Legalpedia Citation: (2022-12) Legalpedia 00524 (undefined)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Fri Dec 30, 2022

Suit Number: CA/L/763/2013

CORAM

OBANDE FESTUS OGBUINYA JCA

ONYEKACHI AJA OTISI JCA

PETER OYINKENIMIEMI AFFEN JCA

PARTIES

EMMANUEL ODILI

APPELLANTS

MRS AGBEKE OGUNSANWO

RESPONDENTS

AREA(S) OF LAW

LAND LAW, ADJUDICATION, LAW IN PRACTICE, RULES OF STATUTORY INTERPRETATION, FAMILY LAW, LAW OF EVIDENCE, CIVIL PROCEDURAL LAW, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This appeal probes the correctness of the decision of the High Court of Lagos State (trial court). The respondent in 1994 purchased a parcel of land (six plots) from the Ojomo Chieftaincy family for N100,000 (One Hundred Thousand Naira) and was issued with a purchase receipt, the respondent was put in possession of the land, she surveyed the vacant land and proceeded to perfect her title through a deed of assignment, the deed was registered in the land Registry and subsequently she obtained the consent of the then Military Administrator of Lagos State. The Ojomu Chieftaincy Family as customary owners of the land challenged the acquisition in court. In 2004, during her routine check she found out that a building was being erected thereon without her authority. Sequel to the encroachment she besieged the trial court, whilst the appellant filed a counter-claim. In a considered judgment, delivered on 12th February, 2013, the trial court granted the respondent’s claim and dismissed the appellant’s counter-claim.The appellant was dissatisfied with the decision and has launched an appeal to this court

HELD

Appeal allowed

ISSUES

1.Whether the trial court had jurisdiction over the suit?

2.Whether Ojomu Chieftaincy Family is capable of holding land?

3.Whether the Respondent did not prove the identity of the land in dispute?

4.Whether the delivery of the judgment outside ninety days from the date of adoption of written address, without more, had occasioned a miscarriage of justice?

5.Whether the learned trial Judge properly evaluated the evidence of the parties before reaching her decision?

6.Whether the learned trial court was right in dismissing the Appellant’s Counter-Claim?

RATIONES DECIDENDI

JURISDICTION – PRIEMIER ATTENTION SHOULD BE GIVEN TO ISSUES ON JURISDICTION

The plinth of the issue is submissive to easy appreciation. It queries the jurisdiction of the lower court to entertain the respondent’s suit which parented the appeal. The law compels the courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings, see Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt.1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; PDP v. Umeh (2017) 12 NWLR (Pt. 1579); APC v. Ndual (2018) 2 NWLR (Pt. 1602) 1; Adama v. Maigari (2019) 3 NWLR (Pt. 1658) 26; APC v. Lere (2020) 1 NWLR (Pt. 1705) 254.   I will obey this legal commandment so as not to insult the law. PER – OBANDE FESTUS OGBUINYA, JCA.

JURISDICTION – MEANING OF JURISDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a court to determine a dispute submitted to it by contending parties in any proceeding, see Ajamole v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodagbe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1; Nduul v. Wayo (2018) 16 NWLR (Pt. 1646) 548. PER – OBANDE FESTUS OGBUINYA, JCA

JURISDICTION – WHEN IS A COURT VESTED WITH JURISDICTION TO HEAR A MATTER

A court of law is invested with jurisdiction to hear a matter when:“1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”, see Modukolu v. Nkemdilim (2006) 2 LC 2081961) NSCC (vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Daro v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387; Nworka v. Ononeze-Madu (2019) 7 NWLR (Pt. 1672) 422; Adeleke v. Oyetola (2020) 6 NWLR (Pt. 1721) 440. The three ingredients must co-exist in order to infuse jurisdiction into a court. PER – OBANDE FESTUS OGBUINYA, JCA.

JUSTICE AND TECHNICALITY – THE PARADIGM SHIFT OF THE COURTS FROM THE PANGS OF TECHNICALITY TO DISHING OUT SUBSTANTIAL JUSTICE

Indubitably, I share the view point of the lower court and the respondent’s counsel that the appellant’s allegation, on this first limb of the issue one, smells of an invitation to worship technicality on undeserved altar of substantial justice. Unarguably, nowadays, the courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right; a fair trial on the merits,” see Bryan A. Garner (ed.) Black’s Law Dictionary, 8^th edition, page 881. PER – OBANDE FESTUS OGBUINYA, JCA.

TECHNICALITY AND SUBSTANTIAL JUSTICE – MEANING OF, AND RELATIONSHIP BETWEEN TECHNICALITY AND SUBSTANTIAL JUSTICE

Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A. –G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC; Omisore v. Aregbsola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried its carcass deeply under the temple of substantial justice. To accede to the appellant’s request will tantamount to resurrecting the deceased technicality. This will be an affront to the law. PER – OBANDE FESTUS OGBUINYA, JCA

ORIGINATING PROCESSES – AN ORIGINATING PROCESS MUST BE SIGNED BY A LEGAL PRACTITIONER WHO FRANKED IT

It is a settled elementary law that an originating process, like originating summons for possession, must be signed by a legal practitioner, who franked it, or a litigant, in order to infuse validity into it. PER – OBANDE FESTUS OGBUINYA, JCA.

LEGAL PRACTITIONER – WHO IS A LEGAL PRACTITIONER?

The legal practitioner, in the mind of the law, is one entitled to practice as a barrister and solicitor and whose name is on the roll of legal practitioners as decreed by the provisions of sections 2 (1) and 24 of the  Legal Practitioners Act, Cap. L11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”). PER – OBANDE FESTUS OGBUINYA, JCA.

ORIGINATING PROCESS – EFFECT OF AN ORIGINATING PROCESS NOT SIGNED BY A LEGAL PRACTITIONER

In other words, an originating process not signed by a legal practitioner, as stipulated in the above provisions of the Act and the rules of court, is infested with incompetence with the attendant liability of expunction. The incompetence divests the court of the jurisdiction to adjudicate over the action, which hosts it, in deserving circumstances, see Registered Trustees, The Apostolic Church, v. Akindele (1967) NMLR (Pt. 263); Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521; Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; Const. Res. (Nig.) Ltd. v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 592; Okonkwo v. UBA Plc. (2011) 16 NWLR (Pt. 1274) 614; Bala v. Dikko (2013) 4 NWLR (Pt. 1343) 52; Braithwaite v. Skye Bank (2013) 5 NWLR (Pt. 1346) 1; FBN Plc. v. Maiwada (supra)/(2013) 5 NWLR (Pt. 1348) 444; Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570; Min., W & T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481; Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Nigerian Army v. Samuel (2013) 14 NWLR (Pt. 1375) 466; Dankwambo v. Abubakar (2016) 2 NWLR (Pt. 1495) 157; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd (2016) 8 NWLR (Pt. 1514) 318; Tanimu v. Rabiu (2018) 4 NWLR (Pt. 1610) 505; B.O.I. Ltd. v. Awojugbagbe Light Ind. Ltd. (2018) 6 NWLR (Pt. 1615) 220; Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420; B.L.L.S. Co. Ltd. v. M.V. Western Star (2019) 9 NWLR (Pt. 1678) 489; Yusuf v. Mobil Oil (Nig.) Plc. (2019) 13 NWLR (Pt. 1689) 374; Salami v. Alh. M.J.M. Wuse Family (2019) 13 NWLR (Pt. 1689) 301; Alikor v. Ogwo (2019) 15 NWLR (Pt. 1695) 331; Yusuf v. Mobil Oil (Nig.) Plc (2020) 3 NWLR (Pt. 1710) 1; JVCPP (UK) Ltd. v. Famiyide (2020) 14 NWLR (Pt. 1744) 334; Ajibade v. Gbadamosi (2021) 7 NWLR (Pt. 1776) 475; Solumade v. Kuti (2022) 1 NWLR (Pt. 1810) 31. PER – OBANDE FESTUS OGBUINYA, JCA.

ORIGINATING PROCESSESS – THE PRESCRIBED METHODOLOGY FOR SIGNING A COURT PROCESS BY A LEGAL PRACTITIONER

It was issued by A. Akindiji of A. Akindiji & Co.  In SLB Consortium Ltd. v. NNPC (supra), at page 337 thereof, Rhodes-Vivour, JSC, incisively, espoused the methodology for signing a court process in these illuminating words:

What then is so important about the way counsel chooses to sign processes.  Once it cannot be said who signed a process it is incurably bad, and rules of court that seem to provide a remedy are of no use as a rule cannot override the Law (i.e the Legal Practitioner Act).  All processes filed in court are to be signed as follows:

First, the signature of counsel, which may be any contraption.Secondly, the name of counsel clearly written.  Thirdly, who counsel represents.  Fourthly, name and address of Legal Firm.

See, also, Adegbola v. Idowu (2020) 7 NWLR (Pt. 1722) 94.

Incontestably, there is a total absence of such contraption in the portion of the originating summons for possession where the name of the respondent’s legal practitioner is written. In other words, I am unable to locate, even with the prying eagle-eye of an appellate court, where the respondent’s counsel, A. Akindiji, Esq., who prepared it, signed it in due obeisance to the law. The law insists on the presence of name and signature of a legal practitioner so as to vest validity and viability in an originating process, see SLB Consortium Ltd. v. NNPC (supra). Put simply, the originating summons for possession was not signed in the manner ordained by the law. PER – OBANDE FESTUS OGBUINYA, JCA.

UNSIGNED DOCUMENT – THE LEGAL STATUS OF AN UNSIGNED DOCUMENT

It is a fundamental law that an unsigned document commands no probative value as it cannot boast of the origin/source of its maker. An unsigned document creates doubt as to its authenticity, see Omega Bank Plc v. O.B.C. Ltd. (supra); Maku v. Al-Makura (2016) 5 NWLR (Pt. 1505) 201; APGA v. Al-Makura (2016) 5 NWLR (Pt. 1505) 316; Conoil v. Vitol S. A. (2018) 9 NWLR (Pt. 1625) 463; Fulani v. State (2019) 1 NWLR (Pt. 1653) 237; Ashaka Cem. Plc v. A.M. Inv. Ltd. (2019) 5 NWLR (Pt. 1666) 447; State v. Sa’idu (2019) 10 NWLR (Pt. 1680) 308. The neglect to sign the originating process is a costly failure.  It constitutes a serious blight on its competence. PER – OBANDE FESTUS OGBUINYA, JCA.

ORIGINATING PROCESS – AN ORIGINATING PROCESS IS THE SPINAL CORD OF A SUIT

It cannot be gainsaid that a writ of summons for possession, an originating process, is the spinal cord of a suit. It is the foundation upon which all other processes and proceedings are pegged on in a matter. In other words, all other processes and proceedings trace their paternity and validity to an originating process. It follows that the writ of summons for possession, which is under attack of expulsion, gave birth to all the other processes filed by the feuding parties and the proceedings in the action which transmuted into the appeal. PER – OBANDE FESTUS OGBUINYA, JCA.

WRIT OF SUMMONS – AN INCOMPETENT WRIT OF SUMMONS POLLUTES THE PURITY OF OTHER PROCESSES

Given this relationship, the incompetence of the writ of summons for possession pollutes the purity of the other processes and proceedings, inclusive of the judgment, and, de jure, render them incompetent and a nullity, see Agu v. Odofin (1992) 3 SCNJ 161; Adelekan v. Elu-Line NV (2006) 2 NWLR (Pt. 993) 33; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Ikweki v. Ebele (2005) 11 NWLR (Pt. 936) 397; Aderibigbe v. Abidoye 92009) 10 NWLR (Pt. 1150) 592; Odunze v. Nwosu (2007) 13 NWLR (Pt. 105) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; General Electric Co. v. Akande (2010) 18 NWLR (Pt. 1225) 596; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141; Ikechukwu v. FRN (2015) 7 NWLR (Pt. 1457) 1; Ikuepenikan v. State (2016) 9 NWLR (Pt. 1465) 518; Allanah v. Kpolokwu(2016) 6 NWLR (Pt. 1509) 1; Japhet v. State (2016) 6 NWLR (Pt. 1509) 602; SPDCN Ltd. v. Sam Royal Hotel (Nig.) Ltd. (2016) 9 NWLR (Pt. 1516) 126;  Fasuyi v. PDP (supra); FRN v. Dairo (supra); SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 353; Agwu v. Julius Berger (Nig.) Plc (2019) 11 NWLR (Pt. 1682) 105. PER – OBANDE FESTUS OGBUINYA, JCA.

WRIT OF SUMMONS – THE RATIONALE BEHIND AN INCOMPETENT WRIT OF SUMMON POLLUTING THE PURITY OF OTHER PROCESSES

The reason is obvious. They have no substratum to perch and command any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152; CCB Plc. V. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592.  In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila – the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. PER – OBANDE FESTUS OGBUINYA, JCA.

INCOMPETENT WRIT OF SUMMONS – THE LEGAL CONSEQUENCE FOLLOWING AN INCOMPETENT WRIT OF SUMMONS

The legal consequences, which follow the incompetence of the writ of summons for possession, are far-reaching. The respondent’s suit was not initiated by due process of law and the condition precedent for its institution was not satisfied as required by law. In the view of the law, a condition precedent is: “the one that delays the vesting of a right until the happening of an event”, see Atalegbe v. Awuni (1997) 9 NWLR (Pt. 525) 537 at 562, per Uwais, CJN; Niger Care Dev. Co. Ltd. v. ASWB (2008) 9 NWLR (Pt. 1093) 493; A.-G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt.1536) 439. The result is that the lower court was drained of the requisite jurisdiction to entertain the action ab initio. It, therefore, with utmost respect, defiled the law when it heard the matter. Where a court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be trapped in the intractable web of nullity, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; Isah v. INEC (2016)18 NWLR (Pt. 1544) 175. PER – OBANDE FESTUS OGBUINYA, JCA.

NULLITY – MEANING OF NULLITY

In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt.1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. PER – OBANDE FESTUS OGBUINYA, JCA

NULLITY – CONSEQUENCE OF A NULLITY

The dire consequence of a nullity is dismal.  If a decision or proceeding is smeared with nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Furthermore, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. Since the lower court’s decision is marooned in the murky ocean of nullity, it must be mowed down by the unbiased judicial sword of this court.  In the end, I have no choice than to resolve the issue one in favour of the appellant and against the respondent. PER – OBANDE FESTUS OGBUINYA, JCA.

JURISDICTION – THE APPROPRIATE ORDER TO MAKE WHERE A COURT LACKS JURISDICTION

Where the jurisdiction of a court to hear a matter is eroded, the order it makes is plain. It is one of striking it out, see Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87; Gombe v. P.W. (Nig.) Ltd. (1995) 6 NWLR (Pt. 402); CGG v. Ogu (2005) 8 NWLR (Pt. 927) 366; Uwazuruike v. A.-G., Fed. (2007) 8 NWLR (Pt. 1035) 1; WAEC v. Adeyanju (2008) NWLR (Pt. 1092) 270; Dairo v. UBN Plc. (2007) 16 NWLR (Pt. 1071) 347; Ikechukwu v. FRN (supra); Inakoju v. Adeleke (2007) 4 NWLR (Pt.1052) 423; Onyero v. Nwadike (2011) 18 NWLR (Pt. 1279) 954; Odom v. PDP (2015) 6 NWLR (Pt. 1456) 527; Min., W.O.T., Adamawa State v. Yakubu (2013) 6 NWLR (Pt. 1351) 481. The principle applies where an appellate court finds that a lower court lacked the jurisdiction to entertain the case on appeal before it, see Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. (2021) 7 NWLR (Pt. 1774) 1. This will be the destiny of the respondent’s suit which meandered, with the measured millipede speed of court processes, to this court. PER – OBANDE FESTUS OGBUINYA, JCA.

JURISTIC PERSON – WHO IS A JURISTIC PERSON?

By way of prefatory observations, a juristic person is an entity armed with the capacity to ventilate his/its complaints in judicio. Generally, it is only natural persons, id est, human beings and artificial persons, such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued with the capacity to sue and be sued in law court. The jural units, which the law has cloaked with the garment of legal personality, are: human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common law, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. PER – OBANDE FESTUS OGBUINYA, JCA.

JURISTIC PERSONALITY – LEGAL EFFECT OF EITHER PARTIES TO AN ACTION NOT BEING A LEGAL PERSON

Where either of the parties to an action is not a legal person, capable of exercising legal rights and obligations in law, it is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba& Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. –G., Anambra State v. A. –G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; BB. Apugo& Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. O.., Lagos (2018) 1 NWLR (Pt. 1599) 62; Bajehson v.  Otiko (2018) 14 NWLR (Pt. 1638) 138; Socio-Political Research Dev. v. Min., FCT (2019) 1 NWLR (Pt. 1653) 313; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknown v. Sahris Int’l Ltd. (2019) 13 NWLR (Pt. 1689) 203. PER – OBANDE FESTUS OGBUINYA, JCA.

FAMILY – ETYMOLOGICAL MEANING OF FAMILY

Etymologically, a family connotes: “1. A group of persons connected by blood, by affinity, or by law, especially within two or three generations. 2. A group consisting of parents and children. 3. By extension, a group of people who live together and usually have a shared commitment to a domestic relationship”, see Black’s Law Dictionary, (supra), 10^th edition page 721. Section 43 of the Constitution, as amended, the fons et origo of our laws, donates to every Nigerian citizen the right to acquire and own immovable property anywhere in Nigeria. A family, based on its connotation catalogued above, is a conglomeration of individual citizens. Thus, the law does not discriminate against a family nor rob it of the right to own/hold land. PER – OBANDE FESTUS OGBUINYA, JCA.

FAMILY LAND – DEFINITION OF FAMILY/COMMUNAL LAND

In Umeadi v. Chibunze (2020) 10 NWLR (Pt. 1733) 405 at 444, Peter-Odili, JSC, incisively, confirmed:

By definition, family land is land which vests in a group of persons and their children. It could also refer to and which had vested upon individuals who have descended from a common ancestry or pedigree, and including, of Course, those such as domestics and strangers who have been incorporated into the family by the founder.  At the death of the founder, all the empty land, farm land and houses acquired by him in his lifetime become family property. In plain language, the and belongs to the family of the said founder as a corporate entity in which case they become inalienable (which means that family land belongs to a vast family of which many are dead, few are living and countless are still unborn) or they become distributable to the members of the founder’s family as defined by him during his lifetime.

Interestingly, in the eyes of the law, there exists community/communal land – land which “belongs to the community and vested in the leader of the community only as a sort of trustee,” see Sanni v. Ademiluyi (2003) 3 NWLR (Pt. 807) 381 at 395.  A communal land belongs to a “vast family of which many are dead, few are living and countless members are unborn”, see Amodu Tijani v. Secretary to the Government of Nigeria (1921) 2 AC 399. PER – OBANDE FESTUS OGBUINYA, JCA.

FAMILY LAND – LEGAL RIGHT ALLOTED TO A FAMILY MEMBER TO SUE AND PROTECT A FAMILY PROPERTY AGAINST ANY WRONG DOER

In essence, the case-law has, in an unmistakable term, endorsed in toto the right of a family to hold land in Nigeria. No wonder the law allots to a family member the unbridled licence to sue and protect a family property against any wrong doer, see Ladejobi v. Oguntayo (2004) 18 NWLR (Pt. 904) 149; Mozie v. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12; Babayeju v. Ashamu (1998) 9 NWLR (Pt. 567) 546; Odeneye v. Efunugu (1990) 7 NWLR (Pt. 164) 618. PER – OBANDE FESTUS OGBUINYA, JCA.

FAMILY LAND – THE LEGAL RIGHT OF A FAMILY TO ALIENATE A FAMILY LAND

A family, in my view, has a corresponding right to alienate a land which it has acquired according to the dictate of the land.  To this end, the doctrine of nemo dat quod non habet – no one gives out what he does not have – which the appellant erected, brandished and paraded to emasculate the transfer of the disputed land to the respondent, vaporizes in the face of the law anatomised above.  This is more so when the disposition was not executed in the name of Ojomu Chieftaincy Family but by its constituent members – head and principal members of the family. PER – OBANDE FESTUS OGBUINYA, JCA.

DECLARATION OF TITLE TO LAND – WHAT A PARTY SEEKING DECLARATION OF TITLE TO LAND MUST ESTABLISH

It is a rudimentary law, known for its antiquity, that for a party, invariably a plaintiff, seeking a declaration of title to land and injunction thereon must establish to the satisfaction of the court the identity of the land in dispute with precision. This can be accomplished by the party tendering a survey plan that displays the extent and features on the land or by offering oral evidence that will guide a surveyor, using his description as parameter, to produce a survey plan therefrom. These hallowed standing principles of law, on identity of land, have received the imprimatur of the Supreme Court in loads of decided judicial authorities, see Ezukwu v. Ukachukwu (2004) 17 NWLR (Pt. 902) 227; Ogun v. Aakinyelu (2004) 18 NWLR (Pt. 905) 362; Ugorji v. Onukogu (2005) 16 NWLR (Pt. 950) 97; Dada v. Domsunmu (2006) 18 NWLR (Pt. 1010) 134; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 292; Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) I; Orunengimo v. Egebe (2007) 15 NWLR (Pt. 1058) 630; Aremu v. Adetoro (2007) 16 NWLR (Pt. 1060) 244; Ukaegbu v. Nwololo (2009) 3 NWLR (Pt. 1127) 194; Nwokoorbia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553; Anyanwu v. Uzowuaka (2009) 13 NWLR (Pt. 1159) 445; Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Okonkwo v. Okonkwo (2010) 14 NWLR (Pt. 1213) 228; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22; Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1337) 140; Akanda v. Illiasu (2013) 6 NWLR (Pt. 1351) 529; Tukuru v. Sabi (2013) 10 NWLR (Pt. 1363) 442; Adekunjo v. Hussain (2021) 11 NWLR (Pt. 1788) 434. PER – OBANDE FESTUS OGBUINYA, JCA

IDENTITY OF LAND – AN ADVERSARY MUST QUERY THE IDENTITY OF THE LAND IN DISPUTE TO MAKE IT A CONTROVERSY IN A CASE

It is apropos to observe, apace, that this time-honoured principle of land law is elastic as it accommodates certain exceptions.  It is a long established principle of law, that an adversary must query the identity of the land in dispute to make it an issue in controversy in a case.  In Adenle v. Olude (2002) 18 NWLR (Pt. 799) 413 at 433-434, Uwaifo, JSC, opined:

The law is that the identity of the land in dispute will be in issue only if the defendant in his statement of defence makes it so by specifically disputing either the area or size covered or the location as shown in the plaintiff’s plan (if there is a plan), or as described in the statement of claim.

See, also, Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53; Otanma v. Youdubagba (supra); Anyanwu v. Uzowuaka (supra); Nwokidu v. Okanu (2010) 3 NWLR (Pt. 1181) 362; Tanko v. Uchendu (supra). PER – OBANDE FESTUS OGBUINYA, JCA.

IDENTITY OF LAND – A DEFENDANT WHO COUNTER-CLAIMS CANNOT ARGUE THE IDENTITY OF THE LAND

The very act of counter-claiming disrobes him of the right to greet the identity of the land with any protestation. In Anyanwu v. Uzowuaka (supra), the Supreme Court, per Tabai, JSC, held:

Furthermore, it is my firm view that defendants in a land matter, as in this case, who counter-claimed… cannot turn round to argue that the identity of the land was not established.  In my view the very argument is a contradiction to their counter-claim, because they cannot counter-claim over a piece of land which identity they do not know.

Thus, the appellant’s counter-claim perforates his sterling contention on the identification of the disputed property. It further constitutes an albatross around his counter-claim. By his argument, the appellant, counter-claimant, are likened to a man who, while praying earnestly for long life, yet carries, in his surface pocket, a time bomb which, on detonation, would put an end to his precious life, see Yoye v. Olubode (1974) 9 NSCC 409 at 414. This paradoxical situation, clearly, drains the appellant of the competence to question the identity of the disputed land.  This constitutes another serious coup de grace to the appellant’s complaint on the stubborn issue. PER – OBANDE FESTUS OGBUINYA, JCA.

 

MISCARRIAGE OF JUSTICE – MEANING OF MISCARRIAGE OF JUSTICE

Miscarriage of justice, in law, denotes such a departure from the rules which pervade all judicial process as to make what happened not, in the proper sense of the word, judicial procedure, see Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76. It signifies a decision or outcome of legal proceedings which is prejudicial or inconsistent with the substantial rights of a party. It implies a failure of justice and a reasonable probability of more favourable result of the case for a party alleging it, see Larmie v. DPM & Services (2006) All FWLR (Pt. 296) 775; Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Aigbobahi v. Aifuwa (2006) 6 NWLR (Pt. 976) 270; Akpan v. Bob (supra); Afolabi v. W,S.W. Ltd (2012) 7 NWLR (Pt. 1329) 286; Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (Pt. 1332) 523; Oke v. Mimiko (No.2) (2014) 1 NWLR (Pt. 1338) 332; Fredrick v. Ibekwe (2019) 17 NWLR (Pt. 1702) 467; Nat. Ear Care Centre v. Nnadi (2021) 17 NWLR (Pt. 1805) 365.  In Egbo v. Agbara (1997) 1 NWLR (Pt. 481) 293 at 316, Iguh, JSC, incisively, declared:

For the complaint to succeed, it has to be further established that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay… It is, therefore, not in every case where inordinate delay is established that the appellate court must necessarily set aside the decision of the trial court. An appellant, to succeed, must go further to show, from the record of recordings, that the trial Judge had lost his impression of the trial or had not taken proper advantage of having seen or heard the witnesses testify or as a result of the delay complained of.

 

PER – OBANDE FESTUS OGBUINYA, JCA.

 

ERROR – MEANING OF ERROR IN LAW

In the mind of the law, an error is “something done by a person which is incorrect or which should not have been done” Ugwu v. Ararume (2017) 12 NWLR (pt. 1048) 357 at 513, per Muhammad JSC. Human beings are prone to mistakes on the footing of fallibility. This has receive judicial recognition, see Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250. PER – OBANDE FESTUS OGBUINYA, JCA.

ERROR – WHETHER OR NOT ERRORS IN A JUDGMENT VITIATES THAT JUDGMENT

It is trite law that not every error or mistake in judgment that vitiates it. It must be material and occasions miscarriage of justice, see Diamond Bank Ltd. v. P.I.C. Ltd. (2019 18 NWLR (Pt. 1172) 67; Ontario Oil Gas Ltd v. FRN (2018) 13 NWLR (Pt. 1636) 197; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330; SPDCN Ltd. v. Agbara (2021) 7 NWLR (Pt. 1775) 356. This inelastic hallowed principle of law traces its ancestry to the Latin maxim. De minimis non curat lex-. the law does not concern itself with trifles, see Garba v. FCSC (1988) 1 NWLR (Pt. 71) 449. PER – OBANDE FESTUS OGBUINYA, JCA.

WEIGHT OF EVIDENCE – WHAT THE COURT IS TO CONSIDER IN ASCERTAINING THE WEIGHT OF EVIDENCE

In ascertaining the weight of evidence, the trial court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC 91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. PER – OBANDE FESTUS OGBUINYA, JCA.

EVALUATION OF EVIDENCE – THE PRIMARY DUTY OF THE COURT TO EVALUATE MATERIAL EVIDENCE

The law has saddled a trial court, like the lower court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. PER – OBANDE FESTUS OGBUINYA, JCA.

EVALUATION OF EVIDENCE – HOW THE COURT DISCHARGES THE DUTY OF EVALUATING MATERIAL EVIDENCE

To discharge that bounden duty, a trial court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652) 1635; Oguntade v. Oyelakin (2020) 6 NWLR (Pt. 1719) 41. PER – OBANDE FESTUS OGBUINYA, JCA.

EVALUATION OF DOCUMENTARY EVIDENCE – THE CONCURRENT JURISDICTION OF THE HIGH COURT AND COURT OF APPEAL IN EVALUATION OF DOCUMENTARY EVIDENCE

Interestingly, the case-law gives the courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law, in order to foreclose any injustice, donates concurrent jurisdiction to this court and the lower court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagungu v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt.1254) 135; Eyibio v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuraike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Emeka v. Okafor (2017) 11 NWLR (Pt. 1577); 410; Okoro v. Okoro (2018) 16 NWLR (Pt. 1646) 506; D.M.V (Nig) Ltd. v. NPA (2019) 1 NWLR (Pt. 1652); Olomoda v. Mustapha (2019) 6 NWLR (Pt. 1667) 36. I will harness from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal. PER – OBANDE FESTUS OGBUINYA, JCA.

OWNERSHIP OF LAND – WHETHER OR NOT A PARTY’S PRODUCTION AND RELIANCE ON A TITLE DOCUMENT AUTOMATICALLY ENTITLES HIM TO THE OWNERSHIP OF THE LAND

It cannot be gainsaid that a document of title does not automatically entitle a party, armed with it, to ownership of land.  A party’s production and reliance on such an instrument, inevitably, carries with it the necessity for the court to inquire into some number of questions, videlicet: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant;  (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by its holder, see Agboola v. UBA (supra); Romaine v. Romaine (1992) 4 NWLR (Pt. 238); Dabo v. Abdullahi (2005) 7 NWLR (2005) 7 NWLR (Pt. 923) 181; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412; Jolasun v. Bamgboye (supra); Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477. PER – OBANDE FESTUS OGBUINYA, JCA.

INTERPRETATION OD STATUTE – THE DOCTRINE OF IMPLIED REPEAL OR REPEAL BY IMPLICATION

One recognised canon of interpretation of statute is, firmly, propagated in the doctrine of implied repeal or repeal by implication. It is an exact opposite of express repeal of statutes. It occurs t when two enactments are, in their provisions on a subject-matter, diametrically opposed to each other, that is to say, one is antithetical to the other. In that wise, the earlier statute or provision is emasculated in the face of the later one.  The legal maxim is: leges posteriores priores contrarias abrogant – later laws abrogate prior contrary laws. It thrives robustly in the presence of two, plainly, repugnant legislations such that effect cannot be given to both concurrently. In this regard, there is a presumption that the later-in-time law has impliedly repealed the older-in-time legislation, see Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (Pt. 498) 124; Akintokun v. LPDC (2014) 13 NWLR (Pt. 1423) 118; Jumbo United Co. Ltd. v. Leadways Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. PER – OBANDE FESTUS OGBUINYA, JCA.

CONTRADICTION OF EVIDENCE – MEANING AND THE POSITION OF THE LAW ON CONTRADICTION BY WITNESSESS

To begin with, etymologically, contradiction, like most legal terminologies, owes its descent to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”, which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other.  Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case, see Wachukwu v. Owunwanne (2011) 14 NWLR (Pt. 1266) 1; Yakubu v. Jauroyel (2014) 11 NWLR (Pt. 1418) 205; Aiyeola v. Pedro (2014) 13 NWLR (Pt. 1424) 409; Kayd v. Yilbuk (2015) 7 NWLR (Pt. 1457) 26; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1593) 181; Pada v. Galadima (2018) 5 NWLR (Pt. 1611) 160; Edosa v. Ogiemwanre (2019) 8 NWLR (Pt. 1673) 1; Nnadike v. Nwachukwu (2019) 16 NWLR (Pt. 1698) 239. PER – OBANDE FESTUS OGBUINYA, JCA.

PERVERSE VERDICT – WHEN CAN THE VERDICT OF THE COURT BE SAID TO BE PERVERSE

A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see Udengwu v/ Uzuegbu (2003) 13 NWLR (Pt. 836) 136; Nnorodim v. Ezeani (1995) 2 NWLR (Pt. 378) 448; Lagga v. Sarhuna NWLR (Pt.1114) 427; Onyekwelu v. Elf Pet (Nig.) Ltd. (2009) 5 BWKR (Pt. 1133) 181; Momoh v. Umoru (2011) 15 NWLR Pt. 1270) 217; Ihunwo v. Ihunwo (2013) 8 NWLR (Pt. 1357) 550; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477; Udum v. Umanah (No.1) (2016) 12 NWLR (Pt. 1526) 179; Adeokin Records v. M.C.S.N. (Ltd.) / GTE) (supra); Mamonu v. Dikat (2019 7 NWLR (Pt. 1672) 495; MTN (Nig.) Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019) 9 NWLR (Pt. 1678) 427; Offodile v. Offodile (2019) 16 NWLR (Pt. 1698) 189; Bi-Courtney Ltd. v. A-G, Fed. (2019) 10 NWLR (Pt. 1679) 112; Fredrick v. Ibekwe (019) 17 NWLR (Pt. 1702) 467; Uzodinma v. Eke Ihedioha (2020) 5 NWLR (Pt. 1718) 529. PER – OBANDE FESTUS OGBUINYA, JCA.

COUNTER-CLAIM – MEANING OF COUNTER-CLAIM

A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim,” see Maobison Inter-Link Ltd. v. UT.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC. PER – OBANDE FESTUS OGBUINYA, JCA.

COUNTER-CLAIM – A COUNTER- CLAIM IS AN INDEPENDENT ACTION DIFFERENT FROM THE MAIN CLAIM

It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter- claimant in order to earn the favour of the court, see Ogbonna v. A-G.., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsetik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1)116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante int’l Ltd v. NDIC (2011)15 NWLR (Pt. 1270) 407; Esuwoye v. Bosere (2017)1 NWLR (Pt.1546) 256; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152; Okoro v. Okoro (supra); Atiba Iyalamu Savings & Loans Ltd. v. Suberu (2018) 13 NWLR (Pt. 1639) 387; Umar v. Geidam (2019) 1 NWLR (Pt. 1652) 29. Following the confirmation of the lower court’s finding on the main claim, this issue ought not to delay this court too long. PER – OBANDE FESTUS OGBUINYA, JCA.

CASES CITED

Not Available

STATUTES REFERRED TO

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