CORAM

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PARTIES

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1.ISA’AC GAVOH2.CLEMENT SHADI3.SAMUEL SHADI4.GIDEON SHADI

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DAVID LANWE

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AREA(S) OF LAW

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SUMMARY OF FACTS

The original Plaintiff, Bala Lanwe sued the Defendants/Appellants over a piece of land situate at Mayo – Dassa Kona, Jalingo Local Government Area at the High Court of Taraba State vide a writ of summons, wherein he claimed a declaration of title over the disputed land; an Order against the Appellants to remove anything they brought upon the land; trespass; Perpetual injunction; General damages; amongst other reliefs. The Appellants counter-claimed against the Respondent. Before the commencement of hearing, the original Plaintiff died and was substituted by the Respondent. At the end of the trial, the Court granted all the reliefs of the Respondent in its entirety. Aggrieved, the Appellants filed an appeal vide his Notice of Appeal to the Court of Appeal, Yola Division.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the entire proceedings and resultant judgment of the trial High Court in Suit No. TRSJ/28/2018 are competent in law, regard being had to the fact that the originating processes used by the Respondent to commence Suit No. TRSJ/28/2011 were all signed by the law firm of I.C. Osuji & Associates. Whether it was proper for the learned trial judge to have regarded the evidence adduced by the Respondent as credible and further granted the claims of the Respondent rather than dismissing same, regard being had to the fact that the pleadings in the amended statement of claim of the Respondent are contradictory to one another and at variance with the evidence he adduced at the trial.

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RATIONES DECIDENDI

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SIGNING OF COURT PROCESSES– POSITION OF THE LAW ON THE SIGNING OF COURT PROCESSES

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“On issue one, the learned counsel to the Respondent in his brief of argument agreed that Sections 2(1) and 24 of the Legal Practitioner’s Act, Cap. 207, Laws of the Federation, 2004 defined a Legal Practitioner in Nigeria as a person entitled to practice law as a Barrister or Solicitor if his name has been enrolled in the register of legal practitioners at the Supreme Court of Nigeria. Also, that it is a Legal Practitioner so registered that could prepare and/or sign all court processes under the name as enrolled. The Appellants had alleged that the original writ of summons and the original statement of claim used to commence the action at pages 1 – 2 and 4 – 6 of the printed records and the amended statement of claim at pages 79 – 84 of the printed records were all signed by the law firm of I. C. Osuji and Associates as opposed to being personally signed by the party or counsel. At page 2 of the records of appeal I. C. Osuji Esq. is clearly printed above the name of the firm, with the signature in between, on the endorsement page of the original writ of summons.
Similarly, on the original statement of claim at pages 4 – 6, particularly at page 6 of the printed records of appeal, I. C. Osuji Esq. is clearly written above the signature, while I. C. Osuji& Associates, the firm is beneath the signature. Similarly endorsed are the Amended Writ of Summons and the Amended Statement of Claim particularly at pages 80 and 84 of the printed records of appeal. It is therefore not in doubt that from the printed records of appeal, I. C. Osuji Esq. signed the originating processes not the firm as made out by the learned counsel to the Appellants. The learned counsel to the Appellants has not shown that I. C. Osuji Esq. that signed the originating processes is not registered in the roll of Legal Practitioners in Nigeria in line with the Legal Practitioners Act (Supra). The Authorities cited and relied upon by the learned counsel to the Appellants are not applicable in this case but, applies where learned counsel or a party fails to sign or endorse court processes and the name of the firm is endorsed below or above the signature. The present case is distinguishable from Okafor Vs. Nweke (Supra) in that, in the latter case the name of the firm appeared as the signatory of the court processes which were held to be defective by the Apex court. I hold that I. C. Osuji Esq. signed the processes faulted by the Appellants.-

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PLEADINGS – CONSEQUENCES OF A PARTY NOT GIVING EVIDENCE IN SUPPORT OF HIS PLEADING OR IN CHALLENGE OF THE EVIDENCE OF THE OTHER PARTY

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“In respect of pleadings without evidence, the Supreme Court clearly stated the position of the law in the case of Ifeta vs. S.P.D.C. Nig. Ltd (2006) LPELR – 1436 (SC) P. 10 PARAS. C – G, his lordship Mohammed, JSC held thus:
“ . . . . It is noted that pleadings cannot constitute evidence and a defendant as in the instant case, who does not give evidence in support of his pleading or in challenge of the evidence of the plaintiff, is deemed to have accepted and rested his case on the facts adduced by the plaintiff notwithstanding his general traverse. In other words, averments in pleadings on which no evidence is adduced, are deemed to have been abandoned as mere averment without proof of facts pleaded and does not constitute proof of such facts unless such facts are admitted. See, Woluchem Vs. Gudi (1981) 5 SC 291, Basheer Vs. Same (1992) 4 NWLR (PT 236) 491; Uwegba Vs. Ag Bendel State (1986) 1 NWLR (PT 16) 303; Adegbite Vs. Ogunfaolu (1990) 4 NWLR (PT 146) 578 at 590 and FCDA Vs. Naibi (1990) 3 NWLR (PT 138) 270 at 281.”
See, also Omoboriowo & Ors Vs. Ajasin (1984) LPELR – 2643 (SC) P. 26, Paras. B-D, Akinbade & Anor Vs. Babatunde & Ors (2017) LPELR – 43463 (SC) PP. 32 – 33, Paras.C-A, Onube Vs. Asuakor & Ors (2019) LPELR – 47231 (CA) P. 24, Paras.B-C and Kaydee Ventures Limited Vs. The Hon. Minister Of Federal Capital Territory (2010) 7 NWLR (PT 1192) 171, 204. –

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CONTRADICTIONS IN EVIDENCE – MINOR CONTRADICTIONS IN EVIDENCE OF WITNESSES CANNOT DESTROY THE CREDIBILITY OF THE WITNESSES

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“Where the evidence led by witnesses are similar, there is likelihood that the witnesses have been tutored to say the same thing in evidence. Contradiction is the opposite of what has been earlier stated. The law is trite that where two or more pieces of evidence seem to vary, and the discrepancy is minor, the difference cannot destroy the credibility of the witnesses. See, Ayo Gabriel Vs. The State (1989) 5 NWLR 457, Uwagbae Vs. State NCC 3 Page 636, Oposi Vs. State (1971) I NMLR 315, Mbodan Vs. Dabai (2019) LPELR – 46739 (CA) PP. 17 – 18, Paras. E-A, Iregu Ejima Hassan Vs. The State (2016) LPELR – 42554 (SC) PP.28-29, PARAS F-B. In the present case, whether the river borders the land in dispute to the North or South is immaterial, the important thing is that the river forms part of the border of the land in dispute. Also, whether the original plaintiff inherited the land sixty years ago from the evidence of the PW1 or thirty years ago as stated by the PW2 is immaterial and did not affect the credibility of the evidence of these witnesses. I hold that the minor discrepancies in the evidence of the PW1 – PW4 in respect of the boundary men are minor variations. Similarly, the side of the land in dispute that borders with the access roads are also minor discrepancies. As stated earlier in this judgment, the description of the boundary features in proximity to the land in dispute depends on which side the land in dispute is approached, it does not go to the root of the matter so as to affect the credibility of the witnesses that would warrant setting aside the judgment of the trial court. See, Oloye Vs. State (2018) LPELR – 44775 (SC) PP.39 – 41, Paras. E – A and Mbodan Vs. Dabai (Supra). The alleged contradictions as contended by the Appellants were not proved”.-

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STATEMENT ON OATH – WHETHER AN INCOMPETENT WRITTEN STATEMENT ON OATH CAN BE CURED WHEN ADOPTED ON OATH IN COURT

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“The learned counsel to the Appellants had alleged that the written statement on oath of the Respondents’ witnesses are incompetent not having been made or signed in the office and presence of the commissioner for oaths by the witnesses. The written statements of the witnesses were adopted on oath in court by the witnesses. Where the maker is subsequently cross examined on the same statement, it cures any defect that would have occurred had the oath not been sworn in court. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 2016|Legal Practitioner’s Act, Cap. 207, Laws of the Federation, 2004|

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CLICK HERE TO READ FULL JUDGMENT

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