DANGAJI v. ABDULKADIR & ANOR (2020)

DANGAJI v. ABDULKADIR & ANOR

(2020)LCN/14875(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/K/124/2019

RATIO

LIMITATION LAW: HOW WILL A STATUTE BARRED ACTION DETERMINED

See Industrial Training Fund vs. NRC (supra); Military Administrator, Ekiti vs. Aladeyelu (2007) (supra). In the latter decision, it was held thus:
“For the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only, where one has been filed, it is from either or both of those processes that one can ascertain the alleged date when the wrong in question is said. To have occurred or been committed, thereby giving rise to the plaintiff’s case of action. When the ascertained date is compared with the date of writ of summons: or originating process filed in Court, it can then be determined whether the action was instituted within the period allowed by law, the action is said to be statute barred and consequently the Court is without jurisdiction to entertain same” PER HUSSAINI, J.C.A.

ACTION: DEFINITION OF A CAUSE OF ACTION

A cause of action can be defined to mean any fact or set of facts the aggregate of which give rise to a right of action. It is a factual situation which gives a person a right to judicial relief. See:Fred Egbe vs. J. A. Adefarasin (1987) LPELR-1032 (SC). PER HUSSAINI, J.C.A.
LIMITATION LAW: EFFECT OF ACTIONS CAUGHT UP BY LIMITATION LAW

The effect of actions caught up by Limitation law is that the limitation law effectively removes the right of action of the plaintiff, his right of judicial relief. See: Military Administrator Ekiti vs. Aladeyelu (Supra). PER HUSSAINI, J.C.A.

CONSTITUTIONAL LAW: WHETHER 90 DAYS IS THE SAME THING AS THREE MONTHS

Before I address those specific questions, it is necessary I think, to put the record straight on this often mistaken belief that “90 days” is the same thing as “three (3) months”.

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide under Section 294 (1) thus:
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof”.
Thus, the Courts established under the 1999 Constitution (as amended) are required or are expected to deliver judgment within Ninety days, not three months as wrongly argued by learned counsel on both sides. The latter situation is true of the 1979 Constitution of FRN, now defunct; which allowed the Courts then, under S. 258, to deliver judgment within three months from the date of final addresses. “Three months” is by no means the same as “Ninety days”. The use of the word “month” under Section 258 of the 1979 Constitution of FRN, has reference to the Gregorian Calendar, i.e the months of January, February e.t.c running through December. Therefore, “three months” cannot mean the same as 90 days. See. the Interpretation Act on the definition of the word, “Month”. The position is not the same under the new dispensation. The existing 1999 Constitution of the FRN (as amended) provide for delivery of Judgment within ninety days after the conclusion of evidence and counsel’s final addresses. Counsel should be mindful of the letters of the provisions of statutes relied upon by them and act accordingly so as not to mislead the Courts into taking wrong decisions. PER HUSSAINI, J.C.A.

JUSTICE: DUTY OF A PERSON ALLEGING THAT DELAY HAS OCCASIONED A MISCARRIAGE OF JUSTICE

The person who alleged that the delay has occasioned a miscarriage of justice on his part has the onus on him to prove or establish in clear terms by reference to the printed record before us, the injustice or injury he has suffered which is traceable to the failure of the Court to deliver Judgment within the statutory period. It is not just sufficient to say that a miscarriage of justice was occasioned by the long delay and by that, expect the Court to nullify the Judgment appealed against. See: Darma & Ors. v. Ghali Mustapha & Ors. (2014) LPELR – 23734 P. 63 – 64; Egbo & Ors v. Agbara (1997) LPELR – 1036 (SC) page 30 – 31; In Cotecna International Ltd v. Churchgate Nig Ltd & Anor (2010) LPELR – 897 (SC) at page 61, the apex Court, per Adekeye, JSC (as he then was) held:
“It is trite law that a Court cannot nullify a Judgment at the request of a party without ample evidence before the Court to substantial the miscarriage of Justice suffered by that party by the delivery of a Judgment…“
Oputa JSC (as he then was) stated the law thus in Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101, 114 thus:
“And the law is that if inordinate delay between the end of trial and the writing of the Judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there will appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced on the mind of the trial Judge.” PER HUSSAINI, J.C.A.
LAND LAW: DUTY OF A PERSON IN A CLAIM FOR DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land, the person seeking to be so declared must lead evidence to:
(i) Establish the identity of the land or property to which his claim relates.
(ii) Prove his title or root of title. See:Samuel v. Waziri (2016) LPELR-40313 (CA). The same duty extend to the Counter-claimant to prove his case along the stated terms if he must succeed in his counter-claim.
In both cases the claimant and the Counter-claimant must succeed on the strength of his case and not on the weakness of the opponent’s case. See: M. Kodilinye v. Mbanefo Odu2 WACA 336, 337; Oke v. Eke (1982) LPELR-2426 (SC).

The issue of the identity of the land or property in dispute, of which the claimant or Counter-claim has a duty to prove, becomes relevant only where defence has joined issues with the plaintiff on the location or localisation of the subject-matter, i.e the property in dispute in such a case or instance, the plaintiff or claimant will be called upon to prove the identity of the land.
Where however parties are at par as to the identity of the land in dispute, the claimant is absolved from the duty of having to prove such identity. This is so because the land in dispute is known to both of them. See: Akinterinwa v. Oladunjoye (2006) 6 NWLR (Pt. 659) 72. PER HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

BELLO ABDUL DANGAJI APPELANT(S)

And

1) ALHAJI JA’AFARU ABDULKADIR 2. MR. HABILA DAUDA TSOHO RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Kaduna State delivered on 28/09/2018 vide Suit No. KDH/KAD/968/2014.

The Appellant was the Plaintiff at the said High Court, herein after referred to as the Court below. He had instituted an action and claimed assorted reliefs vide the Writ of Summons and his Statement of Claim. He sought for a declaratory Order that he is the allottee and beneficial owner of the Plot of land at No. BR2, Unguwan Kudu, Unguwan Rimi, of 0.25 acres and demarcated with or by beacon numbers. He further sought for a declaratory Order that the entry of the Respondents into the land constituted acts of trespass hence he sought for an Order of perpetual Injunction restraining them, their agents privies etc. from entering further acts of trespass and be compensated by way of cost.

The defendants now Respondents denied the claim vide the amended statement of defence and Counter-claim filed by them. In their counter claim, the Respondents sought for a declaratory Order to the effect that the Estate of late Dauda Tsaho has the right and entitlement to statutory

right of occupancy over plot No. T1 Rimi Road Kaduna, the same plot of land referred to by the Appellant as plot BR2, Unguwan Kudu and described in the Certificate of Occupancy No. KD 3287. An order setting aside the said Certificate of Occupancy No. KD 3287 dated 29th August, 1996; An Order of Perpetual Injunction restraining the Plaintiff (Appellant) his privies, personal representatives from interfering with Respondents possession over the said property at Plot No. T1 Rimi Road, Kaduna. The Appellant as plaintiff at the Court below filed a defence to counter claim and denied same.

At the Court below, the Appellant herein in proof of his claim relied on the Deed of Assignment (Exhibit 1) executed by his vendor, one Garba Tobacco on 13/9/1994 along with a customary certificate of occupancy in the name of the Vendor, which he later converted to statutory certificate of occupancy (Exhibit 2) among other documents tendered and relied upon by him as the basis of his title or ownership of the properly in dispute.

The case of the 1st Defendant is that he is the owner of the property at Plot No. T1 Rimi Road, Kaduna having bought same from the 2nd

Defendant (Respondent), the son of Dauda Tsoho, the original beneficial owner of the said plot of land covered by certificate of occupancy No. 029930 (Exhibit 16) but that the Appellant has continued to trespass on the land of late Dauda Tsoho, to produce, albeit illegally, documents of title in relation to the land.

The trial Court, in the considered Judgment delivered on 28/9/2018, had reason to dismiss the claim of the Appellant while granting the counter-claim of the Respondents.

In the Notice of appeal of Ten (10) grounds filed on the 3rd December, the Appellant has challenged the decision of the Court below and has appealed to this Court as can be seen at pages 271 – 281 of the Record of Appeal.

Briefs of argument were filed and exchanged between the parties/and upon the record of appeal being transmitted to this Court.
The following processes are before us, namely:
(1) Appellant’s Brief of Argument filed on the 13/5/2019.
(2) Respondents’ brief of argument filed on the 3rd May, 2019.
(3) Appellant’s Reply brief filed on 24/6/2019.
(4) Amended Respondents’ Notice to contend brought or

made under Order 9 Rule 2 of the Court of Appeal Rules, 2016.

The said briefs of argument were adopted by learned counsel, respectively at the hearing on the 16/9/2020, including Respondents amended Notice to contend.

In the said amended Respondent Notice to contend, the Respondents’ desire that the Judgment appealed against be affirmed on grounds other than those relied upon by the Court below.
Respondents have specifically relied on the following grounds, in his Notice to contend, as follows:
GROUND ONE
The Lower Court lacked jurisdiction to entertain Appellant’s statute barred and incompetent action.
PARTICULARS
(a) That cause of action in suit filed by Appellant arose since 1994 when Appellant attempted to gain possession of disputed property but was challenged, rebuffed and driven from same.
(b) Appellant filed suit for declaration of title, among other reliefs, over same land, before the lower Court on 12th November, 2014.
(c) Section of Kaduna State Limitation Edicts provides for ten years period as limitation for action for recovery of land.
(d) Respondents will contend on appeal that the lower Court

should have struck out and or dismissed Appellant’s claims before it for reason, that same is stature barred and consequentially incompetent.
GROUND TWO
Respondents shall contend at hearing of this appeal that honorable trial Court Judge should have found that Appellant failed to prove his root of title to disputed property.
PARTICULARS
(a) Both Appellant and Respondents claimed same land that they referred to by two different names.
(b) Title in dispute was agreed and admitted by the parties to devolve from Kaduna Local Government Area.
(c) Appellant, who ascribed his title to one Alhaji Garba Tobacco, could not extend proof to show how his predecessor-in-title came by contested land, while Respondents provided documentary evidence to prove the title of their own predecessor-in-title, deceased Dauda Tsoho, as devolved from Kaduna North Local Government.
GROUND THREE
Respondent shall also seek to affirm lower Court’s judgment on ground that trial Court should have held that Appellant processed certificate of occupancy over property that did not belong to his predecessor-in-title.

PARTICULARS
(a) The two parties disputed on right to tile of land they referred to by different names, but agreed ownership evolved from allocation of Kaduna Local Government Area.
(b) Appellant, who claimed he derived ownership of his own plot (BR 2 Ungwar Kadu, Kaduna) from one Alhaji Garba Tobacco, failed and or neglected to prove the physical location of interest he got from Alhaji Garba Tobacco and relief only on survey report attached to certificate of occupancy he later procured over disputed property.
(d) Respondents not only proved the physical location of their own title (which they referred to as plot T1 Rimi Road, Kaduna) as relating to disputed title but were also able to reveal and prove, by documentary evidence, that what Appellant referred to as BR2 Ungwar Kudu Kaduna, is not related to or connected with disputed property in physical positioning as verified by Honourable trial judge on visit to locus.
(e) Appellant thereby procured certificate of occupancy over property that was not of transaction between him and his processor-in-title- Alhaji Garba Tobacco.

Consequent upon the Notice to contend as above, issues earmarked for determination of

Court are now five (5) in number, including the lone issue formulated from Ground 1 in the Respondents’ Notice to contend.

The five (5) issues are as follows:
(1) Whether the Judgment of the trial Court has occasioned miscarriage of Justice same having been delivered outside the mandatory Constitutional period of three (3) months from the date of adoption of final written addresses (distilled for Ground 1).
(2) Whether the trial Court was justified in dismissing the Appellant’s case and granting the Respondents’ counter-claim in the light of the evidence led at trial and the surrounding circumstances? (distilled for Grounds 2, 3, 4, 5, 7 and 8).
(3) Whether the judgment of the trial Court was perverse having regard to the failure of the trial Court to make specific findings on live issues of law thrown up for determination? (distilled from Grounds 9 & 10).
(4) Whether the trial Court was right in refusing to expunge from the record Exhibits 13, 15, 17A, 17B, 18, 19, and 20D for being legally inadmissible? (Distilled from Ground 6).
(5) Whether Appellant’s claim was competent before the lower Court and

whether trial Court had jurisdiction to entertain and decide case on the merits? (distilled from Ground 1 in the Respondents’ Notice to contend).

I will first take on issue No. 5 being an attack on the competence of the Suit and the jurisdiction of the Court below to entertain the suit.

In dealing with this, the learned Respondents’ counsel referred us to the Ruling of the Court at pages 229 to 234 of the record of appeal to submit that the Court below ought to have struck out Appellant’s claim for being statute barred by time Limitation but the lower Court declined to do so in its Ruling delivered on 25th April, 2016.

Relying therefore on Section 4 of Kaduna Limitation Edict he argued that the Appellant failed to commence his action within 10 years from the date the cause of action accrued to him. He relied on the decision in Industrial Training Fund v. NRC (2007) NWLR (Pt. 1020) 28; Military Administrator Ekiti v. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619, 651-652.

He argued that the Appellant’s cause of action arose in that year 1994 when he purchased the property in dispute from Alhaji Garba Tobacco and he was

confronted by 2nd Respondent’s father, Dauda Tsoho on the issue of ownership of that land/property, hence it is argued, based on paragraph of the Appellant’s statement of claim that his cause of action arose between 1994/1995 not in the year 2012. He argued that the Appellant had good reason to sue in 1994/95 for declaration of title when Dauda Tsoho laid or made adverse claims over that same property but the Appellant instead chose to pursue recovery action against the Vendor. He further referred us to paragraph 8 of the Appellant’s further witness’ deposition at page 107 of the record and to page 240 of the Appellant’s evidence under cross-examination.

He argued that the Kaduna State statute of limitation does not permit the Appellant to file a claim twenty (20) years after the cause of action had arisen. He argued that Appellant’s suit filed on 12th November, 2014 ought to have been struck out.

In further reference to paragraph 24 of the amended statement of defence at page 43 of the record, it was argued that the Respondent had raised the issue of statute of limitation against the action of the Appellant but

the Appellant never denied or challenged this serious averment in his Reply to S/O Respondents’ defence hence the Appellant had conceded the fact that his action was statute barred. He relied on the decision in Kolawole Ikechufine Co. Ltd. v. Attorney General of the Federation (2002) 14 NWLR (Pt. 1320) 221, 243. He argued finally on this point that the right of action is lost if action was not brought within the stipulated statutory time limit. The Appellant in his Reply brief, after making references to Respondents’ Notice to contend, argued that the Respondent sought to have filed a cross appeal and not a Notice to contend, given the fact that the Court below had made a finding on these issues. The learned Appellant’s counsel in his Reply brief attempted to strike the difference between Respondent’s Notice to contend and a cross-appeal, which and when not to file a Respondent’s Notice to contend, we were referred to the decision inUBA Plc v. Sky Power Express Airways Ltd (2016) 14 NWLR (Pt. 1553) 359, 388. We were urged to discountenance Respondents’ argument on the issue of limitation of time of Appellant’s action,

in the light of the Ruling delivered on 25/4/2016 which dismissed Respondents’ application to strike out Appellant’s suit on this account. On this point we were further referred by the Appellant to the decision inAmerican Cyanamid Co. vs. Vitality Pharmaceuticals Ltd (1991) 2 SCNJ, 42, 52-54 where it was submitted that the person who wants the judgment of Court affirmed on grounds other than those relied upon by the trial Court cannot at the same time rely on the grounds relied upon by the judge to have the judgment affirmed. The ratio in the decision appealed against which dismissed the claim, is that the Appellant cannot rely on a defective root of title, in this case Exhibits 1 and 2 to sustain an order for declaration of title. This holding in my view cannot be translated to mean the same thing as Respondent’s Ground 1 in the Notice to contend, which is that the action or suit as initiated, was already statute barred as at the time of filing. To this extent therefore, the decision inAmerican Cyanamid Co. Ltd (supra) to my mind, does not apply.

Since Ground 1 in the Respondents’ notice to contend is premised on statute of

limitation, I will examine that complaint first vis-a-vis the suit or the Writ of Summons and the Statement of claim filed by the Appellant as it is from Writ of Summons and the statement of claim, that it can truly be discerned when indeed, the cause of action arose. See Industrial Training Fund vs. NRC (supra); Military Administrator, Ekiti vs. Aladeyelu (2007) (supra). In the latter decision, it was held thus:
“For the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only, where one has been filed, it is from either or both of those processes that one can ascertain the alleged date when the wrong in question is said. To have occurred or been committed, thereby giving rise to the plaintiff’s case of action. When the ascertained date is compared with the date of writ of summons: or originating process filed in Court, it can then be determined whether the action was instituted within the period allowed by law, the action is said to be statute barred and consequently the Court is without jurisdiction to entertain same”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In his statement of claim, the Appellant averred at paragraph 10 thus:-
“The 1st defendant had sometimes in 2012 laid claim to the plaintiff plot of land…”

However in his Reply to the Statement of defence and counter-claim of the Respondents, the Appellant averred thus at paragraphs 7 and 8:
“7. The Plaintiff pleads that when he made efforts to gain possession of the property situate at No. BR. 2 Unguwan Kudu, Unguwan Rimi, Kaduna sold to him by late Alhaji Garba Tobacco, he was confronted by an adverse claim by a third party who turned out to be the late father of the 2nd Defendant.
8. The Plaintiff states that although the investigation/due diligence conducted by his erstwhile counsel being the chambers of Messrs Yahaya Mohammed revealed that the title in the property situate at No. BR. 2 Unguwan Kudu, Unguwan Rimi, Kaduna is vested in late Alhaji Garba Tobacco as evidenced by Certificate of Occupancy No. KDA/A/014568, he decided to take out recovery action by way of suit No. KDH/KAD/524/95 against the said late Alhaji Garba Tobacco for failure of consideration essentially on the basis that he was not prepared

to engage in any legal disputation/litigation in Court regardless of the merit of the case of late Alhaji Garba Tobacco”

A statement of claim includes the averments contained in the plaintiffs Reply to the statement of defence and Counter-claim. Going therefore by the averments contained at paragraphs 7 and 8 above of the Reply, it can be seen that the plaintiff’s (Appellant’s) cause of action arose as at the time he took out the recovery action by way of the suit he instituted as Suit No. KDH/KAD/524/95. That recovery suit was filed at the High Court in the year 1995. The Appellant was as at then not prepared to contest the third party adverse claims as parties averments in paragraph 7 of the Reply to the Statement of defence.
The instant case on appeal was commenced by the Writ of Summons taken out on 12th November, 2014. Section 4 of Kaduna State Limitation Edict provides that:-
“No action shall be brought by any person to recover any land after expiration of ten years from the date in which the right of action accrued to him, or if it first accrued to some person through which he claims, to that person.”

A cause of action can be defined to mean any fact or set of facts the aggregate of which give rise to a right of action. It is a factual situation which gives a person a right to judicial relief. See:Fred Egbe vs. J. A. Adefarasin (1987) LPELR-1032 (SC).
The Appellant after his purchase of the land claimed by him was confronted by an adverse claim from the 2nd Respondent’s father, Dauda Tsoho. He did not go to Court to seek for a declaratory order for title against his vendor, Garba Tobacco who sold the property to him. To my mind, the right of action accrued in 1995 when the adverse claim was made. Between 1995 when the Appellant was confronted by or with an adverse claim over the land and 12th November, 2014, is a period of about twenty (20) years. This stretch of time, unarguably is far beyond the 10 year time limited for bringing action in Land related matters vide Kaduna State Statute of Limitation.
The effect of actions caught up by Limitation law is that the limitation law effectively removes the right of action of the plaintiff, his right of judicial relief. See: Military Administrator Ekiti vs. Aladeyelu (Supra). It is in the light of

this, the Court below ought to have declined jurisdiction over the matter. I resolve issue No. 5 in favour of the Respondents and against the Appellant and accordingly, the claim before the Court below is struck out. That ends the matter.

Per chance, I have come to the wrong conclusion as I have done under issue No. 5, I will proceed to consider and address Issue Nos. 1, 2, 3 and 4 as proposed by the Appellant in his brief of argument.

ISSUE NO. 1
Whether the judgment of the trial Court has occasioned miscarriage of justice same having been delivered outside the mandatory Constitutional period of three (3) months from the date of adoption of final written address?
The Appellant through his counsel has argued under this head, that the parties having adopted their final written addresses on 24th October, 2017 and readopted same on 14th June, 2018 but only to deliver judgment on 28th September, 2018 there was inordinate delay on the part of the Court below and this delay has affected the trial Court’s perception, appreciation and evaluation of the case before it, the re-adoption of Written address notwithstanding, in so far as no fresh

issue was canvassed at the time of re-adoption of those Written addresses. The case of Idowu & Ors. vs. Segun Koya Investment Ltd. (2017) LPELR-43580 Page 14-15 was referred toOlusanya v. UBA (2017) LPELR – 42348 at page 1, 10 -12. He gave instances with reference to the record of Judgment to prove that the trial Court had lost his perception of the trial by reason of:
(i) Failure of the trial Court to address and pronounce on the issue of the locus standi of the 2nd Respondent to maintain the counter-claim whereas his progenitor, had divested his interest over the property in dispute.
(ii) The propriety of granting declaration of title in favour of the “Estate deceased Dauda Tsoho,” a non-juristic person, but the trial Court ignored this point.
(iii) That the trial Court set aside Exhibit. 2, issued to the Appellant as C of O No. KD 3287 without the issuing authority being joined as a party.
(iv) The issue of non-payment of filing fees by the Respondent for their counter-claim without which the trial Court was divested from the exercise of jurisdiction over the counter-claim but the trial Court ignored or refused

to make a finding on same hence there was failure of evaluation of issues thrown up for determination, resulting in miscarriage of Justice on the Appellant.
On this point, we were referred to the decision in Akoma vs. Osenwokwu (2014) 11 NWLR (Pt. 1419) 462, 497. IBB Industries Ltd vs. Adepetu & Coy Nig. Ltd (2009) 11 NWLR (Pt. 1151) 156, 171.
(iv) Even though the 2nd Respondent did not tender any document of title of the original owner of the land through whom they route their title, the trial Court nonetheless, granted the declaration sought by the Respondents in their counter-claim. He attributed all these lapses of the Court below to late delivery of judgment which accordingly to the Appellant impacted on the perception appreciation and of the trial. We were urged to resolve this issue in favour of the Appellant and nullify the proceedings.

In response to those submission, Respondents debunked the argument that the Appellant suffered miscarriage of Justice at the time judgment was delivered at the Court below.

He argued that the case before the trial Court being one for claim to ownership, parties on both sides in their claim relied

primarily on documentary evidence which the trial Court, it is submitted, diligently considered before coming to the conclusion that the Appellant failed to prove his case. In this case, it considered all the documentary evidence and evaluated same relative to the title of the Appellant. He argued that the Appellant having jettisoned his initial agreement with his vendor he could not still rely on those documents (Exhibits 1 and 2) as evidence of his title hence the trial Court having evaluated the evidence rightly concluded that the Appellant did not prove his claim.

On the issue of delay canvassed by the Appellant, it was argued that same did not occasion any miscarriage of justice. The learned Appellant’s counsel addressed some specific instances where according to him impacted negatively and thus occasioned miscarriage of Justice on the Appellant on account of what he alleged was inordinate delay in the delivery of judgment.

Before I address those specific questions, it is necessary I think, to put the record straight on this often mistaken belief that “90 days” is the same thing as “three (3) months”.

same as 90 days. See. the Interpretation Act on the definition of the word, “Month”. The position is not the same under the new dispensation. The existing 1999 Constitution of the FRN (as amended) provide for delivery of Judgment within ninety days after the conclusion of evidence and counsel’s final addresses. Counsel should be mindful of the letters of the provisions of statutes relied upon by them and act accordingly so as not to mislead the Courts into taking wrong decisions.

I now take it that learned counsel for the Appellant, meant to say that the Judgment, the subject of the appeal before us, was delivered outside “Ninety days” and by reason of the late delivery of that Judgment, the Appellant has suffered miscarriage of Justice, given the provisions of sub sections (1) and (5) of Section 294 of the Constitution read together? Time begins to run for the delivery of judgment after the close of evidence and counsel’s final written addresses. Given the record of appeal before us at pages 251 – 252, the Court below, sitting on the 10/10/2017 ordered that counsel’s final written addresses be adopted on

the 24/10/2017 which they did or deemed to have been adopted on that day hence the trial Court adjourned proceedings and reserved judgment to the 14/12/2017 for consideration. This did not come to pass rather on the 14/6/2018 when the Court reconvened, the parties, through their counsel are seen on record to re-adopt their final written addresses after which the trial Court again reserved Judgment to the 29/6/2018 for Judgment. That Judgment was however not delivered until on the 28/9/2018. See pages 252 – 253 of the record. There is no gain saying that between the 14/10/17 when counsel’s final written addresses were taken and eventual delivery of that Judgment on the 28/7/2018, is a period of over “Ninety days”. Ditto the 14/6/18 when counsel readopted their final addresses and the date of Judgment on the 28/9/2018, is a period outside the Ninety days limitation allowed under the Constitution under Section 294(1). Taking the first and second instances together i.e when learned counsel adopted and readopted their Written Addresses, and the eventual delivery of Judgment on 28/9/2018, the Court below was already out of time by at least

106 days i.e counting from the date of re-adoption of those addresses contrary to Section 294(1) of the Constitution. There was delay no doubt, and the delay was inordinate but that is not all of it. The person who alleged that the delay has occasioned a miscarriage of justice on his part has the onus on him to prove or establish in clear terms by reference to the printed record before us, the injustice or injury he has suffered which is traceable to the failure of the Court to deliver Judgment within the statutory period. It is not just sufficient to say that a miscarriage of justice was occasioned by the long delay and by that, expect the Court to nullify the Judgment appealed against. See: Darma & Ors. v. Ghali Mustapha & Ors. (2014) LPELR – 23734 P. 63 – 64; Egbo & Ors v. Agbara (1997) LPELR – 1036 (SC) page 30 – 31; In Cotecna International Ltd v. Churchgate Nig Ltd & Anor (2010) LPELR – 897 (SC) at page 61, the apex Court, per Adekeye, JSC (as he then was) held:
“It is trite law that a Court cannot nullify a Judgment at the request of a party without ample evidence before the Court to substantial the miscarriage of Justice

suffered by that party by the delivery of a Judgment…“
Oputa JSC (as he then was) stated the law thus in Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101, 114 thus:
“And the law is that if inordinate delay between the end of trial and the writing of the Judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there will appellate Court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced on the mind of the trial Judge.”
Left to me, the Appellant has failed to link the four (4) instances cited by him in his brief as traceable to the delay and by reason of which he suffered some injury or miscarriage of Justice, notwithstanding that the Courts are bound to consider all issues placed before it for determination. But it is in the party who alleges miscarriage of justice under S. 294(5) of the Constitution to show or establish

the injury he has suffered by reason of long delay in the delivering of Judgment. I am constrained therefore to resolve this issue No. 1 against the Appellant, and in favour of the Respondents.

ISSUE NO. 2
WHETHER THE TRIAL Court was justified in dismissing the Appellant’s case and granting the Respondents’ counter claim in the light of the evidence led at the trial and surrounding circumstances?
Put differently, the issue, I think is whether the Appellant has proved his claim and if he did was the trial Court right in dismissing the claim and granting the counter-claim?

Learned counsel for the Appellant has argued that by reason of Exhibits 1 and 2 being title documents and Exhibits 3 – 11, the Appellant has proved his root of title and he urged us to ignore the finding of the Court below to the effect that the Appellant did not lead any evidence of repurchase of the property in dispute, given the fact that Exhibits 1 and 2 were overtaken by the Suit filed by the Appellant. Learned counsel for the Appellant argued that it was not a case of repurchase, of the property in dispute, but regularization of an earlier

transaction, hence the Appellant, it is argued, had proved his case on preponderance of evidence.

Relative to the counter-claim, it was argued for the Appellant that the trial Court was in error to grant same given the fact that Respondents’ root of title was not proved. He argued that there was no documentary evidence before the Court to show that the 2nd Respondent’s father bought or purchased the property in dispute from warrant officer Kanfah chori as alleged. Based on Section 4(1) of the Contracts Law of Kaduna State we were urged to hold that the Respondents cannot maintain action upon a contract for disposition of land which was not reduced into writing.

He referred us to decision in Dantata & Anor. v. Mohammed (2012) 14 NWLR (Pt. 1319) 122, 156 – 157; Ohiarere v. Okosun (2003) 11 NWLR (Pt. 832) 463, 485 on this point to submit that in absence of any such documentary evidence being tendered in evidence even where such is in existence, the trial Court was wrong to make an order, vesting title over the disputed property, on the Respondents.

In reference to Exhibit 16 relied upon by the 2nd Respondent, it was argued

that Exhibit 16 is not a document that can be relied upon as document of title as the same has already expired since the year 2013 and thus, not a valid document as at the time of the commencement of this case on appeal. He argued therefore that the 2nd Respondent cannot rely on Exhibit 16 as the basis to transfer a valid title to the 1st Respondent vide Exhibit 14 as he did on 12/3/2014. Relying therefore as the decision in Aremu v. Chikun (2012) 3 NWLR (Pt. 1288) 587, 617 it was argued that Exhibit 16 was not valid. He argued that the Counter-claim of the Respondent ought to have been dismissed at the trial Court for their failure to prove their root of title, citing Nnadozie v. Mbagwu (2008) 3 NWLR (Pt. 1074). On the question and finding made at the trial Court that the Respondents have been in possession and exercising right of ownership over the property in dispute, it is argued that since Respondents failed to prove their root of title, any act done by them as acts of possession were in fact acts of trespass: Ajikanle v. Yusuf (2008) 2 NWLR (Pt. 1071) 301, 340. He argued that the Respondents having failed to prove their root of title, as claimant, he

cannot turn around and base his case on possession. He relied on Ayorinde v. Kuforiji (2007) 4 NWLR (Pt. 1021) 341, 368. We were urged to resolve issue 2 in favour of the Appellant.

For the Respondents it was argued on their behalf that the Appellant cannot rely on Exhibits 1 and 2 as title document, having earlier repudiated that transaction and by the action/suit filed by him (Exhibits 18 and 19) he recovered his money from Garba Tobacco. He argued and submitted that the Appellant having closed that chapter which gave rise to Exhibits 1 and 2, he cannot still rely on Exhibits 1 and 2 as his title documents in respect of which he sued to recover his money vide Exhibit 18 and 19. The Appellant, it is argued did not produce any evidence or further evidence of a further transaction leading to the repurchase by him of the same property upon which he based the conversion of the local certificate of occupancy No. 14568 to statutory certificate of occupancy No. 3289. It is argued that the local certificate of occupancy No. 14568 relied upon by the Appellant is over another plot of land and not the piece of land in dispute given the CTC of the plan of BR2

Ungwuwam Kuddu tendered through the witness subpoenaed to produce it which depicted the location of C of O 14568 as in between two buildings and not at Rimi road, Kaduna as in (Exhibit 20(d) which Dauda Tsoho has legal title No.

In the light of the foregoing, Respondents further argue that the Appellant procured the conversion of C of O No. 014568 not on the plot known as BR2 Unguwar Kudu, Unguwar Rimi Kaduna but over the property of Dauda Tsoho at plot No. T1 Rimi Road Kaduna, covered by C of O No. 029920.

In relation to their Counter-claim it was argued that the Respondents proved the title of their predecessor (Dauda Tsoho) who applied and was allocated with C of O 029920 (Exhibit 20A) and through whom they acquired their title to the land in dispute hence the Respondents proved their case by documentary evidence in line with the decision in Idundun v. Okumagba (1976) NWLR 2001 and further proof by uninterrupted possession of the land in dispute. It is argued further that the Respondents need not go beyond their predecessor (Dauda Tsoho) to succeed in their counter-claim against the Appellant. He argued that parties are only obliged to aver such

facts and adduce such evidence to succeed against adversaries and not all available evidence. The purchase of land by Dauda Tsoho from warrant officer Kwah Chori, it is argued, was never put as an issue by the Respondent. We were urged to hold that the Appellant failed to prove his claim.

OPINION
In a claim for declaration of title to land, the person seeking to be so declared must lead evidence to:
(i) Establish the identity of the land or property to which his claim relates.
(ii) Prove his title or root of title. See:Samuel v. Waziri (2016) LPELR-40313 (CA). The same duty extend to the Counter-claimant to prove his case along the stated terms if he must succeed in his counter-claim.
In both cases the claimant and the Counter-claimant must succeed on the strength of his case and not on the weakness of the opponent’s case. See: M. Kodilinye v. Mbanefo Odu2 WACA 336, 337; Oke v. Eke (1982) LPELR-2426 (SC).

localisation of the subject-matter, i.e the property in dispute in such a case or instance, the plaintiff or claimant will be called upon to prove the identity of the land.
Where however parties are at par as to the identity of the land in dispute, the claimant is absolved from the duty of having to prove such identity. This is so because the land in dispute is known to both of them. See: Akinterinwa v. Oladunjoye (2006) 6 NWLR (Pt. 659) 72.
In the case on hand, although the Appellant and the Respondents by their pleadings respectively gave different names or addresses by which the property is dispute is known or located, these differences were reduced to nothing by the visitation to the locus in quo from where the Court below confirmed that indeed the parties have identified the same land or property as the land in dispute. There is thus, no dispute on the identity of the land inspite of the differences by the name the property or land was referred to. I so hold and I refer to the decisions in Ojo v. Regd Trustees, Church of Lord (2003) FWLR (Pt. 153) 303, 316. See also Chukwueke v. Okoronkwo (1999) 1 SCNJ 44, 57. In this case on appeal the fact

that the Appellant referred to the land in dispute as plot No. BR2 Ungwan Kudu Kaduna and the Respondents call it plot T1 Ungwar Rimi, Kaduna does not affect its identity. The location or localisation of the land in dispute is known to both sides and that does it on the issue of the identity of the land in dispute, hence parties herein have scaled the first hurdle.

The issue in contention more significantly, is the question of title upon which the claimant on the one hand and the counter-claimant on the other anchored their claim or counter-claim. The Appellant has relied on Exhibits 1 and 2 primarily as the basis for his claim to title. The trial Court nonetheless, for the reason on record, found to the contrary to dismiss the claim while granting the Counter-claim of the Respondents. In effect, parties on both sides rested their claims and Counter-claim on the documents of title which either side have put forward.
There is nothing wrong with that as indeed one of the ways by which the claimant can prove ownership or title to land is by the production of documents of title as held in Idundun v. Okumagba (supra). Such documents of title must however

be genuine, valid and subsisting to qualify as title documents. By dint of the Deed of Assignment (Exhibit 1) executed on 13th September, 1994 the Assignor transferred to the Assignee all the unexpired residue or interest in the property described as plot No. BR2 Unguwan Kudu, Kaduna covered by a Certificate of Occupancy, No. 014568 issued on 12th November, 1981. The Appellant herein is the assignee in the transaction covered by Exhibit 1. Exhibit 2 is the Certificate of Occupancy issued to the Appellant based on Exhibit 1.
Exhibits 18-19 are proceedings of Court. However, evidence has shown, given the printed record, the validity or existence of Exhibit 1 has been flawed or destroyed by reason of the recovery suit in Exhibits 18 and 19 by which the Appellant instituted recovery action and got their money back in relation to the subject-matter in Exhibit 1. The recovery suit ended in the year 2002. This Exhibit 1 seized to have any operative force even as at the date the Appellant instituted his action at the Court below. There is no tangible evidence on the record of the revalidation of Exhibit 1. The trial Court made that finding as much at page 266 of

the record hence the Appellant can no longer make use of that document (Exhibit 1) as his title document. Exhibit 2, the statutory certificate of occupancy is premised on Exhibit 1 and the local certificate of occupancy No. 014568 of 12th September, 1981. By it (Exhibit 2) the Appellant purportedly converted the local certificate of occupancy, to state certificate of occupancy (Exhibit 2) but given the fact that the foundational document (Exhibit 1) had seized to exist, Exhibit 2 necessarily collapses. See: Macfoy v. UAC (1962) A. C 50, 60. See further, the decision in Otukpo v. John (2012) 7 NWLR (Pt. 1299) 357. This is why the said State certificate of occupancy cannot be utilized by the Appellant as a document of his title over the property in dispute.
A document of title can only be acted upon by the Courts as sufficient proof of ownership but the Court must satisfy itself that the grant has the effect claimed by the holder of the instrument. See: Agboola v. UBA Plc (201) 3 SCNJ 208, 215. A certificate of occupancy issued to a person is not conclusive of that person’s interest or title over the land it was granted. See: Tony Moneme v. Atta Onoja & Ors.

(2011) LPELR – 8972. Such certificates or documents susceptible to nullification are not absolute. See:Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562. This is the fate of the documents (Exhibits 1 & 2) presented by the Appellant as his documents of title. For the reasons already stated the said documents, cannot be acted upon as valid instruments of title.

The Respondents on their part presented a counter-claim vide their amended statement of Defence and counter-claim as at pages 38 – 47 of the record wherein they sought (among others reliefs), an Order of Declaration that the Estate of the Deceased Dauda Tshoho is entitled to the statutory right of occupancy over plot T1 Rimi Road, Kaduna. A counter-claim is an independent action of its own and like the statement of claim, the filing of a counter – claim is subject to the provisions of any law which prescribe time limit for the filing of such actions for declaration of title to that is to say, Section 4 of Kaduna State Limitation Edict.

Be that as it may, the Appellant in his brief of argument has attempted to fault Respondent’s root of title over the disputed

land in so far as the initial agreement by which the 2nd Respondent’s father purchased the land in dispute from the original owner was not tendered in evidence. I do not think, it is the law that a party, in a claim for declaration of title, is required to tender all or every available document of title that he has in relation to the land in dispute to establish his case. He is free to tender and rely on the few or the only document he thinks can prove his case. This I think, is sufficient to meet the requirements or the establishment of title, by production of documents as enunciated inIdundun v. Okumagba (supra), hence the submission made by Appellant’s counsel on this point cannot invalidate the title document in terms of Exhibits 16 and 20 A – C tendered in support of the case for the Respondents. I have examined those documents of title put forward by the Respondents including the deed of transfer (Exhibit 14) to the 1st Respondent. From a comparative analysis of the facts and evidence on the printed record, including documentary evidence on record, the case preponderates more on the side of the Respondents and the Court below was/is

right in coming to the conclusion it did when it dismissed the claim and granted Respondents’ counter-claim. Issue No. 2 is resolved against the Appellant and in favour of the Respondents.

ISSUE NO. 3
Issue No. 3 is as to “whether the judgment of the trial Court was perverse having regard to the failure of the trial Court to make specific findings on live issues of law thrown up for determination”?
The live issues referred to in the judgment appealed against which the trial Court, allegedly, did not address or make specific findings on are:
(i) The issue of lack of locus standi of the 2nd Respondent to maintain the counter-claim as he did, for himself and on behalf of the Estate of Dauda Tsoho.

On this point, it was contended that the 2nd Respondent having already divested his interest vide Exhibit 14, over the property at No. T1 Rimi Road, Kaduna to the 1st Respondent cannot enter or file a counter-claim to seek for declaration in favour of his late father’s estate. Learned counsel for the Appellant relied on the decision in Attorney General of the Federation v. Attorney General of Lagos (2017) 8 NWLR (Pt. 1566) 20, 58 (S.C).

(ii) The second live issue referred to by learned counsel is on the question of the “Estate of deceased Dauda Tsoho” not being a juristic person who can sue and be sued and yet the trial Court overlooked that submission without making any pronouncement on it. He relied on the decision in The Estate of General Sani Abacha v. Eke Spiff & 3 Ors. (2009) 7 NWLR (Pt. 1139) 79, 137.
(iii) The non – joinder of the Governor of Kaduna State as a party in a claim for the nullification of the Appellant’s statutory certificate of occupancy: It was contended that the Governor of Kaduna State was a necessary party to join, who issued the certificate. That by the failure of the trial Court to address this question, the decision was perverse, same having occasioned a miscarriage of justice.

Arguing per contra it was contended for the Respondents on the issue of lack of locus standi of the 2nd Respondent that the issue of 2nd by Appellant, was a non-issue before the trial Court and the Court need not address same. Under the Rules of Court, particularly Order … Rule 7 (1) Of the High Court (Civil Procedure) Rules of Kaduna State,

such points as raised by the Appellant in relation to the locus standi of the 2nd Respondent, must be pleaded as a defence or reply. It provides thus:
“All grounds of defence or reply which makes an action not maintainable or if not raised or if not raised will take the other party by surprise or will raise issues of facts not arising out of the preceding pleadings shall be specifically pleaded.” (Underlining ours)

The question of the locus standi, of the 2nd Respondent thus, was not an issue hence the trial Court was not bound to address that question. The other point raised by the Appellant is as regards action maintained against a non-juristic person, the “Estate of the deceased Dauda Tsoho”. Having regard however to paragraph 1 of the amended Statement of Defence and Counter-claim of the Respondents at page 38 of record, wherein the 2nd Respondent was presented as one of the “administrators of the Estate of late Mr. Dauda Tsoho” by which the Counter-claim was maintained, the argument of counsel for the Appellant in this regard, becomes technical and hollow. Same lacks substance, and the trial Court

rightly discountenanced same.

On the issue of non-joinder of the Governor of Kaduna State as a party, I am again guided by the Rules of procedure of the High Court of Kaduna State which provide under Order 13 Rule 16(1) as follows:
“No proceeding shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as requires the rights and interests of the parties actually in Court”.
The decision of the Court below is not rendered perverse by reason of non-joinder of any person as a party give the fact that the Court below addressed issues as they relate to the rights and interests of parties before it.
Again, I resolve issue No. 3 against the Appellant and in favour of the Respondents.

Under Issue No. 4, the question is whether the trial Court was right in refusing to expunge from the record, Exhibits 13, 15, 17A, 17B, 18, 19 and 20d for being legally inadmissible?

Exhibit 13 is no doubt the photocopy of public record kept of private documents. Such documents need certification under Section 102(b) of the Evidence Act. In absence of Certification, such

documents are not admissible evidence and if admitted, the same cannot be acted upon.

Exhibits 17A and 17B are original copies of the public document. They need no further certification. Exhibits 18 and 19 are Proceedings of Court, duly certified as public documents. The argument that Exhibit 18 and 19 are receivable in evidence only to contradict the witness under Section 232 of the Evidence Act is not true in relation to the content of those documents. Exhibits 18 and 19 are Proceedings of Court as earlier stated and the same were tendered only to prove that the Appellant filed and prosecuted a civil claim for the recovery of money at the High Court. Such are admissible evidence.

Exhibits 15 and 20D are building plans or maps or sketch plans, as the case may be, both of which, by reason of Section 3 of the Survey law of Kaduna State, needed to be prepared and signed by a Surveyor in line with the decision inBabatola v. Aladejana (2001) 12 NWLR (Pt. 778) 597, 609. Such documents as in Exhibits 15 and 20D, not having been signed by the Surveyor are not admissible evidence and same accordingly are discountenanced. Notwithstanding that Exhibits 15 and

20D have been disregarded, this should not in my view affect the reasoning and conclusion arrived at when the trial Court in its judgment dismissed the claim of the Appellant while granting the Counter-claim of the Respondents. Issue No. 4 is also resolved against the Appellant.

All issues having been resolved against the Appellant, the appeal fails and same is dismissed. The judgment of the High Court of Kaduna State delivered on 28th September, 2018 is affirmed with cost in the sum of N100,000.00 assessed against the Appellant.
That is the Judgment and Order.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, Saidu Tanko Husaini JCA. My learned brother has in my view properly considered and resolved the issue of statute bar, delivery of judgment outside the period of 90 days prescribed in the 1999 Constitution (as amended), and the competing rights of the parties with regard to the ownership of the land in dispute. I find that I have nothing particularly useful to add. I therefore also dismiss the appeal for lacking in merit. I abide by the costs awarded against the appellant.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother SAIDU TANKO HUSAINI, JCA where the issues in contention have been distinctly set out and determined.
I am in agreement with my Lord’s resolution of the issues against the Appellant and also dismiss this appeal, affirming the judgment of the lower Court, with the costs awarded.

Appearances:

BASHAR, ESQ. For Appellant(s)

OYERINDE, ESQ. For Respondent(s)