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Taoridi A. Sufianu & Ors. V. Wahab Abass Animashaun & Ors. (2000) LLJR-CA

Taoridi A. Sufianu & Ors. V. Wahab Abass Animashaun & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The Respondents were the plaintiffs in suit NO. LD/19/77 at the Lagos High Court, and had claimed against the 1st to 3rd Appellants as the defendants for the following reliefs:

“1. …A declaration that the plaintiffs are entitled to statutory or customary right of occupancy or interest in all that piece or parcel of land situate, lying and being at Animashaun Village, Abebe, off Babs Animashaun Road, Surulere which with its dimensions and abuttals is more particularly described and delienated on Plan No.HU/LA/3419 of 29th November, 1986 filed in this suit.

  1. And/or a declaration that as relations of the customary tenants (deceased) under native law and custom the defendants, as representatives of Sufianu Muse and Sule families have forfeited for misconduct all rights and/or interests, if any, in the said piece or parcel of land.
  2. Recovery of possession of the said land.
  3. An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from entering the said piece of land or in any manner however, interfering with the plaintiffs’ ownership and/or possession of the same.”

In the usual manner, the parties filed and exchanged pleadings which each amended a number of times. The suit was subsequently heard by Akinsanya J. The plaintiffs called five witnesses and the defendants six. On 30 May, 1997, the learned trial Judge in her judgment upheld the claims of the plaintiffs and gave judgment as claimed. Dissatisfied with the said judgment, the defendants have brought this appeal on seven grounds of appeal. In their notice of appeal, the defendants prayed that the judgment in favour of the plaintiffs be set aside and the case of the plaintiffs dismissed with costs. Before this Court, the 4th appellant applied for and was granted the leave to appeal as an interested person. The result is that I have for consideration in this judgment two appeals – one by the defendants before the lower Court and the other by the party joined by this court as an interested party.

In the appellants’ brief filed, the issues for determination were identified as the following:

“(i) Issue – 1

whether the trial Court exercised its discretion judicially and judiciously in the circumstances of this case in refusing to grant the defendants/appellants’ application for further amendment of their 3rd amended statement of defence and whether they were thereby denied their right to fair hearing?.

If the refusal is correct in law, whether the principle in Bello v. Eweka (1981) 1 S.C. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) page 90 preventing the use of admissions in pleadings (here, statement of defence) to grant a declaratory judgment applies and that failure to observe the same is a miscarriage of justice for which the judgment should be set aside.

(ii) Issue – 2

whether on the facts found in the evidence before the Court the land in dispute could be said to have vested in late Sunmonu Animashaun either by native law and custom or by grant and whether the land in dispute is part of the estate of Sunmonu Animashaun and inherited by plaintiffs/respondents. If it is part of the said estate, whether the plaintiffs/respondents have locus standi to prosecute this suit?.

(iii) Issue – 3

whether the defendants are the customary tenants of the plaintiffs?.

Issue – 4

(Iv) whether the learned trial Judge correctly and sufficiently examined the evidence tendered before the court by both sides and whether under the facts and circumstances in this case, appellants are not entitled to judgment in their favour?.”

The Respondents in their brief formulated three issues for determination and the said issues fall within the ambit of the appellants’ issues.

The 4th appellant, arising from his own appeal, formulated the issues for determination thus:

“(1) whether any estate customary or otherwise vested in Sunmonu Animashaun deceased as claimed by the plaintiffs?.

(ii) Are the defendants customary tenants of the plaintiffs?

(iii) Are plaintiffs entitled by law to bring this action?

The issues raised by the 4th appellant which I have reproduced above all fall within the ambit of the 1st to 3rd appellants issues. All the issues for determination detail into each other and I intend in this judgment to take them together. But before I commence a discussion of issues, I shall consider closely the pleadings of the parties before the lower Court.

The plaintiffs’ case was that, an expanse of land at Abebe which originally belonged to the Oloto Chieftaincy Family was granted to their grandfather Sunmonu Animashaun about 150 years ago. The said Sunmonu Animashaun died testate in 1895. He was survived by 42 children including the grandfathers and great grandfathers of the plaintiffs. Sunmonu Animashaun farmed on the land using his wards, servants, agents and customary tenants. After his death, the trustees of his estate continued to farm the land in the same manner. The wards, servants, agents and customary tenants of Sunmonu Animashaun were allowed to take a part of the crops harvested from the land for their subsistence. In 1930, the trustees caused the land to be surveyed and in 1934, a conveyance was executed in favour of the trustees. The farm workers were allowed to remain on the land on the condition that they worked diligently and loyally.

In 1964, the Lagos Executive Development Board acquired a portion of the land. The plaintiffs’ family received compensation as the owner whilst the defendants and their family were allowed as farm workers to receive compensation for their crops on the land. Following the acquisition, the defendants who claimed they were the descendants or relations of the plaintiffs’ customary tenants were moved to another portion of the land which was not acquired by L.E.D.B. The defendants were also allowed to build temporary structures on the land.

At about 1967, there emerged an intra-family dispute within the plaintiffs family which led to a litigation in suit No. LD/188/67. It was disposed of in 1972. It was observed about this time that the defendants had erected more structures on the land than was authorised by the plaintiffs’ family. Later, it was discovered that the defendants had been selling portions of the land to some persons and executing deeds of conveyance in their favour.

In reaction, the plaintiffs brought their suit claiming as earlier stated in this judgment.

The defendants in their 3rd amended statement of defence pleaded that a large piece of land which included the land in dispute was originally claimed by Oloto Chieftaincy Family. The defendants later found that the land did not belong to the Oloto Chieftaincy Family but to Itire Family. The Itire family granted the land absolutely to the ancestor of the defendants. The defendants were not the wards, servants, farm workers, licences or customary tenants to the ancestor of the plaintiffs. The ancestors of the defendants were customary tenants to the Oloto Chieftaincy Family. They later became absolute owners as a result of the grant to them by Itire Family. The defendants agreed that the plaintiffs’ ancestor acquired land from the Oloto Chieftaincy Family. Thy contended however that the land of the plaintiffs was not the one in dispute. It was pleaded by the defendants that by a coincidence their ancestor bore the same name Animashaun. The ancestor of the defendants was Sunmonu Animashaun Olode. The land of the plaintiffs’ ancestor was acquired by L.E.D.B. The defendants pleaded that they had laid their own land into building plots and sold some of them to diverse persons.

It was on this state of pleadings that the case proceeded to trial. It is necessary that I make a few preliminary observations on the pleadings of the parties. Whereas the plaintiffs traced their title to the land in dispute to the Oloto Chieftaincy Family, the defendants for their part also agreed that they had accepted the Oloto Chieftaincy Family as the owner of the land until that family in a land dispute with Onitire Family lost title to the land. The defendants then accepted the Itire Family as their overlords. It was therefore an important issue at the trial to determine whether the land remained vested in the Oloto Chieftaincy Family or had been extinguished in favour of Itire family. It is also noteworthy that whereas the plaintiffs claimed that their ancestor was Sunmonu Animashaun, the defendants pleaded that their own ancestor was Sunmonu Animashaun Olode.

Before the lower Court on 17/2/97, the defendants after their counsel Chief Dele Awoniyi had on 11/12/96 concluded his address sought the leave of the lower Court to amend their pleadings. The Court notes for 17-2-97 indicated the nature of the amendment which the defendants wanted to make thus:

“Chief Dele Awoniyi

Our motion dated 20th December, 1996 is to further amend the 3rd amended statement of defence by deleting paragraphs 5, 6(vi), 6(vii), 6(viii), 6(xii), 6(xv), 7(iii), 8(6)C, 13 and 15 of the 3rd amended statement of defence.”

The plaintiffs’ Counsel objected. In a part of his objection plaintiffs’ Counsel, Mr. B. A. M. Fashanu said:

“The reasons given are untenable – I submit that it is too late in the day to know who in the family of the defendants can adequately brief lawyer on correct facts since 1977 – when those averments sought to be deleted amounted to admissions which the plaintiffs have relied upon in their own cases.”

The lower Court refused to grant the defendants the leave to amend their 3rd amended statement of defence in a rather short ruling delivered on 6-3-99. Order 25 Rule 1 of the High Court of Lagos State Civil Procedure Rules, 1972, applicable to this case enables either party to a suit to amend his pleadings in such manner and on such terms as may be just and all such amendments are to be made for the purpose of determining the real questions in controversy between the parties. It is also the general principle governing pleadings that the power to amend be liberally exercised. In Bello Adeleke v. Awoliyi & Anor. (1962) 1 All NLR 260 at 262, Ademola, C.J.F said:

“It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action, the court is to award costs against the delinquent party rather than dismiss or strike out a case for a fault in the proceeding prior to hearing of the case.”

And often quoted and followed by the Nigerian Courts is the dictum in Copper v. Smith (1884) 26 CH.D 710 that:

“It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights – I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct if, it can be done without injustice to the other party.” See A. U. Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 2) 409; Shoe Machinery Co. v. Cutlans (1896) 1 CH.D. 108 at 112.

In Akinkuowo v. Fafimoju (1965) NMLR 349, the Supreme Court upheld the exercise of discretion by the trial to grant an amendment even when evidence had been taken. Similarly, in Oguntimehin v. Gubere & Ors. (1964) 1 All NLR 176, the Supreme Court upheld the granting of an amendment during final address. See also Okafor v. Ikeanyi (1979) 3 – 4 SC.99 at 106; Chief Ojah v. Chief Eyo Ogboni (1976) 4 S.C. 69.

Since however the grant of an amendment of pleadings is discretionary, each case must depend on its own facts.

An amendment would not be granted where it would occasion undue delay in the hearing of the suit or unfairly prejudice either party. See Dominion Flour Mills Ltd. v. Abimbola George (1960) LLR 53. In determining whether or not to exercise its discretion to grant an amendment the court would consider (1) the attitude of the parties (2) the nature of the amendment sought in relation to the suit. (3) the question in controversy (4) the time the application is made. (5) the stage at which it is made and (6) all other relevant circumstances. See Oyegoke v. Hamman (1990) 4 NWLR (Pt.143) 197.

In the instant case, the paragraphs of the 3rd amended statement of defence which the defendants sought to delete were those in which far reaching admissions fundamental to the case before the court had been made by the defendants. The plaintiffs had pleaded that Sunmonu Animashaun was their ancestor; that the land in dispute originally belonged to the Oloto Chieftaincy family, that the defendants’ ancestors were customary tenants on the land in dispute, that the plaintiffs’ family was paid compensation as the owner of the land in which the land in dispute was a part and that the defendants were paid compensation only for the crops on the land as customary tenants.

The defendants had in paragraphs 5, 6(vii), 6(viii), 6(xv), some of which they sought to delete pleaded thus:

“5. The defendants aver that the land in dispute is the absolute property of the ancestor of the defendant by the Oloto Chieftaincy Family as customary tenants and at a later stage the same was granted to the ancestor of the defendants absolutely as owner in accordance with Yoruba native law and custom by the Itire chieftaincy family for valuable consideration.

6(vii) That there was no time when (Animashaun) the ancestor of the plaintiffs took possession of the land sold to him (25 acres) before his death as the same was in physical possession of the defendants and their ancestors up to the year 1964 when the Lagos Executive Development Board compulsorily acquired the same.

6(viii) That at the time of acquiring the land sold by the Oloto Family to the plaintiffs’ ancestor, there were cash crops and economic trees of the defendants family on the land acquired.

“(a) AVM Femi John Femi, the then CAS is not material to this case on the following grounds:

(1) He is not authorize 6(xv) That the parcels of land purchased by the ancestor of the plaintiffs from the Oloto Family was not surveyed in the lifetime of the ancestor of the plaintiffs.

6(xv) The defendants acknowledged the ownership of the 25 acres of land forming part of Central Lagos sold by the Oloto Family to the ancestor of the plaintiffs and which land was acquired in its entirety by the Lagos Executive Development Board in 1964…”

From the above extracts of the 3rd defendants’ statement of defence, it is apparent that the defendants had accepted that Sunmonu Animashaun was plaintiffs’ ancestor, that plaintiffs’ ancestor bought or acquired an area of land from the Oloto Family, that the defendants were customary tenants to the Oloto Family before the plaintiffs’ ancestor bought the land. These admissions had the consequence of reducing the areas of conflict. What remained to be determined was whether the land in dispute was part of the land the plaintiffs’ ancestor acquired from the Oloto Family; whether the Oloto family did at some stage lose its overlordship to Itire family if it was determined that the land in dispute fell within the land acquired from Oloto family by the plaintiffs’ ancestor; and whether all the land of the plaintiffs had in fact been acquired by the L.E.D.B. in 1964.

The functions of pleadings in a suit include (a) To ascertain with some certainty the matters actually in dispute between the parties: See Oduka & Ors. v. Kasumu & Anor. (1968) N.M.L.R. 28(b) To define the issues and narrow the scope of controversy between the parties: Odogwu v. Odogwu (1990) 4 NWLR (Pt.143) 224. Pleadings thus eliminate the springing of surprises on the opponent. One of the important consequence of filing pleadings is that there is no issue between the parties in respect of matters expressly admitted on the pleading and therefore no evidence is admissible in reference to those matters: The British India General Insurance Company Nigeria Ltd. v. Thawardes (1978) 3 SC. 143; Chief Okparaeke v. Egbuonu & Ors. (1941) 7 WACA 53 at 55. A party is therefore entitled to rely on the admissions made on the pleadings by his opponent.I observed earlier that the defendants sought to withdraw the admissions they had made on their 3rd amended statement of defence only at the stage when the defence counsel had delivered his final address. It is therefore clear that to have granted the amendment at that stage would gravely prejudice the case of the plaintiffs unless the case were to be opened anew for the plaintiffs to provide substitute evidence to replace the admissions previously made by the defendants.

In other words, the amendment as sought, would if granted prejudice the case of the plaintiffs. The attempt of the defendants by bringing that kind of the application to amend at the stage it was brought was to overreach the plaintiffs.

I could understand applications for amendments of pleadings brought late being granted. Amendment has been granted on the day judgment was to be delivered. See Okafor v. Ikeanyi (supra)

But the approach is to look at the nature of the amendment sought and to fairly assess or gauge its impact or effect on the case of the other party and the opportunity available to the opponent to react to the new matters pleaded. I think that the trial Judge in this case fairly exercised her discretion by refusing the application to amend brought by the defendants at a stage when final addresses were being delivered.

The plaintiffs at the trial tendered as Exhibit A, a conveyance by the Oloto Family in favour of the Trustees of the estate of Sunmonu Animashaun. The evidence was that the land covered by the plan attached to Exhibit ‘A’ had been granted to Sunmonu Animashaun several years before he died in 1895. The nature of the grant was not stated. It was pleaded that Sunmonu Animashaun died testate.

The first reaction one has is that, only the persons to whom Sunmonu Animashaun devised the land by his Will who could sue on it. But that in my view is an internal affair of the family of Sunmonu Animashaun.

The plaintiffs had expressed that they were bringing the suit as the beneficiaries and for the Estate of Sunmonu Animashaun. Before an estate is distributed, it must be garnered in. Every member of a land owning family can bring a suit to protect the property of the family from waste and dissipation. All those whose interest the actual plaintiffs represent will be bound by any judgment or order that may be made in the proceedings. See Opebiyi v. Oshoboja & Ors. (1976) 9-10 Sc. 195.

The defendants/appellants in this case have argued before us that the plaintiffs had not produced the Will of Sunmonu Animashaun and shown how they qualified to be the persons to bring the suit. Another way of putting the argument of the defendants/appellants is that, if, as the plaintiffs pleaded, Sunmonu Animashaun died testate, the land of Sunmonu Animashaun has been divested of the character of a family property and only the devisees or direct beneficiaries under the Will of Sunmonu Animashaun could bring the suit.

But the law is that, a defendant who wishes to question the authority of a plaintiff to sue in a representative capacity should do so at an early stage of the proceedings. See Walter Wiri & Ors. v. Godwin Wuche & Ors. (1980) 1-2 S.C. 1. If an order for leave to sue in a representative capacity was not sought or given, the authority will be presumed as granted if (1) The title and the statement of claim reflect that capacity. (2) The suit was prosecuted to judgment in that capacity; and (3) Judgment was given for or against the plaintiff in that capacity; See Yekini Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587.

Having said the above by way of a preface, I think that the defendants completely misunderstood and misconceived the nature of the case before the lower Court vis-a-vis the issue of locus standi. The case of the plaintiffs was not about sharing the estate of Sunmonu Animashaun or determining who of the descendants was entitled to a share of his estate. The suit was as to whether or not the land in dispute was comprised in the estate of Sunmonu Animashaun. The question of the proper implementation of the Will or distribution of the estate of Animashaun is an in-house matter for the Animashaun Family. It is not a matter that an outsider can participate in. Whether or not the plaintiffs had the mandate and authority of those entitled to a share in the estate of Sunmonu Animashaun was not the issue before the lower Court. The issue was – Did the land in dispute belong to the estate of Sunmonu Animashaun? See on this point Alhaji Sanni Shaibu v. J. O. Bakare (1984) 12 Sc. 187 at 230 and Ezeudu v. Obiagwu (1986) 2 NWLR (pt.21) 208.

The defendants in their statement of defence admitted in so many paragraphs that Sunmonu Animashaun was plaintiffs’ ancestor and that he Sunmonu was granted a 25 acre land by the Oloto Family. They contended that the land in dispute was not part of the land sold to the trustees of Sunmonu by the Oloto family. However, a representative of the Oloto family who testified as P.W.1 gave evidence that his family sold the land covered by Exhibit ‘A’ to the plaintiffs’ family. Further the composite plan which relates the land in dispute to the land sold vide Exhibit’ A’ was tendered as Exhibit ‘R’ and this shows that a substantial part of the land in dispute falls within the land sold to the plaintiffs’ family vide Exhibit A.

The defendants also admitted that they had been customary tenants to the Oloto Family before the land was sold to the plaintiffs family. The implication of that was that the land conveyed by the Oloto family to plaintiffs’ family would remain subject to the defendants customary tenancy. The defendants and their ancestor before them would therefore become customary tenants of the plaintiffs.

The defendants pleaded and gave evidence that the Oloto family lost their title in the land to the Itire family and that they bought the land absolutely from the Itire family. However, a representative of the Itire family who testified for the defendants as D.W. 3 said that his family did not sell the land in dispute to the defendants. So the defendants lied on the point, more than that however the defendants whereas they had admitted that the land originally belonged to the Oloto family, failed to plead the origin and devolution of the title of Itire. All we had was a bland assertion unsupported by any evidence or traditional history as to the ownership of Itire family. The defendants tendered as Exhibit AA a judgment in which they claimed the land in dispute was adjudged to belong to the Itire family. But no evidence was led to show which area of land was in dispute in the case. Given the fact that it was common ground that the Itire family shared a boundary with the Oloto family not much could be made out of Exhibit AA unless one knew the exact land that was in dispute in the case. The result therefore was that the title of Oloto family which was transmitted to the plaintiffs’ family in respect of the land in dispute remained unassailed.

The defendants/appellants placed reliance on Bello v. Eweka (1981) 1 SC. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90 to argue that admissions in pleadings cannot be relied upon to grant a declaratory relief. Declaratory judgment are discretionary in their nature. It is therefore the accepted practice that the court should not rely on admissions on pleadings alone to grant declaratory reliefs. The plaintiffs in this case called five witnesses in support of their case. They tendered the conveyance Exhibit A made in favour of the trustees to the estate of the late Sunmonu Animashaun. The defendants also called the evidence of six witnesses: The lower Court in its judgment at page 464 of the record observed:

“When the evidence of the plaintiffs’ witnesses are based (sic) on a weighing scale as compared with the testimony of the defence witnesses it is very apparent that the plaintiffs’ witnesses are truthful while the defence witnesses are inconsistent. The D/W3 – 2nd defendant herein and D/W 6 – Alhaji Idowu Sanni gave evidence which contradicted one another. In fact D/W6 said that if the defendants state(d) that they had absolute grant they would be telling lies because they paid tribute to the Onitire as customary tenants. D/W3 indeed told more lies as already explained and also in respect of the survey conducted on the land in 1965 – whereas his family relied on the same plan to claim compensation for crops aforesaid. Based upon the testimony and demeanor of the witnesses – the plaintiffs’ version which is in line with their pleadings is preferred to the fabrications of the defendants regarding many things and especially about their right to hold on to the land in dispute as absolute owners. The defendants dealt with the land as owner in utter disregard to their overlord’s interest. See Exhibit Q. Exhibit F-F3 are various conveyances and leases executed by the defendants. I have carefully examined these documents – while I observe that the defendants change their names with additions and subtraction to suit their grand design to link themselves to Sunmonu Animashaun through Oloto family as originally pleaded yet there is no where in the documents that the parties actually conveyed the interest to others signed as Animashaun Sunmonu Animashaun or Animashaun Olode – they signed in the name of Sufianu, Sule and Muse. The observation of the plaintiffs’ Counsel that it is a recent acquisition in order to create confusion that the defendants have pretentiously added the name of ancestor only to get bye.”

There is no doubt from the solid findings made by the trial Judge above that she had not only relied upon the admissions made by the defendants on the pleadings but had thoroughly scrutinised the evidence called. The defendants showed themselves to be liars and had attempted to sew together various unrelated events to make themselves appear as the owners of the land. They told the story that their ancestor’s name was Sunmonu Animashaun Olode. They had known that the plaintiffs’ ancestor acquired an area of land since about 150 years ago when their ancestor were customary tenants of the Oloto family. Yet when they used plaintiffs’ family plan in 1965 to claim compensation for crops on the land being customary tenants, they did not state that they were claiming by an ancestor whose name was Sunmonu Animashaun Olode. In all the conveyances they executed Exhibits F to F3, they did not trace their own descent from Sunmonu Animashaun Olode. They started by agreeing that their ancestor were first customary tenants to Oloto family but that they later acquired absolute ownership from Itire family. It seems to me that the defendants had gone before the lower Court to weave and fabricate stories in order to make it appear that it was their own Animashaun who had derived interest from Oloto family. They made a recourse later and dishonestly to placing reliance on Itire family.

Discussing the futility of the defendants’ reliance on Exhibit ‘AA’, the trial Judge observed:

“The Chief Justice delivered that the question to be determined in that case is whether the plaintiffs – representatives of Chief Oloto have established their claim that the Iguru land of about 735 acres is part of the stool land of Chief Oloto. He found that the land adjoins on one side land owned by Itire people and on another side land belonging to the Oloto family. It was his finding that the land being claimed had several villages and that the tenants have been paying tributes to Onitire hence the judgment went the way it did in favour of the Onitire. The judgment does not refer to the land in dispute in the present suit – where the land of the Oloto family has been duly acknowledged even in the said judgment. It is to be noted that Exhibit ‘A’ was made in 1930 after that judgmnt.e The defendants have the onus to establish and link the Iguru land to the many plans tendered in this suit. But they did not. Their reliance on Exhibit AA is lifeless and cannot establish their claim to the land in dispute. Iguru Village is outside the boundary of the land conveyed to the plaintiffs in the map attached to Exhibit A”.

The finding of the trial Judge that the land in dispute could not be related to the land adjudicated upon in Exhibit ‘AA’ completely knocks the bottom out of the plaintiffs’ case. At page 445 of the record the trial Judge gave the performance of DW3 under cross-examination thus:

“When cross-examined by the plaintiffs’ Counsel, Mr. Fashanu D/W3 said that the land bought by the plaintiffs’ ancestors was in Abebe village. He admitted that it is the same place – Animashaun village that is called Animashaun Olode Village. In Exhibit F1 signed by D/W3 in 1973 – he admitted that the land therein was described as being in Animashaun village and not Animashaun Olode village. He admitted that he co-executed other leases exhibits F2 and F3 all relating to Animashaun Village. He like other defendants are not related to Animashaun family but are the descendants of Sule Animashaun Olode – but admitted not signing as Animashaun Olode but as Fatayi Sule. On the acquisition of the property by Government, he said that the defendants family was not involved because the land affected by acquisition did not belong to the defendants. He denied that some of their relations were living on the part acquired by government…He did not agree that the land in dispute originally belonged to the Oloto Chieftaincy family. He even denied that they claimed Oloto Chieftaincy Family as their root of title…He agreed that he and others started to execute on the land in dispute after 1970.”

It is seen from the above extract of D/w3’s evidence under cross-examination that the flanks and foundation of the case the defendants made were exposed as not only unreliable but frivolous. Why did D/W3 describe the land which he claimed as his family’s not by his family Animashaun Olode’s name?

It is not the function of an appellate Court to interfere in the assessment of evidence and the weight to be attached to evidence when a trial Judge has satisfactorily performed that task. I cannot in this court substitute my own views of the evidence for those of the Court of trial. See Balogun & Os. v. Agboola (1974) 1 All NLR (Pt. 2) 66. The decision of the trial Judge in the instant case was based substantially on the credibility of witness. I have not had the advantage of hearing and seeing the witnesses testify. I must not be too eager to interfere – Kponugo v. Kodadja (1933) 2 WACA 24 P.C.

I am satisfied that the lower Court came to the right conclusion on the accepted evidence. I discussed earlier the issue whether or not the plaintiffs had the locus standi to have brought the suit. I am satisfied that the suit was brought, fought and defended on the mutual acceptance by the parties of the issue which was whether title originated from Oloto or Otire family, not on whether the plaintiffs had the right to sue as beneficiaries of Sunmonu Animashaun. Admittedly, the description of plaintiffs as beneficiaries at first invokes the belief that they claimed by the force of the Will but it cannot escape notice that they described themselves as suing “for themselves as beneficiaries and on behalf of all beneficiaries of the Estate of the late Sunmonu Animashaun”. That description is both embracive and inclusive such that the plaintiffs ought to be seen as suing simpliciter as representatives of the Animashaun family.

All the issues agitated by the 4th appellant fall within the issues raised by 1st to 3rd appellants which I have discussed. The conclusion I arrive at is that this appeal lacks merit. The plaintiffs’ case deserved to succeed as it did. I uphold the judgment of the Court below and dismiss this appeal with N5,000.00 and N2,000.00 costs against 1st-3rd and 4th appellants respectively in favour of the plaintiffs/respondents.

Other Citations: (2000)LCN/0896(CA)

Taoridi A. Sufianu & Ors. V. Wahab Abass Animashaun & Ors. (2000) LLJR-CA

Taoridi A. Sufianu & Ors. V. Wahab Abass Animashaun & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

The Respondents were the plaintiffs in suit NO. LD/19/77 at the Lagos High Court, and had claimed against the 1st to 3rd Appellants as the defendants for the following reliefs:

“1. …A declaration that the plaintiffs are entitled to statutory or customary right of occupancy or interest in all that piece or parcel of land situate, lying and being at Animashaun Village, Abebe, off Babs Animashaun Road, Surulere which with its dimensions and abuttals is more particularly described and delienated on Plan No.HU/LA/3419 of 29th November, 1986 filed in this suit.

  1. And/or a declaration that as relations of the customary tenants (deceased) under native law and custom the defendants, as representatives of Sufianu Muse and Sule families have forfeited for misconduct all rights and/or interests, if any, in the said piece or parcel of land.
  2. Recovery of possession of the said land.
  3. An order of perpetual injunction restraining the defendants, their servants, agents and/or privies from entering the said piece of land or in any manner however, interfering with the plaintiffs’ ownership and/or possession of the same.”

In the usual manner, the parties filed and exchanged pleadings which each amended a number of times. The suit was subsequently heard by Akinsanya J. The plaintiffs called five witnesses and the defendants six. On 30 May, 1997, the learned trial Judge in her judgment upheld the claims of the plaintiffs and gave judgment as claimed. Dissatisfied with the said judgment, the defendants have brought this appeal on seven grounds of appeal. In their notice of appeal, the defendants prayed that the judgment in favour of the plaintiffs be set aside and the case of the plaintiffs dismissed with costs. Before this Court, the 4th appellant applied for and was granted the leave to appeal as an interested person. The result is that I have for consideration in this judgment two appeals – one by the defendants before the lower Court and the other by the party joined by this court as an interested party.

In the appellants’ brief filed, the issues for determination were identified as the following:

“(i) Issue – 1

whether the trial Court exercised its discretion judicially and judiciously in the circumstances of this case in refusing to grant the defendants/appellants’ application for further amendment of their 3rd amended statement of defence and whether they were thereby denied their right to fair hearing?.

If the refusal is correct in law, whether the principle in Bello v. Eweka (1981) 1 S.C. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt.92) page 90 preventing the use of admissions in pleadings (here, statement of defence) to grant a declaratory judgment applies and that failure to observe the same is a miscarriage of justice for which the judgment should be set aside.

(ii) Issue – 2

whether on the facts found in the evidence before the Court the land in dispute could be said to have vested in late Sunmonu Animashaun either by native law and custom or by grant and whether the land in dispute is part of the estate of Sunmonu Animashaun and inherited by plaintiffs/respondents. If it is part of the said estate, whether the plaintiffs/respondents have locus standi to prosecute this suit?.

(iii) Issue – 3

whether the defendants are the customary tenants of the plaintiffs?.

Issue – 4

(Iv) whether the learned trial Judge correctly and sufficiently examined the evidence tendered before the court by both sides and whether under the facts and circumstances in this case, appellants are not entitled to judgment in their favour?.”

The Respondents in their brief formulated three issues for determination and the said issues fall within the ambit of the appellants’ issues.

The 4th appellant, arising from his own appeal, formulated the issues for determination thus:

“(1) whether any estate customary or otherwise vested in Sunmonu Animashaun deceased as claimed by the plaintiffs?.

(ii) Are the defendants customary tenants of the plaintiffs?

(iii) Are plaintiffs entitled by law to bring this action?

The issues raised by the 4th appellant which I have reproduced above all fall within the ambit of the 1st to 3rd appellants issues. All the issues for determination detail into each other and I intend in this judgment to take them together. But before I commence a discussion of issues, I shall consider closely the pleadings of the parties before the lower Court.

The plaintiffs’ case was that, an expanse of land at Abebe which originally belonged to the Oloto Chieftaincy Family was granted to their grandfather Sunmonu Animashaun about 150 years ago. The said Sunmonu Animashaun died testate in 1895. He was survived by 42 children including the grandfathers and great grandfathers of the plaintiffs. Sunmonu Animashaun farmed on the land using his wards, servants, agents and customary tenants. After his death, the trustees of his estate continued to farm the land in the same manner. The wards, servants, agents and customary tenants of Sunmonu Animashaun were allowed to take a part of the crops harvested from the land for their subsistence. In 1930, the trustees caused the land to be surveyed and in 1934, a conveyance was executed in favour of the trustees. The farm workers were allowed to remain on the land on the condition that they worked diligently and loyally.

In 1964, the Lagos Executive Development Board acquired a portion of the land. The plaintiffs’ family received compensation as the owner whilst the defendants and their family were allowed as farm workers to receive compensation for their crops on the land. Following the acquisition, the defendants who claimed they were the descendants or relations of the plaintiffs’ customary tenants were moved to another portion of the land which was not acquired by L.E.D.B. The defendants were also allowed to build temporary structures on the land.

At about 1967, there emerged an intra-family dispute within the plaintiffs family which led to a litigation in suit No. LD/188/67. It was disposed of in 1972. It was observed about this time that the defendants had erected more structures on the land than was authorised by the plaintiffs’ family. Later, it was discovered that the defendants had been selling portions of the land to some persons and executing deeds of conveyance in their favour.

In reaction, the plaintiffs brought their suit claiming as earlier stated in this judgment.

The defendants in their 3rd amended statement of defence pleaded that a large piece of land which included the land in dispute was originally claimed by Oloto Chieftaincy Family. The defendants later found that the land did not belong to the Oloto Chieftaincy Family but to Itire Family. The Itire family granted the land absolutely to the ancestor of the defendants. The defendants were not the wards, servants, farm workers, licences or customary tenants to the ancestor of the plaintiffs. The ancestors of the defendants were customary tenants to the Oloto Chieftaincy Family. They later became absolute owners as a result of the grant to them by Itire Family. The defendants agreed that the plaintiffs’ ancestor acquired land from the Oloto Chieftaincy Family. Thy contended however that the land of the plaintiffs was not the one in dispute. It was pleaded by the defendants that by a coincidence their ancestor bore the same name Animashaun. The ancestor of the defendants was Sunmonu Animashaun Olode. The land of the plaintiffs’ ancestor was acquired by L.E.D.B. The defendants pleaded that they had laid their own land into building plots and sold some of them to diverse persons.

It was on this state of pleadings that the case proceeded to trial. It is necessary that I make a few preliminary observations on the pleadings of the parties. Whereas the plaintiffs traced their title to the land in dispute to the Oloto Chieftaincy Family, the defendants for their part also agreed that they had accepted the Oloto Chieftaincy Family as the owner of the land until that family in a land dispute with Onitire Family lost title to the land. The defendants then accepted the Itire Family as their overlords. It was therefore an important issue at the trial to determine whether the land remained vested in the Oloto Chieftaincy Family or had been extinguished in favour of Itire family. It is also noteworthy that whereas the plaintiffs claimed that their ancestor was Sunmonu Animashaun, the defendants pleaded that their own ancestor was Sunmonu Animashaun Olode.

Before the lower Court on 17/2/97, the defendants after their counsel Chief Dele Awoniyi had on 11/12/96 concluded his address sought the leave of the lower Court to amend their pleadings. The Court notes for 17-2-97 indicated the nature of the amendment which the defendants wanted to make thus:

“Chief Dele Awoniyi

Our motion dated 20th December, 1996 is to further amend the 3rd amended statement of defence by deleting paragraphs 5, 6(vi), 6(vii), 6(viii), 6(xii), 6(xv), 7(iii), 8(6)C, 13 and 15 of the 3rd amended statement of defence.”

The plaintiffs’ Counsel objected. In a part of his objection plaintiffs’ Counsel, Mr. B. A. M. Fashanu said:

“The reasons given are untenable – I submit that it is too late in the day to know who in the family of the defendants can adequately brief lawyer on correct facts since 1977 – when those averments sought to be deleted amounted to admissions which the plaintiffs have relied upon in their own cases.”

The lower Court refused to grant the defendants the leave to amend their 3rd amended statement of defence in a rather short ruling delivered on 6-3-99. Order 25 Rule 1 of the High Court of Lagos State Civil Procedure Rules, 1972, applicable to this case enables either party to a suit to amend his pleadings in such manner and on such terms as may be just and all such amendments are to be made for the purpose of determining the real questions in controversy between the parties. It is also the general principle governing pleadings that the power to amend be liberally exercised. In Bello Adeleke v. Awoliyi & Anor. (1962) 1 All NLR 260 at 262, Ademola, C.J.F said:

“It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him wherever it is possible to cure an unintentional blunder in the circumstances of a case and it will help to expedite the hearing of an action, the court is to award costs against the delinquent party rather than dismiss or strike out a case for a fault in the proceeding prior to hearing of the case.”

And often quoted and followed by the Nigerian Courts is the dictum in Copper v. Smith (1884) 26 CH.D 710 that:

“It is a well established principle that the object of the court is to decide the rights of the parties and not to punish them for the mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights – I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct if, it can be done without injustice to the other party.” See A. U. Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 2) 409; Shoe Machinery Co. v. Cutlans (1896) 1 CH.D. 108 at 112.

In Akinkuowo v. Fafimoju (1965) NMLR 349, the Supreme Court upheld the exercise of discretion by the trial to grant an amendment even when evidence had been taken. Similarly, in Oguntimehin v. Gubere & Ors. (1964) 1 All NLR 176, the Supreme Court upheld the granting of an amendment during final address. See also Okafor v. Ikeanyi (1979) 3 – 4 SC.99 at 106; Chief Ojah v. Chief Eyo Ogboni (1976) 4 S.C. 69.

Since however the grant of an amendment of pleadings is discretionary, each case must depend on its own facts.

An amendment would not be granted where it would occasion undue delay in the hearing of the suit or unfairly prejudice either party. See Dominion Flour Mills Ltd. v. Abimbola George (1960) LLR 53. In determining whether or not to exercise its discretion to grant an amendment the court would consider (1) the attitude of the parties (2) the nature of the amendment sought in relation to the suit. (3) the question in controversy (4) the time the application is made. (5) the stage at which it is made and (6) all other relevant circumstances. See Oyegoke v. Hamman (1990) 4 NWLR (Pt.143) 197.

In the instant case, the paragraphs of the 3rd amended statement of defence which the defendants sought to delete were those in which far reaching admissions fundamental to the case before the court had been made by the defendants. The plaintiffs had pleaded that Sunmonu Animashaun was their ancestor; that the land in dispute originally belonged to the Oloto Chieftaincy family, that the defendants’ ancestors were customary tenants on the land in dispute, that the plaintiffs’ family was paid compensation as the owner of the land in which the land in dispute was a part and that the defendants were paid compensation only for the crops on the land as customary tenants.

The defendants had in paragraphs 5, 6(vii), 6(viii), 6(xv), some of which they sought to delete pleaded thus:

“5. The defendants aver that the land in dispute is the absolute property of the ancestor of the defendant by the Oloto Chieftaincy Family as customary tenants and at a later stage the same was granted to the ancestor of the defendants absolutely as owner in accordance with Yoruba native law and custom by the Itire chieftaincy family for valuable consideration.

6(vii) That there was no time when (Animashaun) the ancestor of the plaintiffs took possession of the land sold to him (25 acres) before his death as the same was in physical possession of the defendants and their ancestors up to the year 1964 when the Lagos Executive Development Board compulsorily acquired the same.

6(viii) That at the time of acquiring the land sold by the Oloto Family to the plaintiffs’ ancestor, there were cash crops and economic trees of the defendants family on the land acquired.

“(a) AVM Femi John Femi, the then CAS is not material to this case on the following grounds:

(1) He is not authorize 6(xv) That the parcels of land purchased by the ancestor of the plaintiffs from the Oloto Family was not surveyed in the lifetime of the ancestor of the plaintiffs.

6(xv) The defendants acknowledged the ownership of the 25 acres of land forming part of Central Lagos sold by the Oloto Family to the ancestor of the plaintiffs and which land was acquired in its entirety by the Lagos Executive Development Board in 1964…”

From the above extracts of the 3rd defendants’ statement of defence, it is apparent that the defendants had accepted that Sunmonu Animashaun was plaintiffs’ ancestor, that plaintiffs’ ancestor bought or acquired an area of land from the Oloto Family, that the defendants were customary tenants to the Oloto Family before the plaintiffs’ ancestor bought the land. These admissions had the consequence of reducing the areas of conflict. What remained to be determined was whether the land in dispute was part of the land the plaintiffs’ ancestor acquired from the Oloto Family; whether the Oloto family did at some stage lose its overlordship to Itire family if it was determined that the land in dispute fell within the land acquired from Oloto family by the plaintiffs’ ancestor; and whether all the land of the plaintiffs had in fact been acquired by the L.E.D.B. in 1964.

The functions of pleadings in a suit include (a) To ascertain with some certainty the matters actually in dispute between the parties: See Oduka & Ors. v. Kasumu & Anor. (1968) N.M.L.R. 28(b) To define the issues and narrow the scope of controversy between the parties: Odogwu v. Odogwu (1990) 4 NWLR (Pt.143) 224. Pleadings thus eliminate the springing of surprises on the opponent. One of the important consequence of filing pleadings is that there is no issue between the parties in respect of matters expressly admitted on the pleading and therefore no evidence is admissible in reference to those matters: The British India General Insurance Company Nigeria Ltd. v. Thawardes (1978) 3 SC. 143; Chief Okparaeke v. Egbuonu & Ors. (1941) 7 WACA 53 at 55. A party is therefore entitled to rely on the admissions made on the pleadings by his opponent.I observed earlier that the defendants sought to withdraw the admissions they had made on their 3rd amended statement of defence only at the stage when the defence counsel had delivered his final address. It is therefore clear that to have granted the amendment at that stage would gravely prejudice the case of the plaintiffs unless the case were to be opened anew for the plaintiffs to provide substitute evidence to replace the admissions previously made by the defendants.

In other words, the amendment as sought, would if granted prejudice the case of the plaintiffs. The attempt of the defendants by bringing that kind of the application to amend at the stage it was brought was to overreach the plaintiffs.

I could understand applications for amendments of pleadings brought late being granted. Amendment has been granted on the day judgment was to be delivered. See Okafor v. Ikeanyi (supra)

But the approach is to look at the nature of the amendment sought and to fairly assess or gauge its impact or effect on the case of the other party and the opportunity available to the opponent to react to the new matters pleaded. I think that the trial Judge in this case fairly exercised her discretion by refusing the application to amend brought by the defendants at a stage when final addresses were being delivered.

The plaintiffs at the trial tendered as Exhibit A, a conveyance by the Oloto Family in favour of the Trustees of the estate of Sunmonu Animashaun. The evidence was that the land covered by the plan attached to Exhibit ‘A’ had been granted to Sunmonu Animashaun several years before he died in 1895. The nature of the grant was not stated. It was pleaded that Sunmonu Animashaun died testate.

The first reaction one has is that, only the persons to whom Sunmonu Animashaun devised the land by his Will who could sue on it. But that in my view is an internal affair of the family of Sunmonu Animashaun.

The plaintiffs had expressed that they were bringing the suit as the beneficiaries and for the Estate of Sunmonu Animashaun. Before an estate is distributed, it must be garnered in. Every member of a land owning family can bring a suit to protect the property of the family from waste and dissipation. All those whose interest the actual plaintiffs represent will be bound by any judgment or order that may be made in the proceedings. See Opebiyi v. Oshoboja & Ors. (1976) 9-10 Sc. 195.

The defendants/appellants in this case have argued before us that the plaintiffs had not produced the Will of Sunmonu Animashaun and shown how they qualified to be the persons to bring the suit. Another way of putting the argument of the defendants/appellants is that, if, as the plaintiffs pleaded, Sunmonu Animashaun died testate, the land of Sunmonu Animashaun has been divested of the character of a family property and only the devisees or direct beneficiaries under the Will of Sunmonu Animashaun could bring the suit.

But the law is that, a defendant who wishes to question the authority of a plaintiff to sue in a representative capacity should do so at an early stage of the proceedings. See Walter Wiri & Ors. v. Godwin Wuche & Ors. (1980) 1-2 S.C. 1. If an order for leave to sue in a representative capacity was not sought or given, the authority will be presumed as granted if (1) The title and the statement of claim reflect that capacity. (2) The suit was prosecuted to judgment in that capacity; and (3) Judgment was given for or against the plaintiff in that capacity; See Yekini Otapo v. Sunmonu (1987) 2 NWLR (pt.58) 587.

Having said the above by way of a preface, I think that the defendants completely misunderstood and misconceived the nature of the case before the lower Court vis-a-vis the issue of locus standi. The case of the plaintiffs was not about sharing the estate of Sunmonu Animashaun or determining who of the descendants was entitled to a share of his estate. The suit was as to whether or not the land in dispute was comprised in the estate of Sunmonu Animashaun. The question of the proper implementation of the Will or distribution of the estate of Animashaun is an in-house matter for the Animashaun Family. It is not a matter that an outsider can participate in. Whether or not the plaintiffs had the mandate and authority of those entitled to a share in the estate of Sunmonu Animashaun was not the issue before the lower Court. The issue was – Did the land in dispute belong to the estate of Sunmonu Animashaun? See on this point Alhaji Sanni Shaibu v. J. O. Bakare (1984) 12 Sc. 187 at 230 and Ezeudu v. Obiagwu (1986) 2 NWLR (pt.21) 208.

The defendants in their statement of defence admitted in so many paragraphs that Sunmonu Animashaun was plaintiffs’ ancestor and that he Sunmonu was granted a 25 acre land by the Oloto Family. They contended that the land in dispute was not part of the land sold to the trustees of Sunmonu by the Oloto family. However, a representative of the Oloto family who testified as P.W.1 gave evidence that his family sold the land covered by Exhibit ‘A’ to the plaintiffs’ family. Further the composite plan which relates the land in dispute to the land sold vide Exhibit’ A’ was tendered as Exhibit ‘R’ and this shows that a substantial part of the land in dispute falls within the land sold to the plaintiffs’ family vide Exhibit A.

The defendants also admitted that they had been customary tenants to the Oloto Family before the land was sold to the plaintiffs family. The implication of that was that the land conveyed by the Oloto family to plaintiffs’ family would remain subject to the defendants customary tenancy. The defendants and their ancestor before them would therefore become customary tenants of the plaintiffs.

The defendants pleaded and gave evidence that the Oloto family lost their title in the land to the Itire family and that they bought the land absolutely from the Itire family. However, a representative of the Itire family who testified for the defendants as D.W. 3 said that his family did not sell the land in dispute to the defendants. So the defendants lied on the point, more than that however the defendants whereas they had admitted that the land originally belonged to the Oloto family, failed to plead the origin and devolution of the title of Itire. All we had was a bland assertion unsupported by any evidence or traditional history as to the ownership of Itire family. The defendants tendered as Exhibit AA a judgment in which they claimed the land in dispute was adjudged to belong to the Itire family. But no evidence was led to show which area of land was in dispute in the case. Given the fact that it was common ground that the Itire family shared a boundary with the Oloto family not much could be made out of Exhibit AA unless one knew the exact land that was in dispute in the case. The result therefore was that the title of Oloto family which was transmitted to the plaintiffs’ family in respect of the land in dispute remained unassailed.

The defendants/appellants placed reliance on Bello v. Eweka (1981) 1 SC. 101 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90 to argue that admissions in pleadings cannot be relied upon to grant a declaratory relief. Declaratory judgment are discretionary in their nature. It is therefore the accepted practice that the court should not rely on admissions on pleadings alone to grant declaratory reliefs. The plaintiffs in this case called five witnesses in support of their case. They tendered the conveyance Exhibit A made in favour of the trustees to the estate of the late Sunmonu Animashaun. The defendants also called the evidence of six witnesses: The lower Court in its judgment at page 464 of the record observed:

“When the evidence of the plaintiffs’ witnesses are based (sic) on a weighing scale as compared with the testimony of the defence witnesses it is very apparent that the plaintiffs’ witnesses are truthful while the defence witnesses are inconsistent. The D/W3 – 2nd defendant herein and D/W 6 – Alhaji Idowu Sanni gave evidence which contradicted one another. In fact D/W6 said that if the defendants state(d) that they had absolute grant they would be telling lies because they paid tribute to the Onitire as customary tenants. D/W3 indeed told more lies as already explained and also in respect of the survey conducted on the land in 1965 – whereas his family relied on the same plan to claim compensation for crops aforesaid. Based upon the testimony and demeanor of the witnesses – the plaintiffs’ version which is in line with their pleadings is preferred to the fabrications of the defendants regarding many things and especially about their right to hold on to the land in dispute as absolute owners. The defendants dealt with the land as owner in utter disregard to their overlord’s interest. See Exhibit Q. Exhibit F-F3 are various conveyances and leases executed by the defendants. I have carefully examined these documents – while I observe that the defendants change their names with additions and subtraction to suit their grand design to link themselves to Sunmonu Animashaun through Oloto family as originally pleaded yet there is no where in the documents that the parties actually conveyed the interest to others signed as Animashaun Sunmonu Animashaun or Animashaun Olode – they signed in the name of Sufianu, Sule and Muse. The observation of the plaintiffs’ Counsel that it is a recent acquisition in order to create confusion that the defendants have pretentiously added the name of ancestor only to get bye.”

There is no doubt from the solid findings made by the trial Judge above that she had not only relied upon the admissions made by the defendants on the pleadings but had thoroughly scrutinised the evidence called. The defendants showed themselves to be liars and had attempted to sew together various unrelated events to make themselves appear as the owners of the land. They told the story that their ancestor’s name was Sunmonu Animashaun Olode. They had known that the plaintiffs’ ancestor acquired an area of land since about 150 years ago when their ancestor were customary tenants of the Oloto family. Yet when they used plaintiffs’ family plan in 1965 to claim compensation for crops on the land being customary tenants, they did not state that they were claiming by an ancestor whose name was Sunmonu Animashaun Olode. In all the conveyances they executed Exhibits F to F3, they did not trace their own descent from Sunmonu Animashaun Olode. They started by agreeing that their ancestor were first customary tenants to Oloto family but that they later acquired absolute ownership from Itire family. It seems to me that the defendants had gone before the lower Court to weave and fabricate stories in order to make it appear that it was their own Animashaun who had derived interest from Oloto family. They made a recourse later and dishonestly to placing reliance on Itire family.

Discussing the futility of the defendants’ reliance on Exhibit ‘AA’, the trial Judge observed:

“The Chief Justice delivered that the question to be determined in that case is whether the plaintiffs – representatives of Chief Oloto have established their claim that the Iguru land of about 735 acres is part of the stool land of Chief Oloto. He found that the land adjoins on one side land owned by Itire people and on another side land belonging to the Oloto family. It was his finding that the land being claimed had several villages and that the tenants have been paying tributes to Onitire hence the judgment went the way it did in favour of the Onitire. The judgment does not refer to the land in dispute in the present suit – where the land of the Oloto family has been duly acknowledged even in the said judgment. It is to be noted that Exhibit ‘A’ was made in 1930 after that judgmnt.e The defendants have the onus to establish and link the Iguru land to the many plans tendered in this suit. But they did not. Their reliance on Exhibit AA is lifeless and cannot establish their claim to the land in dispute. Iguru Village is outside the boundary of the land conveyed to the plaintiffs in the map attached to Exhibit A”.

The finding of the trial Judge that the land in dispute could not be related to the land adjudicated upon in Exhibit ‘AA’ completely knocks the bottom out of the plaintiffs’ case. At page 445 of the record the trial Judge gave the performance of DW3 under cross-examination thus:

“When cross-examined by the plaintiffs’ Counsel, Mr. Fashanu D/W3 said that the land bought by the plaintiffs’ ancestors was in Abebe village. He admitted that it is the same place – Animashaun village that is called Animashaun Olode Village. In Exhibit F1 signed by D/W3 in 1973 – he admitted that the land therein was described as being in Animashaun village and not Animashaun Olode village. He admitted that he co-executed other leases exhibits F2 and F3 all relating to Animashaun Village. He like other defendants are not related to Animashaun family but are the descendants of Sule Animashaun Olode – but admitted not signing as Animashaun Olode but as Fatayi Sule. On the acquisition of the property by Government, he said that the defendants family was not involved because the land affected by acquisition did not belong to the defendants. He denied that some of their relations were living on the part acquired by government…He did not agree that the land in dispute originally belonged to the Oloto Chieftaincy family. He even denied that they claimed Oloto Chieftaincy Family as their root of title…He agreed that he and others started to execute on the land in dispute after 1970.”

It is seen from the above extract of D/w3’s evidence under cross-examination that the flanks and foundation of the case the defendants made were exposed as not only unreliable but frivolous. Why did D/W3 describe the land which he claimed as his family’s not by his family Animashaun Olode’s name?

It is not the function of an appellate Court to interfere in the assessment of evidence and the weight to be attached to evidence when a trial Judge has satisfactorily performed that task. I cannot in this court substitute my own views of the evidence for those of the Court of trial. See Balogun & Os. v. Agboola (1974) 1 All NLR (Pt. 2) 66. The decision of the trial Judge in the instant case was based substantially on the credibility of witness. I have not had the advantage of hearing and seeing the witnesses testify. I must not be too eager to interfere – Kponugo v. Kodadja (1933) 2 WACA 24 P.C.

I am satisfied that the lower Court came to the right conclusion on the accepted evidence. I discussed earlier the issue whether or not the plaintiffs had the locus standi to have brought the suit. I am satisfied that the suit was brought, fought and defended on the mutual acceptance by the parties of the issue which was whether title originated from Oloto or Otire family, not on whether the plaintiffs had the right to sue as beneficiaries of Sunmonu Animashaun. Admittedly, the description of plaintiffs as beneficiaries at first invokes the belief that they claimed by the force of the Will but it cannot escape notice that they described themselves as suing “for themselves as beneficiaries and on behalf of all beneficiaries of the Estate of the late Sunmonu Animashaun”. That description is both embracive and inclusive such that the plaintiffs ought to be seen as suing simpliciter as representatives of the Animashaun family.

All the issues agitated by the 4th appellant fall within the issues raised by 1st to 3rd appellants which I have discussed. The conclusion I arrive at is that this appeal lacks merit. The plaintiffs’ case deserved to succeed as it did. I uphold the judgment of the Court below and dismiss this appeal with N5,000.00 and N2,000.00 costs against 1st-3rd and 4th appellants respectively in favour of the plaintiffs/respondents.

Other Citations: (2000)LCN/0895(CA)

Daniel Tayar Transport Enterprises Co. (Nig.) Ltd. & Ors V. Alhaji Liadi Busari & Anor (2000) LLJR-CA

Daniel Tayar Transport Enterprises Co. (Nig.) Ltd. & Ors V. Alhaji Liadi Busari & Anor (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

By their application dated 8th July, 1999 and filed on 12th July, 1999 the defendants/applicants are praying for the following orders:

(1) extension of time to apply for leave to appeal.

(2) leave to appeal against the ruling of Adefope-Okorie, J. sitting at the High Court, Ikeja delivered on 18/12/98.

(3) Extension of time within which to file notice and grounds of appeal.

The application is supported by a 16 – paragraph affidavit to which were attached three exhibits. The plaintiffs/respondents in opposition to the applications filed a 17 – paragraph counter-affidavit, to which they attached five exhibits:

When this application came before us on the 5th of July, 2000. Mr. Anthony Anozia learned counsel for the applicants in moving the said application submitted that it is brought pursuant to section 25 (4) of the Court of Appeal Act, 1976 and Order 3 rule 3(6) of the Court of Appeal Rules, 1981. He relied on the affidavit in support. He urged on the court not to countenance exhibits A. B, C and D attached to the counter-affidavit on the ground that they were not certified copies; thus, according to him, they contravene the provisions of sections, 109, 111 and 112 of the Evidence Act. He further submitted that he had filed a similar application before the court below within time but the application was not heard within the time prescribed by rules of court; hence this application. He again contended that there are substantial issues of law to argue at the Court of Appeal while urging that their application be granted.

Mr. Taiwo Kupolati, learned counsel for the plaintiffs/respondents submitted that the application is an abuse of court process and therefore should be dismissed.

I shall begin the consideration of this application by saying that generally, when a court is invited to make an order extending the time prescribed by the rules of court for taking certain procedural steps it must be borne in mind that such rules of court must be obeyed. If there is a default in taking the necessary steps to accomplish the procedural steps within the prescribed period a court’s order extending such period being a discretionary one, there must be some material upon which to base the exercise of that discretion. See Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1. Mr. Kupolati had in the course of his argument, submitted that the present application is an abuse of court process.

To counter the submission, Mr. Anozia prayed in aid the provisions of Order 3 rule 3(6) of the Court of Appeal Rules which are in the following terms: “where an application for leave to appeal from a decision of the court below has been brought within time specified by section 25 of the Act but has not been heard within that period, the court, if satisfied that there has not been an unreasonable delay in bringing the application may extend the time to appeal and in a proper case grant leave to appeal.”

It is the ruling delivered on 18th December, 1998 that forms the basis of the grievance of the applicants. Section 25 (2) of the Court of Appeal Act, Cap. 75 Laws of the Federation 1990 which prescribes the time within which to take procedural steps to appeal provides:

“The periods for the giving of notice to appeal or notice of application for leave to appeal are:-

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision:-

In paragraphs 2 and 3 of the supporting affidavit, the applications depose thus:

Para 2

“That the ruling of the High Court which is sought to be appealed against was delivered on 18/12/98.

Para 3

“That I filed application for leave to appeal on the 30th December, 1998 within time.”

Paragraphs 2 and 3 aforesaid have not been controverted. I therefore hold that the application was brought within time in accordance with the provisions of Order 3 rule 3(6) of the rules. In paragraph 5 of the affidavit, the applicants further deposed thus:

“That the application was not heard by the High Court until 23/2/99,”

Again paragraph 5 aforesaid was not controverted. The date 23/2/99 is certainly outside the period prescribed. By virtue of section 25(4) of the Court of Appeal Act this court (Court of Appeal) is vested with the discretionary powers to extend the period; that sub-section provides:

“The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this from the foregoing, therefore I disagree with the contention Mr. Kupolati that the present application is an abuse of court process. The application is on a firma terra.

Whether it will succeed or not is another matter which I shall attend to anon.

Compliance with the provisions of Order 3 rule 4(2) of the Court of Appeal Rules, 1981 is a sine qua non to the granting of this application even though I have held that it is not an abuse of court process; that sub-Rule provides:

“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and the grounds of appeal which, prima facie, show good cause why the appeal should be heard. When the time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

A plethora of judicial decisions in interpreting this sub-rule have fashioned out two conditions that must be satisfied before a court can grant indulgence to a party to appeal outside the prescribed period.

The two conditions are:-

(a) an affidavit setting forth substantial and valid reasons explaining the failure to appeal within the prescribed time; and the existence of grounds of appeal substantial enough as to prima facie show good cause why the appeal should be heard.

See(1) Bank of Baroda v. Mercantile Bank(Nig.) Ltd. (1987) 3NWLR (Pt.60) 233;

(2) Ibodo v. Enarofia (1980) 5-7 SC 42; (3) Alagbe v. Abimbola (1978) 2 SC 39 and (4) Mobil Oil (Nig.) Ltd. v. Agadaigno (1988) 2 NWLR (Pt.77) 383. However, the rule must be read conjunctively and not disjunctively. Thus if the reasons for failure to appeal within the prescribed time are good and substantial, the grounds of appeal must as well show good cause why the appeal should be heard. See Yonmuren v. Modern Signs Ltd. (1985) 1 NWLR (pt.2) 244.

As I have pointed out above, the application for leave to appeal was filed in the court below within the prescribed time, although two days to the expiry date. To satisfy condition (a) stated above, the applicants depose in paragraphs 3, 4, 5 and 6 as follows:

(3) “That I filed the application for leave to appeal on the 30th December, 1998 within time.”

(4) “That the delay in filing the application was due to a number of factors:

(a) Fuel Scarcity

(b) Black-out for days and weeks making production difficult, if not impossible.

(c) Lack of Treasury Receipts in the High Court Ikeja at that period.”

(5) “That the application was not heard by the High Court until 2312/99.”

(6) “That the Honourable court adjourned ruling to 6/5/99.”

In challenging the above depositions of the applicants, the respondents depose in paragraphs 5, 6, 7, 8 and 9 of their counter-affidavit thus:

(5) “Following the ruling of Adefope-Okorie, J. dated 18th December, 1998, the applicant proceeded to file its Notice of Appeal dated 18th December, 1998 on 22nd December, 1998 ….”

(7) “The Record of Appeal had since been settled.”

(8) “I verily believe it is awkward of the applicant to seek extension of time for leave to appeal or extension of time to file Notice and Grounds of Appeal in the circumstances herein before stated which conclusively affirm that the applicant had filed a subsisting appeal since 22/12/98.”

(9) “I further verily believe that by the Rules of this Honourable court it is wrong and in-accurate of the applicant to seek leave after it had filed an appeal and record of appeal duly settled by the appeal section of the High Court in respect thereof.”

Balancing the affidavit evidence against the counter-affidavit evidence I have no hesitation that the applicant’s depositions are richer in evidential value than those of the respondents. I have had a close study of the six proposed grounds of appeal set out in the proposed Notice of Appeal – Exhibits C annexed and relating same to the ruling of the learned trial judge delivered on 18/12/98 the certified true copy of which was annexed as Ex A. I have no hesitation in saying that those grounds of appeal show, prima facie, good cause why the appeal should be heard.

I now pause to make some remarks about the photocopies of the two rulings of the court below dated 18/12/98 and 6/5/99 respectively annexed to the applicant’s affidavit and marked as exhibits A and B respectively. Suffice it to say that the two exhibits though photocopies, are shown to be certified true copies. I am so doing in view of the treatment I shall later give to the submissions of Mr. Anozia, learned counsel for the applicants who had urged that exhibits A, B, C and D – Notice of appeal, summons to parties by Registrar to settle Records affidavit in support of motion sworn to on 30th May, 1998 and another affidavit in support of motion sworn to on 20th May, 1999. They are all public documents but none of them is a photocopy of a certified true copy of a public document. Let me observe that although the applicant has also attached a process tagged “Notice of Appeal” not certified’ to their affidavit, the tenor of the submissions of Mr. Anozia was to establish that there are proposed good and substantial grounds of appeal to be urged on appeal. He never paraded it as a copy of the notice of appeal already filed in court.

As I have observed(supra) exhibits A, B, C and D annexed to the counter-affidavit are by its (counter-affidavit) tenor and the submissions of the learned counsel for the respondents, held out to be public documents in the sense that they are judicial documents – that is processes already filed in the court of processes filed in court. They are not photocopies of certified true copies of processes filed in court. The law is settled that a photocopy of a certified true copy of a public document need no further certification. See A.C.B. Plc. v. Nwodika (1996) 4 NWLR (Pt.443) 470. Indeed, a document which is a photocopy of a certified true copy of proceedings of a court of law is admissible in evidence once the document of which it is a photocopy is an authentic document of a court duly certified as the true copy of the original issued with the seal of the court. See(1)Esso West Africa Inc. v. Alli (1978) NMLR 414; (2) Daily Times v. Williams (1986) 4 NWLR (Pt.36) 526 and section 111 (1) of the Evidence Act. But a photocopy of a deed of conveyance is inadmissible in evidence so also is inadmissible in evidence a photocopy of a writ of summons or any other process of court as opposed to the certified true copy of such writ of summons or any other process. See Ojo v. Adejobi (1978) 3 SC 65. From the foregoing I am in agreement with Mr. Anozia that exhibits A, B, C and D aforementioned attached to the counter -affidavit are inadmissible and I do not countenance them.

I need only add that even if they were admissible in evidence; they would not have adversely affected, in substance, the fortune of this application.

Back to the main issue, from the fore going, I find merit in this application.

I make the following orders:

(1) Time to apply for leave to appeal is extended up to and including today.

(2) Leave to appeal against the ruling of Adefope-Okorie, J. delivered on 18/12/98 is hereby granted.

(3) Time within which to file notice and grounds of appeal against the said ruling is extended by 21 (twenty-one days) from today.

The applicants are entitled to the cost of this application which access in their favour at N3,000.00.

Other Citations: (2000)LCN/0894(CA)

Alhaji Abdul Rafiu Olabosunbo Dawodu & Ors V. Alhaji Musibau Majolagbe (2000) LLJR-CA

Alhaji Abdul Rafiu Olabosunbo Dawodu & Ors V. Alhaji Musibau Majolagbe (2000)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

In the court below, High Court of Justice, Lagos (Coram Silva J.) the appellants as plaintiffs, before that court claimed in a representative capacity against the respondent who was the defendant before the court below as follows:

(1) The plaintiffs, as Head and Principal Members representing the families of MADAM MORIAMO DAWODU (Nee Agoro) and SULE AGORO, claim against the defendant a declaration that they are the owners and persons entitled by devolution to hold, enjoy and deal with as registered proprietors all that piece or parcel of land situate, lying and being at and known as Nos 8, 10 and 12 John Street Lagos which said piece or parcel of land is vested in their ancestors namely SABITIYU AGORO, MORIAMO AGORO (later known as MORIAMO DAWODU Nee Agoro) and SULE AGORO by virtue of a Deed of Indenture dated 30th September, 1941 Land Certificate Title No. LO 0701 at Lagos.
(2) An order of perpetual injunction restraining the defendant his agents, servants and privies and/or any person(s) in that behalf from further trespassing and/or committing acts of trespass on the plaintiff’s said family land.
(3) An order to demolish the foundation and structure already illegally erected and put on the plaintiffs’ land which is the land in dispute and that the defendant should bear the cost of its demolition.
(4) The sum of N1,000,000.00 (one million naira) being special and general damages for the financial loss suffered by the plaintiffs’ family and for the acts of defendant’s trespass.

Pleadings, with the leave of the court, were amended by the parties and exchanged between them. A quick reading of the pleadings settled by the parties shows that title is in issue and that both parties are relying on documents in support of their conflicting contentions of ownership of the landed property. The law is well settled by judicial authorities that once there is a document evidencing the sale of landed property, oral evidence of sale will be excluded and question as to what land was sold has to be resolved by reference to the documents tendered in evidence. See (1) OLAOYE V. BALOGUN (1990) 5 NWLR (PT.148) 24 and (2) ABIODUN & ORS V. ADEHIN (1962) 1 All NLR 500; (1962) 2 SCNLR 305. So whatever may be the contradictions in the oral testimonies of the parties such will not affect the evidential value the documents tendered would attract. Such documents tendered speak absolutely for themselves. Evidence was led by the parties in proof of the various averments in their amended pleadings, and the addresses of their respective counsel were taken by the trial Judge. In a reserved judgment, the trial Judge dismissed, the plaintiffs/appellant’s claim in toto.

In the concluding part of the judgment be held inter alia:

“As regards No. 12 John Street, Lagos, learned counsel submitted that the defendant did not plead anything about No. 12 John Street, Lagos. This is not correct. In his amended statement of defence, the defendant pleaded
in paragraph 2 as follows:-

“This defendant avers that the plaintiffs have nothing to do with the parcel of land now known as No. 12, John Street, Lagos now the subject-matter of this action”.

There is evidence in support of this averment which to a large extent supported by the conveyance Exhibit 7. There is an indication in Exhibit 7 that No. 12 John Street. Lagos was partitioned between Lamina Dabiri and Abiodun Dabiri. Lamina sold his portion to Aromashodu who mortgaged it to Wright Estate. Lamina’s portion of No. 12 John Street, Lagos was eventually sold by Wright Estate to the ancestors of the plaintiffs. The portion of No. 12, John Street. Lagos which belonged to Abiodun Dabiri is the portion which the defendant is said to have started building upon. This has not been seriously challenged by the plaintiff and indeed, it is to a large extent confirmed by the evidence of 1st plaintiff’s witness.

Mr. Talabi cannot be correct when he submitted in effect that the plaintiffs’ claim to title has been made under native law and custom and must therefore be proved by traditional evidence. I agree with Mr. Dawodu that even though the plaintiffs inherited the land from their ancestors, various Deeds of Conveyance and Title documents are available and have been tendered and relied upon. There is accordingly no need for proof by traditional evidence.

From the facts placed before me, I accept that the defendant has not trespassed on Nos 8 and 10, John Street, Lagos. I also accept that the construction work started by the defendant was on the portion of No.12 John Street, Lagos which did not form part of what was sold to the plaintiff’s ancestors.

It is therefore my judgment from the foregoing that the trespass by the defendant has not been proved by the plaintiffs. The part of No 12 John Street, Lagos which was not sold to Agoro family and which does not belong to them is what the defendant is trying to develop.”

Dissatisfied with the said judgment, the plaintiffs/appellants entered a Notice of Appeal which carries five grounds of appeal. The appellants identified two issues which, as set out in their brief of argument, are in the following terms:-
(1) Whether based on the oral or documentary evidence before the trial court, the trial court was right when it held that No. 12 was partitioned into two; i.e. 12 and 12A and that the defendant was building on 12A which portion does not belong to the plaintiffs.
(2) If the finding of the trial court in (1) above is erroneous, whether judgment should not have been entered in favour of the plaintiffs.

The respondent, through his brief of argument raised three issues and they are:-

(1) Whether these plaintiffs are duty bound to identify precisely and clearly the parcel of land the subject-matter of this action and whether it is the duty of these plaintiffs to rely solely on their pleadings and the evidence led in support of same the weakness of the defendant’s case notwithstanding.
(2) Whether paragraphs 6 and 11 of the plaintiff’s amended statement of claim … are in support of the evidence of PWI and PW2…wherein the PW1 stated as follows:

“It is true that we have put up a story building on our own portion of No. 12 John Street, Lagos…”

PW2
“The whole of No 12 John Street, Lagos was built upon in 1991 and whether the Honourable Court could be called upon to ignore or discountenance this piece of evidence”.
(3) Whether Ex. 7 can or should be given a different interpretation different fram the apparent one contained therein and whether the material contradiction in the pleadings and the evidence led by the plaintiffs would not be a sufficient reason to call for the dismissal of this appeal.

When this appeal came before us on 21st June, 2000, Prof. Kasunmu S.A.N. learned counsel for the appellants adopted the brief of arguments of the appellants filed on 3/7/98 and urged that the appeal be allowed. Chief Talabi, learned counsel for the respondent adopted the respondents brief of argument filed on 2/12/99 and urged that the appeal be dismissed. The plaintiffs/appellants case is predicated on paragraphs 4, 6, 7, 8, 9, 10, 11, 14, 15A, 16 and 17 of the amended statement of claim; the summary of which is as follows: Sabitiyu Agora, Moriamo Agoro (who was later known and called Madam Moriamo Dawodu (nee Agoro) and Sule Agoro;  all of who are now dead, became the owners of the property styled as Nos 8 and 12 John Street, Lagos by virtue of a Deed of Conveyance dated 30th September, 1941 and Lands Certificate Title LO 0701 dated 31st March, 1941 both of which were tendered as Exhibits P1 and P2 respectively. The first plaintiff/appellant is the eldest surviving son of Madam Moriamo Dawodu, the second plaintiff/appellant is the eldest surviving son of Sule Agoro while the third plaintiff/appellant is the eldest grand-child of Madam Moriamo Dawodu. Sabitiyu Agoro died intestate. Upon the death of Madam Moriamo Dawodu and Sule Agoro, the appellants as the head and principal members of the Dawodu family and Agoro family became the persons authorised to deal with the family lands which include the land in dispute. Their ancestors, before their deaths, had granted a lease of the demised land being Nos 8 and 10 John Street, Lagos to Societe Commerciale De Quest Africa (S.C.O.A.) by virtue of a Deed of Lease dated 20th/2/47 which was tendered in evidence as Exhibit P3. Upon the death of their ancestors, the land devolved on the appellants and other descendants of the deceased persons. Upon repossessing the property from S.C.O.A. by virtue of a Deed of Surrender tendered as Exhibit P4, the appellants entered into a negotiation with a developer for the purpose of developing the said land in commercial complex. It was at this stage that they sighted the workers of the defendant trespassing on the said property.

The defendant/respondent’s case is explained by the averments in paragraphs 2, 3, 7, 8 and 9 of the amended statement of defence. In a nutshell, the case of the respondent is that the land in dispute which he styled as No. 12 originally belonged to one Dada Omoyemi under the native, law and custom. Omoyemi begat Fatima Dabiri and Lamina Dabiri who, in turn, begat Sunmola Abiodun Dabiri and Lamina Dabiri. But in paragraph 5 of his pleadings the defendant/respondent averred that Fatimo Dabiri died intestate in 1919 and consequently the property devolved on Sunmola Abiodun Dabiri and Lamina Dabiri under the native law and custom. They both later had the property partitioned between them. Lamina Dabiri sold his portion of the partitioned property to one Aromashodu – Exhibit 7 is the deed of conveyance witnessing the sale by Lamina Dabiri to A.A. Aromashodu. The defendant/respondent laid claim to the portion partitioned to Sunmola Abiodun Dabiri by an assignment from Cardoso Dabiri Raliat Dabiri and Usman Dabiri all of who were the grand-children of Sunmola Abiodun Dabiri. The plaintiff/appellant in his evidence-in-chief before the court below said inter alia:

“In 1928, one Aromashodu mortgaged No. 12, John Street Lagos with Wright’s Estate; thirteen years later, as a result of default of Aromashodu, No. 12 John Street, Lagos along with Nos 8 and 10 were sold by Wright’s Estate to our ancestors. The lawyer who carried out the sale was Mr. Eric Moore.”

Exhibit 6 is the instrument by which the property styled as No. 12 John Street, Lagos was mortgaged to Eric Olawolu Moore a Solicitor to Wright’s Estate. Exhibit 1, the deed of conveyance dated 30th September, 1941 is the instrument by which Eric Moore conveyed the property Nos 8 and 12, John Street, Lagos to the ancestors of the plaintiffs/appellants. By the recital in Exhibit 6, what was mortgaged to the Wright’s Estate by Aromashodu is described in the following terms:-

Now this Indenture Witnesseth that in consideration of the sum of 150.00 sterling to the said Mortgagers paid by the said Mortgagee on the execution of those presents (the receipt whereof the said Mortgagor do hereby acknowledge) the said Mortgagors as BENEFICIAL OWNERS do hereby grant and convey unto the said Mortgagee his heirs and assigns firstly, ALL that piece or parcel of land with the measuages and other buildings thereon and being at No.8, John Street, Lagos and as the same is with its dimensions and abuttals particularly described and delineated in the map or plan drawn at the foot of those presents and is therein coloured yellow and secondly, ALL that piece or parcel of land with the shed thereon situate and being at No 12, John Street, Lagos, Nigeria aforesaid and the same with its dimensions and abuttals particularly described and delineated in the map or plan drawn at the foot of these presents I and is therein coloured yellow……………….”

As I observed above, the entire property which Lamina Dabiri conveyed to A. A. Aromashodu by virtue of a Deed of Conveyance dated 30th November, 1927 and Registered as No. 49 at page 49 in Volume 229 tendered as Ex 7 is No 12, John Street, Lagos. And Wright’s Estate became the Mortgagee of the same property (No. 12, John Street, Lagos) through their Solicitor, Eric Moore with Aromashodu as the Mortgagor. I have earlier in this judgment said that the ancestors of the appellants became the beneficial owners of the measuages and buildings situate at Nos. 8 and 12 John Street, Lagos by virtue of a deed of conveyance dated 30th September, 1941 executed in their favour by Eric Olawolu Moore as Receiver of Wright’s Estate. That Indenture was tendered as Exhibit 1; the recital which is descriptive of what was conveyed, read:

Now this Indenture witnesseth that in pursuance of the said sale and in consideration of the said sum of two hundred pounds (?200.00) sterling paid by the said purchasers to the said vendor through his agent Mr. A.o. Beckley, the Auctioneer conducting the said before the execution of these presents (the receipt of what sum the said Vendor doth hereby acknowledge). He the said vendor as Mortgagee in the exercise of the power conferred on the said Mortgagee in the said Deed of Mortgage and by virtue of the Conveyancing Act 1881 and of all other powers doth hereby grant and convey unto the said purchasers their heirs and assigns ALL THOSE to pieces or parcels of land with the measuages and other buildings thereon situate and being at John Street, Lagos and known as Nos 8 and 12 John Street, Lagos respectively, in the Colony of Nigeria aforesaid and the same is more particularly described and delineated with its respective dimensions and abuttals on the Maps or plans drawn at the foot of these presents and thereon coloured yellow respectively.”

It is clear that, from the recitals quoted in Exhibit 6 that the landed property styled as Nos 8 and 12 John Street, Lagos were mortgaged jointly by Mustafa Giwa Aromashodu, Rufai Aromashodu, Abdulai Adeshiji Aromashodu and Raliatu Aromashodu to Eric Olawolu Moore as Solicitor to Wright’s Estate. Aromashodu had earlier become the owner of the landed property known as No 12 John Street, Lagos, by virtue of Exhibit 7. While by Exhibit 1 the predecessors of the appellants became the joint owners of the said property. And Exhibit 2; the Landed Certificate issued by the Lagos State Land Registry, described the land conveyed to the predecessors of the appellants in Exhibit 1 as plot 8, 10 and 12 John Street, Lagos. The issue of the death of the predecessors of the appellants was never disputed.

And so also is it beyond argument that the appellants inherited the land along with other descendants and that those prosecuting the case are the accredited representatives of the family. Suffice it to say that all the title documents I referred to above were tendered by the 1st P/W Abudu Rafiu Olasumbo Dawodu, the 1st appellant. In an attempt to debunk the claim to ownership of the said property by the appellants the only witness called by the defendant, are Kayode Disu said in his oral testimony:-

I know No.8, John Street, Lagos. I also know No. 10 John Street, Lagos, Nos. 8 and 10 John Street, Lagos are owned by Dawodu and Agoro Families. I know No 12, John Street, Lagos. It is situate next to No.10……..
There is No 12, John Street, Lagos and No. 12A, John Street, Lagos. No. 12. John Street. Lagos also belongs to Dawodu and Agoro families. There is a building by Dawodu and Agoro families at No.12A John Street, Lagos. No 12A, John Street, Lagos is also the property of Dawodu and Agoro Family. Their name is even written on the building … The original owners of No. 12, John Street. Lagos was Dada Omoyemi who is dead.
I have seen documents relating to No. 12 John Street, Lagos before ……..
I can recognise the Deed of Conveyance if I see it (Counsel identifies Exhibit 7). Abiodun Dabiri had only one child named Cardoso Dabiri.
Cross-examined he said:
I do not have any document relating to No 12 John Street, Lagos… The number written on the building put up by Dawodu and Agoro Families is No. 12A and not 12. I have never seen the documents showing that No.8, 10 belong to Dawodu and Agoro family. I know that No 12A, John Street. Lagos belongs to Dawodu and Agoro families…
I know nothing about Nos. 8 and 10 John Street, Lagos. Exhibit 7 says No. 12, John Street, Lagos belongs to Dabiri.

I have had a close study of the oral testimonies of the parties to this case. There is no doubting the fact that there are some contradictions intrinsically and extrinsically, in their viva voce. The task of the court in ascertaining the truth in such circumstances is all but easy. But the law is now well-settled that where there were produced documents in support of the substance of the case before the court; (as it is in the instant case, the plaintiffs/appellants being the only party that tendered documentary evidence) the veracity of the testimonies of the parties and their witness is always tested by reference to such relevant documents tendered as exhibits which represent evidence of some unassailable character; deeds of conveyance, mortgages, deeds of assignment, deeds of lease etc, subject to any intrinsically legal defect in them possess unassailable character see FASHANU V. ADEKOYA (1974) 1 All NLR (pt.1) 35.
Documentary evidence is the yardstick by which the truth or otherwise of oral testimony is determined.

Reflecting on Exhibits 1, 2, 3, 4, 6 and 7. I have no hesitation in coming to the conclusion that the plaintiffs/appellants are the owners and the persons entitled to hold, enjoy and deal with the property styled as Nos 8, 10 and 12, John Street, Lagos. This is so because the deaths of Sabitiyu Agoro. Moriamo Agoro (later called Moriamo Dawodu nee Agoro) and Sule Agoro vested that right in them. All the documents of title tendered and on which the finding of who the owners of the property are, were tendered by the plaintiffs/appellants. The appellants can correctly be said to have relied on the strength of their case and not on the weakness of the defence. Somewhere in the judgment of the court below a finding was made that No 12, John Street, Lagos was partitioned into two i.e. No 12, John Street, Lagos and No. 12A John Street, Lagos. The court below, in my view, went into a serious error by that finding. There was no scintilla of evidence required in law to sustain a finding of partition. See OLORUNFEMI V. ASHO (2000) 2 NWLR (Pt.643) 143 Issue 1 in the appellants’ brief is therefore resolved in the negative.

From the evidence before the court below, the parties are ad idem that Nos 8 and 10, John Street, Lagos belong to the plaintiffs. I have quoted, above a large portion of the defendant’s testimony. In the course of his inconsistent evidence, the only witness (Kayode Disu) called by the defendant/respondent said No 12 John Street as well belonged to the plaintiff’s family and so also No. 12A, John Street on which he said the plaintiffs’ family had a building. He said of the defendant/respondent thus:

“I know Alhaji Musibau Majolagbe. He was the one who built the foundation and the German Flour at No. 12, John Street, Lagos … saw Alhaji Musibau Majolagbe at No. 12, John Street, Lagos sometime last year 1994.”

A case of trespass would, from the above, have been adequately made against the defendant/respondent. As I have said, from the totality of the evidence before the court below, judgment ought to have been entered in favour of the appellants consequently, I answer issue 2 on the appellant’s brief in the negative- judgment should have been entered in favour of the plaintiffs/appellants. From what I have said supra of the evidence led the duties of law that rest upon the plaintiffs as set out in issue 1 on the respondent’s brief have been discharged by the plaintiffs/appellants. By his own admission, the defendant/respondent committed trespass on the plaintiffs/appellants property. It is my view therefore, that all the three issues raised in the defendant/respondent’s brief of argument must be resolved against him and they are hereby so resolved.

In leg 2 of the reliefs, the plaintiffs/appellants are claiming an order of perpetual injunction. In law, an order of perpetual injunction is never granted at the instance of a limited owner when the owner of the absolute interest is not a party to the suit. See CHIEF DADA, the LOJAOKE V. CHIEF SHITTU OGUNREMI & ANOR (1967) NMLR 181 in which the Supreme Court gave approval to this principle of law as given by the English Court in its decision in Performing Right Society Ltd v. London Theatre of Varieties Ltd (1924) A.C.I. In the instant case, the appellants are the absolute owners and they are entitled to an order of perpetual injunction as claimed.

Although I have made a blanket statement that based on the evidence before the court below, the plaintiffs/appellants ought to have been given judgment. I observe that in leg 3 of the reliefs sought they are praying for an order to demolish the structures put on the land by the respondent and that an order be made that the (respondent) should bear the cost of the demolition. No evidence was given of the nature of the structures standing on the land; and neither was any shred of evidence led as to the cost of the demolition of the structures. The latter part of that leg of relief relating to cost of demolition cannot therefore be entertained. Of course, since the plaintiffs/appellants are adjudged to be the owners of the property they are at liberty to do whatever they like with it within the frame work of the law. In Leg 4, they are claiming N1 million (one million naira) as special and general damages for the substantial financial loss allegedly suffered by them and for the acts of trespass. Again this leg is substantially devoid of evidential proof. I am not unmindful that trespass was established and that the appellants would be entitled to some monetary award; after all trespass connotes the slightest disturbance to property. I shall award them N10,000.00.

In sum, having regard to all, I have said above it is my judgment that this appeal has merit. Consequently, judgment of the court below is hereby set aside. In its place, I hereby enter judgment in favour of the plaintiffs/appellants as follows:

(1) The plaintiffs/appellants for themselves and other members of the families of Madam Moriamo Dawodu (nee Agoro) and Sule Agoro are hereby declared to be persons entitled to the issuance of Statutory Right of Occupancy of all that piece or parcel of land situate, lying and being at and known as Nos. 8, 10 and 12 John Street, Lagos.
(2) An order of perpetual injunction is hereby made restraining the defendant, his agents, servants and privies and/or any person(s) in that behalf from further trespassing and/or committing acts of trespass on the plaintiffs/appellant’s family.
(3) As the plaintiffs/appellants have been adjudged to be the absolute owners of the land they are at liberty to do whatever they like with same within the confines of the law.
(4) The sum of N10,000.00 (ten thousand naira) as general damages for the trespass committed by the defendant.

The appellants are entitled to the cost of this appeal which I assess in their favour at N5,000.00.

Other Citations: (2000)LCN/0892(CA)

Jerome Adisa Enilolobo V. Zacheus Adebajo Adegbesan (2000) LLJR-CA

Jerome Adisa Enilolobo V. Zacheus Adebajo Adegbesan (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

The defendant (hereinafter referred to as the appellant) appealed against the judgment of the court below (coram Olorunnimbe J.) in suit No.ID/429/83 which was delivered on 23rd June, 1989. In the suit, the plaintiff (hereinafter referred to as the respondent/cross-appellant) had claimed the following reliefs:

(a) The sum of N20,000.00 being special and general damages for trespass committed by the defendant by himself and his agents on or about the 28th of December, 1981 when they wrongfully broke and entered on the plaintiff’s land at Alhaji Adebambo Street, Dopemu, Agege and caused substantial part of the plaintiff’s house on the said land to be demolished.

(b) An injunction restraining the defendant his servants and privies from any further trespass on the plaintiff’s aforesaid land or in any way disturbing or interfering with the plaintiff’s peaceful possession and enjoyment thereof.

Both parties, with the leave of the court, filed and exchanged amended pleadings. At the conclusion of evidence and upon taking the addresses of counsel, the learned trial Judge, in a reserved judgment found for the plaintiff/respondent. In the concluding part of the judgment he said inter alia:

“I accept the evidence of the plaintiff that he was in possession and that the defendant unlawfully went on his land in dispute and thereby disturbed his possession. A slight interference is sufficient to prove trespass. Indeed, the defendant admitted this much.

I found him liable…

From the facts and circumstances of this case, I shall award damages in the sum of N1,000.00 to the plaintiff…

I therefore grant an order of perpetual injunction restraining the defendant by his servants, agents and privies from committing, further acts of trespass on the plaintiff’s property situate, lying and being at Alhaji Adebambo Street, Magbon Area, Dopemu, Agege which is delineated in the survey plan attached to the Deed of Conveyance dated 29th December, 1973 and registered as No. 97 at page 97 on Volume 1442 of the Register of Deeds kept at Lagos Land Registry.”

Being dissatisfied with the said decision, the defendant entered two notices of appeal dated 11th July, 1989 and 24th July, 1989 respectively. He however, abandoned the notice of appeal dated 11th July, 1989. Distilled from the three grounds of appeal incorporated into the notice of appeal dated 24th July, 1989 are three issues which, as set out in the appellant’s brief of argument are:

(a) Whether considering the evidence of the parties and the finding of the learned trial Judge that the plaintiff failed to discharge the burden of proof as to the pleaded trespass against the defendant, the case of the plaintiff ought not to have been dismissed and that the non-dismissal has occasioned miscarriage of justice.

(b) Whether the defendant whose possession of the disputed land was prior in time to that of the plaintiff can be accused of trespass without a proper finding by the learned trial Judge as to which of the two rival claimants to possession (plaintiff or defendant) has a better title to the land in dispute.

(c) Whether on the totality of the evidence adduced by the parties the weight of the imaginary scale in Mogaji v. Odofin (1978) 4 SC 91 tilts in favour of the plaintiff.

The plaintiff also cross-appealed against the decision as to award of special damages. He incorporated into the Notice of cross-appeal three grounds of appeal. He identified three issues as arising for determination in both the appeal and cross-appeal: they are:

(1) Whether the learned trial Judge was on the issue of liability wrong in finding the defendant liable having regards to the pleadings and the totality of the evidence before the court.

(2) Whether the learned trial Judge was right in refusing the claim of the plaintiff to special damages having regards to the pleading and the evidence before him.

(3) Whether a party adjudged a trespasser who has paid the damages awarded and costs is entitled to an order of stay of execution of the consequential order of injunction restraining him from further trespass.

Issues a, b and c formulated in the appellant’s brief of argument and issue 1 raised in the cross-appellant’s brief can be conveniently taken together and I shall so do. I shall, however take issues 2 and 3 on the cross-appellant’s brief seriatim.

When this appeal came before us on the 30th of may, 2000, Mr. Fagbaji learned counsel for the appellant, adopted the appellant’s brief filed on 28/8/95 and the reply brief filed on 13/11/95 and urged that the appeal be allowed and the cross-appeal be dismissed. Chief Adegunle, learned counsel for the respondent/cross-appellant adopted the respondent/cross-appellant’s brief filed on 31/10/95 and urged that the appeal be dismissed while the cross-appeal be allowed.

As stated above, the plaintiff’s case is rooted in trespass. The law as settled by judicial authorities is that trespass is actionable at the suit of the person in possession of the land at the time of trespass and a trespasser cannot claim to be in possession by the mere act of entry. Therefore, a plaintiff in lawful possession at the time of the alleged trespass still remains in lawful possession despite a purported eviction by the trespasser. See Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515 and Ekpan & An v. Uyo & An (1986) 3 NWLR(Pt. 26) 63. Again, I wish to say that where in an action for damages for trespass both parties claim the right to possession by virtue of their respective titles, as in the instant case, the trial Judge should resolve the issue of their competing titles, for the law ascribes possession to the one of them with better title and the law does not allow concurrent possession of the same parcel of land by two persons who claim adversely to each other.

As said, possession resides in the person with better title see (1) Amakor v. Obiefuna (1974) 3 SC 67 (2) Aromire & Ors. v. Awoyemi (1972) 1 ALL NLR. (Pt.1) 101, both the appellant and the respondent rely on deeds of conveyance in support of their respective claim to title to the land. The arms to prove the due execution of the deeds of conveyance rests on each of the appellant and the respondent as regards the deed of conveyance put forward by each side. Due execution of a deed of conveyance, a document of title, must be proved by evidence, unless that deed of conveyance is produced in circumstances giving rise to the presumption in favour of its due execution in that its execution is shown to be twenty years old or more at the date of the contract See (1) Johnson v. Lawanson (1971) 1 ALL NLR 56 (2) Cardoso v. Daniel (1966) 1 ALL NLR (Pt.1) 101 (1986)) 2 NWLR (Pt.20) 1; (3) Obawole v. Williams (1996) 10 NWLR (Pt.477) 146 and (4) section 130 of the evidence Act. The guideline for the presumption in favour of its due execution as given by the Supreme Court in Atunrase & Ors. v. Phillips 7 Ors. (1996) 1 NWLR (pt.427) 637 (1996) 1 SCNJ 145 when the apex court said:

“A deed to be competent for the presumption contemplated by section 129 (now section 130) of the Evidence Act, must be 20 years old at the date of the contract in which the deed is sought to be relied upon and not 20 years old at the date of the proceedings at which such deed is being offered in evidence.

The deed containing the recitals in respect of which the presumption under section 130 is being sought is different from the contract which must come into being at least 20 years after the deed.” Perhaps I should further say that the guiding principles on proof of title by document of title are well adumberated by the Supreme Court in Promaine v. Romaine SCNJ 25 (1992) 4 NWLR (Pt. 238) 650 where at page 36 it said that the production and reliance on an instrument of grant of title inevitably carries with it the need for the court to inquire into some of all of a number of questions, including:

(1) whether the document is genuine and valid.

(2) whether it has been duly executed stamped and registered.

(3) whether the grantor had the authority and capacity to make the grant.

(4) whether in fact the grantor had in fact what he purported to grant; and

(5) whether it has the effect claimed by the holder of the instrument. In effect, mere production of a valid title of grant does not necessarily carry with it automatic grant, of the relief of declaration relating to such grant unless the factors adumberated above are taken into consideration. I have looked at the deeds of conveyance tendered none of them, from the decided authorities, qualifies for presumption of due execution and no shred of evidence was adduced in the proof of their due execution. But, does the non proof of due execution of the document of title relied upon automatically put an end to this case? My answer is No. The action, I repeat, is for damages for trespass and injunction. It is a settled principle of law that a claim in trespass is never dependent on the claim for declaration of title. This is so because in a claim for trespass the issue to be resolved is whether the plaintiff has established actual possession of the land by him and that the defendant has committed trespass thereon. It follows therefore that the fact that a claim for declaration of title fails does not ipso facto mean that a claim for trespass and injunction must also fail. See (1) Kareem v. Ogunde (1972) 1 ALL NLR (Pt.1) 73, (2) Oluwi v. Eniola (1967) NMLR 339 and Ajero v. Ugorji (1999) 10 NWLR (Pt.621).

  1. The plaintiff giving evidence said:

“The land belongs to me. In 1982, the land had been developed to decking level. I purchased the land from the accredited representative of Selia Sangonke family of Magbon Area Agege, I have an approved building plan by the Town Planning Authority… In 1981 December, the defendant caused photocopy of a letter from a lawyer to be posted on my building. Between 28 December, 1981 and 17 January, 1982, the defendant broke and entered my land and caused nearly the whole of area of that land to be demolished. I noticed the demolition on 17.1.82 .

On the 20th January, 1982 the defendant was arrested by the police when he was trying to build a fence across the area that he had demolished. I am claiming from the defendant because he had damaged my property and to recover the land back. It cost me N 15,650.00 which is made up as follows: 6000 9ins. Blocks at 90k each that N5,400.00, 600 bags of cement at N6.50 that it N3,250.00, and gravel that is N1,500. Planks that cost N500.00 labour cost N15,650.00… I am making another claim for shock, distress and mental anguish which is N4,350.00”

Cross-examined on the evidence he gave in chief the plaintiff said:

“I did not see the defendant physically destroying my building but I saw his letter.”

In his defence, the defendant/appellant said under examination-in-chief:-

“The plaintiff has a plot of land at Adebambo street. I have common boundary with the plaintiff…. In 1981, the Lagos State, Government broke the plaintiff’s land into two… The plaintiff tried to erect building in my land as I then approached my lawyer Odelusi and Oladimeji with my document. On 20th January, 1982 I visited the land I observed that part of my land had been removed and I met some pieces of broken blocks there. They removed one of my pillars. I do not know who removed the pillars on the same day that is 20th January, 1982 I called on bricklayer to erect a fence. The plaintiff and the policemen did not allow me to erect the fence… I did not enter plaintiff’s land. I did not destroy the building. I am liable to the plaintiff in the sum of N5,650.00.”

When cross-examined he said:

“When I visited the land, I saw that there was a building up to limited stage. I do not know if the building is in a flat form. The notice was pasted on the building. The notice is EX. P6, I can identify it.”

From the evidence reviewed supra. I have no doubt that the plaintiff/respondent/cross-appellant was in possession by reason of the fact that he had a building on the land. That much, the defendant/appellant admitted when he said under cross-examination that there was a building up to limited stage. He also said he caused a notice:- Ex p. 6, the letter dated 10th November, 1981 which he caused his solicitor to write; to be pasted on the building. That is a form of disturbance of the plaintiff’s possession call it a negligible disturbance. It must however be remembered that trespass to land, in law, constitutes the slightest disturbance to the possession of the land by a person who cannot show a better right to possession. See Solomon & ors v. Mogaji & Ors. (1982) 11 SC 1. The trial Judge in evaluating the evidence of both parties said and I quote:

“The pertinent question now is:-

Has the plaintiff discharged the onus of proof?

The answer, in my judgment, is in the negative. Neither the plaintiff nor any of his witnesses saw the defendant breaking or damaging the plaintiff’s property.

With due respect to the learned trial Judge, that was too sweeping a finding. I am not unmindful of the fact that in claiming damages for trespass, the plaintiff/respondent/cross-appellant claimed the sum of N15,650.00 as cost of restoring the property to its original state following the alleged destruction of some said to have been caused by the defendant/appellant and the sum of N4,350.00 for shock, distress and mental anguish said to have been caused him by the alleged acts of the defendant/appellant. First, I wish to say that the act of destroying someone else’s property is criminal in nature. It is a well settled principle of law that if the commission of crime by a party to a civil case is directly in issue, the party relying on it must prove it beyond reasonable doubt and such crime must be specifically set down in his pleading see (1) Sofekun v. Akinyemi & Ors. (1981) 1 NCLR 135 (1980) 5 SC 1 and (2) Ikoku v. Oli (1962) 1 SCNLR 307 (1962) 1 ALL NLR 194. The plaintiff cross-appellant has failed to discharge this duty that rests on him. Also the claim for N4350.00 is a special damage which must be strictly proved. Since I have said that it was not established beyond reasonable doubt that the defendant/appellant destroyed or broke they plaintiff/cross-appellant’s building it cannot be said that he (defendant/appellant) was responsible for the shock distress and mental anguish which the plaintiff/cross-appellant claimed he had. By the same token, he (appellant) cannot be taken to be liable in the sum of N4350.00 for the shock and mental anguish. That sum of money has not even been strictly proved, therefore if the finding of the trial Judge as to non-discharge of the onus that lay on the plaintiff/respondent/cross-appellant is limited to the claim for special damages I would agree with him. But that finding is wrong, in law, if it is intended to cover the entire evidence led. However, somewhere in the judgment, the trial Judge watered down the all-sweeping finding when he again held:-

“Plaintiff’s case is grounded in trespass. For the plaintiff to succeed he must prove that he is in actual possession of the land or he has a right to possession… I accept the evidence of the plaintiff that he was in possession and that the defendant unlawfully went on his land in dispute and thereby disturbed his possession. A slight interference is sufficient to prove trespass. Indeed the defendant admitted this much. I found him liable. Trespass is actionable without proof of damage. From the facts and circumstances of this case I shall award damages in the sum of N1,000.00 to the plaintiff.”

I agree entirely with the above finding as being eminently in conformity with the present day position of the law. In answering issue (a) on the appellant’s brief, I say that the former finding was too sweeping, the latter finding accords with the position of the law, I therefore say that the plaintiff/cross-appellant’s case ought not to have been dismissed as it was not dismissed. From what I have been saying issue (b) on the appellant’s brief does not arise as both parties to establish their different titles to the land and the evidence was clear that the plaintiff/cross-appellant had possession which is prior to that of the defendant/appellant I say this because of the admission made by the defendant/appellant that he caused a notice to put on the walls of the building on the cross-appellant standing on the land. I am not oblivious that this is an appellate court. But it must not be forgotten that an appellant court is on the same pedestal with the trial court where there can be no dispute about any relevant specific fact. In such a situation, the evaluation of the evidence is not based on credibility of witnesses but on the proper inference to be drawn from those facts. That I have done somewhere in this judgment see Nwaezema v. Nwaiyeke (1990) NWLR (Pt. 137) 230. Again, from what I have said supra issue (c) on the appellant’s brief cannot but be answered in the affirmative and I so do. On issue 1 raised in the cross-appellant’s brief borne out of what I have said above, I say without any hesitation that the learned trial Judge was not wrong in holding that the defendant was liable. In a similar vein, I say of issue 2 on the cross-appellant’s brief that the trial court was right in refusing the claim for special damages. There was no scintilla of evidence to establish same. As regards the 3rd issue on the cross-appellant’s brief, I am at a difficulty in finding a notice of appeal filed by the plaintiff against the ruling of the court below dated 8th June, 1990 making an order of stay of execution of the judgment delivered on 23rd June, 1989. Although the cross-appeal was dated 13th September, 1989 and filed the same date there is nothing in the two grounds incorporated into the cross-appeal which has any bearing on the ruling dated 8th June, 1990. Even the said issue 3 does not flow from any of the two grounds of cross-appeal. That issue is non sequitur.

In summary, from all I have discussed above, it is my judgment that this appeal is unmeritorious, it must be dismissed. And, I accordingly dismiss it. The judgment of the court below is affirmed in substance. The cross-appeal which dwells mainly in the refusal of the court below to award the special damages is devoid of merit. And I accordingly dismiss it as well. There shall be no order as to costs.

Other Citations: (2000)LCN/0891(CA)

China Geo Engineering Co. (Ccg) V. Simon Nambativ (2000) LLJR-CA

China Geo Engineering Co. (Ccg) V. Simon Nambativ (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

The fact that led to this appeal are as stated below in some detail, for purposes of clarity:- The defendant/appellant was awarded contract by Taraba State Water Agency to drill boreholes and lay pipes in Takum. That by an agreement dated 25/7/96, (Exhibit ‘A’), the defendant sub-contracted to the plaintiff the digging of channel for water pipes at the rate of N250.00 per meter at rock section, and N90.00 per metre at other sections. That the contract consisted of two phases: phase one was from Taraba State Water Board Tank to Tampa II, and phase two was for the internal network in Tampa II. That phase one covered 4536 metres of rock section, and 909 metres of other section, while phase two covered 675 metres of rock section and 1067 metres of other section; and the total distance for both phases was 5209 metres of rock section and 1976 metres of other section; and that the whole distance was 7185 metres, and the amount payable to the plaintiff is as follows:-

  1. Rock section – 5,209 at N250.00 per metre = N1,302,250.00
  2. Other section- 1,976 atN90.00 per metre = N 177,840.00

Which gave the total of =N1,480,090.00

That after the plaintiff had excavated 6,000 metres, a joint assessment/inspection team of the Consultant engineer, Taraba State Government engineer, defendant’s site manager and the plaintiff, went to ascertain which of the distance covered was rock and which was other section. That the interim report shows that 4,150 metres of rock section, and 1,850 metres of other section had at that time been excavated by the plaintiff. This joint team report is exhibited as Exhibit ‘2’ before that court. That the joint team was unanimous that the work done by the plaintiff met the required standard of specification given to the plaintiff. That the defendant had already laid pipes in the channel and covered them. That the defendant was paid the sum of N3,593,090.00 for the work done at the rate of 514.00 per metre. Copy of the Taraba State bill of quantities is Exhibit ‘3’. That out of the N1 ,480,090.00, the defendant paid the plaintiff N966,650.00 and inspite of repeated demands, the defendant till then had not paid the plaintiff the remaining balance of N613,440.00 which plaintiff now claims from the defendant. Plaintiff also claims from the defendant 21% interest on the balance which the plaintiff said in his further affidavit, that it is the rate which his bank charged him when he took overdraft facilities to complete the work. He also claims 10% interest from date of judgment until final payment of the sum.

That the defendant refused to pay the plaintiff the balance because according to the defendant, Taraba State Government refused the defendant’s demand for variation on the contract. Plaintiff said that Taraba State Government paid the defendant N514.00 per metre, while the defendant paid the plaintiff N250.00 per metre for rock section, and N90.00 per metre for ordinary section. Plaintiff further said that if the defendant paid him the above money, he is demanding, that would not reverse his loss he suffered due to accrued interest chargeable.

The claim of the plaintiff was as in paragraph 10 of the plaintiff’s particulars of claim as set out below which was placed on the undefended list:-

WHEREFORE the plaintiff is aggrieved and claims from the defendant the liquidated sum of N513,440,00 (Five hundred and thirteen thousand, four hundred and forty Naira) only plus interest at the rate of 21% from the date of completion of contract till judgment and then 10% from judgment till final liquidation. The relevant paragraphs of the plaintiff’s affidavit are set out below:-

“(a) That the defendant was awarded a contract for the drilling of boreholes and laying of pipes at Takum by Taraba State Water Agency under the National Water Rehabilitation Project for a duration ending in May, 1997.

(b) That by an agreement dated 25/7/96 but executed on 3/8/96 the defendant sub-contracted the digging of the channel for water pipe to the plaintiff at the price of N250.00 (Two hundred and fifty Naira) only per metre at rock section and N90.00 (Ninety Naira) only per metre at other section. A copy of the said agreement is hereto annexed as Exhibit 1.

(c) That the contract in Exhibit 1 consisted of two phases. Phase 1 was from the Taraba State Water Board Tank to Tampa II and phase 2 was the internal network in Tampa II.

(d) That phase 1 covered 4,536 metres of rock section and 909 metres of other section while phase 2 covered 675 metres of rock section and 1,067 metres of other section.

(e) That the total distance for the two phases was 5,209 metres for the rock section and 1,976 metres for other section, making the total distance 7,185 metres.

(f) That he started work in August, 1,996 and completed same on 21/1/97 covering the total distance of 7,185 metres and was therefore entitled to the following payment:

(i) Rock section – 5209mx N250 = N1,302,250

(ii) Other section – 1976mx 90 = N177,840

Total = N1,480,090

(g) That on 3/10/96 when he had excavated a distance of 6,000 metres, there was a joint assessment inspection by the Consulting engineer, Taraba State Government, to ascertain which of the distance covered was rock or other section.

(h) That the interim report showed that 4, 150m of rock section and 1,850 of other sections had as at then been excavated as Exhibit 2.

(i) That the joint assessment team was unanimous that the work done by the plaintiff met the standard specified by the defendant who has already laid pipes in the channel and covered same.”

The defendant filed a notice of intention to defend with a supporting 23-paragraph affidavit. The relevant paragraphs are set out below for ease of reference:-

  1. That I know as a fact that the sub-contract for the excavation of pipe lines channel was awarded to the plaintiff who was introduced to the defendant by the said Peter Torju.
  2. That according to the term of contract, the plaintiff was to be paid N250.00 per metre for rock section and N90.00 for other section.
  3. That at the time of the contract, the plaintiff attention was drawn to the definition of rock as contained in the main contract agreement between Taraba State Government and the defendant. A photocopy of the extract is hereby attached and marked as Exhibit ‘A’.
  4. That to the best of my knowledge during the excavation process, the plaintiff did not come across and rock section.
  5. That later, the plaintiff complained that the rate of N90.00 which was being paid to him was not adequate and sought for increment.
  6. That I told him that I could not increase any amount as consultants have confirmed that there was no rock throughout the length of the excavation channel.
  7. That I know as a fact that Exhibit ‘2’ was meant to be an annexure to the application for variation and no more. The application for variation is hereby attached and marked Exhibit ‘B’.
  8. That I know as a fact that Exhibit ‘2’ is not a true assessment of the work done by the plaintiff nor does it create any obligation on the defendant.
  9. That I know as a fact that there was a disagreement between the plaintiff and defendant as to what was rock excavation and common excavation.
  10. That when IBG Ltd received the application for variation, a joint inspection between the State Water Agency, resident consulting engineer and representative of the defendant was carried out and the report is hereby attached and marked Exhibit ‘C’.
  11. That I know as a fact that the plaintiff excavated a total of 7, 185 metres made up as follows:

Rock section – 200m

Common section – 5185m

  1. That base on the above assessment, the plaintiff was paid a total of N966,650.00.
  2. That I know as fact that the last instalment of N369,650.00 was paid on 11/4/97 as final payment for the work done.
  3. That the defence of the defendant to the action is that he has been fully paid for all the work he did and no amount is outstanding”.

There was a further affidavit by the plaintiff and the relevant paragraphs are as follows:

“(a) That in order to execute the contract which is the subject-matter of this suit, he obtained an overdraft facility from his bankers, Bank of the North, Makurdi.

(b) That he was charged interest at the rate of 21% on the overdraft which he was able to repay from other sources when the defendant could not completely pay him the contract sum.

(c) That even if the defendant pays the plaintiff the balance of N513,440.00, the amount will not be enough to reverse the loss suffered by the plaintiff by way of accrued interest charges.

(d) That the 10% claimed is the interests chargeable by courts on judgment sum”

On 26/7/97 the learned trial Judge took arguments from both counsel and delivered his ruling/judgment on 15/9/97, wherein plaintiff’s claim was granted. Dissatisfied with the ruling, the appellant had appealed to this court on seven grounds of appeal which without particulars are reproduced hereunder:-

  1. The trial court erred and thereby occasioned a miscarriage of justice when it refused to give the appellant leave to defend the action.
  2. The lower court erred in law and thereby occasioned a miscarriage of justice when it proceeded to give final judgment on conflicting affidavits.
  3. The trial court misdirected itself on facts when it held at page 8 lines 39-42. Thus,… if what the defendant averred in its paragraph 20 was true it would have exhibited the payment vouchers or even photocopies of the said voucher”.
  4. The trial lower court erred in law when it proceeded to give judgment even when the claim does not come within the contemplation of Order 23 of the Gongola State High Court (Civil Procedure) Rules, 1987.
  5. The trial lower court misdirected itself both in facts and law and thereby occasioned a miscarriage of justice when it placed undue reliance on Exhibit ‘B’ of respondent’s affidavit to arrive at it’s decision.
  6. The trial court erred when it awarded 21% interest in favour of the respondent.
  7. The judgment of the lower court is against the weight of evidence.

Briefs of arguments were filed and exchanged. The appellant filed a reply brief. The appellant formulated three issues for determination as set out below:-

  1. Whether the claim before the lower court is maintainable under Order 23 of Gongola State High Court (Civil Procedure) Rules, 1987, which is applicable to Taraba State.
  2. Whether the lower court acted properly when it refused to transfer the suit from undefended list to ordinary cause list of the court.
  3. Whether the lower court applied the correct principles of law in arriving at its decision.

Respondent adopted appellant’s issues for determination.

In his arguments on issue No. 1, the appellant contended that even though the respondent tagged his claim as a “liquidated demand”, in reality it was not an action for debt or an action for liquidated demand. He went into the definition of a liquidated demand as proposed by various authors. He submitted that the writ was not for a liquidated demand which must be for a sum agreed or fixed by the parties to the contract.

The respondent by way of objection argued that issue No. 1 was not raised in the court below and cannot be raised for the first time on appeal without leave.

In the appellant’s affidavit in support of his notice of intention to defend, none of the 23-paragraphs raised the issue that the action is not maintainable under 0.23 r. 1 of the Gongola State High Court (Civil Procedure) Rules (as applicable to Taraba State). He cannot be allowed to raise it now. He cited the case of Popoola v. Adeyemo (1992) 9 SCNJ 79 at 96, (1992) 8 NWLR (pt. 257) 1, Atoyebi v. Government of Oyo State (1994) 5 SCNJ 62 at 78, (1994) 5 NWLR (pt.394) 290, Honica Sawmill (Nig. Ltd.) v. Hoof (1994) 2 NWLR (Pt.326) 252, (1994) 2 SCNJ 86 at 93. He urges us to discountenance the objection.

In the alternative, he contended that he agrees with the definition of liquidated sum as adumbrated by the appellant. He however referred to Exhibit 1 attached to the affidavit in support of the claim and states that which he says is clear and unambiguous and concise.

The appellant filed a reply in which he tried to justify his contention that no leave of court is required to raise a fresh issue on appeal. He relied on S.220(1)(a) of the 1979 Constitution of the Federal Republic of Nigeria. He cited Karibi Whyte, J.S.C in Finnih v. Imade (1992) 7 LRCN 117 at 138,(1992) 1 NWLR (Pt. 190) 511 in which His Lordship stated:-

“The day should never come when the scope of the jurisdiction of the Judge to decide a matter is to be circumscribed by the legal erudition of learned counsel. It is a strange thing to say that the Judge cannot apply principles not referred to by counsel. The day such a principle is accepted the true demise of the independence of the Judge in deciding cases before him is assured.”

and submitted that the issue raised in the ground of appeal was an issue which the Judge could apply the law correctly and not a fresh point as contended by the respondent.

I have looked at the objection and all the argument of counsel in their briefs and appellant’s reply brief. I have carefully looked at the authorities cited. Throughout the 23 paragraphs of the affidavit of intention to defend, some of which are set out above, no mention was made of the incompetence of the claim before the lower court. The defendant’s argument in the court below does not touch on it at all. His arguments are at page 24 of the record of proceedings. In his ruling, the learned trial Judge at pages 26-31 of the record did not avert to it because that point was not raised before him and no issues were joined. It is our law that fresh points of law or issues cannot be raised for the first time in the Court of Appeal which were not canvassed in the court below, except with leave of the appeal court. This rule was succinctly stated by Iguh, J.S.C in Atoyebi v. Government of Oyo State (1994) 5 SCNJ 62 at 78, (1994) 5 NWLR (Pt. 344) 290 thus:”

This court will normally not allow a fresh point to be taken before it if, such a point was not raised, canvassed and/or pronounced upon by the court below”.

Also see Onu J.S.C. in Monica Sawmil (Mg. Ltd.) v.Hoof (1994) 2 SCNJ 86 at 93. He said:-

“These are matters being raised or complained of which are neither matters on which issues were joined nor tried in the trial court. They therefore do not arise from the decision appealed against … To argue them on appeal herein therefore required leave of this court. Since such leave has not been sought and obtained, the ground (ground 3) can not be relied upon for distillation of issues or an issue upon which an argument may be founded or proffered.”

However, 0.6., r. 3(a) of the Court of Appeal (Amendment) Rules 1984 stated as follows:-

“3(a) The brief which may he settled by counsel shall contain any point not taken which he intends to seek leave of the court to argue at the hearing of the appeal”.

It goes beyond doubt that to raise a fresh point on appeal which was not canvassed in the court below one needs leave of the court to do so. This, from the record was not sought and obtained. I hope this adds the final nail to the coffin of the respondent’s preliminary objection which is hereby disallowed and struck out.

The appellant’s main grouse in issue No. 1 is that the claim is not for a liquidated demand or recovery of debt. I had already outlined these contentions above. A close look at the claim as contained in paragraph 10 of the particulars of claim as reproduced above and which can be seen at page 3. Paragraph 10 of the record shows that the plaintiff sues for a liquidated sum of N513,440.00 plus interest at 21% and 10% from judgment till final liquidation of the debt. Exhibit 1 to the plaintiff’s affidavit in the court below show an agreement between the parties.

The agreement says the appellant would pay the respondent N250.00 per metre of rock section excavated and N90.00 per metre of common section (i.e. non-rock section).

The trial court had no difficulty ascertaining that the total distance of 7,185 metres covered was made up of:-

(a) Rock section 5,209m x N250 = N1,302,250.00

(b) Common section 1,185m x N90 = N177,840.00

(b) Common section

Total 7,185 = N1,480,09O.00

This is at page 28 of the record and in the affidavits of parties and Exhibit “1” and “2”, to the plaintiff’s affidavit. The appellant acknowledged payment of N966,650.00 out of N1,480,090.00. By mere arithmetic calculation or subtraction, the figure of N513,440.00 was not mysterious. The learned trial Judge correctly found that the sum of N513,440.00 was a debt owing to the plaintiff by the defendant. I agree with him and consequently the appeal fails on this issue.

On issue No.2, the gravamen to my mind is whether the lower court acted within 0.23 of the Gongola State High Court (Civil Procedure) Rules, 1987 as applicable to Taraba State.

Before I set out on my journey, I would like to reproduce the relevant rules of Order 23 of the Civil Procedure Rules governing proceedings in a suit on the undefended list. There is no controversy over the procedure for placing the suit on the undefended list. The major complaint of the appellant is that the suit should have been transferred from the undefended list to the general cause list for oral evidence to be taken. The relevant rules (in 0.23) of the High Court (Civil Procedure) Rules as applicable to Taraba State are herein reproduced for avoidance of doubt:

0.23:

“r.(1) Whenever application is made to a court for the issue of a writ of summons in respect of claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.

3.r.(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings.

  1. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given theron, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.

The gravamen of the appellant’s argument on this issue is as he puts it at page 5 of his brief:

“The position of the law is that where a defendant has filed his notice to defend with the supporting affidavit (as in this (sic) case) the court is to consider whether the affidavit discloses a triable issue or raises a prima facie case, the suit must be removed from the undefended list and placed (sic) on the general cause list”.

Refers to 0.23; r 3(1), and the case of Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (pt. 144) 283.”

The respondent on this indicated and rightly too that the appellant conveniently omitted the words” an affidavit disclosing a defence on the merit … (Italics mine for emphasis)”. It does appear to me that the appellant wants us to accept as the legal position that merely filing notice of intention to defend a writ on the undefended list ipso facto entitles a defendant an opportunity to defend or that a general denial in his affidavit makes for automatic transfer of the claim to the general cause list.

I am extremely reluctant to go into the finding of facts which the trial Judge ably did. It is set out succinctly at page 30 L. 26-33 of the record. Flowing from this, the learned trial Judge concluded at page 30 as follows:

“It is my opinion that what the defendant wants me to do is to allow him bring oral evidence to displace documentary evidence, because if what be averred were true, he would have exhibited documents for the court to see. Our laws have prohibited courts from allowing oral evidence to be brought to displace documentary evidence. As a court of Justice, I ought rightly reject what the defendant is asking me to do”.

As I said above that the procedure in placing a writ on the undefended list does not attract any complaint. What the appellant is quarrelling about is that, the affidavit in support of intention to defend discloses a defence on the merits. The law governing suits on undefended list was given judicial interpretation in the locus classicus: U.T.C. (Nig.) Ltd. v Pamotei (1989) 2 NWLR (Pt. 103) 244 at 299 where Nnaemeka-Agu, J.S.C. Had this to say:-

“…where however a defendant who has been served with the writ and the affidavit of the plaintiff delivers to the Registrar, not less than five days before the date fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence, then the case shall be entered in the general list for hearing. See Olubosela Stores v. Standard Bank of Nig. Ltd. (1975) SC 5.”

If his Lordship had stopped here, the appellant in this appeal would be sure of judgment. But his Lordship, in keeping with the wordings of 0.23 r. 3(1): “…an affidavit disclosing a defence on the merit”. (Italicising for emphasis), went further to lay down:-

“…where he gives notice of his intention to defend but his affidavit does not show reasonable grounds of defence the case will still be heard under undefended list”.

On E.N.D.C. v. Felix Duruma (196617) 10 ENLR 201 at 202; Nkemena J. held as follows:-

“I am satisfied that the defendant’s affidavit disclosed no defence whatsoever. That being the case, I refuse to enter the case on the general cause list”.

I am satisfied that the law adequately covers the decision appealed against. I agree completely with the way the learned trial Judge evaluated the affidavit evidence pointing out contradictions in the affidavit evidence of the defendant/appellant and rejecting it. The evaluation of evidence is primarily the function of the trial court. It is only where and when it fails to evaluate such evidence properly or at all that the Court of Appeal can intervene and itself evaluate such evidence. On the other hand, where the trial court has satisfactorily performed its primary function of evaluating evidence and has correctly ascribed probative value to it, the Court of Appeal has no business interfering with the findings on such evidence. In the case before me, the affidavit evidence of the defendant/appellant was so much in conflict with itself and told a lie about itself and the learned trial Judge so found. We in the Court of Appeal have no business interfering with the decision of the trial court. He said:-

“In the final analysis, I am satisfied that the defendant wants leave to defend this action for mere purposes of delay…” See page 31, lines 8-9 of record.

On issue No.3, the appellant’s counsel contended that the trial Judge was wrong to have considered that payment should have been made on payment voucher which could have been exhibited by the appellant to prove payment. He argues that the court is not allowed to make a case for the parties. He attacked Exhibit 2 to the respondent’s affidavit and queried why the court should accept it “hookline and sinker” as a true assessment of the work done by the appellant. I am not surprised at the appellant raising all these issue now when his affidavit in support of his notice of intention to defend was silent on these issues. Furthermore, paragraph 11 of his affidavit said his consultant confirmed that there was no rock throughout the length of the excavation channel. In paragraph 18 of the said affidavit he swore that he knows as a fact that the plaintiff excavated a total of 7,185 metres made up as follows:

Rock section – 2,000m

Common section – 5,185m

How on earth could the trial Judge take such an affidavit with seriousness or treat it with credibility. As I have already taken these issues above, I need not repeat myself. The appellant is not helping his case by trying to pull wool across the eyes of the court.

The respondent has treated this argument as repetition of his earlier submission and I agree with him. The issue of interest on the amount claimed was raised in the respondent’s further affidavit. There is nowhere that the defendant denied these averments in any affidavit evidence of his. It is trite facts not denied in an affidavit are deemed to be admitted.

It is now too late for the appellant to now try to refute them by counsel argument which is no evidence before the court. I will conclude this issue by what Ademola, C.J.N. said in Agbaje v. Ibru S. F Ltd. (1972) 5 SC 50 at 55 thus:

“Be that as it may, it is clear that the appellant’s case for an interim injunction is contained in his affidavit which set out facts upon which any court would give consideration to his application. Strangely enough, the respondents admitted all those facts, since there are no denials of all the acts complained of by a counter-affidavit.” This appeal also fails on this issue.

On the whole this appeal is in no way meritorious, it is accordingly hereby dismissed and the judgment of the lower court affirmed. I assess cost at N5,000 in favour of the respondent.

Other Citations: (2000)LCN/0889(CA)

Akaazua Muemue V. Kulugh Gaji & Anor (2000) LLJR-CA

Akaazua Muemue V. Kulugh Gaji & Anor (2000)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A.

This appeal is against the judgment of the Katsina Ala High Court of Benue State sitting in its appellate jurisdiction delivered on 16th April, 1992, wherefore the decision and orders of the trial Upper Area Court, Vandeikya were set aside and in their place was entered an order striking out the suit filed by the plaintiff (i.e. the appellant in this court).

For purposes of grasping the issues for consideration in this appeal it will be helpful to have recourse to the excerpt of the trial Upper Area Court’s decision as could from the judgment of the appellate High Court that sat on appeal over that decision. It reads thus:

“The defendants (now appellants) were in consequence restrained from trespassing or further trespassing of the disputed land. They shall hand over the possession of the land to the original owners; the court having found them (appellants) to be licensees of the plaintiff/respondent and they had misbehaved themselves by challenging the authority of their overlords”.

Against that decision the respondents before this court appealed to the High Court Katsina-Ala whose decision is now on appeal before us.

The appellant (as plaintiff in the trial Upper Area Court) sought in his claim for the following reliefs:

“(1) A declaration of title to a piece or parcel of farmland lying and situate at Mbaajo of Mbashumba in Mbera District of Vandeikya Local Government of Benue State.

(2) An injunction perpetually restraining the defendants by themselves, their agents, privies, servants or others whomsoever from trespassing in whatever form on the said land.”

It is important to note that the respondents (i.e. the defendants in the trial court) filed a cross-action against the appellant here i.e. the plaintiff at the trial in the same Upper Area Court claiming a declaration of title to the same parcel of land situate and lying in Mbawior in Vandeikya Local Government of Benue State.

Nothing much is said of this matter in the briefs of argument of the parties except that the trial Upper Area Court dismissed the action. The respondents have so far not appealed against the decision.

The facts of this case as gathered from the evidence of the parties are a bit complicated. The plaintiff brought this action in a representative capacity for himself and on behalf of Muemue family. He told the trial Court that one Muemue Akwatomo his father was the founder of the land in dispute. He lived and died on the said land in dispute. The respondent’s father was brought to the land by Ihom Anshungu, appellant’s uncle to be treated of sores or boils that covered his body. The respondent’s father was there allotted land to farm. This action was taken out because the respondents have started to lay claim to the land in dispute and thus have prevented the appellant from exercising his right to farm the land. Also because the respondent have attempted to survey the land with a view to using it to obtain a Certificate of Occupancy. He also said the respondent came from another kindred of Mbawuar called Mbaiwuar and prayed the court that they be sent back from whence they came and hand over the land in dispute to the appellant.

The respondents who were cousins claimed that the land in dispute descended to them by inheritance from their father. They brought a cross-action against the appellant and they told the trial court that their father one Zar Alias Gaji Dumgbe was the founder of the land and that in his life time he exercised all manner of acts of ownership including farming the land, planted trees. They denied that they were licensees on the disputed land. They asserted they exercised their acts of ownership without paying any tributes and that the appellant’s uncle, Ihom sued them in respect of an adjoining land and lost. And that the case was the genesis of this case.

The trial Upper Area Court conducted a locus in quo and gave a considered judgment in the terms of the order as quoted above. The appellate High Court set aside the decision of the Trial Upper Area Court and struck out the suit as being statute-barred.

Against the said decision the appellants have appealed to this court and have outlined their complaints against the decision under 7 (seven) grounds of appeal; they are reproduced without particulars as follows:-

(1) “The learned Justices of the High Court erred in law in holding that there were discrepancies in the boundaries described by the plaintiff in his evidence in open court and the boundaries shown by him on the visit to the locus in quo”. When the discrepancies if any were not material inconsistencies as to affect the plaintiff’s case.

(2) The learned Justices of the High Court erred in law in holding that the plaintiff has failed to prove the boundaries on the land in dispute on the ground that ‘the boundary marks are at variance with those he testified on oath’. When upon a proper evaluation and application the court ought to have held that the plaintiff had proved the identity of the land with certainty.

(3) The learned Justices of the High Court erred in law and thereby came to a wrong decision in holding that the plaintiff’s claim is statute-barred within the meaning of the provisions of the Benue State Limitation Edict No.6 of 1988.

(4) The learned Justices of the High Court erred in law in holding that the Tiv rule of native law and custom that does not recognise prescriptive title is incompatible and repugnant to natural justice, equity and good conscience.

(5) The learned Justices of the High Court erred in law in holding that:

“the titles claimed by the defendants on the one hand are inconsistent with that claimed by the plaintiff on the other hand. The two inconsistent claims are not built on right to inherit upon death or devolution”.

(6) The learned Justices of the High Court erred in law in holding that ‘the dispute at the trial court is not within the contemplation of section 43(1)(e) of the Limitation Edict’.

(7) Judgment is against the weight of evidence.

In compliance with the rules of this court, the parties have filed and exchanged briefs of argument. The appellant identified 4 (four) issues and they are as follows:-

(1) “Whether or not the High Court was right in overturning the trial courts finding that the appellant had established the boundaries of the land he claimed.

(2) Whether the appellant’s claim in the trial court was statute-barred within the meaning of the provisions of the Benue State Limitation Edict No.16 of 1988.

(3) Whether the appellate High Court was right in holding that Tiv native law and custom which does not recognise prescriptive title to land is incompatihle and repugnant to natural justice equity and good conscience; and

(4) Whether the appellate High Court was right in holding that the appellant’s claim in the trial court did not come within the provisions of section 43(1)(e) of the Benue State Limitation Edict No. 16 of 1988.

The respondent has also identified for determination 4 (four) issues and they are as follows:-

(1) ”Whether the appellant established the boundaries of the land he claimed with certainty by oral evidence in thee open court and showed the court the exact features during the visit to the locus quo or whether his evidence a the locus was irreconcilable with his evidence in court.

(2) Whether the appellant’s claim in the trial court was statute-barred within the meaning of the provisions of the Benue State Limitation Edict No. 16 of 1988.

(3) Whether the appellate High Court was right by making reference to section 20(1) and (2) off be Area Court Law applicable in Benue State and section 34(1) of the High Court Law, Cap. 49 of Laws of Northern Nigeria applicable to Benue State in respect of the repugnancy test.

(4) Whether the appellate High Court was right in holding that the appellant’s claim did not come within the provisions of section 43(1)(e) of the Benue State Limitation Edict No. 16 of 1988”.

A careful examination of the issues for determination shows there is nothing to pick or choose between the two sets of issues for determination as formulated by the parties. Both sets of issues are similar in every respect that it would have served the same purpose if the respondent had adopted the issues as formulated by the appellant without much a do. This appeal has to be considered on the set of issues for determination as identified by the appellant.

On the first issue, it is appellant’s contention that there couldn’t have been more authentic evidence of the boundaries of the land in dispute as the one given by him describing all the features that marked the said boundaries. That between Mbaajo and Mbaiwuar was a motorable road running from Tse-Mker to Gboko tarred road to his father’s old settlement, from there turning left to Uainghough stream and that formed the boundary between Mbaajo and Mbaiwuar. And that Uainghough stream also formed the southern boundary. While the eastern boundary terminated with his palm trees. The northern boundary ended with Asugh stream and across the stream was Ihom Anshungu his uncle. On the west was his agricultural farm covered by a right of occupancy. He further contended that the appellate High Court did not show how he abandoned his evidence at the trial for another at the locus and that his evidence of the southern boundary of the land in dispute was corroborated by DW3. See Mustapha Imam v. Ahmadu Bello University (1970) NNLR 39 at 40. He relied on the case of Niger Construction Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67)787, (1987) 11/12 SCNJ 133 at 140 to opine that that piece of evidence by DW3 was supportive of his case. He argued that if there were any discrepancies at all in his evidence they were negligible and not fatal to his case. He noted that both parties knew the disputed land and did not join issue on the identity of the disputed land.

On the second issue, he debunked the use made of the Benue State Limitation Edict No. 16 of 1988 to defeat his claim as statute-barred as the cause action arose after five years when the respondents started to challenge his title by allotting the land in dispute to themselves without permission and when they attempted to survey the land to obtain a Certificate of Occupancy Exhibit ‘E’ – and not outside 10 years as prescribed by the law. He contended against retrospective legislation and that it was not intended to affect existing interest. See Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 337, (1987) 2 NSCC (Vol. 18) 991 at 993. And that courts lean against legislation that tend to take away accrued rights: See Udoh v. Orthopedic Hospital (1993) 7 NWLR (Pt. 304) 139, (1993) 7 SCNJ (Pt. 11)43.

On the third issue the appellant submitted that the trial Upper Area Court found the respondents, licensees and that native law and custom do not recognise prescriptive rights. The appellant is of the view that S. 34(1) of the High Court Law, Cap. 49 of the Laws of Northern Nigeria, 1963, as applicable to Benue State would not apply on the facts of this case. See Adu v. Kuma (1937) 3 WACA 240; Ayodele v. Olumide (1969) 1 ANLR 233; Agbola v. Abimbola (1969) 1 ANLR 287; Mogaji and Ors. v. Cadbury Nig Ltd (1985) 2 NWLR (pt. 7) 393, (1985) 7 S/C 59 at 158-160; Udeze v. Chidebe (1990) 1NWLR (Pt. 125) 139, (1990) 1 SCNJ 104 at 118 and Atunrase v. Sunmola (1985) 1 NWLR(Pt. 1) 105 at 122-123. And the said case of Ado v Wusu 6 WACA 24 was referred to – where the plaintiff was declared owner despite 200 years of adverse possession.

On the fourth issue it is his contention in the brief that the appellant’s case comes within the provisions of S.43(1)(e) of the Benue State Limitation Edict No. 16 of 1988, as the claim derived from inheritance. And so the claim was unaffected by Edict No. 16 of 1988.

He urged the court to allow the appeal.

The respondent in his reply challenged the appellant for not establishing his southern boundary with certainty both before hearing in court and the locus and urged that the case of Mustapha Imam v. Ahmadu Bello University (supra) should not be followed. He made the point that for a court to grant a declaration of titles, the boundaries of the land in dispute must be certain and that a plaintiff cannot rely on the boundary as made out by the defendant. See Udeze v. Chidebe (supra) at page 159; Awote v. Owodunmi (supra) at 371. He expressed the view that the case of Niger Construction Ltd v. Okugbeni (supra) did not apply. He was critical of the appellant’s evidence at the locus and made the point that it is not the purpose of such a visit to give more weight to the visit to the detriment of oral and documentary evidence both of which proved some hard facts which the observation at the locus cannot support. See Cecilia Oruma v. Abu Oruma and Anor. (1981-82) BNSLRP. 24 at 29.

The respondent has argued upon the appellant’s submissions on issue No.2 that the instant action has become stale by reason of the limitation law – that is S.3 of Edict No. 16 of 1988. Based on the facts before the trial court the cause of action accrued to the appellant over 10 years ago. And S. 3 affects every person and every land in the State; and so the action is indisputably statute-barred. See Fred Egbe v. Adefarasin (1985) 1 NWLR(Pt. 3) 549 at 568-569; Sosan v Ademuyiwa (1986) 3 NWLR(Pt. 27) 241 at 256; Nwadiaro v. Shell Petroleum (1990) 5 NWLR (pt. 150) 344; Kasali v. Lawal (1980) 3 NWLR (Pt. 28) 305 at 314 and 321-323; Akibu v. Opaleye (1974) 1 All NLR (Pt. II) 344 at 356-7. He has in the same breath repudiated the assertion that S. 43(1)(e) of Edict No. 16 of 1988 could serve to protect the instant cause of action as its import was totally misconstrued. That this matter did not on the facts involve questions of inheritance or disposition of property at death as contemplated in S. 43(1)( e) of Edict No. 16 of 1988 he submitted.

Adverting to the third issue that is, on the applicability of S.34(1) of High Court Law of Northern Nigeria Cap. 49 and S. 20(1) and (2) of the Area Court Law, he was in no doubt about their relevance and applicability and that their combined effect is that a native law and custom incompatible with any written law is null and void to extent of its incompatibility. Relating it to the facts of this matter, where a rule of Tiv native law and custom is in conflict with the acquisition of prescriptive rights it would be incompatible with S. 3 of the Limitation Law a written law and therefore null and void. He denounced the decision in Musa v. Awe (1979) FNLR (Vol. 1) 259 as particularly deciding on the native law and custom of the Yorubas on prescriptive rights and not of general application. In other words, that the rule of native law and custom that does not recognise prescriptive title to land is peculiar to the Yorubas and not to Tivs. The respondents have put emphasis on S. 20(1) and (2) of the Area Court Law and S. 34(1) of the High Court Law to contend that their provisions being clear are applicable in the circumstances.

He then urged the Court to dismiss the appeal.

I intend to go into these issues not in the sequence of how the issues for determination have been arranged by the appellant in his brief for obvious reasons. This is so as issues Nos. 2 and 4 raised issues that the instant action is statute-barred. Such an objection as it were goes to the root of this appeal. It is now settled that where the issue of limitation is raised in defence of an action it is only proper that the issue should be addressed first as it makes no sense to decide the merit of a matter that is statute-barred. See Egbe v. Adefarasin (supra).

I now proceed to take issues Nos. 2, 3 and 4 together. The first question to be resolved, on the facts of this matter is to determine when time began to run in this case where the objection has involved the limitation law as a defence. Guided by decided cases, the appellant’s time began to run from the moment the appellant’s right of action has accrued. In the event of a successful plea of limitation law against the appellant’s right of action the instant action becomes extinguished and unmaintainable at law. See Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 559 at 568-569; Sosan v. Ademuwiya (1986) 3 NWLR (Pt. 27) 241 at 216; Nwadiaro v. Shell Petroleum (1990) 5 NWLR (Pt.150) 322. However, before relating the foregoing guides to the instant matter, it seems to me that the appellant’s other more serious contention that limitation law is inapplicable to cases as the instant case has to be disposed of again for obvious reasons that it would be a sheer waste of valuable time to go into the heart of the issue where the plea of limitation would otherwise not avail the respondent as the land in question is subject to native law and custom. The respondent has referred and relied on S. 3 of the Limitation Law of Edict No. 16 of 1988. It stipulates as follows: –

“No action shall be brought by any person to recover any land after the expiration often years-from the date on which the right of action accrued or it first accrued to some person through who he claims, to that person”.

He has also referred to S. 4(1) which enables the court to determine the time of accrual of the right of action. To fortify his case the respondent has highlighted the fact that the right of action accrued to the appellant during Gaji’s lifetime and he died about 20 or 29 years ago according to the appellant’s witnesses. The appellant has given the cause of the action to be the unpermitted allotments of the land in dispute to the respondents people about 5 years to the institution of the action – and coupled with moves to survey the land to enable them secure a Certificate of Occupancy as per Exhibit ‘E’, all these without the appellant’s permission. The trial court at P.58 LL 2-6 and 9-12 of the records found as follows:

“Besides, there is evidence from PW3 (plaintiff) that it was in 1988 when these defendants attempted to survey his land and obtain a Certificate that he took up this suit. However, that before then there has been skirmishes. This was the major cause of the action… I have also read the Limitation Edict, 1988, applicable to Benue State of Nigeria, Section 3 of the Edict and the whole of the Edict itself has no relevance to this case”.

The High Court sitting on its appellate jurisdiction has held contrary to the appellants submission that S. 43(1)(e) has excluded S. 3 of Edict No. 16 of 1988, and has also distinguished the case of Musa v Awe (1979) 1 FNLR 259 P. 267 on the issue of the applicability of prescriptive right to Tiv land and Tiv people. Section 3 above, I must reiterate is inpari materia with S.6(2) of the Limitation Law (Cap. 64) Vol. 3, Laws of Western Nigeria, 1959. The provision of S.6(2) was not directly in issue in the case of Musa v Awe (1979) 1 FNLR 295 as the issue of laches and acquiescence. In that case, the land in dispute was bought in 1962… The action taken by the plaintiff was in 1975 over the transaction of 1962 and was contested to be statute-barred. Babalakin J. (as he then was) in rejecting the proposition held that the defence was misconceived, as title by prescription is not known to land held under Yoruba native law and custom. He referred to the case Akintoye v. Eyiyola (1968) NMLR 92. However the Katisina-Ala High Court sitting over this matter on appeal over this issue differed in opinion by holding that such a rule of native law and custom has no application in Benue State. Secondly that if such a rule of native law and custom existed at all that it ran flaw of S.34(1) of the High Court Law, Cap. 49 of the Laws of Northern Nigeria, 1963, as applicable to Benue State and S. 20(1)(a) and (2) of the Area Court Law (i.e. the repugnancy provisions). And that to the extent that any rule of native law and custom was in defiance of the instant Limitation Law (a written law) it shall to the extent of its repugnancy or incompatibility remain void. The case of Musa v Awe in my view carries considerable weight. And it is with approval that I adopt its conclusion which is reinforced by the decisions in Mogaji v. Cadbury (1985) 2 NWLR (Pt.7) 383; Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) 56 per Iguh JSC; Taiwo v. Taiwo (1958) SCNLR 244,80 (1958) 1 NSCC 4.7. In Odekilekun case (supra) Igu JSC said at P.77 paragraphs B-H “I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown under Customary Law”. I adopt the restatement of law as correct; decidedly, it forecloses the contention in the matter.

My timely observation in this respect is that it is most unhelpful to have had recourse to S. 34(1) and S. 20(1)(a) and (2) above in the consideration of this matter by the appellate High Court. Their application of the provisions of S.34(1) and S.20(1) and (2) here is rested on an erroneous premise. Unfortunately, there is no evidence on record that the appellate High Court’s attention was even drawn to the cases cited above. In Mora and Ors. v Nwalusi and Ors. (1962) 2 SCNLR 73, 3 (1962) 1 ANLR 683 P.C., it was held that there is in Nigeria no law corresponding to the English Rule of prescription. The decision by Privy Council has remained binding and is relevant here even though the matter in issue concerned a land dispute between Awka and Amawbia now in Anambra State. Again, even though the dictum is quite wide in its import it is my view that the decision in Mora v. Nwalusi is unequivocal so that it has to be rebutted by the party asserting the contrary. This principle is clearly borne out in Udeakpu Eze v. Samuel Igiliegbe WACA 61. The trial Upper Area Court at P. 64 LL9-11 stated in unequivocal terms thus:

“If we admit like I do then, how can a ward or a servant dispute title with the real owner? It is unheard of and prescription is untenable under Customary Land Tenure”.

This pronouncement is tenable. Besides, Upper Area Courts are manned by Judges versed in their custom. See Ehioghae v. Ehioghae (1964) NMLR 30. For all this, and particularly based on the clear pronouncement by the Privy Council in Mora v. Nwalusi (supra) and the immediate foregoing quote of the findings of the trial Upper Area Court, it appears to me with respect, that the appellate High Court was labouring under a misapprehension in arriving at the conclusion it reached on acquiring title by prescription at Native Law and Custom vis-a-vis S. 34(1) and S.20(1)(a) and (2) above. There was no evidence to that effect by the respondent. The conclusion was without doubt erroneously premised. See Larinde v. Afiko (1940) 6 WACA J08; Giwa v. Erinmilokun (1961) 1 SCNLR 377, (1961) 1 ANLR 294. I agree with the Upper Area Court that title by prescription is untenable under Tiv Native Law and Custom. This finding in the circumstance has not been found to be pervesed nor is there any justification for interfering with the conclusion moreso as the trial court was quite competent to make the finding. See Silli v. Mosoka (1997) 1 NWLR (Pt.479) 98. Noteworthy is that there are no accepted facts from which title by prescription under Tiv land tenure could be inferred.

As regards S. 43(1)(e) of Edict No. 16 of 1988 on having excluded the application of S. 3 of Edict No. 16 of 1988 in this case based on its peculiar facts, I have to agree with the respondent that is founded on a misconception by the appellant when he submitted that since parties traced their interests in the land in dispute by devolution from their respective progenitors, that is, by inheritance that this matter came within the provision of S. 43(1)(e). However, S. 43(1)(e) excludes:

“Any matter which subject to the jurisdiction of a Customary Court or Area Court relating to marriage, family status, guardianship of children, inheritance or deposition and property on death”.

The above provision is clear and should be construed literally. Inheritance as contemplated under the said provision of S. 43(1)(e) would affect by its wordings only members of one family contesting over the disposition of inheritance of the property of a common progenitor on death and not as in this case where two distinct families are disputing over ownership of land. It therefore follows that section 43(1)(e) is clearly not material in considering S. 3 as it affects the appellant’s right of action in this matter.

That said, I now turn to the crux of this matter on the appellant’s right of action being statute-barred by S. 3 of the Limitation Law of Edict No. 16 of 1988. The provision has been set forth herein-before. Without specifically deciding whether the limitation law applies or not, there can be no doubt that upon the findings of fact by the trial Upper Area Court and which have not been disturbed by the appellate High Court that the acts of cause of action that immediately precipitated the instant action have fallen within the ten years time limit as provided in the limitation law. I have listed these acts hereinbefore, all the same they comprise essentially;

(1) That the respondent started about five years to the institution of the instant action to allot the land in dispute to themselves without permission; and

(2) That the respondent had started to survey the land in dispute preparatory to applying for a Certificate of Occupancy.

The Upper Area court found these acts as the acts that gave rise to the action and they constituted a challenge to the appellant’s right of ownership over the land in dispute.

In other words, the appellant’s right of action accrued about 5 years to the institution of this suit. Meaning that the action was commenced within the time limit allowed by the limitation law. It is not denied that there were before these acts some skirmishes between the parties. If I may say, the High court has not interfered with these findings of facts even though it did high weight some other acts of the respondents that posed challenges to the appellant’s interest in the disputed land.

My view is that these findings of facts by the trial Upper Area Court are solid and supported by the evidence adduced in the case and accepted by the trial Upper Area Court. The inferences drawn therefrom are sustainable and this court cannot intervene in the matter. See Silli v. Mosaka (1997) 1 NWLR (Pt. 479) 98. The appellant’s right of action, therefore is not caught by S. 3 of the Limitation Law of Edict No. 16 of 1988. In other words, the defence of Limitation does on the facts of this matter avail the respondents so that issues Nos. 2, 3 and 4 are hereby resolved in favour of the appellant.

On the outstanding issue for determination that is, issue No.1. The contention here is whether or not the appellant has established with certainty the boundaries of the land in dispute, he claimed. In this regard he is obliged to tender oral evidence of the boundaries that would enable a surveyor produce a plan of the land in dispute or tender a plan of the land in dispute instead showing as it were, the boundary features. Where the appellants failed in this regard his claim must as a matter of law be dismissed. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 159; Awote v. Owodunmi (1987) 2 NWLR (Pt. 57) at 366 and 371. In Udeze v. Chidebe (supra) the Supreme Court considered the issues of identity and boundaries of the land in dispute in the cited case and held as per Nnaemeka-Agu JSC:

“It has of course been stated in a number of decided cases beginning from Baruwa v. Ogunsola (1938) 4 WACA 159 that the first duty of a person who comes to court for a declaration of title is to prove the area over which he claims with certainty.

I believe the law should be regarded as settled that although a plan may not be necessary in cases where the identity and precise boundaries of the piece or parcel of land in dispute are known to the parties to the dispute (for which see Chief Daniel Allison Ibuluya and Ors. v. Tom Bebebo Dikibo and Ors. (1976) 6 SC97 at 107; also Chief Sokpui v. Chief Agbozo (1951) 13 WACA 241 at 242) where as in this case there is a dispute as to the boundary or identity on both side must be proved with certainty”.

I have taken pains to set forth the above excerpt of the judgment in the cited case as it contains the guiding principles to be resorted to in resolving this matter.

The respondent’s main objection under issue No. 1 are three namely:

(1) That the appellant failed to ascertain with certainty the southern boundary;

(2) That the appellant could not rely on DW3’s evidence as to southern boundary to prove his case; and

(3) That the appellant’s evidence in court varied with his evidence at the locus.

The trial Upper Area Court took these issue head on at P. 64 LL 14-25 and LL 32 the trial court stated thus:

“The parties themselves showed what was disputed. How then can it be said that what they dispute is unknown to them?…

These are people living within same locality and sharing boundaries. Their misplacement of boundary marks should not be so serious. The land was traced at the boundaries by this court and detailed notes were taken in the presence of counsels. It is in this regard that I say the land is well described. The inspection notes are contained in the record of this court”. At LL 32-38 it said thus:

“In the case, the plaintiff defined his land. This was made in his affidavit in support of his motion for an interlocutory application to restrain the defendants from alienating or surveying the land for the purpose of a Certificate of Occupancy. It is evidence before this court, which can be used. The plaintiff also work on the description while he took oath and gave oral evidence before this court”.

What is evident from a summation of these findings as to the identity and boundaries of the land in dispute is that if there were any discrepancies at all that they were neglible and that the parties knew the land they were litigating over and that a plan was therefore dispensable. Any reference to S. 61 Area Court Law by the trial court to booster its finding was with respect an overstatement as it is inapplicable. It caused no harm nor occasioned any miscarriage of justice. The High Court sitting on appeal reversed the trial Upper Area Court on the issue of boundaries of the disputed land. It concluded that there were discrepancies in the boundaries as described by the appellant in the open court and at the locus particularly with the southern boundary which the appellant gave as Uainghough stream but was not so shown at the locus.

It is settled that a plaintiff has to succeed in matters as the instant one on the strength of his case and that to do so he has to establish his case on the basis of preponderance of evidence.The trial Upper Area Court found that the appellant discharged this burden and expressed its view as follows at P. 64 LL. 39-42 and P. 6 LL 1-16

“The defendants have failed to conclusively give proof of their traditional history of this land.

They are not even sure the first founded the land. Whether Dumgbe, Zar alias Gaji, Muemue or Gaji Gyak. The plaintiff on the other is consistent that his father Muemue Akwatondo founded the land. Plaintiff has adjoining lands south, west and north of the land. His late father has three desolates surrounding the land. He has a school beside this land in the south. His wife is one of the desolate of the father beside the land in the south. Ahile Muemue is west and Ahangba Thorn at the north. Dumgbe the progenitor of the defendants died and was buried away from this land. Ikangar Tii was brought and treated on the land and has gone back. Akazer Kegh is allowed land by lhus relations of plaintiff near the land. Dzar himself was a ward to Muemue. This has not been denied. How else can plaintiff prove his claim over this land, putting the two claims on an imaginary scale, I would hold that plaintiff has proved his case to entitle him to judgment on the preponderance of evidence. He must succeed. He succeeds. The claims of the defendant over the land fails”.

These findings and conclusions are not only logical they are solid findings and conclusions that have foundation in the evidence of the appellant and his witnesses. The inferences from the accepted facts were properly drawn in the circumstances. The findings were not perverse and so there were no reasons to justify the High Court’s intervention to substitute its view. The respondent’s traditional history cannot stand against the appellant’s preferring the appellant’s traditional history is therefore well grounded. With regard to the discrepancies in the appellant’s evidence as to the boundaries apart from the discrepancies as to the southern boundary, the High Court sitting on the appeal could not give details of any of the other discrepancies. Having reached the above conclusion after perusing through the record, I am in agreement with the trial Upper Area Court that the identity and boundaries of the land in dispute were not in any serious contention. There is no disputing the fact that the parties lived in the same locality sharing common boundaries. The locus was visited by the parties and their counsel and the land in dispute was identified and its boundaries marks identified. Again, issues were not joined on identity and boundaries of the land in dispute. From the above findings of the issues of the southern boundaries appears settled. The parties knew the land over which they were litigating. See Chief Daniel Allison Ibuluya and Ors. v. Tom Denebo Dikibo (supra) and Okpui v. Agbozo (supra). I am in complete agreement with the trial court that the appellant is entitled to his reliefs as per his claim.

The appeal is meritorious and is hereby allowed. The net result of this is that the judgment of 16/4/92 of the Katsina-Ala High Court sitting in its appellate jurisdiction in this matter is hereby set aside. In its place is restored the judgment of the trial Upper Area Court as per the claim. The order that the defendants hand over possession of land in dispute is hereby vacated as having been made without jurisdiction as it is not claimed. The appellant is entitled to costs of this appeal assessed and fixed at N4,000.00.

Other Citations: (2000)LCN/0888(CA)

Union Bank of Nigeria Plc V. Luobai Nigeria Ltd. (2000) LLJR-CA

Union Bank of Nigeria Plc V. Luobai Nigeria Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

OYEBISI F. OMOLEYE, J.C.A. 

This is an appeal against the ruling of the FCT High Court delivered on the 28th day of July, 1999 by His Lordship Hon. Justice M. D. Saleh Chief Judge, as he then was.

The brief background facts of this case are that the Respondent as plaintiff in the trial Court claimed against the Appellant as defendant under the undefended procedure the sum of N27,873,957.24 being the value of three Oceanic Bank Cheques lodged by the Respondent into its bank account with the Appellant’s Asaba Branch with instructions that the said account be transferred to the Appellant’s Abuja Branch. It was alleged that the Appellant after clearing the said cheques converted the proceeds for its own use, refused, failed and neglected to transfer the account with the said sum of money of the Respondent to the Abuja Branch of the Appellant. By an order of the trial court, the suit was however, – transferred to the general cause list pursuant to the success of the Appellant’s notice of intention to defend the suit in that regard. Pleadings were filed and exchanged by both parties and trial commenced.

The Respondent after calling two witnesses filed in the trial court, a Notice of Discontinuance. The Respondent’s application to discontinue the suit was granted on 28/7/99 by the trial Court. The case was then struck out with liberty to relist the suit.

Dissatisfied with the ruling, the Appellant appealed to this Court vide its Notice of Appeal on one sole ground. The sole ground of appeal with its particulars is as follows:

“GROUND OF APPEAL

The Learned Trial Judge erred in law when he struck out the respondent’s case with liberty to relist.

PARITCULARS OF ERROR:

  1. A) The respondent had called two witnesses in the proceedings who were duly cross-examined thereby making the case part-heard
  2. B) The law is that once a case is part heard and a notice of discontinuance is filed for any reason whatsoever the proper order to make in the circumstance is that of dismissal of the case.”

From the sole ground of appeal, the Appellant formulated one issue for determination. This is:

“The issue for determination in this appeal is whether the Learned Trial Judge was right in Law when he struck out the plaintiff’s case with liberty to relist instead of an order of dismissal having regard to the circumstances of this case.”

The Respondent on its part raised a preliminary objection and formulated one issue for determination of the appeal. These are:

“(A) PRELIMINARY ISSUE/ OBJECTION

Whether the Appellant can raise and argue for the first time on appeal the only ground of Appeal which raises an issue which the Appellant did not raise and canvas at the lower Court, what is the proper order to be made after leave was granted to the Respondent to discontinue the Suit, whether that of striking out or an order for dismissal without first seeking and obtaining leave of this Court.

(B) SUBSTANTIVE ISSUE

Whether the learned Trial Judge was entitled to Strike out the suit with liberty to relist after leave was granted to discontinue same, having regard to the stage of the proceedings, the affidavit evidence in support of the Notice, the provisions of ORDER 29 Rules 3(1) and 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) and the general circumstances of the case.”

On 23/4/07 when the appeal was heard, the learned counsel for the Appellant, Mr. F. O. Akpobasa adopted the Appellant’s Brief of Argument which was deemed filed on 31/10/2002.

On the other hand the learned counsel for the Respondent, Mr. I. U. Ntima adopted the Respondent’s Brief of Argument which was deemed filed on 23/05/2005.

Before proceeding to the sole issue in the appeal, I will first consider the objection of the Respondent to the appeal which has been tagged “Preliminary Issue/Objection”, this was duly incorporated in the Respondent’s Brief of Argument. For ease of reference, I hereunder again reiterate same as follows:

“PRELIMINARY ISSUE/OBJECTION

Whether the Appellant can raise and argue for the first time on appeal the only ground of Appeal which raises an issue which Appellant did not raise and canvas at the lower Court, what is the proper order to be made after leave was granted to the Respondent to discontinue the Suit, whether that of striking out or an order for dismissal without first seeking and obtaining leave of this Court.”

Learned counsel for the Respondent submitted that the question of the proper order to be made after leave was granted to the Respondent to discontinue the suit was neither raised by the Appellant nor canvassed before the trial Court so as to enable the learned trial Judge address same and decide one way or the other.

The only ground of appeal and the sole issue distilled from it is tantamount to raising a fresh and new point on appeal for the first time. In which case, the Appellant ought to seek and obtain the leave of this Court before the issue can be successfully maintained. In the event of the Appellant’s failure to first seek and obtain the necessary leave of court in this regard, the only ground of appeal has been rendered incompetent and must therefore be struck out. On this position learned counsel for the Respondent referred to the cases of:

(1) Oshataba vs. Olujitan (2000) 2 SCNJ p. 159 at p. 172and

(2) Okobia Vs. Ajanya (1998) 5 SCNJ p.95 at p.102.

It was further submitted by learned counsel for the Respondent that since there is only one ground of appeal which is incompetent, the entire appeal has been rendered incompetent and it must fail. He therefore urged the Court to dismiss the appeal.

Replying to the objection, the learned counsel for the Appellant submitted that it was not for counsel to dictate to the court by way of opposition the appropriate order the court ought to make in consequence of the Respondent’s application for leave before that court. Rather, it was a matter exclusively for the court in the due and deliberate exercise of its judicial discretion which naturally and inevitably must entail the weighing of all the circumstances of the case in the interest of justice and balancing of the interest of parties involved. He referred to the case of:

Rodriques & 6 Ors Vs. The Public Trustees (1977) 4 SC p.29 at p. 36. lines 25 – 30.

I have considered the submissions of learned counsel for both parties for and against the preliminary objection. It is patent on the printed record that the leave of the trial Court was duly sought by the Respondent to have the suit under reference discontinued. While I agree that the learned counsel for the Appellant could have indicated to the trial Court the proper order it should make in the given circumstances of the case, his failure to do so cannot constitute a bar to the Appellant’s exercise of its constitutional right of appeal. See Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 which provides that a party in civil proceedings shall have a right of appeal to the Court of Appeal from the decisions of the Federal High Court or the High Court of a State or the High Court of the FCT.

The option open to the Appellant is to appeal the order of the trial Court being dissatisfied with same. In my view, this appeal is not tantamount to canvassing on appeal a fresh point not raised at trial and I hold so. In essence, I hold that the preliminary objection of the Respondent with due respect is misconceived. It fails and I hereby dismiss same accordingly.

I will now proceed to consider the sole issue for determination in the appeal. Although the sole issue as formulated by parties are the same, I will adopt that formulated by the Appellant being better and more properly couched.

SOLE ISSUE

“The issue for determination in this appeal is whether the learned trial Judge was right in law when he struck out the plaintiff’s case with liberty to relist instead of an order of dismissal having regard to the circumstances of this case.”

Learned counsel for the Appellant contended that the learned trial Judge erred in law and did not exercise his discretion judicially and judiciously when His Lordship struck out the Respondent’s suit before the trial Court with liberty to relist the suit consequent upon the Respondent’s motion to discontinue the suit. The leave to discontinue the suit was sought and granted by the trial Court after two witnesses have already testified in support of the Respondent’s case. Reference was made to the provisions of Order 29 rule 3 (1) & (2) of the Civil Procedure Rules of the High Court of the Federal Capital Territory, Abuja, 1990. He submitted that the rationale of rule 3 is that once a certain stage has been reached, a plaintiff in this case the Respondent, is no longer “dominis lities” and cannot be allowed to escape through the back to enter again through another action. A Judge in granting leave to discontinue an action must do so in the exercise of his discretionary power. Learned counsel for the Respondent submitted that such discretion must be exercised judicially and judiciously having regard to the facts and stage of the case. Therefore failure of the trial Court to take the facts and stage of this case into consideration amounts to a wrongful exercise of the Judge’s power of discretion. In which case an appellate Court, can interfere with such decision. He referred to the case of:

University of Lagos & Anor. vs. M. I. Aigoro (1985) 1 NWLR (Pt.1)p. 143at p. 144.

It was canvassed by learned counsel for the Appellant that hearing in the suit commenced on 16/03/98. That day, a witness, PW1 testified after which the case was adjourned to 01/06/98 for continuation. On 01/06/98, the Respondent informed the trial Court of moves by parties to settle out of Court. The case was then adjourned to 25/06/98 for report of settlement. On 25/05/1998 the

Respondent’s counsel did not say anything about the proposed settlement but instead indicated his readiness to call another witness.

Hence, Pw2 testified and some relevant documents Exhibits 1, 2, 3 & 4 were tendered and admitted in evidence through the said Pw2. Thus far, at trial Pw1 & Pw2 properly gave evidence and were cross-examined accordingly. Reference was made to pages 6 & 10 of the record of proceedings.

Learned counsel for the Appellant contended that the failure of the learned trial Judge to take into consideration these facts led His Lordship to errorneously make an order of striking out of the Respondent’s case with the liberty to relist the suit. It was the assertion of the learned counsel for the Appellant that the proper order to make on the discontinuance of an action during hearing is one of dismissal because a position of “litis contestatio” had been reached at that stage. Reference was made to the cases of:

(1) University of Lagos & Anor Vs. M. I. Aigaro Supra;

(2) Eronini & 4 0rs. Vs Iheuko (1989) 2 NWLR (pt. 101) p. 46 at p.61;

(3) Aghadiuno & 2 ors Vs. Onuboqu (1998) 58 LRCN p. 3422 at p. 3444, para. H. and

(4) Omo & 5 Ors vs Amantu & 2 ors (1993) 3NWLR (Pt.280) p.187 at p. 196, paras. A-B.

Learned counsel for the Appellant referred to page 45 of the record where the Appellant’s counsel told the learned trial Chief Judge that they were not aware of settlement moves in response to the claim of the Respondent that there were such moves. It was the contention of learned counsel for the Appellant that the Respondent was on its own when on 01/06/98 its counsel informed the trial Court of a proposed final settlement by parties. Also on 28/07/99 when the learned counsel for the Respondent sought and was granted leave to discontinue the case, the application was made because it became clear to the Respondent that the action was a futile one and that its claim cannot succeed. Learned counsel for the Appellant urged this Court not to allow a situation whereby the Respondent enters again through another action after it had discontinued the earlier suit on 28/07/99 to “explore out of court settlement; as this would occasion an injustice to the Appellant. Learned counsel for the Appellant therefore urged the Court to allow the appeal, set aside the decision of the trial Court and dismiss the Respondent’s suit accordingly.

On the other part, learned counsel for the Respondent submitted that, the Respondent’s application for the discontinuance of its suit before the trial Court was in pursuance of the provisions of Order 29 rule 3(1) Supra. For the application was made outside the period of 14 days of service on it of the Appellant’s Statement of Defence, hence the need for the Respondent to seek the leave of the trial Court for the discontinuance. The leave was rightly sought and obtained by the Respondent pursuant to the said provisions of Order 29 rule 3(1).

Learned counsel for the Respondent contended that a trial Judge faced with an application brought under Order 293(1) has a discretionary power to exercise in granting or refusing the application. That such exercise of discretion must be judicial and judicious after taking into consideration the reason(s) for the application to discontinue the case, the conduct of the parties, and whether the defendant as in the instant case, the Appellant will be prejudiced if the suit is discontinued at the particular stage when the application was brought.

The discretion whether or not to permit the discontinuance of a suit according to learned counsel for the Respondent is entirely that of the trial Judge. The orders to be made in that regard are hereunder catalogued by learned counsel for the Respondent as follows:

(1) to grant leave for the Suit to be withdrawn simply on terms that the same be struck out subject to payment of cost.

(2) or to grant leave for the Suit to be withdrawn subject to the imposition of certain conditions to be fulfiled before a fresh Suit concerning the same subject matter and the same parties may be instituted in the court, or

(3) to refuse such leave in which case the Suit must be dismissed also on terms as to costs if the plaintiff could not proceed.

On the position taken by the learned counsel for the Respondent, reference was made to the case of:

Aghadiuno & 2 ors Vs. Onubogu (1998) Supra

Learned counsel for the Respondent further canvassed that the Appellant did not file a counter affidavit to challenge the averments in the Respondent’s affidavit in support of the application for discontinuance filed by the Respondent. The Appellant neither opposed the application nor asked for cost. In particular, reference was made to the averments in paragraphs 4 and 5 of Respondent’s affidavit in support of the Notice of Discontinuance to the effect that it was after the weighty evidence of Pw2 that the Appellant mounted pressure on the Respondent in furtherance of the earlier letter Exhibit A attached to the Notice and gave assurances that the Respondent’s account will be normalized. The Respondent through its Managing Director gave his words to the Appellant that steps will be initiated to discontinue the suit. This was actualized by the filing of the Notice of Discontinuance by the Respondent.

It was contended by learned counsel for the Respondent that the current posture of the Appellant is tantamount to tricks and intrigues which are not permitted under any judicial system which is based on justice, equity and good conscience. The Appellant’s abandonment of the settlement proposal by the institution of this appeal is meant to foreclose and prejudice the Respondent’s claim. This is unjust, inequitable, against good conscience and a sharp practice which ought to be discouraged by the courts. He referred to the observation of the Supreme Court in the case of:

Shauibu Vs. N.A.B. Ltd (1998) 4 SCNJ p. 109 at p. 123

That justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities.

It was the further contention of the learned counsel for the Respondent that having granted leave to discontinue without objection, the only proper order the trial Court can make at that stage is the order of striking out in fine with the provisions of Order 29 rule 3(1) Supra and the cases of:

(1) Rodriques & Ors. Vs. The Public Trustees & Ors (1977) 4 SC p.29 at pqs. 32, 36 – 37 and

(2) Aghadiuno vs. Onuboqu Supra at p.92.

Having not opposed the application for discontinuance, it is the opinion of learned counsel for the Respondent that it is too late in the day for the Appellant to complain on appeal that the leave ought not have been granted with liberty to relist the action. He referred to the case of:

Okobo vs. Ajanya Supra at p. 104 – 105.

Learned counsel for the Respondent further canvassed that it will also be inequitable to allow the Appellant take advantage of the circumstances which it foisted on the Respondent to defeat the Respondent’s cause of action without a determination of the suit on its merits.

Having recounted the submissions of both counsel with the legal authorities cited by them on the sole issue in this appeal, it becomes pertinent to give due consideration to the relevant and enabling rule guiding the exercise of the discretion of the trial Court at the time the suit in dispute was instituted before it. In this regard, the appropriate rule is Order 29 rule 3 of the High Court of the FCT, Abuja Civil Procedure Rules, 1999. For reasons of ease of reference and good appreciation of the full details and purport of the provisions, I hereunder reproduce same as follows:

“3. (1) Except as provided by rule 2 of this Order, a party may not discontinue an action or counter-claim or withdraw any particular claim made by him therein without leave of the Court and the court hearing an application for the grant of such leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.

(2) An application for the grant of leave under this rule may be made by summons or motion on notice. ”

(The underlined is mine for emphasis.)

As already stated earlier on in this judgment, the Respondent’s action was initially commenced under the undefended list procedure. However, convinced that the Appellant’s affidavit in support of its notice of intention to defend, disclosed a defence on the merit, the learned trial Chief Judge accordingly transferred the suit to the general cause list of the trial Court.

The first pertinent question to ask in resolving this appeal is: what actually informed the Respondent to file the notice/application for leave to discontinue the suit against the Appellant? The Respondent’s counsel informed the trial Court that there was a move by parties to settle out of Court for the very first time on 01/06/98- see lines 8 – 10 from the bottom at page 45 of the record. Prior to that date, hearing of the case commenced-on 16/03/98 with the taking of the evidence of Pw1. The following day, that is, 17/3/98, the Appellant wrote a letter to the Chairman of the Respondent Company. This is at page 39 of the record. For ease of reference, I hereunder reproduce the said letter as follows:

“RC 6262     UNION BANK OF NIGERIA PLC

Head Office 40 Marina, PM. Bag 2027, Lagos

Telephone 2665439, 2665441, 2665445

Telegrams: UNIONHEAD

Telex: 21222

Fax: 2669873

LEGAL DEPARTMENT

17th March 1998

Mr. Luke Uche Okpuno

Group Chairman

Luobai Nigeria Limited

13 Ibusa Road

  1. O. Box 607

Asaba – Delta State

WITHOUT PREJUDICE

Dear Sir,

RE”SUIT NO CV/04/9B

LUOBAI NIGERIA LIMITED

VS

UNION BANK OF NIGERIA PLC

We refer to the above pending matter before the Abuja Federal High Court.

Reference is also made to our Okpuno/Azinge discussion on Tuesday 10th March 1998 in respect of same.

You will recall that we extensively dwelt on the need to have a harmonious, cordial and long lasting relationship built on a mutually beneficial business relationship between your company and the Bank.

We trust that you will initiate the discontinuance of this matter in court to enable us continue the already existing cordial relationship.

Yours sincerely,

SIGNED

THEODORA N. AZINGE (MRS)

R/DEPUTY GENERAL MANAGER

(LEGAL SERVICES)

(The underlined is mine for emphasis)

The next time the case came up for hearing after the letter was written by the Appellant to the Respondent was on 01/06/98 when the Respondent informed the learned trial Chief Judge of the proposed out of Court settlement. The case was adjourned to 25/06/98 for report of settlement – see the last line at page 45 of the record. Subsequently the case came up for hearing on 28/07/98, 29/7/98, 05/10/98 and 14/04/99. The evidence of Pw2 was taken on 14/04/99 when the case was further adjourned to 13/5/99 for continuation although the trial Court did not sit until 17/06/00 when the Respondent’s counsel informed the trial Court that the Respondent instructed him the day before that day to discontinue the suit. The Respondent and the Appellant had reached some understanding in the matter. Learned counsel for the Respondent then prayed the trial Court for an adjournment to enable him come properly before the Court by filing the Notice of Discontinuance. The case was then adjourned to 12/07/99 for the hearing of the Respondent’s application.

The trial Court did not reconvene until 28/07/99 when the Notice of Discontinuance dated 05/07/99 but filed on 13/7/99 was granted by the trial Court having been moved by the Respondent’s counsel but not opposed by the Appellant’s counsel. See page 37 – 38 of the Record for the Notice of Discontinuance and the Affidavit in support thereof. Line 5 at page 49 of the Record specifically shows that the Appellant’s counsel did not oppose the application of the Respondent to discontinue the suit against it. It should be noted that although earlier on when the topic was first raised on 01/06/98, the Appellant’s counsel said he was not aware of the reconciliation move, he did not oppose the Respondent’s counsel’s application for an adjournment to enable parties finally settle out of court.

It becomes very clear that the Appellant was actively involved in the out-of-court settlement – see its letter to the Respondent’s Chairman reproduced supra at page 39 of the record.

The next pertinent question, indeed the “gravamen” of this appeal is: given the circumstances of this case, is the order of the learned trial Chief Judge’s striking out the suit with the rider that the suit could be relisted the proper order? Order 3(1) supra is very unambiguous, it provides that the court hearing an application for the grant of its leave to discontinue an action or withdraw any particular claim therein may order the action to be discontinued or struck out on such terms as to costs or the bringing of a subsequent action as it thinks just. As rightly submitted in agreement by counsel for the two parties, the power to grant an application for discontinuance by the court is a discretionary one. The exercise of which like other judicial discretionary powers of court must be done judicially and judiciously in the light of the peculiar circumstances of the case in dispute.

The main grouse of the Appellant in the instant case is that this Court should interfere with the learned trial Judges exercise of discretion.

It is trite law that the discretion of a court no matter how wide should be exercised judiciously and judicially. It is a time-honoured and settled principle of law that appellate Courts do not ordinarily interfere with a lower Court’s exercise of discretion unless the discretion has been exercised in an arbitrary or illegal manner or without due consideration of all relevant issues in the matter. See the cases of:

(1) M. A. Williams Vs. Hope Rising Voluntary Funds Society (1982) 2 SC p.145;

(2) Efetiroroie Vs. Okpalafe II (1991) 5 NWLR (Pt.193) p.519 and

(3) Ere Finance Holdings Ltd vs. Osaqie, Okeke, Oteqbola & Co. (2000) 5 NWLR (Pt.658) p.536.

I have already catalogued the circumstances which led to the Respondent’s application for the discontinuance of the suit in dispute. It is crystal clear from the printed record that it was as a result of the Appellant’s letter (at page 39 of the record of proceedings) to the Respondent that the application for discontinuance of the suit was commenced by the Respondent and granted by the learned trial Chief Judge. Very pertinent also is the motion for discontinuance itself with the Supporting Affidavit at pages 37 and 38 of the record. The Appellant was duly represented in court on 28/7/99 when the motion was moved. He did not oppose the motion. The averments in the Affidavit in support of the motion were not challenged or controverted for no counter-affidavit was filed by the Appellant in that regard. The position of the law is that evidence or averments in an affidavit that are not denied are deemed admitted. The court would act on them especially when they are credible and reliable. See the cases of:

(1) Ajomate Vs. Yaduat (No.2) (1991) 5 NWLR (pt.191) p.266;

(2) Honka Sawmill (Nig.) Ltd vs. Hoff (1994) 2 NWLR (Pt.326) p.252;

(3) Neka B.B.B. Mfq. Co. Ltd Vs. A.C.B. Ltd (2004) 2 NWLR (pt.858) p.521 and

(4) Remawa vs. NACO CFC Ltd (2007) 2 NWLR (pt.1017) p.155

The Appellant is therefore deemed to have admitted all the averments especially those of paragraphs 4 and 5 of the said Affidavit.

The Appellant can not therefore be heard to say that it was not party to the events leading to the filing, hearing and determination of the Respondent’s motion for the discontinuance of the suit in dispute. They can not approbate and reprobate at the same time. I hold without any modicum of doubt that indeed there was a meeting of the minds of the Appellant and the Respondent prior to the hearing of the Motion for Discontinuance. By virtue of section 151 of the Evidence Act, when one person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act on such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such representative in interest to deny the truth of that thing. See the cases of:

(1) Otto v. Mabamiie (2004) 17 NWLR (Pt, 903) p.489;

(2) Ondo State University Vs. Folayan (1994) 7 NWLR (Pt. 354) p.1 at p. 119, paras. F-H and

(3) Gov. Ekiti State vs. Ojo (2006) 17 NWLR (Pt.1007) p.95

The parties in the instant case especially the Appellant are therefore estopped from resiling from that consensus.

Regarding the propriety of the order of the trial Court being appealed, in the circumstances of this case, can it be said that the learned trial Chief Judge wrongly excised his discretion in granting the Respondent’s application to discontinue the suit against the Appellant by striking out the suit giving the Respondent liberty to cause the suit to be relisted? Upon a close scrutiny of the pleadings Filed and exchanged by parties, it is very evident that very serious issues have been joined by the Respondent and the Appellant. So far, only two witnesses have been called by the Respondent. Although the total number of witnesses the Respondent intends to call is not known, it will appear that if the evidence adduced vide the two witnesses is considered side by side the pleadings of parties especially, the Statement of Claim and the Reply to the Statement of Defence filed by the Respondent, the evidence can not be said to be in full cry of, rather it is a far cry from entitling either party to its claim or counter-claim as the case may be. The evidence led so far by the Respondent in the trial Court if taken alongside the pleadings especially that of the Appellant it cannot be said that the ammunitions of the Appellant have been exposed thereby weakening the Appellant’s position and putting the Appellant at a disadvantage should the proposed out- of – court settlement crumbles thereby necessitating a relisting of the suit by the Respondent.

I have examined and considered all the legal authorities cited by both counsel and found that the common denominator indeed the germane ratio of them all is that: a Court in exercising its judicial discretion as in the instant case, must weigh all the circumstances of each case before it thereby balancing the interest of the parties involved. This is the mind of the Supreme Court in the case of; Aghadiuno Vs. Onuboqgu Supra relied upon by counsel for both parties. see also the case of: Rodrigues & 6 ors. Vs. The Public Trustees also Supra. Where a matter involves the exercise of judicial discretion, only the court exercising the discretion, can limit itself. Such court is not bound to exercise its discretion in a particular way in accordance with an existing judicial decision. In other words, each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case as previous exercise of judicial discretion has no binding effect. See the cases of:

(1) I.C.A.N vs. A.-G., Federation (2004) 3 NWLR (Pt.859) p.186;

(2) Odusote Vs. Odudsote (1971) 1 All NLR p. 219;

(3) Udeze Vs, Ononuju(2001) 3 NWLR (Pt.700) p.216:

(4) Oyekanmi vs. NEPA (2000)15 NWLR (pt. 690) p.414 at Pgs. 113 -114, paras. G-A and

(5) N. H. Int’l S.A v. N.H.H. Ltd (2007)7 NWLR (Pt.1032) 886.

An appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. However, an appellate court has a bounden duty to interfere with the exercise of such discretion where it is shown that the trial court erred by exercising its discretion on wrong principles or that it failed to give weight to matters which it should have had in mind or that its conclusion is one that involved injustice. See the cases of:

(1) I.C.A.N Vs. A.-G., Federation Supra;

(2) University of Lagos vs. Aigoro {1998}1 NWLR (Pt.1) p.143;

(3) Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) p.320;

(4) Omadibe v. Adajeroh (1976) 12 SC p.87;

(5) Odutola v. Kavode (19942 2 NWLR (pt. 324) p. 1 and

(6) N.H. Int’l S.A. vs. N.H.H. Ltd Supra.

On the whole, the overall interest of justice to all parties based on the stage attained in each peculiar case is the deciding factor that should weigh on the mind of the Court in the exercise of its judicial discretion one way or the other. In the instant case, I do not think the learned trial Chief Judge wrongly exercised his discretion in granting the Order in dispute. He is properly empowered especially in that regard by the combined provisions of Order 29 rules 3(1) and 4. Rule 3(1) reproduced supra is to the effect that leave to discontinue an action will be granted on terms such as, the bringing of a subsequent action or otherwise as it considered just and subject to any of such terms imposed by the Court in granting the leave to discontinue the action, Rule 4 provides as follows:

“4. Subject to any terms imposed by the Court in granting leave under rule 3 of this Order, the fact that a party had discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action. (The underlined is mine for emphasis)

By the provisions of rule 4, the fact that a party had discontinued an action shall not be a defence to a subsequent action for the same or substantially the same cause of action. In his own view, the learned trial Chief Judge used his discretion to strike out the Respondent’s suit against the Appellant with a liberty to relist the suit to cover the exigency of this case in the interest of justice to the parties. This is just and equitable in the given circumstances and bearing in mind the possibility of a break down of negotiations between the parties. In which event it will be desirable and in the interest of justice for the suit to be heard and determined on its merits. I can not disturb the exercise of discretion of the learned trial Chief Judge as the discretion had not been exercised in any arbitrary or illegal manner or without due consideration of all relevant issues in the matter, I do not see any feature to establish a misapplication of discretion on the part of the learned trial Chief Judge.

In the final result, I am of the view that the learned trial Chief Judge properly exercised his discretion in granting the order in dispute. Accordingly, this appeal lacks merit and it is dismissed. The order of the trial Court made on 28/7/99 is hereby affirmed. I make no order as to costs.

Other Citations: (2000)LCN/0886(CA)

Wing Commander T. L. A. Shekete V. The Nigerian Air Force (2000) LLJR-CA

Wing Commander T. L. A. Shekete V. The Nigerian Air Force (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The appellant, Wing Commander T. L. A. Shekete was arraigned on 22nd July, 1996 along with eight other Air force Officers before a General Court Martial. In the charge against the appellant there were seven counts. He was found not guilty on the 1st and 2nd counts of the charge but guilty on the others and sent to various terms of imprisonment. Dissatisfied with his conviction and sentence the appellant has brought this appeal on ten grounds.

In the appellant’s brief filed, the issues for determination were formulated as follows:-

“(i) Whether there were material conflict/contradictions and inconsistencies in the prosecution case and if there were, was the GCM right in picking those ultimately that favoured their verdict (on the side of the prosecution)?.

(ii) Whether based on the evidence before the General Court Martial, the conviction of the appellant on all grounds relating to receiving stolen property is not perverse and unmaintainable?.

(iii) Whether the GCM (trial Court) adequately considered the defence of the appellant or at all?.

(iv) Whether without proferring any reason, the GCM was right in ignoring the submissions of the judge advocate and thereby convicting the appellant against sound legal and factual reasons exposed before the Court?.

(v) Based on the GCM obvious lack of consideration for the case of the defence and legal submissions at the address stage and disregard for the Judge Advocate’s submission, the GCM could be said to have acted and exercised their discretion judicially and judiciously?.

(vi) Whether in the circumstances of this case and in particular having regard to the principles of fair hearing, the GCM was right in convicting the appellant for forgery when the purported forged document was rejected in evidence at the trial and no evidence was called in proof of the charge?.

(vii) Whether the mere signing of Form C06 and Form C02 is a sufficient proof of engaging in private business?.

(viii) Whether there was sufficient proof before the GCM to-warrant a finding of guilt on ground of disobedience to standing orders when the existence of such orders was not proved and the knowledge of the standing order was denied by even prosecution witnesses and the appellants?.”

The respondent formulated the issues for determination thus:

“(1) Whether in the light of prepondence of evidence both oral and documentary placed before the General Court Martial, the prosecution can be said to have proved the charges preferred/against the 4th appellant beyond reasonable doubt and whether the judgment of the General Court Martial can be supported having regard to the evidence adduced and accepted at the trials by the General Court Martial?.

(2) Whether in the light of other evidences oral and documentary the principle of fair hearing was breached by the General Court Martial in convicting the appellant?.

(3) Whether the General Court Martial under the existing law is bound to give reason when announcing its finding or writing its judgment.

(4) Whether the General Court Martial is right in taking judicial notice of an order that is subsisting even if it was not proved by the parties?.”

I start a consideration of the issues in this judgment by making some observations which I consider important. I observed earlier in the judgment that the appellant was tried along with eight other airforce officers. Each of the accused before the General Court Martial (hereinafter abbreviated as GCM) was separately charged. Regrettably however, all of them were tried together. Some of them had made statements before their arraignment in the course of investigation that suggested that some funds belonging to the Nigerian Air Force (hereinafter abbreviated as NAF) were shared between the accused persons. It was not shown that such statements were made in the presence of some of the accused implicated them. The result is that these accused persons were not shown to have adopted or admitted the contents of the statements by such other accused persons. Section 27(3) of the Evidence Act provides that:-

“Where more than one person are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or jury where the trial is one with a jury shall not take such statement into consideration as against such other persons in whose presence, it was made unless he adopted the said statement by words or conduct.”

In this judgment therefore, I must rely only on such statements by the other persons implicating the appellant only to the extent that the appellant adopted the contents of the statements by these other accused persons.

Further, the GCM did not state specifically the aspects of the case of the prosecution and defence which it accepted or rejected. The result is that the evidential basis for the conclusions reached by the GCM could not be ascertained.

It is not a disrespect to the GCM to say that the judgment before me on appeal is superficial and in many ways lacking in the quality that a judgment of any tribunal trying a criminal case must possess. When it is realised that the decisions of a court Martial are appealable, it cannot amount to asking too much from the GCM to state specifically the facts relied upon in coming to its decision. It is these facts and the reasoning upon them which an appellate court must consider in determining whether or not the GCM had been right in its approach to the case and the conclusion arrived at.

Speaking broadly, the case of the prosecution before the GCM against the accused persons including the appellant, who was the 4th accused may be stated as follows:-

The accused persons from the Ikeja PAG office of the Nigerian Air Force made a cash requisition on the standard airforce forms. The purposes for which the cash requisition was made were stated on the requisite forms tendered in evidence as exhibits 2 to 6. The forms approved for the purposes stated thereon by the headquarters of the N.A.F. This was on Form 1487 serial numbers 0907,0908, and 0909 tendered as exhibits 9A, 9B and 9C respectively. It was alleged that sum of N10 Million released to the Ikeja PAG office of the NAF by the NAF headquarters rather than being used for the purposes stated in the forms which requisitioned the funds was shared amongst some airforce officers including the appellant and the eight other accused persons. The amount given to the appellant as his share of the money was N500,000.00. This, basically was the story leading to the trial of the appellant, as the 4th accused and the eight airforce officers before the GCM.

The evidence against the appellant in the whole affair was in specific. In Exhibit 13, the statement made by the 6th accused, in the course of investigation the 6th accused Sq., Leader Olatunji alleged that a sum of N500,000.00 was given to the appellant as his share of the N10m. The 4th and 12 prosecution witnesses were the only persons who gave some evidence against the appellant.

The offences alleged against the appellant read thus:-

1st charge Civil Offence Contrary to Sec. 114 of the Armed Forces Decree, 1993 that is to say, conspiracy to defraud contrary to Sec. 422 of The Criminal Code

IN THAT HE

Together with Gp Capt. RM Tinglocha (NF/493). Wg Cdr MB Togunloju (NF/839), Wg Cdr LD James (NAF/909), Sqn Ldr MO Kamaldeen (NAF/843), Sqn Ldr SI Olatunji (NAF/1217) and Sqn Ldr OT Onyeukwu (NAF/1708) at HQ NAFDFA/HQ PAG, Lagos between 1-4 Apr. 96 conspired to defraud the Nigerian Air Force.

2nd charge Stealing Contrary to Sec. 66(a) of the Armed Forces Decree, 1993

IN THAT HE

Together with Gp Capt. RM Tinglocha (NAF/493), WG Cdr MB Togunloju (NAF/839), Wg Cdr LD James (NAF/909, Sqn Ldr MO Kamaldeen (NAF/843), Sqn Ldr SI Olatunji (NAF/1217) and Sqn Ldr OT Onyeukwu (NAF/1708) at Lagos on or about 2 Apr. 96 stole the sum of N10m property of the Nigerian Air Force

(Alternative Receiving stolen property contrary to 2nd charge) Sec. 66 (1) of the Armed Forces Decree, 1993

IN THAT HE

At Lagos on or about 2 Apr. 96 received the sum of N0.6m being part of N10m stolen from

Legal in Confidence

the Nigerian Air Force knowing or having reason to believe same to have been stolen.

3rd charge Receiving stolen property contrary to Sec. 66(b) of the Armed Forces Decree, 1993

IN THAT HE

at Lagos in Jan., 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen 4th charge Receiving stolen property contrary to Sec. 66(b) of The Armed Forces Decree, 1993

IN THAT HE

at Lagos in Feb., 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen.

5th charge Receiving stolen property contrary to Sec. 66(b) of The Armed Forces Decree, 1993

IN THAT HE

at Lagos in Mar. 96 received the sum of N450,000.00 knowing or having reason to believe same to have been stolen.

6th charge Forgery contrary to Sec.112(c) of the Armed Forces Decree 105, 1993 IN THAT HE

At Lagos on or about 19 Apr. 96 forged a letter to one Mr. H. Eze.

Legal in Confidence

7th charge Disobedience to standing orders contrary to Section 57(1) of the Armed Forces Decree 105, 1993

IN THAT HE

At Lagos on or about Apr., 96 engaged in private business which contravened administrative instructions S/No 3 dated Feb. 76, an order known to him or which might reasonably be expected to know.”

Now in the course of investigation, warrant officer Paul Tungen who testified as P.W. 4 before the GCM had made a statement in the summary of evidence (abbreviated as SOE). In his statement which was tendered before the GCM as Exhibit 29, P.W. 4 had stated that the paymaster Sqn. Ldr Olatunji (6th accused) gave him (i.e. P.W 4) some money in an envelope to put in the boot of the appellant’s car. P.W. 4 found the booth open. He did not know how much was contained in the envelope which was put in the boot of appellant’s car in February, 1996.

Before the GCM, P.W. 4 was cross-examined as to the contents of his statement Exhibit 29. He said that he did not see the appellant count the money and he P.W4 had not opened the envelope P.W 4 had not also seen the appellant drive the car away.

Now in his statement Exhibit 13, the 6th accused said that a sum of N500,000.00 was given to the 4th appellant out of the N10m which was to be shared amongst airforce officers in the Pay and Accounting Group (PAG) on the orders of the retiring Chief of Air Force.

In his statement Exhibit 11, the 4th appellant wrote:-

“On the alleged N10m approved by the HQ NAF around the first week of April, I did not conspire with any body to share the money. During the first week of April, I was preparing to go to Saudi Arabia to perform 1996 Hajj. My Conadr Cr. Cap. Tinglochs gave me permission to pursue my Visa and the requirements for the Hajj. I seldom went to the office during that time. It was when I reported back to the office when I could not go to Hajj that I learnt about the N10m I did not collect any money from the alleged N10m.

The evidence of P.W.4 that he deposited an unknown sum of money in an envelope in the boot of the 4th appellant’s car is very unsatisfactory. What kind of envelope would accommodate N500,000.00 in N20 notes? In any case, if the money was put into an unlocked car boot, was there not the possibility that any other person could have taken the money from the boot since there was no evidence that any person was watching over the car. The 6th accused who said in his statement that he gave the appellant N500,000.00 did not given evidence that he handed over the money to the 4th appellant through any medium other than P.W 4. The 4th appellant did not in his statement Exhibit 11 admit that he received N500,000.00 out of the N10m allegedly stolen. Neither did he admit to the same in his testimony before the GCM. And as I have said earlier, whatever the 6th accused had said in his statement Exhibit 13 could not be used against the 4th appellant since the latter had not adopted the contents of Exhibit 13.

The result is that there was no evidence worth relying upon to show that the 4th appellant received the sum of N500,000.00 from the N10m which was alleged to have been stolen.

In its judgment concerning the 4th appellant, the GCM concluded thus:”

Accused No.4:

Charge 1, conspiracy to defraud, Not guilty.

Charge 2, stealing, 29.

Receiving 2 years imprisonment. Charge 3

Receiving 2 years imprisonment. Charge 5

Receiving 2 years imprisonment. Charge 6,

Forgery 21 years imprisonment. Charge 7

Illegal business, 2 years imprisonment.

You are to serve 23 years. Charges 3

and 6 to run consecutively. Others to run concurrently; no recommendation for mercies. Sit down.”

The GCM found the 4th appellant not guilty of the 1st and 2nd counts. However, the 4th appellant was found guilty of receiving stolen money under counts 2 to 5 of the charge. There was, as I said, no satisfactory evidence to support these counts.

It is settled law that the guilt of an accused must be proved beyond reasonable doubt before conviction can ensue. R. v. Basil Ranger Lawrence (1932) 11 NLR 6 at 7; R. v. Anr Nwokarafor and Ors. (1944) 10 WACA 221. With respect, the GCM was in error to have found the 4th appellant guilty on counts 2 to 5 of the charge sheet. The appellant ought to have been discharged and acquitted on these counts. The GCM also found the 4th appellant guilty on the 6th count which alleged that the appellant on or about 19 April, 1996 forged a letter to one Mr. H. Eze. The purpose sought to be achieved by the appellant in writing the alleged forged letter was not stated. How was anybody or Mr. Eze deceived by the said letter? There was a complete blank on the point. Perhaps the more important aspect of this court is that the GCM did not allow the letter in evidence. At pages 121 of the record, the relevant court notes read:-

“Prosecution: Wg Cdr. Baba Adamu, is that all you recovered in respect of Wg. Cdr. Shekete?

P.W. 12: No

Prosecution: What other things?

P.W 12: I have a letter, carbon copy of a letter, the original of which was collected by one Chinedu. Listen, the letter was written to Mr. Eze. The corporate address on top of the headed paper is 2nd Avenue, House 54, Festac Town, reference No WF0/124.

Defence: Objection my lord

President: Objection upheld, counsel to lay proper foundation and tender that document as evidence if he so wishes.”

Thus, the letter which was the foundation of the 6th count was not received in evidence on the first attempt to tender it. It was not subsequently tendered in evidence. The prosecution appreciated the dilemma in which it was as regard the proof of the 6th count of forgery. At page 425 of volume 4 of the record of proceedings, the prosecuting counsel observed.

“A1. The 4th accused is charged with forgery contrary to Sec. 112(c) of the Armed Forces Decree. My Lords, the sole evidence of this is a document which was rejected wrongly with due respect by this Honourable General Court Martial. Since that document was also marked rejected, it is not part of the records of the court. If necessary, it may become useful on appeal.

A2. We feel tempted to alternatively ask the court to convict the accused on Exhibit 77 which he signed – a personal referenced letter – For Chief of Air Staff. This the court can do even if he is not charged under section 142 of the AFD and the time would have elapsed under AFD. He can be conveniently convicted under S. 467 of the Criminal Code which carries lesser punishments. However, in view of the face saving and gracious intervention of this Honourable General Court martial, the prosecution will leave the matter to be decided by court.”

There is no doubt that the letter alleged to have been forged by the 4th appellant never formed a part of the evidence before the lower Court. The prosecution counsel was therefore wrong to have urged the GCM to act on evidence not properly before it. It is an elementary principle of justice that a court or tribunal cannot rely in its judgment upon evidence not before it. The GCM was Clearly in error to have convicted the appellant on a count not supported by any evidence. The 4th appellant ought to have been discharged and acquitted on-the 6th count.

Finally is the 7th count which alleged that the appellant engaged in private business. The evidence in support of this count was that Forms C.06 and statement of share capital under the companies Decree were found in the course of investigation with the appellant. The forms were tendered in evidence as exhibits 47A and 47B and related to a limited liability called Wolad Farms Nigeria Ltd. The appellant agreed that he signed the forms for and on behalf of his wife. Whether or not the appellant had been truthful as to his evidence that he signed exhibits 47A and 47B on behalf of his wife, the question is, could the mere possession of these two forms amount to engagement in private business? The two forms were some of the papers to be filed with the Registrar of Companies when a limited liability company was to be formed.

There was no evidence that Wolads Farms Nig. Ltd. was subsequently incorporated. There was no evidence that an account was opened anywhere by the company. There was no evidence that the company had transacted any business with anybody. Certainly, it takes more than the possession of incorporation papers, to be in private business. The evidence in support of this court was clearly insufficient to warrant the conviction of the appellant. At the highest the possession by the appellant of exhibits 47A and 47B would only be preparatory steps by the appellant to doing a private business at a future date. The appellant ought not to have been found guilty on this count.

Another aspect of the case against the appellant needs be briefly examined. I said earlier that the case of the prosecution was that the accused persons including the appellant had shared amongst themselves the sum of N10m which had been approved for the PAG, Airforce Ikeja for some stated purposes. The defence of the accused persons who admitted that they received a share of this money was that the retiring Chief of Air Staff had made an order that the amount be shared amongst the airforce officers in the PAG, NAF as welfare gift. It was, according to the said accused persons, the former Chief of Air Staff’s way of saying thank you for a loyal service to his officers and that such gift was not uncommon in the armed forces.

The prosecution did not call the retired Chief of Air Staff to testify that he did not give such an order. It seems to me that if indeed, the order was given by the retired Chief of Air Staff that the N10m be shared, it would be a perfect defence to the allegation that accused persons concerned stole the money. The 4th appellant would therefore have been placed to take umbrage under the defence plea that even if indeed he received the amounts stated on counts 2, 3 and 4, the N10m was not stolen; and inferentially that it could not have been an offence to have received a part of it.

There is also the very important angle to the matter which relates to the constitution of the General Court Martial. Section 131(2) of the AFD, 1993 provides that a General court Marital could be convened by:

“(a). The President; or

(b). The Chief of Defence Staff; or

(c). The Service Chiefs; or

(d). a General Officer Commanding; or Corresponding Commands; or

(e). a Brigade Commander or Corresponding command.”

Contrary to the above however, the General Court Martial in this case was convened by one Air Commodore F. O. Ajobena who purported to do so on behalf of the Chief of Air Staff. On 6 August, 1996, some 14 days after the GCM had been convened, the Chief of Air Staff wrote a letter as an attachment to the convening order stating that he had verbally authorised Air Cdr. Ajobena to sign the convening order. A close perusal of Section 131 of the AFD, 1993 reveals that it was not the intendment of the law that the authority to convene a GCM be delegatable. The authority is vested only in the holders of the stated offices. There was therefore no power or authority vested in Air Cdr. Ajobena to sign the convening order. The order was a nullity. The trial and judgment founded on it are nullities: See Okafor v. State (1976)5 SC 13; Onwuka v. State (1970) 1 All NLR 159 at 163; Queen v. Owoh (1962) 1 All NLR 659 at 661-662; Awobotu v. State (1976) 5 S.C. 49 at 70 and the unreported judgment of this court in CA/L/293/98.

On the whole, my conclusion is that this appeal is meritorious. It is allowed. I set aside the judgment appealed against. In its place, I make an order striking out the charge against the appellant. Had I been able to hold that the convening order was validly issued, I would have come to the conclusion that the guilt of the appellant was not established as required by law. I make an order discharging and acquitting the appellant on the counts brought against him.

Other Citations: (2000)LCN/0890(CA)

National Elecricity Power Authority V. Mr. B. Edegbero & Ors. (2000) LLJR-CA

National Elecricity Power Authority V. Mr. B. Edegbero & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

All the respondents were employees of the appellant at the New Bussa Power Station. They were members of the N.E.P.A Workers Welfare Representative Committee, Kainji Power Station, (said to be an unregistered association) which is an affiliation of all power and transmitting stations of N.E.P.A. As a result of lack of confidence there was intra-union crisis between the Workers Welfare Representative Committee (W.W.R.C.) and the two existing unions in N.E.P.A – the National Union of Electricity and Gas Workers (N.D.E.G.W.) and the Senior Staff Association (S.S.A). Series of letters were written to the Managing Director/Chief Executive of N.E.P.A., Assistant Manager (Industrial Relations) N.E.P.A. Headquarters and the Ministers of Mines, Power and Steel, Labour and Productivity to intervene in the crisis. There was no response. Another letter was written to the Managing Director, N.E.P.A. informing him that (W.W.R.C.) cannot guarantee industrial harmony within the organisation if no action was taken in response to their demands.

After that, the (W.W.R.C.) threatened to go on strike. The strike action was pre-empted by the Management staff who took over the Control Room, workers were on the 4th of August, 1994 asked to go home when the Security Agencies and the Management took over the Power Station. On 5th day of August, 1994, the respondents were arrested and interrogated by the Police and later at S.I.I.B., Minna. On the day they returned from Minna they were served with letters terminating their appointment with the appellant.

The respondents then as plaintiffs initiated an action at the New Bussa, High Court whereby by paragraph 16 of their Statement of Claim, they were praying for the following reliefs:

  1. A declaration that the purported termination of the plaintiffs appointment with the defendant is irregular, unlawful, null and void and of no effect whatsoever.
  2. An Order reinstating the plaintiffs appointment with the defendant and the payment of the plaintiffs salaries, allowances and entitlements from the purported day of termination till reinstatement.
  3. A perpetual injunction restraining the defendant from harassing, intimidating and violating the plaintiffs right.

Pleadings were filed and exchanged by the parties and the case went for trial. Two witnesses testified for the respondents while the appellant/defendant rested their case on the respondents case. Counsel for the plaintiffs/respondents addressed the court but before counsel for the appellant could address the court he received a copy of a letter from the Head of State in which approval was given to N.E.P.A. to disengage the workers under Decree No. 17 of 1984. By virtue of the said letter counsel then filed an application to amend the defendants Statement of Defence which application was granted by the court.

He further filed a preliminary objection challenging the jurisdiction of the court in the matter. The preliminary objection was moved and overruled by the court. On 10th day of October, 1995, the appellant then filed an interlocutory appeal before this court but was withdrawn and struck out on 30th day of October, 1996.

The case was therefore reopened at the Suleja High Court before the same Judge who had been transferred from New Bussa to Suleja.

On 9th day of January, 1997 appellants counsel applied to address the court and call witnesses to give further evidence, but the trial Judge in his ruling allowed counsel to address the court but refused the application of calling additional evidence.

In his address counsel raised the issue of jurisdiction based on Decree 107 of 1993.

On 11th day of March, 1997 the court delivered its judgment whereby it dismissed the objection on jurisdiction and granted all the reliefs sought by the respondents.

The appellant being dissatisfied with the said judgment filed two notices of appeal on 19th day of March, 1997 and on 11th day of April, 1997.

This appeal is however argued based on the notice of appeal filed on the 11th day of April, 1997. The first appeal of 13th day of March, 1997 is therefore deemed abandoned and is hereby struck out.

In the notice of appeal of 11th day of April, 1997, the appellant has filed 9 grounds of appeal, shorn of their particulars the grounds read:

GROUND 1

The trial court erred in law in holding that the court has jurisdiction to entertain this suit in defiance of the clear provisions of Decree No. 107 of 1993.

GROUND 2

The trial court erred in law by refusing the application of the appellant to call witnesses to lead evidence and therefore denied them fair hearing.

GROUND 3

The trial court erred in law by holding that Exhibit ‘6’ is a bye-law pursuant to the combined effect of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law Cap. 61 laws of Niger State.

GROUND 4

The trial court erred in law by holding that Exhibit ‘6’ is a bye-law pursuant to the Provisions of Section 2,3, Schedule 3(a) of N.E.P.A. Act.

GROUND 5

The learned trial Judge erred in law in holding that Exhibit ‘6’ is a bye-law by virtue of Section 16 of the Interpretation Law Cap 61 of Niger State.

GROUND 6

The trial court erred in law by ordering the appellant to reinstate the respondents to their stations quo ante.

GROUND 7

The trial court erred in law in holding that termination of respondents appointment is null and void and of no effect on the ground that the procedure for termination of appointment in Exhibit ‘6’ was not followed.

GROUND 8

The trial Judge erred in law and on the facts by asserting that the defendant/appellant did not challenge the evidence of the plaintiffs/respondents since giving contrary evidence through other witnesses is not the only acceptable means of challenging the evidence of a party or witness and by law the evidence of a party or witness can be challenged under cross-examination which counsel for the defence strenuously did in this case.

GROUND 9

The trial court erred in law in granting the respondents all the reliefs claimed in their Statement of Claim, that is, the declaratory relief and orders. And cost awarded is excessive, punitive and unwarranted.

In accordance with the rules of this court, parties filed and exchanged briefs of arguments.

In his brief, learned counsel for the appellant formulated these issues for our consideration:

(a) Whether Hon. Justice A. A. Bima was right in holding that he has jurisdiction to entertain/try the plaintiff’s case despite the provisions of Decree 107 of 1993 which amended Section 230 of the 1979 Constitution.

(b) Whether Exhibit’ 6′ is a Bye-Law by virtue of Section 24 Schedule 3(a) of N.E.P.A. Act or by virtue of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law Cap 61 Laws of Niger State respectively.

(c) Whether the trial court was right in ordering the reinstatement of the respondents to their employment with appellant (status quo ante) on the ground that respondents employment has statutory flavour and whether there is justification for the costs awarded in favour of respondents.

(d) Whether the termination of the respondents appointment is null and void and of no effect.

(e) Whether the trial court was right in holding that the appellant did not challenge the evidence of the respondents only witness merely because appellant rested their case on respondents case. The respondents on the other hand formulated three issues for determination in their brief of argument. These issues are:

  1. Whether the learned trial Judge, was right in assuming jurisdiction to entertain the plaintiffs/respondents case despite the provisions of Decree 107 of 1993 which amended Section 230 of the 1979 Constitution.
  2. Whether the Plaintiffs/respondents employment enjoy statutory flavour or not.
  3. Whether the learned trial Judge was right in ordering the reinstatement of the respondents.

As the three issues formulated by the respondents are similar to issues 1 and 3 of the issues formulated by the appellants, I shall proceed to determine this appeal on the issues raised by the appellant. Ground two of the grounds of appeal for which no issue had been raised on it and is abandoned by the appellant is hereby struck out:- Abubakar Umaru Abba Tukur v. The Government of Taraba State & Ors (1997) 6 SCNJ 81; (1997) 6NWLR (pt.510) 549.

ISSUE 1

It is the contention of the appellant that by virtue of the provisions of Decree 107 of 1993 which amends Section 230(1) of the 1979 Constitution the jurisdiction of the State High Courts was ousted and conferred exclusively on the Federal High Court and in all matters in which the Federal Government or any of its agencies are taken to court for any question arising from any exercise of Executive or Administrative action. That this case being a case against N.E.P.A. an agency of the Federal Government should not have been entertained by the trial court.

The respondents on the other hand sought to show that N.E.P.A. is not an agency of the Federal Government.

This is an issue of jurisdiction which to my mind should be put to rest before we can proceed to determine this appeal.

The issue of whether or not N.E.P.A. was an agency of the Federal Government was not raised at the trial stage. The trial court had made a specific finding at page 95 of the records that N.E.P.A. is an agency of the Federal Government. There is no counter-appeal on that finding by the respondents, neither is it one of the grounds of appeal. The respondent can therefore not raise it at this stage. Where any issue is raised and is not based on any ground of appeal an appellate court may find it incompetent and liable to strike it out:-

Dieli and Iwuno (1996) 4 SCNJ 57; (1996) 4 NWLR (Pt.445) 622 SC Agbaka & Ors. v. Amadi & Anor. (1998) 7 SCNJ 367; (1998) 11 NWLR (Pt.572) 16.

Olumolu v. Islamic Trust of Nigeria (1996) 2 SCNJ 29; (1996) 2 NWLR(Pt. 430) 253.

In the circumstances the first issue raised by the respondents is incompetent and is hereby struck out. The provisions of Decree 107 of 1993 which amend Section 230(1) of the 1979 Constitution provide as follows:

“Section 230(1) notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(q) the administration or the management and control of the Federal Government or any of its agencies;

(r) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(s) any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies”.

Provided that nothing in the provisions of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”.

This court had in a numbers of cases had occasions to look closely into the above provisions and particularly the provisions and particularly the proviso in (s).

In Nigerian Deposit Insurance Corporation (Liquidator of United Commercial Bank Limited in Liquidation) v. Federal Mortgage Bank of Nigeria Limited (1997) 2 NWLR (Pt. 490) 735 at 756. The question that arose before the Court of Appeal then was whether a State High Court has jurisdiction to entertain the exclusive jurisdiction of the Federal High Court. And the court held:

  1. That the State High Court has jurisdiction indicated in the proviso.
  2. That the fact that the Federal High Court has exclusive jurisdiction in Section 230(1)(d) shall not apply to matters falling within the circumstances of the proviso and does not entirely remove jurisdiction therein from the State High Court.
  3. That the Federal High Court shall not have exclusive jurisdiction in the circumstances indicated in the proviso.
  4. That both the Federal and the State High Courts have and can exercise concurrent jurisdiction in such circumstances.

See also Ona v. Atanda (2000) 5 NWLR (Part 656) 244. Musa & Ors. v. Hashim (unreported Appeal No. CA/A/39/99).

The Supreme Court had also in the case of Egbuonu v. Borno Radio (1997) 12 SCNJ 99 (1997) 12 NWLR (pt.531) 29 put its stamp of approval on the finding of the Court of Appeal where the above provisions were looked into that the High Court has jurisdiction to entertain an action challenging the suspension or termination of the appointment of an employee by his employer.

In the circumstances the trial court was right to have found that it had jurisdiction to determine the matter.

ISSUE 2

It is submitted for the appellant on that issue that the trial court placed a very strong interpretation on the provisions of Section 18 of the Interpretation Act Cap 192 Laws of the Federation regarding the definition of the word ‘regulation’ in Exhibit ‘6’ the Condition of Service of the defendant/appellant. ‘Regulation’ has been defined in Section 18 of the Interpretation Act Cap 192 Laws of the Federation as:

“an enactment passed or made before the passing of this Act and included Rules and Bye-Laws”.

Similarly, the appellant is a creation of statute as it was created by the N.E.P.A. Act Cap 256 Laws of the Federation of Nigeria, 1990. Section 1(1) of the said provision establishes N.E.P.A. Section 2 thereof provides that the affairs of N.E.P.A. shall be conducted by a Board of Directors of the Authority.

Section 4 empowers the Board subject to the provisions of the Act to appoint such officers and servants of the Authority as it may determine. Schedule 111 paragraph 9 of the Act allows the Board with the approval of Council of Ministers to make Bye-Laws which will along with other things regulate matters in relation to the appointment, promotion and discipline of the Officers and Servants of the Authority.

It follows therefore that Exhibits ‘6’ being the appellant’s Condition of Service, is the Bye-Law contemplated by both the N.E.P.A. Act and the schedule to the said Act.

The trial court has this to say in Exhibit ‘6’:

“Exhibit ‘6’ having defined itself as regulations in my view is not a mere document but a Bye-Law. There is in my view a presumption that it was made pursuant to the law conferring the power to make or issue it … It can thus be inferred from the combined effect of Section 18 of the Interpretation Act and Section 16 of the Interpretation Law of Niger State that the word ‘regulation’ used in Exhibit ‘6’ was made pursuant to the law conferring the powers to make it, namely the N.E.P.A. Act”.

I see nothing wrong with the above finding, the trial Judge was applying the provisions of the Interpretation Act Laws of the Federation which is applicable in this instance and the Interpretation Law of Niger State an applicable law within his jurisdiction in reaching a decision.

In any case, the trial Judge is at liberty to apply any law in the determination of any issue that is before him for the just determination of the matter at hand. Issue two must therefore be determined against the appellant.

I will first determine issue five before coming back to the third and fourth issues.

ISSUE 5

It was submitted for the appellant on this issue that the fact that the defendant relied on the case presented by the plaintiff did not mean that the plaintiff’s case was not challenged by the defendant having regard to the answers elicited from the plaintiffs only witness under cross-examination which clearly helped the defendant’s case and made the calling of witness by the defendant virtually unnecessary. That the evidence of the plaintiffs only witness was thoroughly discredited under cross-examination by the defendant’s counsel as to make the plaintiffs case quite unreliable and unbelievable.

The trial court found as follows:

“In the case of F.C.D.A. v. Naibi (1992) Abuja Law Report 82 (1990) 3 NWLR (Pt. 138) 270 the Supreme Court stated that pleadings cannot constitute evidence and a defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff. The court went further to state that if a defendant does not give evidence in support of his pleadings the averment therein are taken as having been abandoned for they stand no more than mere averment which have not been supported. In fact, where a defendant fails to adduce evidence in support of his Statement of Defence, the court will safely assume that he has abandoned his claims. See also ACB Ltd v. Ewaremi (1978) All NLR 114 at 121-122, Obo v. Commissioner of Education, Bendel (1993) 2 NWLR (Pt. 273) 46, Baba v. N.C.A.T.C (1991)7 SCNJ 1; (1991) 5 NWLR (Pt.192) 388. I shall in the light of these authorities deem as abandoned the Defendant’s pleading”.

The trial Judge has correctly stated the position of the Law.

In the instant case, the defendant who had filed pleadings did not call evidence in support of that pleading, even though he had cross-examined the witness for the plaintiff, that testimony at the end of the day was not discredited nor does it support the plaintiffs’ case. The evidence of the plaintiff therefore remains unchallenged and uncontroverted. The defendant not having called evidence in support of his pleadings is deemed to have abandoned same and therefore has nothing on his side of the scale of justice:- Obo v. Commissioner of Education, Bendel State (1993) 2 NWLR (Pt. 273) 46.

The fifth issue must also be answered in the affirmative and I so hold.

ISSUES 3 and 4

These issues centred on whether the termination of the respondents has statutory flavour or not and whether the termination was null and void the Judge was right to have ordered the reinstatement of the respondents.

It is the submission of the appellant that the trial Judge fell into grave error by ordering the appellant to reinstate the respondents as employees of the appellant and that that order was made on the wrong premise that the respondents employment enjoys statutory flavour.

It is the submission of the respondents that their employment is statutory as it is made pursuant to the regulations and provisions of the N.E.P.A. Act and it similarly follows that their termination must be by strict compliance with the statutory provisions.

What in effect is an employment with statutory flavour.

The Supreme Court had in the case of Imoloame v. WA.E.C. (1992) 11/12 SCNJ 121 at 135; (1992) 9 NWLR (Pt. 265) 303 defined it as:

“Where the contract of service is governed by the provisions of a statute or where the Conditions of Service are contained in regulations derived from statutory provisions they invest the employee with a legal status higher than the ordinary one of Master and Servant. They accordingly enjoy statutory flavour”.

The Supreme Court had similarly held that:

“In an employment with statutory flavour the parties are bound to object the Conditions contained in the statute and anything done which is inconsistent with that shall be null and void and of no effect”.

Union Bank v. Ogboh (1995) 2 SCNJ; (1995) 2 NWLR (Pt. 380) 647.

The trial Judge had in his judgment at pages 101-106 gone into these issues and critically examined them and I agree entirely with his findings. I agree that the evidence of the respondents based on the facts and the evidence of the case fall within the definition of employment with statutory flavour. I also agree that as there are clear provisions and regulations governing the employment of the respondents with the defendant the only way to terminate that appointment is by strict compliance with the said statutory rules and regulations. Where any termination of the employee is made without following the said rules and regulations such termination will be rendered null and void of no effect.

The trial court had so held and I see no reason to disturb a well considered decision. The termination of the appointment of the respondents is null and void and they are entitled to be reinstated.

The decision of the lower court is hereby affirmed and the appeal dismissed with costs of N16,000.00 (Sixteen thousand Naira) to the respondents.

Other Citations: (2000)LCN/0885(CA)