CORAM

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ITA.G. MBABA (PJ), OFR, Justice Court of Appeal

PATRICIA A. MAHMOUD, Justice Court of Appeal

PETER O. AFFEN, Justice Court of Appeal

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PARTIES

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ALHAJI ISIYAKU YAKUBU

APPELLANTS 

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1. ALHAJI ALIYU KAMA

2. ALHAJI YAYAJI AUDU GOMBI

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, JURISDICTION, LAND LAW, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

At the Lower Court, Appellant, as the Plaintiff, sought an order of perpetual injunction restraining the Defendants, their agents, privies, representatives or whosoever that is acting through them from tampering, alienating, interfering or doing anything whatsoever with the Frontage and access road of Plaintiff’s land covered by Right of Occupancy No. GS/13783 particularly described as plots 11 and 13 Muniga Road on GSYP 17, covering land area of two plots estimated measurement was put at about 7,560 square meters which after full survey by the Surveyor of the Ministry of Land & Survey, Yola the actual measurement stood at 1.02 hectares lying and situate at Mavo Road adjourning GS/1358 and 13545. This was because the defendants had erected a perimeter wall hindering the plaintiff from gaining access to his land. He has written letters to them seeking to reach a resolution but there was no reasonable response from the defendants.

The Defendants had filed their defence and the 2nd Defendant filed a Counter-claiming seeking damages for the trauma suffered as a result of the suit by the plaintiff.

After hearing the case and considering the evidence and addresses of Counsel, the trial Judge dismissed the claim of the Plaintiff (Appellant herein) and granted the Counter-claim, awarding N500,000 (Five Hundred Thousand Naira) damages to the 2nd Defendant (2nd Respondent herein) and cost of N50,000 each to 1st and 2nd Respondents.

The plaintiff/appellant being aggrieved by the decision filed the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Was the trial Court correct to receive and act on the Statement on Oaths/evidence of DW1 and DW2 in view of the non-compliance with Oaths Act and some obvious contradictions?

2. Was the Counter-claim of the 2nd Respondent competent, with regards to requirements for due filing of the process with evidence of filing fees. And can a Counter-claim lie against the failure of a Plaintiff to prove his claim?

3.  Did the trial Court properly evaluate the evidence adduced to reach its conclusion to dismiss Appellant’s claim?

 

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RATIONES DECIDENDI

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AFFIDAVIT – WHERE AN AFFIDAVIT FAILS TO COMPLY WITH THE 1ST SCHEDULE TO OATHS ACT

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By Section 13 of the Oaths Act, Laws of the Federation of Nigeria, 2004:

“It shall be lawful for any Commissioner of Oaths, Notary Public or any other person authorized by this Act to administer Oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the 1st Schedule to this Act.”

The 1st Schedule to the Oaths Act provides that Oaths shall be in the form set out below:

“I… do solemnly and sincerely declare that (set out in numbered paragraphs of more than one matter), and make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act.”

Appellant cited many judicial authorities to show that any affidavit or declaration without the conclusion of the words: “I solemnly make this Statement on Oath in good faith believing the content to be true and correct in accordance with the Oaths Act” and the said Statement written, before the Commissioner for Oaths appends his signature and stamp, would not be considered as proper Oath. See NNB Plc Vs IBWA Enterprises Ltd (1998) 6 NWLR (Pt.554) 446; Osula Vs UBA Plc (2003) 5 NWLR (Pt.813) 376.

In that case of NNB Plc Vs IBWA (Supra), the Supreme Court held:

“Where an affidavit fails to comply with the 1st Schedule to Oaths Act, the affidavit is incompetent. Consequently, the motion papers which such an affidavit are attached in a case has no valid supporting affidavit and becomes incompetent.” – Per I. G. Mbaba, JCA

 

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AFFIDAVIT – WHERE A STATEMENT ON OATH FALLS SHORT OF THE LEGAL FORMAT ACCEPTABLE FOR AFFIDAVIT AND DECLARATIONS

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…the statement on Oath by the DW2 carried no requisite clause as stipulated in the First Schedule to the Oath Act, that the affidavit or declaration (Statement on Oath) was made, sincerely and conscientiously believing same to be true and by virtue of the Oaths Act.

The Statement on Oath therefore failed short of the Legal format acceptable for affidavit and declarations, under the Oaths Act.  But some recent judicial authorities on the issue suggest that such non-compliance is a mere irregularity; that though Affidavit evidence should comply with the form stipulated by the Oaths Act and relevant laws, where there is evidence of due endorsement by the Commissioner for Oaths, that it was properly sworn to with payment of filing, the irregularity can be overlooked, in the interest of doing substantial justice. Thus, the non-compliance appears not to be fatal. See the case of DASOFUNJO VS. TITILAYO AJIBOYE (2017) LPELR – 42354 (CA), where my learned brother, Barka JCA, relying on some recent reasoning of this court and apex Court, held as follows:

“The question which must be answered is whether the lower Court was right when it discountenanced the appellants Notice of Intention to defend on the premise that the affidavit in support of the intention to defend is defective and or not in compliance with certain provisions of the Oaths Act? I have carefully therefore looked at the Notice of intention to defend filed by the appellants before the lower Court, which can be seen at pages 10 – 14 of the records of appeal, and most specifically, the affidavit in support of Notice of intention to defend, shown to have been sworn at the High Court registry Ilorin Kwara State on the 8th of September, 2016. I observed that the defect therein, which forms the crux of the instant appeal is that there is no affirmation by the deponent therein to 

the effect that “That I depose to this affidavit in good faith and believing the content to be true and correct in accordance with the Oaths Act”. The contention by the learned counsel for the respondent, Chief Oguntoye to the effect that the undefended list procedure is a special procedure meant to enable a plaintiff whose claim is unarguable in law, and the facts undisputed, not to allow a defendant to defend for the mere purposes of delay, and to enter judgment in respect of the amount claimed, cannot be faulted. See Ataguba vs Gura (Nig) Ltd (2005) 8 NWLR (pt 927) 429. The procedure clearly is meant to enable the claimant obtain judgment where his case is patently clear and unassailable, as in Sodipo vs Lemninkainen & ors (1986) NWLR (pt 15) 220. The procedure cannot however be used to shut out a defendant who can show that there is a triable issue, which must be shown from the defendant’s affidavit in support of his notice of intention to defend as required by the Rules of Court. See, Nkwo Market Community Bank (Nig) Ltd vs Obi (2010) 14 NWLR (pt 1213) 169. I have hitherto set out the complaint by the appellant with regards to the judgment of the lower Court, disallowing the appellant’s notice of intention to defend on the premise that the affidavit in support of the motion of intention to defend failed to conform with the requirements of the Oaths Act. The learned counsel for the appellant Mr. Bamidele rightly conceded that the affidavit in support of the notice of intention to defend did not strictly conform with the 1st Schedule, but argued that the 1st Schedule as prescribed, is meant to serve as a guide, as to form, and the deponent in the case at hand having paid the requisite fees, the judge has discretion to receive in evidence, any affidavit despite any defect, or through any irregularity in form. He is of the view that the omission by the deponent to comply with the form as set out in the 1st Schedule of the Act amounted to an irregularity which should not render the whole affidavit incompetent. The argument of the learned counsel seems to have statutory support from the stipulations of Sections 4(2) and 4(3) of the Oaths Act, which provides:- 4(2) No irregularity in the form in which an oath or affirmation is administered or taken shall; (a) Invalidate the performance of official duties; or (b) Invalidate proceedings in any Court; or (c) Render inadmissible evidence in or in respect of which an irregularity took place in any proceedings. (3) The failure to take an Oath or make an affirmation and any irregularity as to the form of an oath or affirmation shall in no case be construed to affect the liability of a witness to state the truth. Clearly the position advanced by Chief Oguntoye, which was followed by the lower Court, seems to be in consonance with the decision of NNB PLC vs IBWA ENT. LTD (1998) 6 NWLR (pt 554) 446 @ 455, where it was held that: “Where an affidavit fails to comply with the 1st Schedule to the Oath Act, the affidavit is incompetent. Consequently, the motion papers to which such an affidavit are attached in a case has no valid supporting affidavit and becomes incompetent”. Ogunwumiju JCA, in the more recent case of Uduma vs Arunsi (2012) 7 NWLR (pt 1298) 55 @ 97 – 98, revisited the authorities on the subject including the case of NNB PLC vs IBWA Ent. (supra), the interpretation given by the Supreme Court to the provisions of Section 4(2) and (3) of the Oaths Act in the case of Anatogu vs Iweka II (1995) 8 NWLR (pt 415) 457, and Solola vs The State (2005) 11 NWLR (pt 937) 460, and conclusively arrived at the decision that:- “The Court or Judge in Chambers may receive any affidavit sworn to for the purpose of being used in any cause or matter notwithstanding any defect by misdescription of parties or otherwise in the title or jurat or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received”. Hitherto, the Supreme Court in the case of Anatogu vs Iweka II (supra) per Uwais JSC, referred to the provisions of Section 4 (3) of the Oaths Act, and held the view that; “Since by these provisions, the evidence of the Pw1, is to be taken to have been given as if under oath; in other words as if he had been sworn, then no miscarriage of justice has been occasioned by the omission to administer the oath or affirmation”. UGO, JCA poignantly resolved in the case of Aduloju vs Adejugbe & 1 or, (unreported) in Appeal No. CA/EK/65/2014, delivered on the 4th day of November, 2015, “I do not also think that non-compliance of the appellant’s witness statement with the form of the 1st Schedule of the Oaths Act is such a fundamental vice that renders it completely defective. I think the provisions of Section 4 (2) and (3) of the Oaths Act are clear on it, to the effect that no irregularity in the form of an oath shall invalidate proceedings in any Court or render inadmissible evidence in or in respect of which an irregularity took place in the proceedings”. I totally agree with their lordships. I fail to agree with the learned counsel for the respondent, and thereby the lower Court, that the failure of the deponent in the affidavit in support of the notice of intention to defend to strictly conform with the format in the Schedule to the Oaths Act, rendered the entire affidavit, and by implication the notice of intention to defend incompetent. My humble view is that affidavit having substantially conformed to the requirements of the Oaths Act, and having been duly sworn to before a recognized Commissioner of Oaths, the trial Court misconceived and misapplied the law, when it discountenanced the said notice of intention to defend, and thus occasioned grave injustice. Courts must seriously be admonished, and must fall in line with the fact that the hay days of technicalities are indeed over, that fundamental justice means deciding a case on the merits.

See also OJIBARA & ORS. VS. GOV. OF KWARA STATE & ANOR. (2004) LPELR – 13002 (CA), where my lord, Onnoghen (JCA), (as he then was and later Chief Justice of Nigeria) held thus: 

“It is my view that an affidavit which is said not to comply with the provisions of Section 13 of the Oaths Act is merely defective in form, not in substance. It is my view that any omission to include the words stated in that section will not, in the absence of any fundamental defect as to substance, render the affidavit invalid, since the omission of the words will only affect the form in which the affidavit is presented.”

See also ACCESS BANK PLC VS. MODAKOL NIG. LTD (2022) LPELR – 57562 (CA); MATY VS. KANO PUBLIC COMPLAINT & CORRUPTION 

COMM. (2023) LPELR – 60503.  – Per I. G. Mbaba, JCA

 

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FILING FEES – THE EFFECT OF PAYMENT OF FILING FEES

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The authorities on this are replete, that it is the filing fees that activate the jurisdiction of court to entertain a suit, where filing fees are required. See the case of INEC VS. MBAWIKE & ORS. (2017) LPELR – 41623 (CA), where it was held:

“Was Appellant’s brief defeated or vitiated for non-payment of filing fees? There are many judicial authorities to the effect that payment of filing fees is condition precedent to activating a Court process, to invoke the jurisdiction of the Court, but that is where payment of fees is required, in a given situation. See the case of Ibeabuchi and Ors Vs Ikpokpo & Ors (2013) LPELR – 20074 CA; the case of Okolo vs UBN Ltd (2004) 3 NWLR (pt. 859) 87; Nduka & Ors Vs Sule (2013) LPELR – 23629 (CA); Abia State Transport Corp. Vs Quorum Consortium Ltd (2009)9 NWLR (pt.1148)1; FADA V NOAMI (2002) 4 NWLR (pt. 757) 318; Onwugbufor vs Okoye (1996) 1 NWLR (pt. 424) 252.”

In the case of META PLATFORMS INC. VS. EMMANUEL (2022) LPELR – 59277 (CA), it was held:

“Filing Fees as specified under ORDER 12 Rule 1(1) of the Rules must mandatorily be paid unless as provided by the rules. Where such is not done, the process so filed is incompetent and should be struck out. It deprives the Court of the jurisdiction. See OKOLO VS UBN LTD (2004) 3 NWLR (PT.859) page 87, NIGERIA AGIP OIL CO. LTD vs. NKWEKE & ANOR, (2016) 7 NWLR (Pt. 1512) P. 588. See also FIRST BANK OF NIGERIA PLC vs. ALHAJI ISIYAKU YAKUBU suit No. CA/YL/50/2012 PER JAURO JCA. In view of the above, this preliminary objection not having been filed and appropriate filing fees not having been paid is struck out on ground of incompetence.”Per AWOTOYE, JCA (Pp. 8-9, paras. D-B)

See also OKOLO & ANOR VS. UBN LTD (2004) LPELR – 2465 (SC): 

“Payment of filing fees is a precondition to or condition precedent to the court’s assumption of jurisdiction. Where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. This is because the rules of court make it mandatory for a party to pay filing fees. This is because the rules of Court make it mandatory for a party to pay filing fees.” Per TOBI, JSC (P. 14, paras. A-B) – Per I. G. Mbaba, JCA

 

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CAUSE OF ACTION – MEANING AND EFFECT OF CAUSE OF ACTION – DESCRIPTION OF A REASONABLE CAUSE OF ACTION

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I believe that a cause of action must exist before a party approached the Court for redress, thereof.

See the case of PASTINOR INVESTMENT CO. LTD & ANOR. VS. BANK OF THE NORTH & ANOR (2014) LPELR – 23622 (CA) for the meaning of cause of action, which held:

“In the case of Cookey v. Fombo (2005) ALL FWLR (Pt. 271) 25 AT 38-39 the Supreme Court held: “A cause of action is the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make claim for relief or remedy being sought. Thus, the factual situation on which the Plaintiff relied to support his claim must be recognized by the law as giving rise to substantive right capable of enforcement or being claimed against the Defendant. (Per Edozie JSC). See also Nosiru Bello & Ors vs A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828, where the apex court had earlier made similar pronounce. “A cause of action was defined as a bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make claim against the relief or remedy being sought… In order words, the factual situation relied upon must constitute the essential ingredients of an enforceable right. Concisely stated, any facts relied upon by the Plaintiff resulting from the act of the defendant which gives rise to a justifiable complaint is a cause of action.” See also Ogbini vs Ololo (1993) 7 NWLR (Pt. 304) 128; Rinco Const. Co Ltd vs. Veepee Ind. Ltd (2005) ALL FWLR (Pt. 204) 816. In Ibrahim vs. Osim (1988) 3 NWLR (Pt. 82) 257 at 2671, it was held: “A cause of action is the entire set of circumstances giving rise to an enforceable claim: it is in effect the facts or combination of actions which give rise to a right to sue and it consists of two elements: (a) the wrongful act of the defendant which gives the Plaintiff his cause of action or complaint, and (b) the consequent damages.” I think what is obvious from the various definitions of cause of action is the fact that what constitutes “cause of action” or “reasonable cause of action” is not constituted in the relief sought by the Plaintiff, per se, but in the facts or aggregate of facts alleged by the Plaintiff as acts or conduct of the defendant which give rise to relief(s) and which infringe on the recognizable right(s) of the Plaintiff.” 

See also CIL RISK & ASSET MANAGEMENT LTD VS. EKITI STATE GOVT. & ORS (2020) LPELR – 49565 (SC), where the Supreme Court held:

“A cause of action simply means the fact (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment: THE SUPREME COURT PRACTICE (THE WHITE BOOK – English) 1991, vol. 1, pages 172 – 173 paragraph 15/1/23: states that “A cause of action” was held to mean “the subject-matter of grievance founding the action”: O’KEEFE V. WALSH (1903) 2, Ir. R.681 at 718; ANNS V. MERTON LONDON BOROUGH COUNCIL (1978) 2 ALL E.R. 492. In other words, it is the reason for the grievance and the complaint to the Court for redress. It includes every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant: AFOLAYAN V. OGUNRINDE & ORS {1990) 2 SCNJ 62 at 70. In other words, as Obaseki, JSC had put it, in THOMAS V. OLUFOSOYE (1985) 1 NWLR {pt. 18) 669, the cause of action is the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. See also Lord Esher, M. R in READ V. BROWN (1998) 2 QBD 128 at 131 & 151- cited with approval by this Court in SPDC OF NIG LTD V. XM (2005) 7 SC (pt. 2) 189; (2006) 16 NWLR (pt. 1004) 27. For so long as the Statement of Claim discloses the cause the plaintiff has to complain to the Court against the defendant for violation, infraction or imposition of undue burden on his legal rights or obligations, or raises some question fit to be decided by the Court or the Judge: a reasonable cause is disclosed thereby: YUSUF & ORS V. AKINDIPE & ORS (2000) 8 NWLR (pt. 669) 376 (SC). In my view, a reasonable cause of action is disclosed once the Statement of Claim sets out the plaintiff’s legal right qua the defendant’s obligations towards him, and goes further to set out the facts constituting the infraction of the plaintiffs’ legal rights or failure of the defendant to fulfill his obligations towards the plaintiff: RINCO CONSTRUCTION CO LTD V. VEEPEE IND. LTD & ANOR (2005) 9 NWLR (pt. 929). Once the Statement of Claim discloses a reasonable chance that the plaintiff will succeed, if not traversed, on his allegations as pleaded; a reasonable cause of action will be said to have been disclosed. That is the substance of the English decision in DRUMMOND-JACOKSON V. BRITISH MEDICAL ASSOCIATION (1970) 1 WLR 688; (1970) 1 ALL E. R. 1094 (CA) cited with approval in THOMAS & ORS V. OLUFOSOYE (supra). It is not material at this stage whether the case of the plaintiff is strong or weak. The only thing important at this stage is whether the Court can decipher from the Statement of Claim if there is either a prima facie triable case or issue or there is a reasonable chance of success if no defence were offered.” Per EKO, JSC (Pp. 12-14, paras. C-D) – Per I. G. Mbaba, JCA

 

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RIGHT OF EASEMENT – MEANING OF RIGHT OF EASEMENT

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I however wish to state that just for the purpose of emphasis that a right of easement is a right enjoyed over the property of another person which consists in the right to use or control an area of land or an area above or below it for a specific limited purpose, such as a right to cross it for access to a public road. It does not however give the holder the right to possess, take from improve or sell the land. It is therefore not by itself an incorporeal hereditament in the sense that it is like other forms of personal property of being purchased or sold by anybody but rather it is a right appurtenant to a corporeal hereditament a right which is enjoyed as part of a real property. – Per P. A. Mahmoud, JCA

 

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EASEMENT – MEANING AND OPERATION OF EASEMENT

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It is necessary to note that an easement is a right annexed to land to utilize or enjoy another land owned by another person in a particular manner. The Blacks Law Dictionary, 7th Edition defines easement as, “an interest in a land owned by another person, consisting in the right to use and control the land or an area above or below it for a specific limited purpose (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license an easement may last forever but it does not give the holder the right to possess, take from, improve or sell the land.” As Coker JSC puts it very succinctly in the case of DE FACTO BAKERIES & CATERING LIMITED V MRS. A. AJILORE & ORS, (1974) 11 SC (REPRINT), 120: “An easement is a right attaching to the use of the land so that it runs with it until it is extinguished either by “unity or seisin” in one single owner of other causes, for it is settled law that a man cannot possess the right of easement by himself over his own property and rights in the nature of quasi-easements on the severance of ownership can only ripen into easements by the usual and necessary processes of the law.” See also the cases of OKENZUA V AMOSU & ANOR (1992) 6 NWLR, PT 248, 416 and OLUSANYA V OSINLEYE (2013) NWLR, PT 1364, `48.  – Per P. A. Mahmoud, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Oaths Act Laws of the Federation of Nigeria, 2004

2. Evidence Act, 2011

3. High Court (Civil Procedure) Rules 2013

4. Court of Appeal Act

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