CORAM

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HON. JUSTICE, ITA G. MBABA (PJ), OFR JUSTICE, COURT OF APPEAL

HON. JUSTICE, PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

HON. JUSTICE, PETER O. AFFEN JUSTICE, COURT OF APPEAL

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PARTIES

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1. SHITTU USMAN WURBO

2. SHUWARI FARMS LIMITED

APPELLANTS 

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MALLAM KATSIMU YAHAYA AHMED

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

A brief facts of this case at the lower Court showed that the Respondent, as Plaintiff at the trial, claimed title to the disputed farm land lying and situate at Ndiyawo Village Area of Gassol Local Government Area of Taraba State properly bounded by a culvert of Kwattan Taru Road and the farm land of Late Bakar Shuaibu to the east, Ndiyanbayi Stream owned by one Suaibu’s family to the west, Huri Stream owned by the village head of Sendirde to the North, and Kutawol Stream which linked to River Lominde to the bank of River Taraba to the south. The Respondent sought damages and injunction against the 1st Appellant (who was the only Defendant), but, in the course of trial, the Court ordered the joinder of the 2nd Appellant, a limited liability company. The Appellants, as Defendants, Counter-claimed, saying they acquired the farmland through purchased or leased from one Agricultural and Technical Business Enterprises Limited (AGRITECH or AGROTECH). In his findings, the trial Court had said that the Respondent had established his claim and gave judgment in his favour. Aggrieved by the decision, the Appellants filed the instant appeal.

 

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HELD

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ISSUES

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 Whether the learned trial Court had jurisdiction to entertain the suit, in view of the allegation/objection raised at the lower Court that the suit was statute barred and that 1st Appellant was not a necessary party and was wrongly joined in the suit. Also, that 2nd Appellant was not served with the Originating Processes of the suit?

 Whether there were defects in the statements on Oath of Plaintiff’s witnesses that defeated the trial and whether the trial Court was wrong to grant the Plaintiff (Respondent) the declaratory reliefs sought?

 Whether the delivery of the judgment 2 years and 6 months, after the adoption of final addresses, occasioned miscarriage of justice on the Appellants?

 

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RATIONES DECIDENDI

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APPEAL – WHERE THE APPELLANT DOES NOT APPEAL A FINDING OF COURT

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I have not seen where Appellants raised any appeal against the above findings of the trial Court either in favour of the Respondent or against the Appellants. The law remains settled, that a finding or ruling of a Court not appealed against remains binding and conclusive. See HASSAN VS. STATE (2021) LPELR – 56572 (CA); EMEKA VS. NWOSU & ORS. (2019) LPELR – 52790 (SC); NZE VS. ARIBE (2016) LPELR 40617 (CA); NNADIKE & ANOR. VS. NWACHUKWU (2019) LPELR – 48131 (SC); ABIODUN VS. STATE (2022) LPELR – 59889 (SC). – Per I. G. Mbaba, JCA

 

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CAUSE OF ACTION – HOW ACCRUAL OF CAUSE OF ACTION IS CALCULATED

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Of course, by law, it is not the Defendant’s case that can state the date of accrual of cause of action, as the same can only be deduced and calculated from the claim of the Plaintiff. The Plaintiff (Respondent), in his relief, had asserted right of title, possession and control/management of the land in dispute; that they took steps once they noticed the trespass by the Appellants. See the case of PDP VS. AMINU ; ORS. (2023) LPELR – 60065 (CA) where we stated how accrual of cause of action is calculated, vis-à-vis, statute of limitation, thus: The law is trite, that issues of cause of action and whether the same is statute barred can only be determined from the case/claim of the plaintiff, as per his writ of summons/pleadings. And it is the plaintiff's claim that is scrutinized to determine when the cause of action accrued, not the jaundiced opinion of the defendant trying to fix the date of cause of action for the plaintiff. See the case of Abubakar Shuaibu vs C.O.P. Kano State (2022) LPELR-57293 (CA): "The law has since become trite, that the limitation law or calculation of limitation period is not predicated on the case of the defendant, on his wishful idea in the statement of defence, or affidavit, which does not agree with the date of the cause of action as stated by the plaintiff in the writ of summons or statement of claim. See Okanu Vs Anoruigwe & Anor (2019) LPELR – 48835 CA and the case of University of Ibadan VS Gov. of Kwara State & Ors (2012) LPELR -14326 CA, where we held: "…even where the Limitation Act or statutory bar, under the Public Officers' Protection law is applicable, the position of the law is that, to determine whether an action is caught by the law of limitation, the period can only be calculated with reference to the date the cause of action accrued, which can only be inferred or found in the writ of summons or statement of claim filed by the plaintiff, vis-a-vis, the date of filing the action. See also SIFAX (NIG.) LTD & ORS. VS. MIGFO (NIG.) LTD & ANOR. (2018) LPELR – 49735 (SC). It is an elementary principle of law that to ascertain a cause of action, the immediate materials a Court should look at are the writ of summons and the averments in the statement of claim – see Dantata v. Mohammed (2000) FWLR (Pt. 21) 889, (2000) 7 NWLR (Pt. 664) 176, (2000) 78 LRCN 1422, (2000) 3 WRN 32 and Abubakar v. Bebeji Oil & Allied Products Limited (2007) All FWLR (Pt. 362) 18559 (2007) 18 NWLR (Pt. 1066) 319, (2007) 2 SC 48, (2008) 15 WRN

1, wherein this Court further observed that- "It is by examining them that a Court can satisfy itself on the actual grouse of a party, and the remedy or relief it is seeking from the Court. After determining the cause of action then by the very averments, the Court can discern the time that a cause of action arose." Per AUGIE, JSC (P. 38, paras. B-E). – Per I. G. Mbaba, JCA

 

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LEASE HOLD – WHETHER A PERSON WITH A LEASE HOLD CAN ASSERT RIGHT OF TITLE OVER LAND – WHETHER A TENANT WHO PAYS RENT CAN CHALLENGE THE TITLE OF HIS LANDLORD

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Of course, a person with a lease hold cannot assert right of title over the land he is only a tenant, on lease. The person who leased the land to him is the one to enjoy the reverted rights and the tenant can even forfeit his right of tenancy/lease for challenging the title of his landlord! See the case of AUCHI MICROFINANCE BANK LTD. VS. REGISTERED TRUSTEES OF USOGUN PROGRESSIVE SOCIETY, AUCHI (2021) LPELR – 56022 (CA).

“In Coker v. Adeyemo (1968) LPELR-25486 (SC) it was held that the general rule is that a tenant cannot dispute his landlord's title and that the rule is founded on justice and policy. See also Pan Asian African Co. Ltd v. Nicon (1982) LPELR-2898 (SC). In the case of Ozokpo v. Paul (1990) 3 NWLR (pt. 133) 494, 515 it was held that unless the tenant proves that he paid rent in ignorance and that some other person is the landlord, he is estopped by the payment of rent from denying the title of his landlord. It follows therefore that when, as in this instance, a tenant pleads that he paid rent in ignorance to his landlord and that some other person is the landlord, the burden is on him to prove his claim on a balance of probabilities. See Sections 132, 133 (1) and 134 of the Evidence Act and Farajoye v. Hassan (2006) 6 NWLR (pt. 1006) 463, 493 where it was held that where a defendant sets up a defence that land belongs to another person, he must clearly and sufficiently demonstrate so in his pleadings and evidence. Appellant's counsel was therefore on quicksand when he asserted, by implication, that the burden was on the respondent to prove its title. No. The burden wasnsquarely on the appellant to prove its assertion that the land belongs to a third party." Per EKANEM, JCA (Pp. 27-28, para C). – Per I. G. Mbaba, JCA

 

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MIS-JOINDER OR NON-JOINDER – WHETHER MIS-JOINDER OR NON-JOINDER OF PARTIES CAN DEFEAT AN ACTION

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Of course, the presence of the 1 st Appellant in the case was necessary, considering the role he placed to activate the cause of action. And by law, joinder or misjoinder of a party does not vitiate the suit. See JULIUS BERGER (NIG.) PLC VS. ALMIGHTY PROJECTS INNOVATIVE LTD & ANOR. (2021) LPELR – 56611 (SC). An action cannot be defeated by the misjoinder or nonjoinder of parties. If the presence of the 2nd Respondent in this suit is but a misjoinder as canvassed by the Appellant does not rob the Court of its jurisdiction rather the Court may in every cause or matter, deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See Sapo & Anor v Sunmonu (2010) LPELR – 3015 (SC). In conclusion on the vexed issue, I would say that I have taken the luxury to delve into the matter which is being raised for the first time in this Apex Court so as to reiterate a position already well settled and that is that assuming there was a misjoinder of the 2nd respondent, such a happening did not oust the jurisdiction of the Court below to hear and determine the matter. However, from what I can see, the suit was properly instituted at the Court of trial which had exercised its jurisdiction and the Court below correct to entertain the appeal. See Nigerian Bottling Company Ltd v Ngonadi (1985) 1 NWLR (pt.4)739." Per PETER-ODILI, JSC (Pp. 25-27, paras. D-B) – Per I. G. Mbaba, JCA

 

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DEPOSITIONS – WHERE DEPOSITIONS ARE NOT PROPERLY SWORN

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It is therefore obvious that the statements on Oath (Witness deposition) of PW1, PW2, PW3 and PW4 were also signed in the office of the Plaintiff’s Counsel, before taking them to the Commissioner for Oath’s to endorse. That was wrong. Often times, Counsel, carelessly, commit this error, with relish and jeopardize the case of their clients, until the defects is exposed, as in this case. And the defect can be fundamental, going to the roots of the entire trial, where the depositions are adjudged incompetent. See the case of YA’U VS. MINISTRY OF LAND AND PHYSICAL PLANNING KANO & ORS. (2022) LPELR – 58781 (CA), where this Court held, on a similar situation where deposition were not properly sworn, as follows:

Yes, my statement on oath is based on the facts I give to my lawyer which (sic) reduced into writing. Yes, I signed same in my office. Yes, I will agree with you that several buildings have shops attached to them with residential houses…" (See Page 112 of the Records of Appeal) The above confession simply busted the presumption of regularity, as it revealed that the DW1 was presented with the statement of facts, which his Counsel had reduced into writing, and after reading them in his office, he (DW1) signed it in his office (perhaps in the presence of his said lawyer); thereafter, the signed statement was taken, along with the other processes (the Defendants&Amended Statement of Defence) for filing, by which time, the Commissioner for Oath endorsed the processes. (See Pages 286 to 297 of the Records) As earlier stated, there would have been no problem about that procedure, if not for the unsolicited confession of the DW1, who boasted that he signed the statement on oath in his (DW1) office! That honest confession, however, dealt a devastating blow on the entire evidence of the Respondents, who had relied on that single witness statement, purported to be on oath, as it became invalid by reason of non-compliance with the rules governing affidavit evidence (not having been duly sworn to before a Commissioner for Oath, authorised to superintend over the oath taking). See the case of Nwakolobi Vs Ejemeli & Anor (2020) LPELR – 51357 CA, where we held: On the issue of reliance on witness depositions (statements on oath) said to have been sworn to or signed at Counsel& office, the DW1 and DW2 had actually under cross-examination, strangely, confessed that they did not sign the processes before the Commissioner for Oath, as required by law. DW1 said on page 155 of the Records: The deposition I made was signed by me I signed the deposition in my lawyer's office. DW2 also said: I thumb-printed my deposition. I thumb printed the said deposition in my lawyer& office. (See page 157 of the Records of Appeal). I think those confessions were fatal. They put a lie to the witness depositions, which had claimed to have been sworn to, before the appropriate authority (the Commissioner for Oaths). It means, the documents had been signed/endorsed by the witnesses before their Counsel in the lawyer's office, before they were taken to the Registrar of the Court (Commissioner for Oath) for stamping and formalities by the Registrar. That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray. Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously. By Section 112 of the Evidence Act, 2011: An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner. See also the case of Buhari Vs INEC (2008) 12 SCNJ 1 at 91, where the Supreme Court struck out the depositions of Appellant&witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation of Section 19 of the Notary Public Act and Section 112 of the Evidence Act, 2011. See also the recent text Book on The Law of Affidavit Evidence by Ike Njoku, Five Clands Publishing Co. Ltd, Page xi (Foreword), 2022. – Per I. G. Mbaba, JCA

 

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STATEMENT ON OATH – WHERE THE PRESUMPTION OF REGULARITY OF THE STATEMENT ON OATH IS REBUTTED

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The Respondent’s Counsel was wrong to think and say that the 2 nd Oath in Court that adopted the Statement on Oath had cured the defect in the earlier oath. See the case of EROKWU VS EROKWU & ANOR (2016) LPELR – 41515 CA, and MATA VS KANO STATE PUBLIC COMPLIANTS AND ANTI-CORRUPTION COMM. (2023) LPELR – 60503 (CA), where it was held:

“I think those confessions were fatal. They put a lie to the witness depositions, which had claimed to have been sworn to, before the appropriate authority (the Commissioner for Oaths). It means, the documents had been signed/endorsed by the witnesses before their Counsel in the lawyer& office, before they were taken to the Registrar of the Court (Commissioner for Oath) for stamping and formalities by the Registrar. That was a clear violation of the law and rules, which require such documents to be signed/endorsed before the Commissioner for Oath, as a mark of consent and evidence of actual submission to the Oath or affirmation, which the whole exercise purports to portray. Where a document is signed, before being presented to the Commissioner for Oaths, for endorsement, it amounts to deceit and, in fact, perjury, in my view, as the Commissioner for Oaths does not even know and cannot identity the deponent. He also compromised his office, by so doing, making nonsense of the entire process. Sections 5, and 10 of the Oaths Act, Laws of the FRN 2004, and the Evidence Act, 2011, Section 112, made clear provisions on how to depose to affidavit before a Commissioner for Oaths or a Notary Public, and the procedures are meant to be followed, religiously. By Section 112 of the Evidence Act, 2011: An affidavit shall not be admitted, which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner. See also the case of Buhari Vs INEC (2008) 12 SCNJ 1 at 91, where the Supreme Court struck out the depositions of Appellant& witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was in violation of Section 19 of the Notary Public Act and Section 112 of the Evidence Act, 2011. See also the recent textbook on The Law of Affidavit Evidence by Ike Njoku, Five Clands Publishing Co. Ltd, Page xi (Foreword), 2022. See also the case of Erokwu Vs Erokwu & Anor (2016) LPELR-41515 CA, where my Lord Ogunwumiju, JCA (as she then was, now JSC) held: The deponent afterwards, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase. Before me, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity…When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court. See also Chidubem Vs Ekenna & 12 Ors (2008) LPELR -3913; (2009) ALL FWLR (Pt.455) 1692. With such clear position of the law, it means the evidence led by the Respondents at the trial amounted to nothing, as same was invalidated by reason of non- compliance with the rules of affidavit evidence. The Respondents therefore had no credible evidence to support their pleadings in the case, and/or to contest the claims of the Appellant at the trial. The Respondents& pleadings were therefore, deemed, abandoned, by reason of that tactical error of compromise in the making of the Respondents& statement on oath, as confessed by DW1." – Per I. G. Mbaba, JCA

 

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JUDGMENT – WHETHER FAILURE TO DELIVER JUDGMENT WITHIN 90 DAYS AUTOMATICALLY NULLIFIES JUDGMENT

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It is true that failure to deliver judgment within 90 days of final addresses by Counsel does not automatically nullify the judgment delivered in breach of Section 294(1) of the Constitution until Section 294 (5) of the said Constitution is established and the burden of proving a miscarriage of justice by the delay, resides with the Appellants, who complains. And the duty includes, establishing that, by reason of the said delay in delivering the judgment, the trial Court lost touch or grasps of the critical evidence adduced and the demeanor of the witnesses, at the trial. See ESEZOOBO VS. SHABA (2018) ALL FWLR (PT. 949) 1505; IBB INDUSTRIES LTD VS. MUTUNCI CO. (NIG.) LTD (2012) 6 NWLR (PT. 1296) 487. – Per I. G. Mbaba, JCA

 

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NON-SUIT – WHERE THE ORDER OF NON-SUIT IS JUSTIFIED

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…blunders of the Respondent’s Counsel and failure of the trial Judge are what led to the setting aside of the judgment of the Lower Court, the Respondent cannot be punished for it, and so it appears the proper order to make in the situation, is that of nonsuit of the case. See the case of OKORIE VS. OKORIE (2016) LPELR – 41503 CA, where this Court held as follows to justify order of non-suit:

In the instant case before the trial Court, the presumption that the Witness Statement on Oath was sworn before a person authorized to administer Oath has been rebutted and proved that PW1 deposed to his Witness Statement on Oath in his lawyer's office. It would have been different if PW1 simply testified that he deposed to his Witness Statement on Oath in any named Registry of the Court or a Notary Public different from his lawyer's office in case his lawyer is a Notary Public. Hence, the trial Court was wrong to have relied on the Statement on Oath of PW1 and the documents or exhibits attached thereto. Thus therefore, PW1& Witness Statement on Oath, having failed to comply with the provisions of SECTION 112 OF THE EVIDENCE ACT and SECTIONS 10 and 13 OF THE OATHS ACT, and the decision of the Apex Court in BUHARI V. INEC and plethora of decisions of this Court, PW1& Witness Statement on Oath and all documents attached thereto are hereby expunged from the Record of this case."  Per SENCHI, JCA (Pp. 43-46, paras. B-E) – Per I. G. Mbaba, 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. Limitation Act of England, 1980

4. High Court Law of Taraba State 1997

5. Oaths Act, Laws of the FRN 2004

6. Notary Public Act

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