CORAM

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MUHAMMED LAWAL SHUAIBU JUSTICE OF THE COURT OF APPEAL

RIDWAN MAIWADA ABDULLAHI JUSTICE OF THE COURT OF APPEAL

EBIOWEI TOBI JUSTICE OF THE COURT OF APPEAL

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PARTIES

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MALLAM SANI APPELANT(S)

 

APPELLANTS 

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SANI KWENDO BANDI RESPONDENT(S)

 

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The respondent who ordinarily resides in Abuja applied to Kebbi State Government through Kebbi State Department of Land, Survey, Town and Country Planning for allocation of a piece of land in GRA Zuru, Kebbi State. On 7th of January, 1995 the Kebbi State Government approved the said application and allocated plot No: 70 LP 18Ph. 111 GRA Layout Zuru covered by Right of occupancy No: ZU/G/0106/0106 dated 27th January, 1995 in favour of the respondent. Sometimes in 2013, he discovered that the appellant had trespassed on the property and had erected a structure thereon. The appellant denied the respondent’s claim and averred that he bought the land in dispute from one Alhaji Umar Jibo in the presence of Witnesses. At the end of the trial and in a considered judgment delivered on 24th November, 2020, the Court found for the plaintiff and granted all the reliefs sought. Aggrieved by the decision, the appellant filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the appellant suffered any miscarriage of justice when the Court below in its final judgment first resolved the issue touching on the merit of the case before it proceeded to resolved the issue as to whether the action is statute-barred? Whether the suit initiated by the respondent against the appellant before the Court below is a statute-barred action?

Whether the decision of the Court can be supported having regard to the evidence proffered before it by the contending parties in litigation?

Whether the writ of summons filed by the respondent against the appellant before the trial Court is incompetent?

Whether the award of Two Million Naira general damages by the trial Court against the appellant and in favour of the respondent is reasonable and justifiable having regard to the facts and circumstances of the case?

 

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RATIONES DECIDENDI

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JURISDICTION – CONDUCT OF COURTS WHEN THE ISSUE OF JURISDICTION IS RAISED

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Filing an action in a Court of law presupposes that the Court has jurisdiction. But once the defendant shows that the Court has no jurisdiction, the foundation of the case is not only shaken but is entirely broken. In effect, there is no case before the Court for adjudication. ​It is settled that jurisdiction remains a central issue to any matter before any Court. Once challenged, the Court is duty bound to determine whether it has jurisdiction first before proceeding to determine the case because of the fundamental nature of jurisdiction to the adjudication. See AJAOKUTA STEEL Co. LTD VS G. I. & S. LTD (2019) 18 NWLR (PT. 1674) 213 @ 223. In AFRO CONTINENTAL (NIG) LTD & ANOR VS CO-OPERANALS INC (2019) LPELR – 47951 (CA) it was held that when a Court’s jurisdiction is challenged the duty of Court is to settle that issue one way or another first before proceeding to hear the case on merit. It was however, held in OCHIMA &  ORS VS OCHAI & ORS (2019) LPELR – 49171 (CA) that it is the practice that where an issue is raised as to the competence of a suit or the jurisdiction of a Court, the issue of competence and/or jurisdiction should be taken along with the hearing of the substantive suit on its merit. Thereafter, the trial Court should after first pronouncing on the issue touching on jurisdiction, still proceed to make findings on the merit of the substantive claim. The reason is not farfetched since the judgment of the trial Court is not final and may likely be tested on appeal upwards through hierarchy of Courts, it saves precious judicial time as well as saves litigants a whole lots of trouble of being sent back to be heard on the merits should the trial Court be overruled on its decision in respect of jurisdiction. Thus, the procedural requirement that a jurisdictional issue should be determined first does not mean that it must be treated separately. – Per M. L. Shuaibu, JCA

 

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STATUTE-BAR – CONDUCT OF COURTS IN DETERMINING WHETHER AN ACTION IS STATUTE- BARRED – WHEN A CAUSE OF ACTION ARISES

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It is trite that a trial Court would be bereft of the necessary vires to entertain the claims of a claimant where the claims are statute-barred. However, in determining whether an action is statute-barred, all that is required is for the Court to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. Thus, if the time is beyond the period allowed by the limitation law, then the action is statute-barred. [EGBE VS ADEFARASIN (1987) 1 NWLR (PT.247) 1, HASSAN VS ALIYU (2010) 17 NWLR (PT. 1223) 547 and AJAYI VS ADEBIYI (2012) LPELR – 7811 (SC). A cause of action arises at the date or time when a breach or any act that would warrant the person that is the victim who is adversely affected by the act of another to take action in Court. Such legal right is not expected to last for eternity. It is limited and after the date in which the statute says no legal proceedings may be taken, then the affected person cannot competently institute an action in Court. – Per M. L. Shuaibu, JCA

 

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BURDEN OF PROOF – BURDEN OF PROOF IN A PROCEEDING

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As could be gathered from the parties’ pleadings, the consideration of whether the respondent’s suit was statute barred was predicated on the appellant’s Amended statement of defence and therefore the duty of leading credible evidence in support of the assertion lies squarely on the appellant. In our jurisprudence, it is the person who asserts the positive assertion that has the onus to prove same. Sections 131 (1), 132, and 133 (1) of the Evidence Act, 2011 are to the effect that whoever desires any Court to give judgment as to any legal right or as liability dependent on the existence of facts which he asserts shall prove that those facts exist. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Finally, the burden of first proving the existence or non-existence of a fact lies on that party against whom the judgment of the Court would be given if no evidence were produced on either sides, regard being had to presumption that may arise or the pleadings. – Per M. L. Shuaibu, JCA 

 

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COURTS – CONDUCT OF COURT IN RESOLVING ISSUES RAISED SUO MOTU

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On no account should a Court of law raise an issue suo motu and resolve it suo motu. – Per M. L. Shuaibu, JCA

 

 

 

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LAND – MODE AND STANDARD OF PROVING TITLE TO LAND

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A party is not forbidden from choosing one or more modes or ways of proving title of land. However, it is obligatory on him to prove whatever way chosen by him upon the preponderance of evidence or balance of probability without leaving the Court in any doubt. The respondent in this case traced his root of title to the grant given to him in 1995 and it is absurd for the appellant to extend that root beyond the Kebbi State Government and also outside the parties’ pleadings. At any rate, the respondent as plaintiff had the duty to adduce sufficient and credible evidence to establish the mode of acquisition of his title and he must succeed on the strength of his own case and not on the weakness of the defence (if any), although he may take advantage of the defendant’s evidence where it supports his case after he might have proved his case as required by law. At all times a consideration of the defendant’s case and the weakness of it does not arise until the plaintiff has led evidence showing prima facie, that he has a title to the land. [ADAMU VS NIGERIAN AIRFORCE (2022) 5 NWLR (PT.1822) 159 @ 176-177. Furthermore, the respondent’s relief (a) being declaratory in nature, same is not granted as a matter of course. – Per M. L. Shuaibu, JCA 

 

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GRANT – WHERE A PARTY PLEADS A GRANT AS HIS ROOT OF TITLE

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The position of the law is that where a party relies on and pleads a grant as his root of title, he is under a duty to prove such a grant to the satisfaction of the trial Court. See AJIBULU VS AJAYI (2013) LPELR – 21860 (SC).  – Per M. L. Shuaibu, JCA 

 

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EVIDENCE – WHERE AN APPELLANT QUESTIONS THE EVALUATION OF EVIDENCE CARRIED OUT BY THE TRIAL COURT

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Furthermore, the law is settled that where an appellant questions the evaluation of evidence carried out by the trial Court and seeks to set aside such an exercise before an appellate Court, such an appellant must identify or specify the evidence improperly evaluated and show that if a proper evaluation is done, the conclusion reached by the trial Court would have been different… – Per M. L. Shuaibu, JCA 

 

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WRIT OF SUMMONS – USE OF WRIT OF SUMMONS AND EFFECTS OF MATERIAL DEFECTS ON SAME

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It is settled that a writ of summons is an initiating legal process by which the jurisdiction of a trial Court can properly and validly be invoked by a party who intends to utilize the judicial process of that Court to seek for reliefs or remedy from the Court against another on any legal ground. Thus, it is the foundation and the process which gives life to a valid action before a High Court without which there could be no action before the Court in respect of which it can properly in law assume jurisdiction to conduct proceeding or adjudicate. In order words, it is sine qua non to the assumption of the requisite jurisdiction by a Court to entertain or adjudicate over a matter commenced by that process. Any material defect in a writ of summons would affect its validity and thereby be rendered legally incapable of invoking the requisite jurisdiction of the Court to adjudicate over it. See GWALEM VS DAURA (2019) LPELR – 48435 (CA). – Per M. L. Shuaibu, JCA 

 

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WRIT OF SUMMONS – WHEN A PARTY FAILS TO OBJECT TO A DEFECT ON THE WRIT OF SUMMONS – WAIVER

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The question is whether the appellant is deemed to have waived his right to complain of the defective writ of summons? It was held in plethora of authorities that a procedural irregularity can be waived or deemed to have been waived by the adversary taking steps in the proceedings in spite of the defect. Thus, a party in whom a legal right enures; can waive the legal right including his right in law to object to any defect appearing ex-facie the process. Such conduct of failing or neglecting to object timeously to procedural defect appearing ex-facie the process creates estoppel by conduct against the prospective objector under Section 169 of the Evidence Act, 2011. In AJAYI VS HARRY (2014) LPELR – 24127 (CA). it was emphatically held that a statutory provision for the benefit of a person can be waived because it confers a private right or protects a private interest.  – Per M. L. Shuaibu, JCA 

 

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GENERAL DAMAGES – MEANING AND OBJECT OF GENERAL DAMAGES – CONDUCT OF COURTS IN AWARDING GENERAL DAMAGES

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General damages are such as the law will presume to be the natural or probable consequence of the defendant’s act. It is awarded to assuage the measure of the loss which flows naturally or logically from the acts of the defendant. It needs not be specifically pleaded, as it arises by the inference of law and need not be proved by evidence. See THOMPSON VS AKINGBEHIN (2021) 16 NWLR (PT.1802) 283 @ 311.

The main object of an award of general damages is to compensate the claimant for the damages, loss, or injury he suffered as a result of the act of the defendant. Thus, the guiding principle is “restitutio in integrum” that is; to restore the party to the position he or she was in prior to the injury.

Generally, the trial Court has a discretion as to the quantum of damages it would award in a claim for trespass. The assessment does not strictly depend on any legal rules but the discretion of the Court is limited by usual caution or prudence and remoteness of damages. Thus, an award of damages cannot, however, be made arbitrarily. It calls for some measure of quantification and a careful exercise of judicial discretion. See MUOGBOH VS TEMLONG (2019) LPELR – 50346 (CA).  – Per M. L. Shuaibu, JCA 

 

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DAMAGES – WHEN AN APPELLATE COURT CAN INTERFERE WITH AMOUNT OF DAMAGES AWARDED BY LOWER COURTS

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An appellate Court can interfere with the amount of damages awarded by the lower Court where it is shown that the lower Court did not follow the principle of the law governing such award. – Per M. L. Shuaibu, JCA 

 

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COURTS – CONDUCT OF COURTS IN MAKING DECISIONS/PASSING JUDGMENTS

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it is my considered view that a Court exist to do justice and therefore if a Judge decides to consider the merit of a case before dealing with the issue of jurisdiction, it may be awkward but provided it did not occasion a miscarriage of justice, it can fly. A Judge and his decision cannot face firing squad as a convicted armed robber. See Makinde vs Adekola (2022) 9 NWLR (pt. 1834) 13; Aondoakaa vs Obot & Anor (2021) LPELR-56605 (SC) Govt of Kogi State & Ors vs John (2022) LPELR-58912 (CA).

The lower Court has the right to adopt any style in writing his judgment provided the judgment passes the test of the characteristic of a good judgment. See Nwokoro vs Ashue (2023) 7 NWLR (1882) 35. The style will only become a problem if it occasioned a miscarriage of justice. – Per Ebiowei Tobi, JCA 

 

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COURTS – CONDUCT OF COURTS IN DEALING WITH DECISIONS OF LOWER COURTS

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The destination of the Court is justice, provided it arrived there safely, an appellate Court should not border itself to interfere with the finding of the lower Court. – Per Ebiowei Tobi, JCA 

 

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COURTS – CONDUCT OF COURTS WHEN ISSUES ARE RAISED SUO MOTU

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…whether the Court raised an issue suo motu. This is frowned upon in our legal system that Is to say a Court is not allowed to raise and resolve issues suo motu. A Court can raise issues suo motu but cannot resolve them suo motu. If they raise issues suo motu, they are required by law to call on the parties to address it on the issue. A Court is to restrict itself to the evidence and the issues presented before it. A trial Court cannot play the role of an investigator. In ACN vs Lamido & Ors (2012) LPELR-7825(SC), this is what the apex Court said:

“It is not the duty of a Court or Tribunal to embark upon cloistered justice by making enquiry into the case outside the open Court not even by examination of documents which were in evidence but not examined in the open Court. A Judge is an adjudicator; not an investigator. See: Duriminiya v. Commissioner of Police (1961) NRNLR 70; Queen v. Wilcox (1961) 1 SCNLR 296; (1961) All NLR 633; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; Onibudo v. Akibu (1982) 7 SC 60.” Per FABIYI, J.S.C

For the purpose of doin justice, a Court may want to handle an issue or point, not made part of the pleadings before the Court. The law allows it to raise such an issue. The offence is not in raising an issue suo motu but it is in resolving it suo motu. See Eagle Super Pack (Nig.) Ltd. vs A.C.B. Plc(2006) 12 S.C. 3. InOkonkwo vs Cooperative & Commerce Bank (Nig) plc & Ors (2003) 2-3 S.C. 104, the Supreme Court held:

“A related point is that since waiver was not pleaded, it was not available to the Court of Appeal to raise it suo motu and resolve it suo motu. While a Court has the jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a Court of law should be most reluctant to raise issue suo motu, When it does that, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The Court was in serious error for not giving the right to Counsel to react to the issue of waiver which it raised suo motu.”

Before I conclude my intervention on this, it is important to say that once issues are raised in the pleadings, a Court cannot be accused of raising them suo motu because counsel did not address on them. In Ikenta Best (nig) Ltd vs A.G. Rivers State (2008) 2-3 S.C (pt I) 28, this is what the apex Court said on this point:

“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter, or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” Per TOBI, J.S.C

​To raise issues suo motu implies introducing or importing to the case issue foreign to those before the Court. – Per Ebiowei Tobi, JCA 

 

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CASES CITED

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NILL

 

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STATUTES REFERRED TO

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1. Kebbi State Limitation Law Cap 80 Law of Kebbi State 1996

2. Evidence Act, 2011

 

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