent procurement of Right of Occupancy (Exhibit C1) was invalid and did not confer title on him over the said land as the
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trial judge he said rightly held. He referred us to the cases of Kyari v. Alkali (2001) FWLR (PT 60) 1481; Ogunleye v. Oni (1990) 2 NWLR (PT 135) 745, and Boye Industries Ltd. v. Sowemimo (2010) NWLR (PT 521) 1462 @ 1483-1484 in support of this position.
Resolution of issue
Without being unmindful of the fact that respondents also had a counterclaim to the same land to prove, the issue for now is whether appellant as the main claimant proved his claim of title to the disputed land which he hinged on communal ownership of land in Lafiagi and communities under it including Gbugbu and approval by Emir of Lafiagi of his request made through the Village Head and Hakimi (District Head) of Gbugbu. He averred thus on it in paragraphs 3, 4 and 26 of his statement of claim:
3. The claimant avers that sometime in year 2007 and in accordance with native law and custom, he approached the Hakimi (District Head) and village Head of Gbugbu for a parcel of land at Gbugbu village for the construction of shops at along Gbugbu/Ilorin Road, Gbugbu in the Edu Local Government Area of Kwara State.
4. The claimant avers that eventually and in line with the
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native law and custom, his request was taken to the Emir of Lafiagi by the Hakimi and Village Head of Gbugbu for approval and which request was granted by the Hakimi and the Village Head of Gbugbu and approved by the Emir of Lafiagi.
26. The claimant shall be heard to contend at the trial of this case that there is no individual or family ownership of land at Lafiagi and its environs including Gbugbu village where the land in dispute is located; rather the Hakimi and the Village Head are the custodians of all the land within their villages and can allocate and/or grant plot(s) of land to people on request with the approval of the Emir of Lafiagi.
?
Having so pleaded, it was his bounden duty to adduce evidence, and credible one for that matter, to prove them. He set off to do that by causing several persons, including the Emir of Lafiagi and the Village Head of Gbugbu as at 2007, one Mallam Saliu Aliu, to depose to witness statements. At the end of day, he did not call either of these two undoubtedly vital witnesses. I shall comment on this omission later. For now, the question is whether he proved his claim of exclusive communal ownership of land in
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Lafiagi and its environs including and particularly Gbugbu where the disputed land is situate. The trial judge found he did not and so his claim could not be granted. He argues otherwise. Having perused the evidence he adduced, it seems to me that the trial judge was right in his conclusion. The evidence of appellant?s witnesses, incidentally including his own blood brother Mohammed Sanni (C.W.4) from Lafiagi, all rather supported individual and family ownership of land even in Lafiagi town of appellant rather than communal ownership espoused by him. Appellant?s first witness (C.W.1) only testified about the damage to his Sunny car so his evidence is not relevant to the issue of land ownership.
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Appellant?s second witness (C.W.2) was one Mohammed Ibrahim from appellant?s Lafiagi town. He is appellant?s sand supplier who was prevented by respondents from dumping sand on the disputed land a second time after he had done so successfully once. Under cross-examination on the ownership of the land from where he excavated the sand for appellant, this is what C.W.2 said:
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?I am a native of Lafiagi. I am from Tswayan family in Lafiagi. I know the claimant, the name of his family is Tsadza in Lafiagi. I deal in sales of sand. I convey the sand to customers using tipper lorry. I did get the sand from my family land. My family land is at Takogabi Area in Lafiagi. I do not know if the place where I use to get the sand is owned by any family in Lafiagi. The family head controls the land of my family.? (Italics mine.)
Appellant?s blood brother Mohammed Sanni who testified as C.W.4 equally confirmed family ownership of land even in appellant?s own Lafiagi town when he stated as follows under cross-examination:
?I am a brother to the claimant. I am from Tsadza family in Lafiagi. I am a farmer. I use to plant crops as a farmer. I do farm on part of my family land at Lafiagi. I do not know if the claimant has his own part of the land. The part of the family land that I do the farming was given to my father by the head of the family.? (Italics mine).
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Neither these two nor the other witnesses of appellant were re-examined by Dr. Ariyoosu to suggest that their families, or other individual land owners in Gbugbu, got their parcels of
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land from the process claimed by appellant of request through Hakimi and Village Head and approval by Emir of Lafiagi. Re-examination is the witness? opportunity of explaining any seeming inconsistency in his answers, and of stating the whole truth of any matter which was touched on, but not fully dealt with, in cross-examination of clarifying facts, and to restore credibility to his testimony: see Odgers on Pleadings and Practice, 20th Edition, p.318; Okuleye v. Adesanya (2014) 12 NWLR (PT. 1422)521 @ 537; Madumere v. Okafor (1990) 3 NWLR (PT 138) 327 @ 357; Okoro v. State (2012) ALL FWLR (PT 621)1471 @ 1488 (S.C.). Having failed to re-examine appellant?s witnesses to elicit the evidence that their families got their parcels of land from the community upon approval by Emir of Lafiagi of a request by their families, the argument of Dr. Ariyoosu to that effect seems to me puerile and nothing more than an attempt by appellant to claw at straws.
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Appellant?s sixth witness (C.W. 6) was Alhaji Aliyu Baba Lafiagi. He claims to have been the second Hakimi (District Head) of Gbugbu. He is also from appellant?s Lafiagi Town.
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He is the one who made two written statements on oath. His first statement was made on 3rd February, 2014 and filed along with appellant?s writ. There he categorically claimed he was made Hakimi of Gbugbu in 2007 and it was him appellant approached with his request for the disputed land and he duly forwarded that request to the Emir of Lafiagi who approved it. In his second witness statement of 26/7/16 contained at pages 158-159 of the records, this same witness foreswore these assertions. He said, this time, that he was incorrect the first time; that he was actually only made Hakimi in 2013; that it was not even him but his predecessor, the first Hakimi of Gbugbu, Alhaji Mohammed Kawu Manzuma (C.W.7) who appellant approached with his request for the land in 2007; that appellant only approached him in 2013 when some people encroached on the disputed land. On the land tenure system in Gbugbu before the era of appointment of Hakimis of Gbugbu, C.W.6 said this under cross-examination:
?I became the Hakimi of Gbugbu in 2013. Before I became Hakimi of Gbugbu in 2013, I was aware of the existence of some shops and petrol stations erected well over 10 years.
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I was aware that there had been titles and transfer of titles to land in Gbugbu for well over 50 years. I did not know the time the 1st Hakimi of Gbugbu was appointed. I read all the contents of my statement on oath made on 3/2/2014 and 26/7/2016 before I appended my signature. . I am the 2nd Hakimi of Gbugbu.? (Italics mine.)
Like C.W.6, Alhaji Mohammed Kawu Manzuma (C.W.7) whom C.W.6 claimed was his predecessor in office as first Hakimi of Gbugbu also sounded unsure of the time he was appointed Hakimi. He (C.W.7) swore in paragraph 2 of his witness statement on oath of 26/7/2016 (contained at pages 156 -157 of the records) that ?I became the Hakimi of Gbugbu sometime in 2006?, only to assert under cross-examination, that:
?It is true I was appointed as the first Hakimi of Gbugbu in 2007.?
He went on to confuse matters the more, which the trial judge gave due regard to in his judgment, when he later said in the same cross-examination that:
?I can?t remember the year the 1st Hakimi [himself] was appointed.?
?
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The same 1st Hakimi (C.W.7) who had sworn variously in his witness statement that he was already Hakimi of Gbugbu since ?sometime in 2006? or at least in 2007, also testified under cross-examination as follows:
?I do not know if there was any Hakimi in Gbugbu up till 2008.?
?
That is the quality of witnesses appellant paraded to prove his traditional evidence of communal ownership of land in Gbugbu and how he got the disputed land in 2007.
C.W.7 was not done, for he also asserted/admitted under cross-examination and corroborated C.W.6 as follows:
?I do not know if there were dealings in land by Gbugbu people before 2007. Before 2007 I have visited Gbugbu and found that shops and petrol stations were existing there. I do not know how the lands were acquired from the owners for shops and petrol stations. I do not know if there was any Hakimi in Gbugbu up till 2008. I can?t remember the year the 1st Hakimi [himself] was appointed. The village Head of Gbugbu at the time I was the hakimi is by name Nda Zhitsu. That is what I used to call him. The village head cannot deny having dealings with me when I was the Hakimi of Gbugbu.?
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C.W.7 ended by saying:
?I do not have power to grant land at Gbugbu when I was the Hakimi.?
The trial judge in his judgment dealt in a most interesting way with the evidence of C.W?s 6 and 7 particularly their admission of the existence of shops and petrol stations in Gbugbu for over 50 years before appointment of any Hakimi. His Lordship had this to say on their evidence:
?CW6 is one Alhaji Aliyu Baba Lafiagi. He testified, among others things that he was the Hakimi of Gbugbu and the person approached by the claimant for the allocation of the land in dispute in 2007 and that he took the request to the Emir of Lafiagi. He claimed that there is no individual or family ownership of land in Lafiagi and its environs including Gbugbu. He told the Court under oath that Hakimis are custodians of land and that they allocate lands with the approval of Emir of Lafiagi.
?Under cross-examination, he admitted being made Hakimi only in 2013 which admission is against the interest of the claimant having claimed in one breath to be Hakimi approached for land in 2006 by the claimant. That however is not the only contradiction in his testimonies.
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?Under cross-examination again, CW6 frontally admitted that there were titles and transfer of titles or ownerships in Gbugbu for over 50 years before becoming Hakimi and that he did not know the time the 1st Hakimi of Gbugbu was appointed but he is the 2nd one. The implication of the foregoing testimonies of CW6 is that if the case of the claimant is that there is no family or individual titles in Lafiagi and its environs including Gbugbu and if land can only be acquired through the Hakimi and Village head, then the claimant would have created and he did create a big doubt about his case through CW6 because no explanation was given by the claimant about the procedure of those titles and transfer of titles being in existence for more than 50 years kin Gbugbu before the 1st Hakimi was appointed for Gbugbu. It is a doubt in the case of the claimant because a satisfactory explanation on these age-long titles buy the method the claimant wanted the Court to accept in this matter now would have strengthened his case in no small measure.
?CW7 is one Alhaji Mohammed Kawu Manzuma, he is a traditional title holder and was the Hakimi in 2006 to 2012
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before becoming the Sadauna of Lafiagi. That testimony so far is against the claim of CW6 that he was the one approached for the land by the Claimant in 2007.
?He too admitted frontally that he had seen that Shops and Petrol Stations were constructed in Gbugbu before 2007 and did not know how the owners acquired their lands. That, to this Noble Court, is a confirmation that land dealings were taking place in Gbugbu prior to the appointment of CW7 as the 1st Hakimi of Gbugbu. Again the testimony of CW7 is a negation of the case of the Claimant that land can only be acquired through the Hakimi and Village head with the approval of Emir of Lafiagi because CW7 ought to have known that procedure if same exists prior to his appointment and if he did not prior to his appointment was followed before his appointment.
?To my mind, the doubt created by the evidence of CW7 has another angle which is that if actually an Hakimi must be involved in land dealings in Gbugbu, then he has a burden or the Claimant, as it were, to disclose to the Court the Hakimi that was involved in granting the land used for the constructions of Petrol Stations and Shops he admitted were
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in existence before he was made the 1st Hakimi of Gbugbu or and to reveal the Hakimi that dealt with close titles he admitted were in existence for over 50 years.
?I am not done, CW7 that gave his tenure as an Hakimi of Gbugbu from 2006 ? 2012 did not know under cross-examination if there was an Hakimi in Gbugbu up till 2008, a year that of necessity should fall within his reign.
?It is also of serious interest to the Court and fatal to the Claimant?s case that CW7 who claimed to be 1st Hakimi of Gbugbu from 2006 ? 2012 did not know when cross-examined the time the 1st Hakimi was appointed for Gbugbu.
?Interestingly, CW7 clearly, frontally and unambiguously dealt a legal death blow to the Case of the Claimant when he admitted under cross-examination that as an Hakimi, he had no powers to grant Land in Gbugbu. In the considered view of this Court, that testimony alone completely destroyed the Case the Claimant wanted to build that an acquisition of land in Lafiagi and its environs including Gbugbu is only done by request made to Hakimi and village head with the approval of the Emir of Lafiagi.?
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I find this reasoning of the trial judge faultless. I am even in awe as to why appellant did not deem it necessary to call the Emir of Lafiagi, Alhaji Saadu Kawu and the Village Head of Gbugbu in 2007, Alhaji Nda Zhitsu, especially after appellant had made them depose to witness statements in support of his case. These two gentlemen were said to have played vital roles in appellant?s acquisition of the disputed land so they are vital witnesses to his case, even more so when the alleged grant/approval by the Emir was not documented. While I agree with Dr. Ariyoosu that a litigant is not obliged to call a host of witnesses to prove his case, it is equally settled that litigants are duty bound to call witnesses that are vital to the success of their case and failure to call any such witness is fatal: see The State v. Azeez (2008) ALL FWLR (PT. 424) 1423 @ 1455 (S.C.).
The need to call Mallam Saliu Aliu the Village Head (Zhitsu) of Gbugbu Village in 2007 even assumed additional importance with the very poor and contradictory evidence appellant?s other witnesses adduced as shown above. The village head may have been able to add some strength to
28
appellant?s case considering the part he is alleged to have played in the acquisition of the disputed land for appellant. He may have been able to convince the Court on the alleged communal ownership of land in Gbugbu and if he actually helped appellant secure the disputed land as it was stated in the witness statement frontloaded in his name by appellant. It is no answer, or sufficient answer, in my view, that he denied his witness statement via the documents contained at pages 94 ? 95 of the records. Appellant ought to have at least demonstrated his good faith in frontloading the witness statement of the said Village Head Mallam Aliu by subpoenaing him and, if he comes to Court to deny it, use ?his? statement to demonstrate to the Court that he might indeed have been bought over hence his new hostile nature. Without taking that step the Court cannot rely on his counsel?s mere submission in Court and conclude that he actually made the statement bearing his name in the records and frontloaded along with the other originating processes by appellant. Counsel?s address, no matter how brilliant, is not substitute for evidence.
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The respondents, contrary to the contention of Dr. Ariyoosu, had no duty to call the said Village Head if appellant whose case he was to support did not deem it fit to call him.
So, at the end of the day, the presumption of withholding evidence provided by Section 167(d) of the Evidence Act, contrary to the contention of Dr. Ariyoosu, can only be invoked against appellant and not respondents who ordinarily should be happy that appellant did not call the head of their village he alleged assisted him to get the disputed land against their native law and custom.
In the final analysis and for all the reasons stated herein, I am in complete agreement with the lower Court that appellant failed to prove his case of communal ownership of land in Gbugbu and how it was granted him by Hakimi and Village Head of Gbugbu upon approval of Emir of Lafiagi.
Having failed to prove the foundation of his case of ownership of the disputed land through grant, it follows that the Right of occupancy (Exhibit 1) appellant secured from Edu Local Government on the basis of the said grant has nothing to sustain it.
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Of course, you cannot place something on nothing and expect it to stand. In fact it is settled law that, the fact that a claimant produces what he claims to be instrument of title does not mean that he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own, rather production and reliance upon such an instrument carries with it the need for the Court to inquire into some or all of a number of questions:
1. Whether the document is genuine or valid.
2. Whether it has been duly executed and stamped.
3. Whether the grantor had the capacity and authority to make the grant.
4. Whether the grantor had in fact what he purported to grant.
5. Whether it had the effect claimed by the holder of the instrument.
See Kyari v. Alkali (2001) FWLR (PT 60) 1481 @ 1501; Romaine v. Romaine (1992) 4 NWLR (PT 238) 650. A Right of Occupancy wrongly procured over a piece of land remains invalid. See Ogunleye v. Oni (1990) 2 NWLR (PT 135) 745. In the result, I resolve this issue against appellant and affirm the judgment of the lower Court dismissing his claim to the disputed land.
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And that takes me to the related issue 4 of the correctness of the decision of the lower Court granting respondents? counterclaim of ownership of the same land. Dr. Ariyoosu for appellant here submitted that a counterclaim though made in the same proceedings is regarded as an independent and separate action in which the defendant/counterclaimant is in the position of the plaintiff and therefore has the burden of proving his counterclaim to be entitled to judgment on it. It was therefore incumbent on the respondents, he argued, to adduce credible evidence to establish their counterclaim failing which it ought to have been dismissed, citing Bilante Int?l Ltd v. NDIC (2011) 6-7 S.C. (PT 11) 113 @ 134. He also posited that appellant having filed a reply to respondents? statement of defence and defence to counterclaim, respondents ought to have also filed a reply to his defence to counterclaim in line with the Rules of pleadings (he did not state which rule) but failed to do that. Besides, he continued, they did not lead any credible evidence oral or documentary to establish their counterclaim so the lower Court ought to have dismissed the counterclaim.
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The evidence of their only two witnesses, he said, was laced with contradictions and inconsistencies.
Learned counsel also argued that respondents having claimed that the disputed land was granted them by Babala and Jibril families, they ought to prove that the said grants were with the consent of the principal members of the said two families. He cited Adejumo v. Ayantegbe (1989) 3 NWLR (PT 110) 417 @ 432 and Esan v. Faro 12 WACA 135 on the need for consent of principal members to the grant and consequence of that omission.
Dr. Ariyoosu next argued that a community reading of paragraphs 45, 47, 49 and 50 of their counterclaim vis-a-vis paragraphs 4, 6, 7, 8 and 9 of the witness statements of DW2 and paragraphs 4 and 6 of DW1?s witness statements shows that respondents alleged in one breath that it was Babala family that granted them the land in 1999, yet in another they claimed it was Jibril family that transferred that same land to them in 2004. All that, he said, shows that they are not even sure of their root of title yet the trial judge unfortunately did not see this inconsistency and rather reasoned that there was no contradiction, that the fact that
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the two families were involved in the grant rather confirmed that respondents were granted the land by both families more so when no other family or party has come out to lay claim to the land or say it has been given to appellant. By this conclusion, he complained, that His Lordship made a case for respondents.
Counsel also argued that there were serious conflicts in the case of respondents regarding the extent of the land for which declaration was sought in the counterclaim. He pointed out that whereas Relief 1 of the counterclaim described the disputed land as measuring 150ft by 200ft, their witness statements said it was 150ft by 100ft. This inconsistency, counsel further observed, remained un-amended throughout the hearing yet when the trial judge?s attention was drawn to it during address he simply brushed it aside by saying it was a simple misnomer, that the Court can award to a claimant less than what he claimed provided he proved that lesser amount, and that besides, parties did not join issues in their pleadings on identity and extent of land so it cannot be raised in final address. That is even as respondents themselves did not make any such contention
34
or response to the arguments of appellant. Learned counsel urged us to resolve this issue in appellant?s favour, hold that the counterclaim was not proved and order its dismissal.
In response to all that, Mr. Ismail for respondents argued that the Court below was right in granting the counter-claim of respondent as the evidence adduced by them at the lower Court in support of it through DW1 and DW2 was credible, convincing and sufficient.
On the conflicts in respondents? case identified by Dr. Ariyoosu, Mr. Ismail submitted that were are no conflicts between respondents? pleading and their evidence of the grants of the land in dispute by Babala family of Gbugbu in 1999 and Jubril family in 2004 so that argument is also baseless. He reproduced paragraphs 45, 46, 47, 48 and 49 of the statement of Defence where respondents pleaded the grant from the two families and submitted that respondents? two witnesses confirmed their pleadings in their evidence on oath and gave detailed basis of the grants.
In specific response to appellant?s counsel?s argument of need for respondents to have filed a reply, Mr. Ismail
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submitted that there was no basis as there was nothing in appellant?s defence to counter-claim for respondents to respond with a reply. It is not the law, he argued, that a claimant or counterclaimant must at all times deliver a reply to a defence to counterclaim even if when no new or serious issue was raised in the said defence to counterclaim. He cited Kankia v. Maigemu (2004) ALL FWLR (PT. 206) 460 @ 477 para G-H on this.
On appellant?s argument of lack of consent from principal members of Babala and Jibril families to respondents? grant, counsel argued that appellant lacked standing to raise that issue as it is a matter within the exclusive preserve of the families that granted the land in question to respondents. In any event, counsel further argued, solid evidence of possession of the parcel of land adduced by respondents? two witnesses was never dislodged by appellant.
On appellant?s argument that the size of the land claimed by respondents in their counterclaim and what the Court below granted them were in conflict, Mr. Ismail submitted that the lower Court was right in its judgment.
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He argued that size and identity of the land in dispute was not in issue in the pleadings of parties; that besides, respondents had shown in their statement of defence as well as counterclaim that the same parcel of land claimed by the appellant is what was being counterclaimed by them. The respondents as counterclaimants in paragraph 22 of their defence gave the size of the land as 150ft x 100ft, which he pointed out tallies with paragraph 5 of the statement of claim and relief No. 1 and 2 in paragraph 27 thereof. D.Ws 1 and 2 in their statement on oath also gave the size of the land counterclaimed as 150ft x 100ft and maintained so under cross-examination, he said. Counsel thus argued that from the state of facts and pleadings, appellant and respondents knew and accepted the size of the land to be 150ft x 100ft so the issue being made by appellant about what respondents? counsel described as ?slip or error? is merely technical argument which cannot defeat the entitlement of respondents to ownership of the disputed parcel of land well established as 100ft x 150ft by the evidence of both parties.
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Counsel finally urged us to endorse the finding of the trial judge, more so since appellant has neither claimed being misled in any way by the said error nor appealed against the trial judge?s finding of it as a mere obvious mistake.
Resolution of issue of Proof of Counterclaim
It is settled that a counterclaim is for all intents and purposes a separate, independent and distinct action and the counterclaimant, like all the claimant in the main action, must prove his counterclaim with credible and convincing evidence to obtain judgment: see Ogbonna v. A. G. of Imo State (1992) 1 NWLR (PT 220) 674; Obmiami Brick & Stone (Nig.) Ltd v. A.C.B. Ltd (1992) 3 NWLR (PT 229) 260; Dabup v. Kolo (1993) 9 NWLR (PT 317) 254. For this reason, the fact that the main claim has failed (or succeeded) does not mean that the counterclaim must succeed (or fail), it all depends on the evidence in support of the counterclaim: see Jeric Nig. Ltd v. Union Bank of Nigeria (2001) FWLR (PT 31) 2913 @ 2929 ? 2930 H-B (S.C.); Usman v. Garke (2003)14 NWLR (PT 840) 261 @ 288. If the counterclaim includes a declaration of right as it is in this case where the declaration is the fountainhead of the counterclaim, the counterclaimant must also satisfy the
38
Court with credible evidence that he is entitled to a declaration, a discretionary remedy. That, he has to do on the strength of his case as the fact that the defendant admits his counterclaim or failed to file a defence is of no consequence: see Ogbonna v. A. G. of Imo State supra; Maja v. Samouris (2002) FWLR (PT 98) 818 (S.C.); Akaninwo v. Nsirim (2008) ALL FWLR (PT 410) 610; (2008) 9 NWLR (PT 1093) 439.
So, did respondents as counterclaimants adduce necessary credible and convincing evidence through their two witnesses to prove their reliefs, declaratory and otherwise, and the lower Court right to grant their counterclaim as it did? The resolution of this question will necessarily involve considering a lot of issues, including the ones raised by Dr. Ariyoosu for appellant on alleged duty on respondents/counterclaimants to file a reply to appellant?s defence to their counterclaim, need to prove consent of principal members of respondents? alleged grantors to consent to the grant, conflict in respondents? case regarding the area of land claimed by them in their counterclaim.
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Equally crucial is the all-important question of respondent?s proof of their root of title. And that includes, but is not limited to, whether the evidence they adduced on how they acquired the same of piece of land first from Babala family in 1999 and then from Jibril family in 2004 was credible and convincing enough to merit the lower Court?s decision in their favour.
Let me first take on the submission of Dr. Ariyoosu that the respondents had a duty under the Kwara State High Court (Civil Procedure) Rules 2005 to file a reply to appellant?s defence to their counterclaim since he also filed a reply to their claim and their omission to do that ought to have affected their counterclaim. I find this argument almost incomprehensible especially as Dr. Ariyoosu did not pinpoint what exactly the respondents as counterclaimants were supposed to respond to with the reply nor the particular Rule of the lower Court that made a reply necessary in the circumstances of this case. For unless a new issue is raised by the opposite party in the preceding pleading or the pleader wishes to raise a new issue which if not pleaded will take the opponent by surprise, none of which is appellant?s
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complaint here, there is actually no duty on a pleader to file a reply. This is even more so because there is in law an automatic joinder of issues on the statement of defence and every averment contained in it is deemed denied. This is settled law. See Bakare & Anor v. Ibrahim (1973) 6 S.C. 205, Akeredolu v. Akinremi (1989) 3 NWLR (PT 108) 164 @ 172; Spasco v. Alraine (1995) 9 SCNJ 288 @ 301; Ishola v. S.G.B.N. (Nig.) Ltd (1997) 2 NWLR (PT 488) 405 @ 421 ? 421; Obot v. C.B.N (1993) 8 NWLR (PT 310) 140 @ 159-160. Even the Civil Procedure Rules of the Kwara State High Court 2005 further made this clear in its Order 27 Rule 8 by stating that:
If there is no reply to a defence, there is an implied joinder of issues on that defence.
Reply by respondent, I hold, was unnecessary in this case.
I am afraid I have a similar view on appellant?s argument of alleged duty on respondents to show that their grant had the blessing of principal members of their two grantor families of Babala and Jubril. Lack of consent of principal members of those two families to the grant, I agree with Mr. Ismail, is a matter within the exclusive preserve and
41
knowledge of members of those two families none of whom has seen reason to complain that their consent was not obtained to the grant. Appellant is not from the said families nor claim privy to their decisions so he has no right, standing and in fact even lacks the evidence to back up his contention that principal members of respondents? alleged grantor families did not consent, or may not have consented to the said grants. Besides, appellant did not make that an issue in his reply or defence to counterclaim and cannot be heard to so contend now. Pleadings define the issues to be agitated at the trial and any issue not raised there cannot find its way into the case.
Next is the issue of whether the trial judge was right in entering judgment for respondents for a parcel of land measuring 150ft x 100ft when what they actually endorsed in their counterclaim was a declaration of ownership of a piece of land measuring 150ft x 200ft. It is true that respondents as counterclaimants actually endorsed for declaration for a piece of land allegedly measuring 150ft x 200ft; nevertheless, there was no doubt that both parties knew that the battle in
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the lower Court was over the same piece of land in dispute measuring only 150ft x 100ft. In paragraph 22 of their statement of claim respondents made this clear when they expressly averred that:
22. The land in question measuring about 100ft x 150ft is being used over the years by the defendants as a meeting point and for get-together during important festivals and celebrations. (Emphasis mine.)
This averment was not only further adopted by them in paragraph 44 of their counterclaim where they said ?counterclaimants repeat, adopt and rely on the averments in all the paragraphs of the statement of defence in this counterclaim?, they elaborated further on it in paragraphs 45 and 46 of their counterclaim, saying:
45. The counterclaimants state further that sometime in January, 1999, the then village head of Gbugbu granted to the counterclaimant a parcel of land measuring 100 x150 along Ilorin Gbugbu Road, Gbugbu in Edu Local Government Area of Kwara State. This is the parcel of land described as measuring 30.0 meters by 45 metres by the claimant in the statement of claim.
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46. The counterclaimants state further that the said piece of land is the same being claimed by the defendant to counterclaim as the claimant therein.
(Italics mine.)
Appellant in his Reply and Defence to that counterclaim did not refute these assertions rather, in his said processes he repeatedly referred to the land counterclaimed by respondents as ?the land in dispute.?
It is noteworthy too that respondents? two witnesses, Abubakar Sallah (D.W.1) and Adam Baba Danmasani (D.W.2) in their sworn witness statements also stuck to this 150ft x 100ft measurement of the land counterclaimed by respondents. Even when Dr. Ariyoosu in cross-examination tried to lead them to confirm the obvious error in respondents? endorsement by suggesting to them that the land being counterclaimed measured 150ft x 200ft, they were clever enough to deny it, with D.W.1 answering him that:
?It is not true that the land in dispute is 150ft x 200ft.?
And D.W.2 also saying:
?The size of the land is 150 x 100 and not 150 x 200 as suggested by you as counsel.
Having failed in that attempt, counsel then turned his attention to the trial Judge and tried in final address to
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prevail on him to dismiss the counterclaim on this ground because the error remained un-amended up to that point. Like the two defence witnesses, His Lordship also resisted that invitation. He labelled the said 150ft x 200ft measurement in the counterclaim an ?obvious mistake? and dismissed the argument thus:
?From the evidence on record from the statement on oath and that which was elicited by the learned counsel to the Defendants to the counter-claim, it is again very clear and beyond any doubt that the two witnesses of the claimant maintained the land in dispute as 100 x 150 and not 150 x 200 suggested by the learned counsel for the Defendant to the counter-claim?
?in the circumstances of the claim, since the claim of the counter claimant is 100 x 150 from the pleadings (paragraph 45 thereof) the statements on oath of DW1 (paragraphs 4 & 28) and that of DW2 (paragraphs 4 & 27) and from the evidence elicited from DW1 and DW2, this noble Court will not allow technicality to defeat justice and treat the extent of land endorsed in paragraph 61. (1) of the counter-claim as an obvious mistake and
45
that the counter-claimants have indeed proved that the land in dispute in respect of which a counter claim was made is indeed 100ft x 150ft?…?
His Lordship was right in the course he took and the description of the said error as a ?mistake?. That finding, that the description of the area of land by respondents in the relief section of their counterclaim as measuring 150ft x 200ft was just a mistake, is not specifically appealed against by the appellant, which means he concedes it: Oshodi v. Eyifunmi (2000) 13 NWLR (PT. 684) 298 @ 332 para C-D.; Nwabueze v. Okoye (1988) 4 NWLR (PT. 91) 664; Oputeh v. Ishidah (1993) 3 NWLR (PT. 279) 34; Erivov v. Obi (1993) 9 NWLR (PT. 315) 60 @ 75. In the light of all that, the lower Court, and even this Court pursuant to the plenitude of powers conferred on it Section 15 of the Court of Appeal Act and Order 11 Rule 11(1) and (2) of the Rules of the Court of Appeal 2016, are empowered, even suo motu, to effect amendment of this obvious error in the endorsement of respondent?s counterclaim in the overall interest of justice.
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The law on this point was explained most lucidly by the Supreme Court (Idigbe, J.S.C.) in Okeowo & Ors v. Migliore & Ors (1979) N.S.C.C. 210 @ p. 238-239 as follows:
?It only remains for me to consider the submissions of Chief Williams on behalf of the appellants that there being no amendment of the prayer in the summons the learned Judge in the Court below erred in ordering the calling of a meeting of the company when the prayer was for the calling of a meeting of the Board. The Court of Appeal, he contended, was accordingly wrong in upholding an order which granted a relief that had not been sought. As is well known, the common rule of pleadings is that a party is bound by his own pleading. The strict application of this rule is capable sometimes of leading to miscarriage of justice hence the Courts have been invested with wide powers of amendment of pleadings. And so under general powers of amendment vested in them, the Courts, for the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in proceedings before them can, at any stage of the said proceedings either of their own motion or on the application of any of the parties thereto,
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order any document in the proceedings to be amended on such terms as to costs as may appear to them to be just. The Court below did not order any amendment of the originating summons to be carried out nor was any application therefore made to it. It does seem however that having analyzed the evidence before it that court decided, in the interest of justice, to determine the real question in controversy as, pursuant to the provisions of section 11 of the Federal Revenue Court Decree No. 13 of 1973, it was within its competence to do. I agree with Chief Williams that not having first carried out an amendment of the prayer in the originating summons it erred in law in proceeding to order as it did. There was, therefore, a manifest defect in the record of the proceedings on appeal before the Federal Court of Appeal. That Court, however, in exercise of its powers under section 16 of the Federal Court of Appeal Decree No. 43 of 1976 can amend such manifest defect and did amend the same. The provisions of section 22 of the Supreme Court Act are to the same effect.
?The rule of conduct of the courts in matters relating to amendment of pleadings is that however
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amendment of pleadings is that however careless or negligent the first omission to ask for amendment may have been and however late the application therefor, the amendment should be allowed by the Court either on its own motion or on the application of a party to the proceedings, if such amendment can be made without injustice to the opposite party (i.e the other side); and there can be no injustice if the opposite party can be compensated by the award in his favour of the costs occasioned by the amendment. Learned counsel for the appellant contends, and I agree with him that the failure of learned counsel for the respondents to apply in the Court below and even in the Court of Appeal for leave to amend the prayer in the summons is in bad taste. As however, has been said Courts ?do not exist for the purpose of punishing bad taste? (Per Bowen L.J. in Cropper v. Smith (1884) 26 Q.B.D. 700 at 712). The duty of the Courts is to determine the real issues in controversy as they appear on the evidence, although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier. The locus classicus on the issue is to be found in the statement of Bowen L.J. in Copper v. Smith
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(Supra) when he observed:-
?Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for the mistakes which they make in the conduct of their case? I know of no kind of error or mistake which, if not fraudulent. The Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour or grace?. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as such a matter of right on his part to have it corrected, if it can be done without injustice (Emphasis mine.)?
In the event, and pursuant to Section 15 of the Court of Appeal Act and Order 11 Rule 11(1) and (2) of the Rules of the Court of Appeal 2016, I hereby correct and amend the figure ?200ft? appearing in relief 1 of respondents? counterclaim to read ?100ft?.
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On that note, and also for the reasons advanced by the trial Judge, the argument of appellant relating to the endorsement of relief 1 of the counterclaim is resolved against him.
But that is not the end of the matter, for there still remains the issue of whether respondents as counterclaimants proved with credible and convincing evidence their title to the said land which they claim was granted them by Babala and Jibril families of Gbugbu and the lower Court correct in its decision to that effect. The relevant averments of respondents on that are contained in paragraphs 45, 46, 47, 48 and 49 of the Statement of Defence where they stated as follows:
45. The counterclaimants state further that sometime in January, 1999, the then village head of Gbugbu granted to the counter-claimant a parcel of land measuring 100 x150 along Ilorin Gbugbu Road, Gbugbu in Edu Local Government Area of Kwara State. This is the parcel of land described as measuring 30.0 meters by 45 metres by the claimant in the statement of claim.
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46. The counterclaimants state further that the said piece of land is the same being claimed by the defendant to counterclaim as the claimant therein.
47. The said piece of land was was vested in the defendants as members and representatives of Gbugbu Youths by the family of late Abubakar Babala, the then village head of Gbugbu who passed on in May 1999. The land was granted by the said head of family of Mallam Abubakar Babala as family land of Babala family of Gbugbu.
48. The counterclaimants state further that during the grant of the said parcel of land to the claimant by the then Abubakar family as the family land, the son of the then village head Mallam Sala Abubakar was actively involved and took part in the measurement and delineation of the said piece of land.
49. The counterclaimants state further that when the defendants and other Youths of Gbugbu were clearing the said parcel of land in 2004, the family of Jibril of Gbugbu (to which the 2nd defendant belongs) insisted that the land belonged (sic) it and that the counterclaimants and other Gbugbu Youths should approach the family of Jibril for the piece of land while frowning at the grant by the family of Abubakar Babala, the deceased village Head.
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50. The counterclaimants state that the defendants then approached the family of Jibril of Gbugbu for the same piece of land who again transferred the title in the said parcel of land to the defendants and other member (sic) of the Youth of Gbugbu in the same 2004.
(All emphasis mine.)
That is the one and only nature of grant of the disputed land respondents pleaded – that the very same piece of land granted them in 1999 by Babala family of D.W.1 is what Jibril family of D.W.2 again granted them in 2004 after intervening and frowning at its earlier grant by Babala family of what Jibril family considered as their own piece of land. That is the case they were bound to prove. They cannot deviate from it and still get judgment. Did they prove it with the evidence they adduced through their two witnesses? I am afraid they did not. The evidence of D.W.1 of Babala family under cross-examination was in total contradiction of respondents? averment of double grant of the same piece of land by his family and Jibril family, while that of D.W.2 (2nd respondent) of Jibril family concerning the said grant was also most unreliable.
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This is what D.W.1 Abubakar Salah of Babala Family whose family were supposedly the first grantors of the land to respondents in 1999 said under cross-examination by Dr. Ariyoosu on 04/05/2017:
?I was present when the defendants were clearing the land and the claimant came in 2013. We cleared the land because we believed the claimant is not the owner of the land. There is no document evidencing the grant of the land in dispute by the father to the defendants. There is another grant to the defendants apart from that of my father. We share boundary with the family of Jibril and the family granted their part of the land to defendants in 2004.?
That answer is in violent conflict with the case of double grant of ?the same piece of land? by Babala and Jibril families as pleaded by respondents. It was not respondents? case that it was a different piece of land Jibril family granted respondents. Parties are bound by their pleadings. Unfortunately, when the argument was made to the lower Court by Dr. Ariyoosu, the trial judge appreciated it but rejected it, saying that that was no contradiction but a confirmation that the two families granted the land to
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respondents. His Lordship said:
?I have carefully gone through the pleadings, the statement on oath of DW1 and DW2 and the evidence elicited under cross-examination at trial and I found as a fact that there are no contradiction in the case presented by the Defendants?/Counter-Claimant despite the clear references to the families of Abubakar Babala and Jubril Gbugbu as Grantors.
?On record, it was clear that the family of Babala first granted the land to the Counter-claimants in 1999 and that the family of Jubril Gbugbu?s family again granted the said land to the Defendants in 2004 and that the counterclaimants have been in effective possession of the subject property since that 2004 apart from the first grant.
?DW1 under cross-examination gave what clearly was responsible for the double grants as it were but no contradictions. He told the Court that his family (Babala) shares boundary with the family of Jubril Gbugbu and that Jubril Gbugbu family granted their part of the land to the Defendants.
?It is my considered view that the fact that both families involved granted at different times the land in
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dispute to the counterclaimants is not a contradiction but a confirmation that from both parties acclaimed to be owners of the land in dispute, the Counterclaimants were lawfully granted the piece of land in dispute.?
With all due respect, His Lordship was incorrect in this conclusion. There was a contradiction of their pleading by the evidence of D.W.1. Respondents cannot plead grant to them of the same piece by two different families at different times – with the latter family even allegedly frowning at the grant of its land by the former – only to say under cross-examination that it was actually not the same parcel of land the two families granted them after all but two adjoining pieces of land and still get declaration on that same case. The discretionary relief of declaration can only be granted when supported by credible evidence.
D.W.2., Adam Baba Danmasani (2nd defendant) who swore in his witness deposition that he is a member of Jibril family that also granted the same land to respondents in 2004 did not fare better either. He on his part said under cross-examination as follows:
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?We do not have any document evidencing title to the land in dispute but the land is our family land.
?The land became ours through our forefathers. I know that the land belong to our family through our forefathers for very long time even right from my childhood. I am 42 years of age now. Jibril family and Babala family share boundary. Babala granted the land to the defendants in 1999. I am one of the defendants and one of the Youths.?
Having said the disputed land belonged to his family through his forefathers for a very long time and he knew that even from his childhood, the very next set of answers from the same D.W.2 just beggar belief. He continued as follows under the same cross-examination:
?The land was transferred to the defendant around June 1999 on request by the defendants. I was one of the defendants that went to the father of the D.W.1 [Babala family] to request for land because I was the elder of the youths of Gbugbu.?
?
This assertion of D.W. 2 is most improbable, for if D.W.2?s family really owned the disputed land and he even knew that ?right from his childhood? as he claimed, it is not possible for
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him to lead his Youth body to D.W.1?s Babala family to plead for grant of the same piece of land. D.W.2 was clearly making up a false story for his side and His Lordship had no business believing that improbable story. It is not enough for a Court to simply take shelter under the phrases of ?I believe? and ?I do not believe?, for if the Court believes a clearly improbable story, a story that is not borne out by the surrounding circumstances under which it is said to have happened, like this related by D.W.2 was, an appellate Court is bound to interfere: see Bozin v. The State (1985) 2 NWLR (PT. 8) 465 and Onuoha v. The State (1989) 1 N.S.C.C. 411. In Onuoha v. The State (1989) 1 N.S.C.C. 411 @ 418; (1989) 2 NWLR (PT. 101) 23 @ 32 Oputa J.S.C. speaking for the Supreme Court stated the proper approach of the Court to this kind of stories thus:
?I will now repeat what I have said on many similar occasions. There is no magic in the words ?I believe? or ?I do not believe.? These words will not and cannot turn an apparent falsehood into truth and vice versa, belief and disbelief should really represent a fair and impartial
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appraisal of all the facts and surrounding circumstances of any given case. They should represent the Court?s reaction not only to facts but also to possibilities and probabilities naturally arising from those facts. If a trial Court chooses to believe an impossible and improbable story, an appellate Court has a duty to reverse any decision based on such belief: see R. v. Frank Rice (1927) 20 Cr. App. R. 21 @ p.23. See also Nwabueze v. Kalu supra.?
Earlier on His Lordship had said at p.415 thus:
?Now, what were the surrounding circumstances of this case which ought to form the crucial wedges necessary to drive conviction into the mind? What are the possibilities and probabilities which ought to induce belief in the testimony of p.w.2?
?All men stamp as probable that which they would have said or done under similar circumstances and as improbable that which they themselves would not have said or done under the same set of similar circumstances. Things inconsistent with human knowledge and experience are properly rated as improbable.?
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That is what Section 167 of the Evidence Act 2011 also enjoins the Court with its provision that the Court should ?presume the existence of any fact which is likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business in their relationship to the facts of the particular case
I am afraid the trial Judge?s addition in his judgment as recorded in page 271 of the records that ?no other party has come to claim the disputed land or say that same has been given to appellant? is also of no moment, as declaratory reliefs are not granted on that basis. A claimant has to adduce credible and convincing evidence of the declaration sought for the Court to grant him one. That was lacking in this case.?
That is still only part of the problems with respondents and their counterclaim, for respondents also ought to have pleaded and proved the title of their said two grantors, especially as appellant frontally joined issues with them on the purported grant, denying that the said Babala and Jibril families ever owned the disputed land. This, appellant made this abundantly clear when he averred in paragraphs 32, 33
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and 34 of his defence to counterclaim as follows:
32. The claimant/defendant to the counterclaim states in response to the averments in paragraphs 47 and 48 of the defendants/counterclaimants counterclaim that the land in dispute did not belong to Babala of Malam Abubakar Babala?s family and was never at any time in the year 1999 granted to the defendants/counterclaimants in this case.
33. The claimant/defendant states in response to the averments in paragraphs 49 and 50 of the counterclaim that neither the Babala?s family nor the family of Jibril to which the 2nd defendant in this case belongs owns the land in dispute.
32. The claimant/defendant to the counterclaim avers that the purported grant of the land in dispute to counterclaimants by the both Babala and/or Jibril family is an imagination, illusion and/or a mirage which can never come to reality.
Having so joined issues with respondents on the title of their grantors, it was incumbent on respondents to plead and prove the title of their said grantors, the Babala and Jibril families: see Nwadiogbu v. Nnadozie (2001) FWLR (PT 6) 11625 @ 1638 A-D (S.C.); Sanyaolu v. Coker (1983) 3
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S.C. 124 @ 163-164; Ugo v. Obiekwe (1989) 1 NWLR (PT. 99) 566 (S.C.); Ogunleye v. Oni (1990) 2 NWLR (PT. 135) 745, (1990) 2 NSCC 72. To successfully do that, respondents would have had to show clearly by pleading and evidence a groundwork of how the disputed land came into the ownership or possession of those two families who even by respondents? own showing had opposing claims to the said land. How respondents would have been able to do that given that state of the claims of their said grantors is anybody?s guess. The fact however is that respondents did not even attempt to plead let alone prove it, and that means the burden of proof on them of their counterclaim was not discharged at all and the counterclaim failed on the pleadings even before trial commenced (see: Adebayo v. Shogo (2005) ALL FWLR (PT 253) 739 @ 746 (S.C.); Adesanya v. Aderonmu (2000) 6 SCNJ 242 @ 255; Anyafulu v. Meka (2014) 7 NWLR (PT 1406) 1396), a point the lower Court also seems to have overlooked when it said no other person claimed the land and none had also said they granted it to appellant so declaration must be decreed on respondents.
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Declaration of right, I repeat, is not granted that way, the claimant for declaration must prove to the satisfaction of the Court his entitlement to the declaration sought, which he must do on the strength of his case: see Akinduro v. Alaya (2007) ALL FWLR (PT. 381) 1653 @ 1666 (S.C.); Osuji v. Ekeocha (2009) ALL FWLR (PT. 490) 614 @ 640 (S.C.). In the final analysis, issue 4 is resolved in appellant?s favour.
With that, I proceed to issues 1 and 3 concerning the correctness of the lower Court?s decision that appellant did not prove assault and damage to his BMW car windscreen by respondents.
Issue 1 is Whether the learned trial judge was not wrong in his failure, refusal and/or neglect to consider and give effect to vital issues raised in appellant?s case in relation to the claims of assaults and battery and damage to his car and cloth claimed to have been committed appellant by the respondents. Here Dr. Ariyoosu for appellant argued that Oyinloye J., did not consider or consider adequately the issues and evidence appellant raised/adduced before him on the assault on his person and damage of his windscreen by respondents for which he claimed special damages and that omission occasioned a miscarriage of justice.
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I do not think this complaint has any basis at all, because His Lordship, besides summarizing the evidence that was adduced by appellant on battery, assault and damage to his windscreen devoted seven pages of his judgment (pages 257 ? 261, and 265 – 266 of the records) evaluating the evidence adduced by appellant on these issues and made findings on them, which findings are incidentally the subject of attack by appellant in his issue 3. In the event, I resolve this issue against appellant without further ado and proceed straight to the said issue 3.
?
The said issue 3 is whether the learned trial judge was right in dismissing appellant?s case for assault, battery and damage of his shirt and BMW car windscreen. Dr. Ariyoosu for claimant here argued that appellants and his witnesses testified on the assault on him by respondents on 15/11/2013, how they tore his shirt and even broke his windscreen. All these he said were not seriously challenged by respondents, meaning that they were admitted by them so Oyinloye J., was wrong in not entering judgment for him
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and rather dismissing his claims on the ground that (1) there was no evidence that a particular windscreen was broken and that same belonged to appellant more so when respondents frontally denied it, (2) appellant did not show ownership of any BMW car and no particulars were given by him of any BMW car, (3) appellant did not produce any purchase receipt showing that he purchased a BMW car in 2004 valued ?2m as he claimed and, (4) claimant failed to tender any receipt showing that the value of his purported BMW car windscreen in 2004 was ?100,000.00. Learned counsel argued that in as much as appellant and his witnesses who gave oral evidence on the breaking of his windscreen by respondents were not challenged, the trial judge was wrong to reject it.
?
Learned counsel also attacked the trial judge?s finding that appellant?s evidence of assault and battery and his torn shirt was too general, nebulous and too wide and didn?t finger any particular defendant. He submitted that appellant tendered Exhibits C2 and C6 showing the two criminal cases he initiated against respondents for the assault while his torn shirt was admitted as Exhibit C9.
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That evidence as well as the oral evidence of C.W.1 and C.W.6, he submitted, proved assault and battery. In response to the trial judge?s observation that appellant did not pinpoint the particular respondent that assaulted him, counsel submitted that the hand of one respondent is the hand of all others. He finally urged us to resolve this issue in favour of appellant.
Mr. Ismail in response argued that appellant failed woefully to prove his entitlement to special damages for assault, battery and damage to his windscreen by respondents. Any allegation of amount of damages, he argued, is deemed traversed unless admitted for which he cited Osuji v. Ekeocha (1989) 3 NWLR (PT. 111) 623 @ 648. He submitted that appellant did not adduce any credible evidence in support of his case on these claims. Appellant counsel contended had a duty to strictly plead and prove and his claim for special damages more so when respondents in their pleadings denied ever assaulting him or breaking his windscreen. Appellant, counsel further argued, even failed to plead and prove the registration particulars of his BMW car, the model or make of the said car.
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He argued that appellant ought to adduce evidence proving his ownership of a BMW car but failed in that regard so the lower Court was correct in dismissing his case.
Resolution of issue
Appellant claimed special damages for assault and battery allegedly occasioned on him by respondents. He also claimed special damages for his torn shirt and broken BMW car windscreen both of which he equally attributed to respondents. The law is settled that special damages must be strictly pleaded and proved. Here respondents flatly denied the allegations of appellant so the need for strict proof even became greater. Now, in respect of the assault, appellant averred in paragraph 20 of his statement of claim that the respondents attacked him ?in the presence of Hakimi and Village Head of Gbugbu?, beat him ?to a state of coma?, smashed, destroyed his BMW car windscreen and tore his cloth. For somebody who was not just beaten but beaten to a state of coma I had expected that appellant would require admission in a medical facility and revival by a medical doctor, all of which would be supported by evidence and receipts.
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No such evidence was produced by appellant. In fact he did not even disclose how long he remained in coma let alone where he was revived and which medical doctor treated that his very serious medical condition. He averred that Village Head and Hakimi of Gbugbu witnessed the damage to his car and his said assault by respondents that nearly cost him his life. I have earlier observed that appellant did not call the village Head even though he frontloaded a witness statement he credited to Village Head of Gbugbu, Zhitsu Mallam Saliu. I have said too that the failure of appellant to call him and failing to make any effort in that regard after frontloading his witness statement warrants invoking the presumption that his evidence would have been against appellant if called. I adopt all that on this issue.
Appellant called 2nd Hakimi of Gbugbu, Alhaji Aliyu Baba Aliyu (CW.6), who deposed to two witness statements the latter of which as said earlier, he used to foreswear his assertions in the first one on material particulars. I had observed earlier that CW.6 also floundered on other issues too when cross-examined. I further note that even though this same witness swore in his witness statement that he
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witnessed the assault of appellant by respondents, which he also claimed resulted in appellant entering into coma, he did not reveal what part if any he played in getting appellant, his kinsman from Lafiagi, away from respondents? Gbugbu Village in that state, where he was taken to or where he was revived, if there was indeed such incident. These are all pieces of evidence that would have helped drive belief into the mind.
As for appellant?s complaint to police and the First Information Report he tendered which Dr. Ariyoosu argued proved the assault, I am afraid counsel does not have me with him on that contention as those items are not proof of what they allege. Until proved in Court, they remain just what they are – Reports, Complaints and Allegations.
I note that even no particulars of the alleged damaged BMW car of appellant was produced by appellant. In fact there was even no documentary evidence of any sort before the Court to prove that appellant ever owned a BMW car which could have been damaged. The circumstances of each case and the pleadings in the case dictate the nature of evidence required to prove it. It is no less so with special damages:
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see Calabar East Co-Operative Thrift and Credit Society Ltd and Ors. v. v. Ikot (1999) 12 S.C (PT 11) 133 @ 138. A car is real evidence which should usually have purchase and registration particulars. All of that ought to have been produced by appellant in a case of this nature. In fact, that should have been appellant?s starting point in the chain of proof especially as respondents denied his allegations. None of that was adduced and the trial Judge took it into account in refusing to award the special damages claimed by appellant. He was right.
And how did appellant even arrive at the ?100,000.00 figure he gave for the cost of the alleged broken windscreen? He didn?t claim to have ever had ever bought a unit of BMW windscreen before, made market survey of BMW windscreens or that he deals in BMW windscreens. I just cannot see my way clear in interfering with the judgment of the trial Court on this aspect. I think its conclusion is well founded. In the event, I resolve issue 4 against appellant.
?
In the final analysis, the appeal succeeds only on the point that the counterclaim of respondents was not proved and ought to have been dismissed by the lower Court.
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In the event, I here set aside the order of the lower Court granting that counterclaim and substitute it with an order dismissing it in its entirety.
All other issues canvassed in the appeal are resolved against appellant.
Parties shall bear their costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I had the opportunity of perusing the draft of the lead Judgment delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. His Lordship has comprehensively dealt with the Issues that arose in the Appeal and resolved same. I agree with the reasoning and conclusion therein. I allow the appeal in part. I also set aside the Order of the lower Court granting the counter-claim of the Respondents. I dismiss the counter-claim in its entirety.
I also abide with the consequential Order
HAMMA AKAWU BARKA, J.C.A.: I was priviledged to have read in draft the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO JCA. My Lord has exhaustively dealt with the issues raised to my admiration. I wholly agree with his reasoning and the conclusion reached. I abide on all orders made in the judgment including that as to costs.
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Appearances:
Dr. D.A. Ariyoosu with him, Ibrahim Shuaib Esq., A.O. Saka Esq. and M.A. Oladepo Esq.For Appellant(s)
Wahab Ismail Esq. with him, A.A. Gidado Esq., Mrs Jimoh-Cook and Qasim Yahaya Esq.For Respondent(s)
Appearances
Dr. D.A. Ariyoosu with him, Ibrahim Shuaib Esq., A.O. Saka Esq. and M.A. Oladepo Esq.For Appellant
AND
Wahab Ismail Esq. with him, A.A. Gidado Esq., Mrs Jimoh-Cook and Qasim Yahaya Esq.For Respondent