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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1. YOMBE DAUKA

2. MOHAMMED ANDI BAHAGO

3. HORO ZEGE

APPELLANTS 

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KONGO KOMI

 

RESPONDENTS 

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AREA(S) OF LAW

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CONTRACT, CONVEYANCING LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

At the trial Court, the Applicant was the Respondent in this appeal. The Respondent is a purchaser for value of a piece of land validly sold to him by the father of the 1st Appellant in a transaction conducted in line with the customs and traditions of the Lelna people of Zuru which took place in 2011. As a result, the Respondent built a house on the land and continued to occupy same unhindered until when the 1st Appellant who is a relation of the 2nd Appellant attempted to rescind the sale by using their traditional leader. This prompted the Respondent to seek justice in Court. In a reserved judgment the lower Court granted all the reliefs sought. Aggrieved by the decision, the Appellants 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 from the deposition of the Respondent’s affidavit in support and the deposition of Appellants’ counter affidavit and Respondent’s further affidavit the trial Court can completely hear and determine this case on Originating Summons without the need to call for oral evidence?

Whether the trial Court was right when it granted order of declaration of title relying on Exhibit A which did not describe the location and identity of the land in dispute with certainty?

Whether the trial Court was right when it relied on inadmissible evidence Exhibit A and A1 which violates illiterate protection Act and Exhibits B, B1, C, C1, D, and F which violates Section 104 of the Evidence Act and grant all the reliefs claimed by the Respondent?

 

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RATIONES DECIDENDI

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ORIGINATING SUMMONS – THE KIND OF ACTION THAT CAN BE SUSTAINED BY ORIGINATING SUMMONS

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Where the dispute on the facts are peripheral, not material to the live issues, the action can be sustained by the originating summons. This is so because there can hardly be case without facts. It is facts that make a case and dispute in facts that give rise to litigation. SeeTANKO V. MODI (2019) 8 NWLR (PRT 1675) PAGE 387. By and large, substantial dispute imputes a real material dispute or controversy of considerable importance as opposed to an imaginary, peripheral dispute. – Per M. L. Shuaibu, JCA

 

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ORIGINATING SUMMONS – WHAT TO CONSIDER IN DETERMINING WHETHER A SUIT BROUGHT BY AN ORIGINATING SUMMON RAISES SUBSTANTIAL DISPUTE OF FACT

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In determining whether a suit brought by an originating summons raises substantial dispute of facts, it is the nature of the claim and facts, deposed to in the affidavit in support of the Originating Summons that is to be considered. Thus mere filing of a counter affidavit to oppose the claims in an originating Summons does not make the facts contentious and proceedings hostile in nature [OSSAI V. WAKWAH (2006) 4 NWLR (PRT 969) 208 F.G.N. V. ZEBRA ENERGY LTD (2002)18 NWLR (PRT 798) 162 AND JIMOH V. ALESHINLOYE II (2014) 15 NWLR (PRT. 1430) 277.– Per M. L. Shuaibu, JCA

 

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MODE OF COMMENCEMENT – THE EFFECT OF THE USE OF A WRONG PROCEDURE OR MODE OF COMMENCEMENT

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In EMEZI V. OSUAGWU (2005) 12 NWLR (PRT. 939) 340 AT THE 367 OGUNTADE, JSC stated the law as follows: “When a suit is commenced by an originating summons instead of a writ of summons the appropriate order to be made by the Court is to direct the suit to proceed with the filing of pleadings” ​Thus, the use or employment of a wrong procedure or mode of commencement of action which is not even the case here, does not Ipso facto make or render the action incompetent or liable to be struck out. SeeEKANEM & ORS V. THE REGISTERED TRUSTEES OF CHURCH OF CHRIST THE GOOD SHEPHERD & ORS (2022) LPELR – 59173 (SC). – Per M. L. Shuaibu, JCA

 

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FRAUD – WHEN FRAUD IS ALLEGED IN A SUIT

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When fraud is being alleged in a suit it must be pleaded, particulars given and established in evidence by proof beyond reasonable doubt. See Section 138 of the Evidence Act 2011 and UKEJE V. UKEJE (2014) LPELR – 22724 (SC). Ordinarily, with allegation of fraud in the affidavit evidence before the trial Court, the need to call oral evidence in order to prove same becomes imperative. – Per M. L. Shuaibu, JCA

 

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INTEREST IN LAND – WHEN IDENTITY BECOMES AN ISSUE IN CLAIMING INTEREST IN LAND

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The law is settled that any person claiming an interest in land must prove the exact location of the land and the precise area to which his claim relates. However, the identity of the land will be an issue if, and only if, the Defendants in their statement of Defence made it one that is, if they disputed specifically either the area or the size or the location or the features shown on the plaintiff’s plan. When such is the case, then it becomes an issue. The onus is on the plaintiff to prove an issue. Therefore, where as in this case, the identity of the land is not an issue, it is wrong for a Court to delve into the issue of identity as the identity of the land is not in issue. See EZEUDU V. OBIAGWU (1986) 2 NWLR (PRT 21) 208 AND ADENZE V. OTUDE (2002) 18 NWLR (PRT. 799) 413. In SULEIMAN V. MOHAMMED & ORS (2021) LPELR-56088 (CA). It was emphatically held that the claimant will not be required to ascertain the identity of the land in dispute if the land is known to both parties and not put in issue by the other party. In other words, the description becomes more important when the Defendant joined issues with the claimant on the location of the land. – Per M. L. Shuaibu, JCA

 

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ILLITERATE PROTECTION LAW – CONDUCT OF ILLITERATE PERSON SEEKING PROTECTION UNDER THE ILLITERATE PROTECTION LAW

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To begin with, the illiterate protection law is made for the protection of illiterate persons. Thus, it is the illiterate person that requires protection given by the law by complaining that the document executed at his request and which was signed with his mark was not prior to its being so signed read over, and explained to him. See KUBAU V. RILWANU (2013) LPELR – 22346 (CA). – Per M. L. Shuaibu, JCA

 

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ILLITERATE PROTECTION LAW – PURPOSE OF THE ILLITERATE PROTECTION LAW AND THE PARTY IT PROTECTS

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The Illiterate Protection Act or law is meant to protect and safeguard the illiterates from being exploited and if there is any complain arising from the transaction in question, it is the vendor that should complain and not persons who were called to witness the transaction. Also in ISIN V. EDEM & ANOR (2018) LPELR – 44046 (CA), it was inter alia held that care must be taken that we do put in the intendment of the illiterate protection provision what is not intended to accomplish. It is to ensure that what is stated there reflects that the illiterate person stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. – Per M. L. Shuaibu, JCA

 

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PUBLIC DOCUMENTS – CERTIFICATION OF PUBLIC DOCUMENTS

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The law is clear on this issue that every public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the prescribed legal fees, with a certification at the foot of the document, that it is a true copy of its Original. The certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and his official title and shall be sealed. The copy of such documents so certified are referred to as certified copies. See Section 104 of the Evidence Act, 2011. A careful perusal of the document in question reveals that there is no name of the certifying officer and no endorsement of fees paid for their certification. These failure amounted to noncompliance with the provisions of the Evidence Act. SEE UDO V. STATE (2016) LPELR – 40721 (SC). In ACHU V. OKONKWO (2016) LPELR – 41015 (CA) this Court has held that the act of certification is fundamental to every public document, if it is intended to be admitted into evidence in judicial proceedings because certification clothes such documents with authenticity and credibility. – Per M. L. Shuaibu, JCA

 

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COURTS – CONDUCT OF APPELLATE COURTS IN RELATION TO DECISIONS OF TRIAL COURTS

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It is also pertinent to note that the decision of the trial Court can only be reversed in any event if the evidence wrongly admitted or rejected affected the decision of the Court. SEEYAKUBU V. ODIDI (2022) LPELR – 57897 (CA). – Per M. L. Shuaibu, JCA

 

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ORIGINATING SUMMONS – WHAT EVIDENCE CASES COMMENCED BY ORIGINATING SUMMONS ARE FOUGHT ON

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The general position of the law is that cases commenced by originating summons are fought on affidavit evidence where there are no substantial dispute as to fact. What is in the front burner in such cases is the construction or interpretation of document or statute. See Jev vs Iyortyom (2014) 14 NWLR (pt 1428) 575; Iliyasu vs Rijau (2019) 16 NWLR (pt. 1697) 1; C.B.N. vs Adedeji (2022) 13 NWLR (pt. 1847) 361. If a Court discovers that the case was wrongly commenced by originating summons because of disputes as to facts, a Court can order for pleadings. However, when those disputes as to facts are not based on material issues before the Court or if such conflicts in the affidavit evidence can be settled or solved by any document before the Court, there will be no need to call oral evidence or order pleadings. See Adeyelu ll vs Ajagungbade lll (2007) 14 NWLR (Pt.1053) 1; – Per Ebiowei Tobi, JCA

 

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CASES CITED

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NIL

 

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STATUTES REFERRED TO

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1. Illiterate Protection Act

2. Evidence Act

 

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