CORAM

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ABDU ABOKI (PJ)

HON. JUSTICE JAMES SHEHU ABIRIYI

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PARTIES

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KELVIN Z. ILIYALUKA VONYABA APPELLANTS

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PETER LAMUDAWERE MAZANG RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

At the High Court of Taraba State, the Plaintiffs/Appellants claimed against the Defendants/Respondents a declaration that they are the bona-fide holders of the rights, title and interest over the land in dispute, an order declaring the entry into the disputed land by the Respondents wrongful and an order of perpetual injunction restraining the Respondents from trespassing into the land. After considering evidence adduced by both parties and written addresses of learned counsel for the parties, the Court below dismissed the claim of the Appellants hence this appeal. The Appellants are contending that the trial court raised an issue suo motu and resolved same without inviting parties especially the Appellant who was more likely to be affected to address it, and that amounted to a breach of the Appellant’s right to fair hearing.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the judgment of the trial Court which was in clear breach of the Appellants’ right to fair hearing is liable to be set aside by this Honourable Court? Whether regard been had to the pleadings and evidence on record, the judgment of the trial Court dismissing the claims of the Appellants is perverse and liable to be set aside by this Honourable Court?

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RATIONES DECIDENDI

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FAIR HEARING-MEANING OF FAIR HEARING

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“Fair hearing according to our law envisages that all parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties. Fair hearing is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case influence and determine the applicability or application of the principle. Fair hearing lies in the procedure followed in the determination of the case not in the correctness of the decision. Accordingly where a Court arrives at a correct decision in breach of the principle of fair hearing an appellate Court will not hesitate to strike out the correct decision in favour of the breach of fair hearing. See Alshom S. A. vs. Saraki (2005) LPELR-435 SC page 23 and Orugbo vs. U. N. A. (2002) LPELR-2778 SC page 16 – 17.” –

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EVALUATION OF EVIDENCE-INSTANCES WHEN AN APPELLATE COURT WOULD BE IN A GOOD POSITION AS A TRIAL COURT TO EVALUATE EVIDENCE

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“Where a trial Court fails in its duty of evaluation of evidence and approbation of weight thereto, or when it demonstrates that it had not taken proper advantage of having heard and seen a witness testify in such a situation, an appellate Court is in as good a position as the trial Court to evaluate the evidence provided the exercise does not involve credibility of witnesses who testified before the trial Court. See Fagbenro vs. Arobadi & Ors (2006) LPELR-1227 SC page 26 per Onnoghen JSC (as he then was now CJN).” –

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EVALUATION OF EVIDENCE -WHETHER IT IS PERMISSIBLE TO INVITE PARTIES TO ADDRESS THE COURT WHEN IT IS EVALUATING EVIDENCE IN THE RECESS OF ITS CHAMBERS

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“Although it is the law that all parties to be affected by decision are entitled to be heard in the case at hand before a decision is given, it is not permissible to invite parties to address the Court when it is evaluating evidence in the recess of its chambers. What the law envisages is that if in the course of hearing any new point material to the decision arises, all the parties or each of the parties shall be heard on it before a decision based upon it can be rightly handed down. See Ugo vs. Obiekwe & Anor (1989) LPELR-3319 SC page 23 – 24.” –

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EVALUATION OF EVIDENCE- WHETHER AN APPELLATE COURT CAN EVALUATE EVIDENCE

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“This Court is in as good a position as the Court below to evaluate the evidence because the exercise will not involve the credibility of the witnesses who testified. See Fagbenro vs. Arobadi & Ors (supra).” –

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BURDEN OF PROOF- ON WHO LIES THE BURDEN OF PROOF IN CIVIL CASES

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“By virtue of Sections 133 and 134 of the Evidence Act, in civil cases the burden of proof is on the party who asserts a fact to prove same for he who asserts must prove. The standard of proof required is on the preponderance of evidence and balance of probabilities. A party in a civil case must prove his/its case on credible evidence of his/its witnesses and is not at liberty in law to make a case or rely on the weakness of the defendant’s case in order to succeed. See Daodu vs. NNPC (1998) 2 NWLR (Pt. 538) 355 and Agbi vs. Ogbeh (2006) 11 NWLR (Pt. 990) 65.” –

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TITLE TO LAND – MEANS OF ESTABLISHING TITLE TO LAND

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“Since 1976 when Idundun vs. Okumagba was decided by the Supreme Court, the Courts have held that title to land can be established by traditional evidence; (2) Production of documents of title duly authenticated in the sense that their due execution must be proved; (3) By positive acts of ownership extending over a sufficient length of time; (4) By acts of long possession and enjoyment of the land; (5) By Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be owner of the land in dispute. The law is that the establishment of one of the ways enumerated above is sufficient proof of ownership of the land. See Idundun vs. Okumagba (1976) 9 – 10 SC 337, Ayoola vs. Odofin (1984) 11 SC 120 and Nkado vs. Obiano (1997) 5 NWLR (Pt. 503) 31.” –

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DECLARATORY RELIEFS- BASIS FOR GRANTING DECLARATORY RELIEFS

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“Declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. It is a requirement of the law that the person seeking the declaratory relief must plead and prove his claim for declaratory relief without relying on the evidence called by the defendant. Such declaratory relief is not granted even on admission by the defendant. However, there is nothing wrong in a plaintiff taking advantage of any evidence adduced by the defence which tends to establish the plaintiff’s title. See Anyaru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929, Oguanuhu vs. Chiegboka (2013) 2 SCNJ 693 and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184.” –

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PLEADINGS- WHETHER PARTIES ARE STRICTLY BOUND BY THEIR PLEADINGS

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“The law on pleadings is firmly established. And the law is that parties are strictly bound by their pleadings and they are not allowed to make a case that is at variance with their pleadings. Evidence which is at variance with the averments in the pleadings goes to no issue. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241, Makinde vs. Akinwale (2000) 1 SC 89 and Allied bank (Nig) Ltd vs. Akubueze (1997) 6 NWLR (Pt. 509) 374.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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Evidence Act, 2011|

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