Legalpedia Citation: (2024-02) Legalpedia 04181 (CA)

In the Court of Appeal

Holden At Makurdi

Fri Feb 16, 2024

Suit Number: CA/MK/02/2015

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

MRS. ROSELINE OCHIGA

APPELLANTS

1. REGISTERED TRUSTEES OF THE NKSTCHURCH, CHECHWUA COMMUNITY, MAKURDI
2. UVIHITSE ALIO
3. AWEN AMENGER
4. ORTAWEN EMMANUEL IGBA
5. ORHEN JOHN CHAHUR (For Themselves And On Behalf Of Other Members Of NKST Church, Chechwua Community, Makurdi, Benue State)

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

At the lower Court, the Appellant, as Claimant, brought an action for a declaration of title to all the piece or parcel of land covered by Benue State Right of Occupancy No. BNA5593 as in Exhibit C, dated the 13/4/1990, situated at North Bank, relying on allocation by the Benue State Government. On their part, the 1st Respondent had by way of counter-claim also laid claim to a Declaration of title to the same parcel of land relying instead on evidence of traditional history of title to the said land.

The Appellant testified as the PW1 and tendered some documents, which were admitted in evidence as exhibits and closed her case. In defence, the Respondents, as Defendants, called two witnesses, who testified as DW1, Avihitse Alyo, the 2nd Respondent, and DW2, Emmanuel Igba, the 4th Respondent.

The trial Court dismissed the Appellant’s application seeking to strike out DW1’s Statement on Oath, granted the Respondents as Defendants’ application to amend their processes including DW1’s Statement on Oath, dismissed the claims of the Appellant as Claimant against the Respondents as Defendants, and granted the counter-claim of the 1st Respondent as Defendant/Counter-Claimant.

The Appellant was thoroughly dissatisfied with the said judgment and appealed against it.

HELD

Appeal allowed

ISSUES

1. Whether the lower Court was right to have nullified the Appellant’s Certificate of Occupancy No. BN6655, which was not in issue and not in respect of the disputed land, but was pleaded to show ownership of adjoining land?
2. Whether the lower Court was right to raise the issue of the authenticity of the Appellant’s Certificate of Occupancy No. BN6655 and Right of Occupancy No. BNA5593 suo motu and based his judgment against the Appellant on it without inviting the parties to address it on the issue?
3. Whether the lower Court was right to dismiss the Appellant’s application to strike out the statement on oath of DW1, Uvihitso Alio, for being incurably defective and then proceeded to grant an amendment of the Statement of Defence for an error allegedly contained in the Writ of Summons and Statement of Claim, and then allowed the Respondents to file an amended witness Statement on Oath of its witnesses, particularly that of DW1, which had earlier been struck out?

4.Whether on the state of the pleadings and evidence, the lower Court was right to hold that the disputed land was not in an Urban Area and, if not, whether the Respondent was entitled to a deemed Right of Occupancy?

5.Whether, having regards to the pleadings and evidence before it, the lower Court was right to hold that the Appellant did not join issues with the Respondent on the counter-claim and that the 1st Respondent proved its title to the disputed land by traditional history?

6. Whether the lower Court was right to transfer the burden of proof of allegations and or facts pleaded in the Respondents’ Statement of Defense to the Appellant and then rely on the inadmissible hearsay evidence of the Respondents’ witnesses to rule against the Appellant?
7. Whether the lower Court was right to hold that the Appellant abused her office by allocating Plots to herself, and that the procedure and processes for the grant of Right of Occupancy was not followed in granting title to the disputed land to the Appellant, when no such evidence was adduced before it?
8. Whether the lower Court evaluated or properly evaluated the evidence adduced, particularly on the issue of survey plan, possession, and/or acts of ownership on the disputed land and the Appellant’s ownership of the adjoining land?

RATIONES DECIDENDI

JURISDICTION – WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE – CONDUCT OF COURTS WHERE A JURISDICTIONAL ISSUE IS RAISED ON APPEAL

It is true that the question of due initiation of originating process raises the issues of jurisdiction and which once raised, no matter the stage and notwithstanding whether it was raised or not before the lower Court, must be considered first and resolved or way or the other before if need be, and depending on its outcome, the merit or otherwise of the substantive suit or appeal can be considered and resolved. – Per B. A. Georgewill, JCA

REPLY BRIEF – WHETHER A RESPONDENT CAN FILE A REPLY BRIEF TO THE APPELLANT’S REPLY BRIEF IN A MATTER BEFORE THE COURT OF APPEAL

Having taken time to read through the relevant provisions of the Rules of this Court 2021 and having considered the submissions of learned counsel for the parties, I am of the view, and I so firmly hold, that there is no provision in the Court of Appeal Rules 2021 for the filing of a Respondent’s reply brief to an Appellant’s reply brief. Thus, a Respondent’s reply brief to an Appellant’s reply brief is an unknown process in the conduct of litigation in this Court. It is therefore, as forcefully and unassailably argued by learned counsel for the Appellant, incompetent and thus, liable to be struck out. There must be an end to the filing of briefs after the filing of the Appellant’s reply brief, except perhaps with the leave of this Court first sought and obtained by a Respondent who intends to do so. – Per B. A. Georgewill, JCA

WRIT OF SUMMONS – THE PERSON REQUIRED TO SIGN AND SEAL A WRIT OF SUMMONS UNDER THE PROVISIONS OF THE HIGH COURT OF BENUE STATE CIVIL PROCEDURE RULES

…I note at once that decisions reached on Rules of Court significantly different from the provisions of the rules of the lower Court would be to no avail to any of the parties. See APC V. PDP (2015) EJSC (Vol. 14) 1.

Now, under the provisions of Order 6 Rules 1 and 2 of the High Court of Benue State (Civil Procedure) Rules, it would appear, and I so firmly hold, that it is the Registrar of the lower Court that is required by law to sign and seal a Writ of Summons and not the learned counsel for a Claimant. Thus, all that is required of a Claimant or his learned counsel, under the said Rules of the lower Court, is to prepare the processes for filing, pay the assessed fees and for the signature of the Registrar of the lower Court to be affixed on the processes, which in turn validates and issues the Writ of Summons as a Court process duly emanating from the Registry of the lower Court. – Per B. A. Georgewill, JCA

STATEMENT OF CLAIM – WHETHER A STATEMENT OF CLAIM CAN BE CATEGORIZED AS AN ORIGINATING PROCESS – WHERE AN OBJECTION TO THE VALIDITY OF A STATEMENT OF CLAIM IS NOT RAISED TIMEOUSLY

Having found that the Appellant’s Writ of Summons was valid and competent before the lower Court, I consider the issue of the validity of the Statement of Claim raised by the Respondents as a mere irregularity. Having not been raised timeously before the lower Court, before the hearing and conclusion of the trial and judgment of the lower Court, in which the Respondents voluntarily and effectively participated, the Respondents have in law clearly waived their right to complain. This is so because a Statement of Claim or any other pleadings for that matter is not and cannot be categorized as an originating process. See Order 5 Rule 2 of the High Court of Benue State (Civil Procedure) Rules. See also Union Bank Plc & Anor V. Visana (Nig.) Ltd. (2021) LPELR – 54932 (CA), Heritage Bank Ltd. V. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (Pt. 1625) 420, Sonuga and Ors V. Anadein & Ors. (1967) 1 All NLR 91 @ pp. 93 – 94, Dickson V. Law and Davidson (1895) 2 Ch. D. 62, Chinda V. Owhonda & Ors. (2022) LPELR – 56589 (CA), Unity Bank Pic. Vs. Denclag Limited (2012) 3 SCNJ 335, Bakari V. Ogundipe (2021) 5 NWLR (Pt 1768) 1 @ p. 43. – Per B. A. Georgewill, JCA

PLEADINGS – THE IMPORTANCE OF PLEADINGS IN COURT PROCEEDINGS – CONDUCT OF COURTS TO PLEADINGS

Now, in law, both the parties as well as the Court are bound by the pleadings of the parties, and neither the parties can go outside the pleadings to make a different case from that pleaded nor can the Court go outside the pleadings and the issues therein to make any findings or reach any decision. Thus, both the parties as well as the Court are bound by and circumscribed to only the issues raised in the pleadings. This is so because it is settled law that the jurisdiction of a Court to adjudicate on the dispute between parties is circumscribed and limited to the issues as submitted by the parties to the Court for resolution, and which issues must be as joined by the parties in their pleadings. See Dike V. Okonkwo (2008) All FWLR (Pt. 404) 409. – Per B. A. Georgewill, JCA

RELIEF – WHETHER A PARTY CAN CLAIM AND BE AWARDED A RELIEF IN VACUUM – WHERE A PARTY DOES NOT PLEAD SUPPORTING FACTS TO THE RELIEFS CLAIMED

In law, a party cannot, and even where he does so, claim a relief not supported by any averments and evidence and be awarded such a relief standing in a vacuum. A relief must be tied to the averments in the pleadings of the party. It is the proof of the averments that would naturally lead to the award of the relief claimed. Thus, a party cannot, without any supporting averments in a pleading, merely claim a relief not tied to, or not related to, or not in any way connected to the averments in his pleadings.

It follows, therefore, that where, in all cases, the supporting facts have not been pleaded, a claim to the relief would not be justified and cannot be granted by a Court of law, since in law, as stated centuries ago, one cannot put something on nothing and expect it to stand. No, it cannot stand but must simply collapse like a pack of cards. Thus, granting such a relief would amount to putting something on nothing and, obviously, it would collapse. See Macfoy V. UAC (1965) AC 1. See also Musa V. Yakubu & Ors (2015) LPELR – 40377 (CA), Umeanozie V. FBN Plc (2016) LPELR – 41038 (CA). – Per B. A. Georgewill, JCA

SUO MOTU – CONDUCT OF A COURT RAISING AN ISSUE SUO MOTU

It is the law, and as rightly submitted by learned counsel for the Appellant, that though a Court may raise an issue suo motu, where it decides to base its decision on the matter on the issue so raised, it is duty-bound to call on the parties, particularly the party to be adversely affected by it, to address it. Thus, failure to do so would clearly amount to a denial of fair hearing with the devastating consequences of vitiating the entire proceedings and decision reached by the Court. See Gwede V. INEC & Ors (2014) LPELR – 23763 (SC). See also Ogwe & Anor V. IGP & Ors (2015) LPELR – 24322 (SC), Ogboru & Anor V. Uduaghan & Ors (2010) LPELR – 3938 (CA), Michael Dapianlong & Ors. v. Chief (Dr.) Joshua Dariye & Anor. (2007) All FWLR (Pt. 373) 1 @ pp. 37-38. – Per B. A. Georgewill, JCA

SUO MOTU – CONDUCT OF A COURT RAISING AN ISSUE SUO MOTU

It is the law, and as rightly submitted by learned counsel for the Appellant, that though a Court may raise an issue suo motu, where it decides to base its decision on the matter on the issue so raised, it is duty-bound to call on the parties, particularly the party to be adversely affected by it, to address it. Thus, failure to do so would clearly amount to a denial of fair hearing with the devastating consequences of vitiating the entire proceedings and decision reached by the Court. See Gwede V. INEC & Ors (2014) LPELR – 23763 (SC). See also Ogwe & Anor V. IGP & Ors (2015) LPELR – 24322 (SC), Ogboru & Anor V. Uduaghan & Ors (2010) LPELR – 3938 (CA), Michael Dapianlong & Ors. v. Chief (Dr.) Joshua Dariye & Anor. (2007) All FWLR (Pt. 373) 1 @ pp. 37-38. – Per B. A. Georgewill, JCA

SUO MOTU – CONDUCT OF A COURT RAISING AN ISSUE SUO MOTU

It is the law, and as rightly submitted by learned counsel for the Appellant, that though a Court may raise an issue suo motu, where it decides to base its decision on the matter on the issue so raised, it is duty-bound to call on the parties, particularly the party to be adversely affected by it, to address it. Thus, failure to do so would clearly amount to a denial of fair hearing with the devastating consequences of vitiating the entire proceedings and decision reached by the Court. See Gwede V. INEC & Ors (2014) LPELR – 23763 (SC). See also Ogwe & Anor V. IGP & Ors (2015) LPELR – 24322 (SC), Ogboru & Anor V. Uduaghan & Ors (2010) LPELR – 3938 (CA), Michael Dapianlong & Ors. v. Chief (Dr.) Joshua Dariye & Anor. (2007) All FWLR (Pt. 373) 1 @ pp. 37-38. – Per B. A. Georgewill, JCA

SUO MOTU – WHERE A COURT FAILS TO OBSERVE THE REQUIREMENT OF FAIR HEARING AFTER RAISING A MATTER SUO MOTU

It follows, therefore, and I so firmly hold, that the issue of the authenticity of the Appellant’s Certificate of Occupancy, as in Exhibit B, and Right of Occupancy, as in Exhibit C, was an issue raised suo motu by the lower Court and for the first time in the judgment being appealed against by the Appellant. See p. 207 of the Record of Appeal.

There is nothing in the Record of Appeal showing or indicating when and where the lower Court, as it was duty-bound to do, called upon or invited the parties or their learned counsel to address it upon this very crucial issue raised by it but on which the parties had joined no issues before it. In the circumstances, therefore, the failure of the lower Court to observe this minimum requirement of fair hearing before reaching a decision affecting the parties, particularly the Appellant so adversely affected by the decision of the lower Court to nullify the Certificate of Occupancy, as in Exhibit B, and Right of Occupancy, as in Exhibit C, clearly amounted to a breach of the Appellant’s right to fair hearing as guaranteed to her by the basic law of the land, the Constitution of Nigeria 1999 (as amended), and such a decision is one which is a nullity and must perforce be set aside by this Court, no more, no less, and I so firmly hold. See Section 36 (1) of the Constitution of Nigeria 1999 (as amended). See also Ogboru & Anor V. Uduaghan & Ors. (2010) LPELR – 3938 (CA), Michael Dapianlong & Ors. v. Chief (Dr.) Joshua Dariye & Anor. (2007) All FWLR (Pt. 373) 1 @ pp. 37-38.

I have no doubts in my mind, and I so hold, that what the lower Court did in breach of the right to fair hearing of the Appellant also resulted in it straying into the forbidden province in law for a Court to set up a case for a party different from the case as set up by that party. This is clearly so wrong and cannot be condoned by an Appellate Court if so called upon by the party so affected by such a perverse decision of the trial Court. – Per B. A. Georgewill, JCA

JUDGMENT – WHERE THE DECISION/JUDGMENT OF A COURT IS BASED ON A CASE DIFFERENT FROM THE CASE PUT UP BY THE PARTIES BEFORE IT

In law, since the lower Court had no authority to delve into setting up a different case for a party and basing its decision thereon, a decision of a Court based on a case different from the one presented by the parties before it is one reached without competence and therefore null and void, liable to be set aside on appeal. See Ojo – Osagie V. Adonri (1994) LPELR – 2386 (SC) @ pp. 19 – 20, NBCI V. Integrated Gas (Nig.) Ltd. & Anor. (2005) LPELR – 2016 (SC) @ pp. 21 – 22, Akeredolu V. Abraham & Ors. (2018) LPELR – 44067 (SC) @ 24 – 25, Idoghor V. Okagbare (2014) LPELR – 24500 (CA) @ p. 17, Vambe & Anor V. Adagba (2014) LPELR – 22652 (CA) @ pp. 25 – 26. – Per B. A. Georgewill, JCA

ILLITERATE JURAT – THE PURPOSE OF AN ILLITERATE JURAT – CONDUCT OF PARTIES TO A PROCEEDING WHERE A FILED DOCUMENT INVOLVING AN ILLITERATE LACKS AN ILLITERATE JURAT

It’s essential to remember that while an illiterate jurat is necessary when a person who doesn’t understand the language of the Court files a process, it’s crucial to understand the contents of the document filed. This process involves reading it over to them in a language they understand. However, it’s important to grasp the true purpose of the illiterate jurat in a document written or executed in English, especially when involving an illiterate person.

In legal terms, the ‘illiterate jurat’ is solely for the protection of the illiterate person and cannot be used against them. Here’s why: when a document in English involving an illiterate person is filed in Court, it cannot be used by a literate person against the illiterate individual unless it includes an ‘illiterate jurat.’ However, if the illiterate person seeks to rely on such a document against a literate person, it can be used even without an ‘illiterate jurat.’ This distinction exists because in law, an ‘illiterate jurat’ can only be used as a ‘shield’ and not as a ‘sword.’ See Egbuchulam & Anor V. Egbuchulam & Anor (2014) LPELR – 22831 (CA). See also Adamu V. Ashaka Cement Co. Plc. (2015) LPELR – 25610 (CA). – Per B. A. Georgewill, JCA

WRITTEN STATEMENT ON OATH – WHEN AN OBJECTION CAN BE TAKEN AGAINST THE COMPETENCE OF A WRITTEN STATEMENT ON OATH ON GROUND OF LACK OF ILLITERATE JURAT

Now, at what stage can objection be taken against the competence of a written Statement on Oath based on the lack of an ‘illiterate jurat’? It seems to me that unless and until a written Statement on Oath alleged to lack an ‘illiterate jurat’ is adopted by a person as their evidence in chief, the issue of its competence cannot be raised by the opposing party. If raised, it must be refused and disregarded by the Court. This is because until the person appears before the Court to adopt a written Statement on Oath as their evidence in chief, it remains merely a dormant process in the case file without any legal effect and cannot be used by either the parties or the Court for any purpose. It only gains relevance when it is adopted as the evidence in chief of the deponent. – Per B. A. GEORGEWILL, JCA

COURTS – WHERE A COURT STRIKES OUT A PROCESS OF COURT

In my view, and I strongly maintain, once a Court process has been struck out by a Court, it can no longer be amended. Only a fresh process, depending on the circumstances of the case, may be permitted to be filed if allowed by law or the Rules of the affected Court. I fail to see how a Court process already struck out can still be amended without it first being relisted and restored to the Court’s Record by a Court Order to that effect. – Per B. A. Georgewill, JCA

DEFECTIVE OATH – CONDUCT OF COURTS REGARDING DEFECTIVE OATHS

In any case, in law, a defective Oath, such as the original written Statement on Oath of DW1, can only be re-sworn and not merely ordered to be amended. Therefore, in my opinion, the lower Court was wrong to have granted leave to the Respondents to amend the original defective written Statement on Oath of DW1, which it had earlier struck out on 30/10/2010. Refer to Pages 186 – 187 of the Record of Appeal. Also, see Intro – Shipping Limited V. Logos Trading NV. (2001) FWLR (Pt. 71) 1706, Ikoli Ventures Limited V. SPDC (Nig.) Limited (2010) All FWLR (Pt. 520) 1332 @ p. 1340. – Per B. A. Georgewill, JCA

WRITTEN STATEMENT ON OATH – WHETHER A WRITTEN STATEMENT ON OATH FALLS INTO THE CATEGORY OF PROCESSES THAT CAN BE AMENDED

In any case, according to the rules of the lower Court, a written Statement on Oath does not fall into the category of Court processes that can be amended, as it is neither an originating process nor pleading as envisaged under the Rules of the lower Court. Refer to Order 1 Rule 2 (3) and Order 24 of the High Court of Benue State (Civil Procedure) Rules 2007. Additionally, see Sections 118 and 119 of the Evidence Act 2011. Further reference can be made to Chukwuma V. Nwoye (2011) All FWLR (Pt. 553) 1942. – Per B. A. Georgewill, JCA

URDAN AREA – WHETHER A GOVERNOR OF A STATE HAS THE RIGHT TO DESIGNATE ANY AREA OF THE STATE AS AN URBAN AREA – CONDUCT OF A GOVERNOR DESIGNATING ANY AREA OF THE STATE AS AN URBAN AREA

It is indisputable that under the provisions of the Land Use Act 1978, it is within the authority of a State Government, including the Government of Benue State, where the disputed land is located, to designate any area of the State as an urban area, should it choose to do so. Such designation, when executed by an order, must be published in the relevant Gazette of the State. Therefore, in legal terms, once a State Government exercises its power to designate an area as an ‘Urban Area’ and publishes this designation in the Gazette, that area officially becomes recognized as an ‘Urban Area’. This principle is supported by Section 2 of the Land Use (Designation of Urban Areas) Law Cap 89, Laws of Benue State 2004, and Section 3 of the Land Use Act 1978. Further authority can be found in Adene & Ors V. Dantunbu (1994) LPELR – 124 (SC) @ pp. 38 -39, Jamaica V. Yakubu (2018) LPELR – 44584 (CA). – Per B. A. Georgewill, JCA

URBAN AREA – WHETHER A PARTY BEARS THE DUTY TO PROVE THAT AN AREA DESIGNATED AS AN URBAN AREA BY OPERATION OF LAW IS INDEED AN URBAN AREA

My Lords, as per the operation of the law, the area commonly referred to by the parties as ‘Makurdi Town’ has been officially designated as an ‘urban area’ by the Government of Benue State. Both parties agree that the disputed land is situated in ‘Makurdi Town’. Therefore, in my assessment, there was no further obligation on the Appellant to prove that the disputed land in ‘Makurdi Town’ is indeed within an urban area. This conclusion is supported by Section 2 of the Land Use (Designation of Urban Areas) Law Cap 89, Laws of Benue State 2004, and Section 3 of the Land Use Act 1978. Additional legal authority can be found in Adene & Ors V. Dantunbu (1994) LPELR – 124 (SC) @ pp. 38 -39, Jamaica V. Yakubu (2018) LPELR – 44584 (CA). – Per B. A. Georgewill, JCA

DEEMED RIGHT OF OCCUPANCY – CONDITIONS PRECEDENT FOR A PERSON TO BE ENTITLED TO VESTING OF DEEMED RIGHT OF OCCUPANCY

Now, concerning the issue of whether the Respondents or any of them were entitled to a deemed Right of Occupancy over the land in dispute, the Land Use Act 1978 outlines specific conditions precedent that must be met for such entitlement. These conditions include:

1. The land being situated in an urban area.

2. The individual being the rightful owner of the land.

3. The ownership of the land predating 1978.

4. The claim being limited to only one undeveloped plot.

These conditions must all be fulfilled simultaneously for the entitlement to be valid. This is stipulated in Section 34(1) and (5) of the Land Use Act 1978.

– Per B. A. Georgewill, JCA

CONDITION PRECEDENT – MEANING OF CONDITION PRECEDENT – CONDITION PRECEDENT FOR THE VESTING OF A DEEMED RIGHT OF OCCUPANCY

In law, a condition precedent refers to terms or conditions that delay the vesting of a right until a specific event occurs. Therefore, for the vesting of a deemed Right of Occupancy to take effect in favor of any individual, including any of the Respondents, all four conditions precedent outlined above must be satisfied. Any deficiency in fulfilling even one of these conditions will prevent the vesting of a deemed Right of Occupancy for a person claiming entitlement. This principle is articulated in Section 34(1) and (5) of the Land Use Act 1978. Additionally, relevant case law such as Nigercare Development Co. Ltd. v. Adamawa Water Board & Ors. (2008) LPELR – 1997 (SC) and Inakoju & Ors v. Adeleke (2007) LPELR – 1510 (SC) further support this legal principle.

– Per B. A. Georgewill, JCA

APPEAL – WHETHER A PARTY IS ALLOWED TO RAISE IN AN APPEAL AN ISSUE NOT CANVASSED BEFORE THE TRIAL COURT WITHOUT LEAVE OF COURT SOUGHT AND OBTAINED

I am aware that in law, a party is generally not permitted to raise an issue for the first time on appeal that was not presented before the trial Court unless prior leave of the Court is sought and obtained. This principle is well-established, and to obtain such leave, it must be demonstrated that the new issue(s) involve substantial matters of substantive or procedural law that warrant consideration to prevent a clear miscarriage of justice, and that no further evidence is needed to address the new issue(s). This legal precedent is affirmed in cases such as Techno Oil Ltd. v. Monark Gas & Oil Ltd. & Anor. (2022) LPELR – 58709 (CA), Nigerian Army v. Abuo (2022) LPELR – 57980 (SC), Ohiaeri & Anor v. Akabeze & Ors (1992) LPELR – 2360 (SC), and Osuji v. Ekeocha (2009) LPELR – 2816 (SC).

– Per B. A. Georgewill, JCA

APPEAL – WHETHER EVERY SUBMISSION IN AN APPEAL COULD BE TERMED AS RAISING A FRESH ISSUE

However, and I thought I should state this from the onset, in law, it is not every submission in an appeal that could be termed as raising fresh issue and for which the leave of Court is sine qua non for its competence. – Per B. A. Georgewill, JCA

REPLY – CONDUCT OF COURTS IN CONSIDERING THE REPLY OF THE APPELLANT

In law, it is essential to consider the entirety of the appellant’s reply, rather than isolated paragraphs, to determine whether she adequately addressed the counter-claims of the 1st and 2nd respondents. However, the lower Court failed to do so and instead relied on isolated paragraphs of the appellant’s reply to conclude that she barely denied the counter-claims, particularly regarding the nullification of Exhibits B and C. This decision lacks support from the pleadings of the parties and is therefore flawed and subject to being overturned. Relevant provisions include Order 15 Rule 2, Order 17 Rules 2, and Order 18 Rule 2 of the High Court of Benue State (Civil Procedure) Rules 2007. Additionally, legal precedents such as Cardoso v. Daniel & Ors (1986) LPELR – 830 (SC), Messrs. Lewis And Peat (N.R.I) Ltd. v. Akhimien (1976) LPELR – 1864 (SC), Bamgbegbin & Ors v. Oriare (2009) LPELR – 733, NTA v. AIC Ltd (2018) LPELR – 45320 (CA), and John Davids Construction Co. Ltd. v. Riacus Co. Ltd. (2019) LPELR – 47588 (CA) further underscore the importance of considering the entirety of a party’s submission in legal proceedings.

– Per B. A. Georgewill, JCA

TITLE TO LAND – WHERE THE APPELLANT ADOPTS PRODUCTION OF TITLE DOCUMENTS AS MEANS OF PROOF OF TITLE – BURDEN OF PROOF AFTER THE APPELLANT TENDERS THE DOCUMENTS OF TITLE RELIED ON

In law, when a claimant, like the appellant, relies on title documents, such as a Certificate of Occupancy or Right of Occupancy (as in Exhibit C in this case), as evidence of land ownership, their obligation is to present and submit the relevant documents and demonstrate their connection to the disputed land. Subsequently, the burden shifts to the defendant, like the respondents, who contest the claimant’s title to the land, to provide evidence to the contrary. This principle is established in legal precedents such as Idundun v. Okumagba (1976) 9-10 SC 227, as well as Otukpo v. John (2013) All FWLR (Pt.661) 1433 @ p. 1527, Ogunleye v. Oni (1992) 2 NWLR (Pt. 135) 745, and Dabo v. Abdullahi (2005) All FWLR (Pt. 255) 1000 @ p. 1056.

– Per B. A. Georgewill, JCA

COURTS – DUTY OF APPELLATE COURTS

This Court is therefore, under a duty to carry out proper re-evaluation of the entirety of the evidence led by the parties as in the Record of Appeal, and which I have calmly and dispassionately done – Per B. A. Georgewill, JCA

TITLE TO LAND – WAYS OF PROVING OWNERSHIP OF LAND

In law, ownership or title to land can be established through various means, including:

1. Evidence of traditional history

2. Production of title documents

3. Acts of long possession and enjoyment of the land

4. Numerous acts of ownership, such as selling, leasing, and renting Proof of possession of connected or adjacent land Based on the evidence presented by the parties, the appellant demonstrated her title to the disputed land, as outlined in Exhibit C, through the production of genuine, relevant, and undisputed title documents. In contrast, the 1st and 2nd respondents, who relied on a land donation agreement and evidence of traditional history, failed to prove any title to the land in dispute, whether in Exhibit C or Exhibit B, as erroneously determined by the lower court. This principle is supported by legal precedents such as Idundun v. Okumagba (1976) 9-10 SC 227, Otukpo v. John (2013) All FWLR (Pt.661) 1433 @ p. 1527, Ogunleye v. Oni (1992) 2 NWLR (Pt. 135) 745, and Dabo v. Abdullahi (2005) All FWLR (Pt. 255) 1000 @ p. 1056.

– Per B. A. Georgewill, JCA

CERTIFICATE OF OCCUPANCY – THE EVIDENTIAL VALUE OF A CERTIFICATE OF OCCUPANCY

My Lords, what, then, is the evidential value of a Certificate or Right of Occupancy as in Exhibits B and C tendered in evidence by the Appellant? In law, it is true that the mere issuance of or holding a certificate or right of occupancy is not exclusive proof of valid title to land. This is because, ordinarily, it is at best merely prima facie evidence of title to land and thus can be effectively challenged, and successfully too. However, if not successfully challenged, it is sufficient proof of title to land. See Section 9 of the Land Use Act 1978. See also Olohunde v. Adeyoju (2001) FWLR (PT 24) 1355 @ p. 1379, where the Apex Court, per Iguh, JSC., had stated succinctly inter alia thus: “… a Certificate of Statutory Right of Occupancy issued under the Land Use Act, 1978, cannot be said to be conclusive evidence of any right, interest, or valid title to land in favor of a grantee. It is, at best, only prima facie evidence of such rights, interest, or title without more and may, in appropriate cases, be effectively challenged and rendered invalid and null and void.” See further Ezeanah v. Atta (2005) 2 NSCQR 24 @ p. 56, Adole v. Boniface Gwar (2008) 4 SCLR (PL 4) 94 @ p. 104. – Per B. A. Georgewill, JCA

BURDEN OF PROOF – WHERE THE BURDEN OF PROOF LIES

In law, it is he who alleges that bears the burden of proving that which he alleges, and it is never the other way round… – Per B. A. Georgewill, JCA

JUDGMENT – WHERE THE JUDGMENT OF A LOWER IS DEEMED TO BE PERVERSE

The decision of the lower Court was, in my finding, and I so firmly hold, utterly perverse and wantonly wrong when it held, without any supporting pleadings or evidence from the Respondents, that the Appellant abused her office by allocating plots to herself, and that the procedure and processes for the grant of Right of Occupancy were not followed in granting Exhibits B, not even in issue, and Exhibit C, to the Appellant. In law, such perverse findings of the lower Court cannot be allowed to stand but must perforce be set aside. See Onuoha v. Unicorn Thrift and Loans (MPCS) Ltd & Ors (2023) LPELR – 60456 (CA). – Per B. A. Georgewill, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2021
3. High Court of Benue State (Civil Procedure) Rules
4. Evidence Act 2011
5. Land Use (Designation of Urban Areas) Law Cap 89, Laws of Benue State 2004
6. Land Use Act 1978

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