CORAM

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Hamma Akawu Barka Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Okon Efreti Abang Justice of the Court of Appeal

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PARTIES

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MRS NWAKAEGO OGBAJI

APPELLANTS 

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MR. OKECHUKWU S. ATUGBUE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

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SUMMARY OF FACTS

The action giving rise to this appeal was commenced by the Appellant at the trial Court (the High Court of the Federal Capital Territory, Abuja) vide a Writ of Summons wherein the Appellant claimed ejecting the defendant from Shop No 2, Block B22 Section B, Wuse Modern Market, Abuja, vesting possession of same in the plaintiff, and cost of this suit as reliefs. The Appellant claimed she was the owner of the property lying and situate at No. 2, Block B22, Section B, Wuse Modern Market, Wuse, Abuja which she rented out to the Respondent at the sum of N1,000,000.00 (One Million Naira) only per annum, which tenancy commenced from 1st January, 2009 to 31st December, 2009. The Appellant claimed that the Respondent paid the sum of N700,000.00 (Seven Hundred Thousand Naira) only in two instalments but refused to pay the balance or renew her rent after the expiration of his tenancy despite service of themrequisite notices on him.mThe Respondent filed his statement of defence and counterclaim that in 2006 the Shops in Wuse Market were put up for sale to all occupants by the Abuja Investment and Property Development Company Ltd, the Respondent won the bid for the shop located at No 2, Block B22, Section B, Wuse Modern Market, Abuja and paid N200,000.00 being 10% of N2,000,000.00 and was given an offer with a 90 days ultimatum to pay the balance. He obtained a loan of N1,972,000.00 from Aso Savings & Loans PLC which he used to complete payment for the Shop. After commencing repayment of the loan, his business started dwindling as a result of which he obtained a loan in the total sum of N1,600,000.00 from the Appellant in order to complete payment for the Shop and also repay the loan to Aso Savings & Loans PLC. After he completed the repayment of the loan to Aso Savings & Loans, he was able to repay the Appellant the total sum of N800,000.00 as against N700,000.00 claimed by the Appellant in her statement of claim. After hearing both parties and their respective counsel, the trial Court dismissed the Appellant’s claims and granted the Respondent’s counter claim. Aggrieved with the judgment of the trial Court, the Appellant made the instant appeal.

 

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HELD

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ISSUES

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 Whether in the circumstance of this case, the readoption of final written addresses by the parties before the trial Court is a mere irregularity, or a fundamental error which renders the proceedings null and void?

 Whether from the pleadings and evidence presented before the Court, the trial Judge was right when he entered judgment in favour of the respondent as per the reliefs in his counterclaim?

 

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RATIONES DECIDENDI

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JUDGMENT – DUTY OF A PARTY SEEKING TO SET ASIDE A DECISION OF COURT FOR NON- COMPLIANCE WITH S.294 (1) CFRN 1999 (AS AMENDED)

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Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) clearly provides a period within which a Court shall deliver judgment after parties have presented their evidence and adopted their final written address. For the purpose of clarity, the provision of Section 294(1) of the Constitution of the Federal Republic of Nigeria (as amended) is reproduced below:

“Every Court established under this constitution shall deliver its constitution in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

Although the above subsection (1) of Section 294 seems to have made a mandatory provision which when considered alone would have rendered the proceedings in which there has been non-compliance with its mandate a nullity, subsection (5) of the same Section 294 expressly provides that”

“The decision of a Court shall not be rendered null or void solely by reason of non-compliance with subsection (1) of this section, unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

By the above provision of Section 294(5), a party seeking to have the judgment of a Court set aside for non-compliance with Section 294(1) must satisfy the appellate Court that he has suffered a miscarriage of justice as a result of the non-compliance. It is therefore not enough for the Appellant to show that there has been a delay by the trial Court in delivering its judgment. She must establish the fact that she suffered a miscarriage of justice as a result. In AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC), the Supreme Court, per Onnoghen, JSC (as he then was, later CJN), restated the position that a judgment delivered by a Court in contravention of the ninety days period stipulated by Section 294(1) of the Constitution is valid except an appellant can satisfy the Court that the non-delivery of the judgment within the stipulated time has occasioned miscarriage of justice to him. See also on this: ATUNGWU & ANOR v OCHEKWU (2013) LPELR-20935(SC) at 20 – 21, paras. F – E; and OWOYEMI v ADEKOYA (2003) 18 NWLR (Pt. 852) 307. – Per A. B. Mohammed, JCA

 

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RE-ADOPTION OF FINAL WRITTEN ADDRESSES – WHEN A COURT CAN INVITE PARTIES TO RE- ADOPT THEIR FINAL WRITTEN ADDRESSES – CONDUCT OF APPELLATE COURTS TO COMPLAINS ABOUT LATE DELIVERY OF JUDGMENT

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In LASISI v FRN (2022) LPELR-58687(CA), this Court held at 29 – 30, paras. B – C, as follows: "A trial Court has the power to invite the parties to re-adopt their final written addresses only before the expiry of the ninety days within which it must deliver judgment, especially where new issues have arisen to which it requires the parties&; submissions before delivery of judgment. But the practice where after the expiry of ninety days a trial Court invites parties to readopt final addresses before delivering its judgment, as was done by the learned trial Judge at page 333 of the Record of Appeal, has no place either in the Constitution, or in our statutory laws or rules of procedure. In fact, such a practice neither obviates the fact that the judgment is delivered after the ninety days stipulated, nor adds any value to the final addresses being readopted by the parties. Thus, after the expiry of the ninety days within it must deliver its judgment, a trial Court can only proceed to deliver its judgment and then comply with the reporting requirement stipulated in subsection (6) of Section 294, by reporting same to the Chairman, National Judicial Council. It is then left to an appellate Court before which a complaint against the late delivery of the judgment is lodged to determine whether a miscarriage of justice had been occasioned as a result of the delay in the delivery of the judgment." See also:OBI v FRN (2022) LPELR-58326(CA) at 16 – 17, paras. C – D, per A.S. Umar JCA (as he then was, now JSC). – Per A. B. Mohammed, JCA

 

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COURTS – WHETHER EVERY ERROR COMMITTED BY THE TRIAL COURT WILL LEAD TO A REVERSAL OF ITS DECISION

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Indeed, there are plethora of authorities which reinforce the legal position that it is not every error committed by the trial Court that will lead to reversal of its decision unless it can be shown that a miscarriage of justice had occurred as a result thereof. See: IGBU & ORS v IMANDE & ANOR (2022) LPELR-57979(CA) at 27 – 28, paras. F – A; NWAVU & ORS v OKOYE & ORS (2008) LPELR-2116(SC) at 23, paras. C – D; and OLONADE & ANOR v SOWEMIMO (2014) LPELR- 22914(SC) at 23, paras. A – E. – Per A. B. Mohammed, JCA

 

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BURDEN AND STANDARD OF PROOF – BURDEN AND STANDARD OF PROOF IN A CLAIM FOR DECLARATORY RELIEFS

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It is clear from pages 40 – 41 of the Record that the claims sought by the Respondent in reliefs (a), (b), (c), (e), and (f) of his counterclaim are declaratory reliefs and by their own peculiar nature, facts relating to them must be specifically pleaded and proved. In fact, the burden of proof on a party claiming declaratory reliefs is so heavy to the extent that they are not grantable even on the admission of the adverse party. A party seeking for a declaratory relief must not rely on the weakness of the case presented by his adversary, but must succeed only on the strength of his own case. See: OKONKWO & ORS v OKONKWO & ORS (2010) LPELR-9357 (SC) at 27, paras. B – C; In RE: ONWUBUARIRI (2019) LPELR-49121(CA) at 22 – 23, paras. E – B; and INCORPORATED TRUSTEES OF FRUITS AND VEGETABLE SELLERS OF MARARABA v KANO & ORS (2016) LPELR-42959(CA) at 6 – 8, paras. E – E. – Per A. B. Mohammed, JCA

 

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TITLE TO LAND – WAYS OF PROVING TITLE TO LAND

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Where a party is asserting that he is the owner of a land in dispute, the law allows such a party to prove same through any of these five ways:

1. By traditional evidence.

2. By production of duly authenticated title documents of the land.

3. By acts of selling, leasing, renting out all or part of the land, or farming on it.

4. By acts of long possession and enjoyment of the land and;

5. By proof of possession of connected or adjacent in circumstances rendering it probable that the owner of such adjacent land would in addition, be the owner of the land in dispute. See:MOGAJI & ORS v CADBURY NIG. LTD (1985) 2 NWLR (Pt. 7) 393; FASORO & ANOR v BEYIOKU & ORS (1988) 2 NWLR (Pt. 76) 263; SALAMI v LAWAL (2008) 36 NSCQR (Pt. II) 1047 to 1048; LAMBE & ORS v AREMU & ANOR (2012) LPELR-9359(CA) at 45 – 46, paras. D – F; and JIBRILLA v SA’AD (2024) LPELR-61701(CA) at 17, paras. A – E. – Per A. B. Mohammed, JCA

 

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UNREGISTERED REGISTRABLE INSTRUMENT – WHETHER AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE TO PROVE TITLE TO LAND – WHERE AN UNREGISTERED REGISTRABLE INSTRUMENT IS ADMISSIBLE – WHETHER THE COURT CAN EXPUNGE WRONGFULLY ADMITTED EVIDENCE AT JUDGMENT STAGE

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The law is settled that an unregistered registrable instrument is not admissible to prove title to land but it is admissible to prove an equitable interest such as purchase of land or collection of rent. See: HARUNA v YARO (2016) LPELR-41554(CA) at 22 – 24, paras. B – E; APAMPA & ORS v OGUNGBEMI (2017) LPELR-43264(CA) at 29 – 30, paras. A – E; ABDULLAHI & ORS v ADETUTU (2019) LPELR-47384(SC) at 20 – 23, paras. A – C; and OGUNLEYE v SAFEJO (2009) LPELR-8081 (CA) at 7 – 9, paras. C – F. From the above-mentioned cases, it is safe to state that for the Deed of Assignment tendered by the Appellant at the trial Court to be admissible, it must be registered at the appropriate land registry, failing which it would be inadmissible evidence to prove that the Appellant is the owner of the shop in dispute. The Appellant having failed to register same, the decision of the trial Court to expunge and disregard Exhibit P5 was well grounded in law. After all, the Court is at liberty to expunge wrongfully admitted evidence at the stage of judgment. See:SANI v AYE & ORS (2022) LPELR-58094 (CA) at 31 – 34, paras. E – D; AYANWALE v ATANDA (1976) 1 NWLR (Pt. 68) 22; and AGBAJE v ADIGUN (1993) 1 NWLR (Pt. 269) 261. – Per A. B. Mohammed, JCA

 

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CONTRADICTION – WHETHER EVERY CONTRADICTION IN THE TESTIMONY OF WITNESSES WILL AFFECT THE CASE OF THE PARTY THAT CALLED THEM

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It is a well-established principle of law that it is not every contradiction in the testimony of witnesses that will affect the case of the party that called them. See KURE v NAIBA (2018) LPELR-44143(CA) at 27, paras. A – F; and DALA v AYODELE & ORS (2014) LPELR-24621(CA) at 48 – 49, paras E – C. – Per A. B. Mohammed, JCA

 

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APPEAL – WHERE THE APPELLANT FAILS TO APPEAL SPECIFIC FINDINGS/DECISIONS OF A COURT

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It is settled that the effect of failure to appeal against specific finding/decision of a Court is that the finding or decision is taken to be acceptable and thus remains subsisting and binding upon the parties. See:COMPTROLLER GENERAL OF CUSTOMS & ORS v GUSAU (2017) LPELR-42081(SC) at 9 – 10, paras. B – B; MTN v CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR- 47042(SC) at 62 – 63, paras. C – F; and YUSUF v KANO STATE (2023) LPELR-59890(SC) at 25 paras. B – C. – Per A. B. Mohammed, JCA

 

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JUDGMENT – WHERE THE APPELLANT DOES NOT PROVE THAT MISCARRIAGE OF JUSTICE WAS SUFFERED AS A RESULT OF JUDGMENT BEING DELIVERED OUTSIDE THE PRESCRIBED PERIOD OF 90 DAYS

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I agree that though the trial Court delivered its judgment outside prescribed period of ninety (90) days having regard to the provisions of Section 294(1) of 1999 Constitution as amended, the Appellant failed to satisfy the Court that she suffered miscarriage of justice resulting therefrom. – Per O. E. Abang, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. High Court of the Federal Capital Territory (Civil Procedure Rules), 2004

4. Land Registration Act Cap. 515 LFN 2004

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