1. UMARU KACHALLA SEMBE
2. MALLAM SANI AUDU
3. NASIRU UMARU KACHALLA
4. SALIHU UMARU KACHALLA
JAURO DOVO PITTI
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
The Respondent as Plaintiff at the High court of Justice, Taraba State instituted action by way of the Writ of Summons taken out and filed on the 24th June, 2011. By his Statement of claim filed on 5th august, 2011, he claimed all the reliefs listed at paragraph 34 (a)- (e), that is to say: (a) an order for declaration of title to the land in dispute, (b) an order of declaration that the defendants are trespassers on the Plaintiffs lands by their acts of entry, cultivating and planting on same; (c) an order of perpetual injunction restraining the defendants by themselves, their privies or any person lying (sic) claim on the land in dispute from further acts of trespass; (d) the sum of N500, 000. 00 as general damages against the defendants for trespass; (e) Cost of filing and prosecution.
Defendants denied this claim before the trial Court. They are the appellants in this court. At the commencement of hearing at the trial high Court the respondent led evidence of 4 (four) witnesses and closed his case having tendered 2 (two) documents which the trial court admitted and marked Exhibit P1 and P2. The Appellants similarly led evidence in defence and closed their case after calling 4 (four) witnesses on 23rd March, 2013.
From the pleadings and evidence on record in this case on appeal, the land in dispute forms part of the large expanse of land originally allocated to the then Emir of Muri, Alhaji Abba Tukur by the 1st Appellants Uncle Mashinbeg Kalla who at that time was the Village Head of Wuro Sembe where the land in dispute is also located. Mashinbeg Kalla had sought the approval of the various land owners in the village before allocating their land to the Emir who put the land to use by cultivating it for a few years before his death. With the demise of Alh. Abba Tukur, the man by name called Alhaji Abubakar Ibrahim (Sarkin Ayuka) began to lay claim to that same large expanse of land including the piece of land in dispute in this current case. The claim of Alhaji Abubakar Ibrahim led to the suit being instituted against him at the High Court of Taraba State by the original land owners numbering 22(twenty two) of them vide Suit No. TRSJ/1/97 in which Judgment was given in their favour at Taraba State High Court on the 21st June, 2001. Mading Ajiya is one of the beneficiaries in the said Judgment. He is the 5th Plaintiff in Suit No. TRSJ/1/97.
Dissatisfied with the outcome of the decision or Judgment in Suit NO. TRSJ/1/97 the defendant i.e Alhaji Abubakar Ibrahim lodged appeal to this Court against that Judgment. But by a twist of events, the appeal was withdrawn by reason of the parties to that appeal reaching an amicable settlement wherein a memorandum of settlement was prepared and endorsed by parties on both sides.
The case of the respondent in the instant case on appeal, is that he is the beneficiary of the Judgment in Suit No. TRSJ/1/97 through one Mading Ajiya who was the 5th Plaintiff in that case. He claimed that he is the rightful owner of the portion of the land declared to Mading Ajiya. He claimed that the portion of land declared for Mading Ajiya was given to him by his (respondent) father
The case for the appellant on the other hand is that the land in dispute belongs to the 1st Appellant who came by that land through inheritance and that the land forms part of the land declared to him i.e the 1st appellant as the 1st Plaintiff in Suit No. TRSJ/1/97.
At the close of evidence of parties on both sides the trial court took an inspection visit to the locus in quo on the 23rd March, 2013 as evidenced by the proceedings at pages 133 138 of the record of appeal and thereafter the court reserved Judgment to the 14/6/13 after taking counsels final addresses on 22/5/2013. On the 15/11/2013 when the trial Court finally delivered Judgment, it found for the Plaintiff, now respondent.
Not satisfied with the Judgment of the trial High Court, the defendants lodged an appeal to this Court, initially on 2 (two) grounds vide the Notice of Appeal dated and filed on the 13/2/2014 as per the record of appeal at pages 165 167. But with the addition of 8 (Eight) Grounds filed with leave of Court first sought and obtained on 29/6/2015 bring 10 (Ten) the total number of the Grounds of Appeal. All the Grounds are subsumed in the amended Notice of Appeal which by order court was deemed as having been properly filed and served on the 29/6/2015. This Court at the same sitting further granted the request made by the appellant, to join one Salihu Umar Kachalla as the 4th Appellant vide the Motion on Notice filed on the 23/5/2015.
The appeal came up on the 4/2/2016 for hearing. Briefs of argument had been filed and exchanged. Counsel for appellants in his brief of argument formulated 4 (four) issues for determination as adopted by the Respondent in his own brief of argument. Issues formulated are:
1. Whether having regard to the provisions of Section 294 (1) of the 1999 Constitution as amended, the Judgment of the trial court delivered well over three months is not a nullity. (Arising from grounds 10).
2. Whether the learned trial was right in law to have placed reliance in his judgment on pleadings that were no longer valid before him. (Ground 3 and 4).
3. Whether regard being had to the pleadings and evidence before the trial court. The learned trial judge was right to have declared title to the disputed land in favour of the respondents. (Arising from grounds 1, 2, 5, 6, 8 and 9).
4. Whether the learned trial judge was right in law to have ignored the evidence and addresses of counsel before him in arriving at his decision. (Arising from ground 7).
Learned counsel at the hearing adopted their respective briefs of argument including Appellants Reply brief filed on the 7/1/2016 but deemed only properly filed on 4/2/2016. Mr. Iorkumbur, learned counsel for the appellants urged us to allow this appeal and set aside the decision of the trial Court. Mr. Ieave, learned counsel for the respondent who opposed the appeal urged us to resolve all four issues and arguments canvassed thereto in favour of the respondent and dismiss the appeal.
In relation to the Reply brief of the Appellants learned respondents counsel urged us to ignore same. He says the reply brief was uncalled for in so far as new or fresh issues were not raised by the respondent in his brief of argument
This submission coming from Respondents counsel brings to mind the question of the relevance, function and purpose for which a reply brief is meant to serve and when it becomes necessary for Appellants generally to file a Reply brief.
The authorities I have come across are to my mind at par and unanimous on this point as to when it is necessary to file a Reply brief. The function of a reply brief is to refute the new argument canvassed in the respondents brief which require a Reply by the appellant. Where a respondents brief raises issues or points of law not covered in the appellants brief, an appellant ought to file a reply brief but must specify the new points of law arising from the respondents brief of argument which necessitated a Reply brief. See: Ojiogu Vs. Ojiogu (2010) 9 NWLR (Pt. 1198)1 (SC); Lange Vs. FBS PLC(2010) 6 NWLR (Pt. 1189) 1 (SC); Mini Lodge Ltd Vs. Ngel (2009) 18 NWLR (Pt. 173) 254; Edjenode V. Ikene (2001) SCNJ 184; Okonji Vs. Njokanman (1999) 12 SCNJ 259.
Going by the principles enunciated and as stated in the cases cited above can it be said it was necessary for the Appellants to file a reply brief as they did? Are there new issues or new points of law raised in the respondents brief of argument to call for the response as the Appellants, did in their reply brief, relative to issues 1, 2, 3 and 4 at pages 1 8? That is the question. I have taken a close study of the respondents brief of argument and I form the opinion that some new points or issues not previously raised in the Appellants brief of argument but now raised by the respondent in his brief deserve a corresponding response in terms of the Reply brief of the Appellant. Same is in order. Having said that I will now proceed to consider arguments proffered by counsel relative to those issues as identified by them for determination.
Issue No. 1
Whether having regard to the provisions of Section 294 (1) of the 1999 Constitution as amended, the Judgment of the trial Court delivered well over three months is not a nullity (Arising from grounds 10).
Learned counsel for the appellant has argued in his brief that the Judgment delivered at the trial court on 15/11/2013 well over 90 days since the final address on 22/5/2013 was a nullity, in that the delivery of the Judgment contravened Section 294 (1) of Constitution of Federal republic of Nigeria (as amended) and there was no reason given for the delay in the delivery of that Judgment. He argued further that the appellants suffered a great miscarriage of justice due to the delay in the delivery of Judgment in that at the time Judgment was delivered the trial Judge had virtually forgotten everything that transpired during trial citing in his brief the case of: SPDC Nig. Ltd Vs. Ekwems (2008) All FWLR (Pt. 438) 292 312 para C D and Section 294 (5) of Constitution of the Federal Republic of Nigeria (1999).
Learned appellants counsel referred us to aspects of the record of Judgment and argued that the trial Court misdirected itself on the facts, one of which is the holding that the appellants introduced a mercenary to pose as a Mading Ajiya at the locus In quo. He argued that the wrong view held by the court below that a wrong person was introduced as Mading Ajiya is attributable to undue delay on the part of the trial Court in the delivery of Judgment wherein the court lost all accounts of facts placed before it at trial and this he said has occasioned a miscarriage of Justice. Learned counsel urged us therefore to allow the appeal on this issue.
Arguing per contra in his Brief at pages 3 7 the respondent contended that a Judgment of Court is not a nullity per se on account of same being delivered outside 90 days as stipulated under Section 294 (1) of the (1999) Constitution of the Federal Republic of Nigeria, 1999 in view of Section 294 (5) of the same Constitution hence, emphasis is not on time lapse between the date of final address of parties and the date of Judgment in issue, but for the Appellant to prove that by that lapse in time he has suffered a miscarriage of justice. He cited and relied on Ayinke Stores Ltd V. Adebogon (2013) All FWLR (Pt. 682) 179 at 1811 para 13 0; Jev vs. Dolo (2012) All FWLR (Pt.641) 1528 paras A B; ACB Ltd V. Ajugwo (2012) All FWLR (Pt. 607) 677, 717 para C D. Counsels further argument is that the person who appeared as Dw4 in the record of appeal is not a witness of truth, whom the court can believe as such the court below was justified in making the remark it did at pages 160 and 163 of the record of appeal. He argued finally that the late delivery of Judgment by the trial Court notwithstanding, the appellant has not in any way suffered any miscarriage of Justice as to warrant the Judgment delivered at the trial court being nullified.
Section 294 (1) and (5) of Constitution of the Federal Republic of Nigeria 1999 (as amended) relied upon by learned counsel on both sides provide as follows:-
294 (1) Every court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all parties to the cause or determined with the dully authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of Sub-section (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.
A provision similar to Section 294 (1) though not in pari material, is Section 258 (1) of the Constitution of the Federal Republic of Nigeria 1979 under which it was held that a Judgment of a Court established by the 1979 Constitution delivered outside three months period in contravention of Section 158 (1) of the defunct Constitution was null and void. See: Sodipo V. Lewmukenen (1985) 2 NWLR (Pt. 8) 547; where the apex court held:
It is necessary to emphasize that Section 258 (1) has set down a mandatory three months within which a Judge must deliver the Judgment. Even if it was only one day beyond the three months when he delivers the Judgment, that Judgment will be null and void
See further Ifezue V. Livinus Mbadugha (1984) 5 SC 79; Paul Odi V. Gbaniji Osafile Appeal No. SC/144/1983 decided on 11th January, 1985. The two decisions referred to above are decisions based pn the interpretation of Section 258 (1) of the 1979 Constitution. With the coming into force of the Constitution of the Federal Republic of Nigeria 1999 on 29th day of May 1999 all existing legal order gave way to the new Constitution and indeed Section 294 (5) now have binding force on all authorities and persons throughout the Federal Republic of Nigeria with effect from that date. Consequently decisions such as Sodipo V. Lewmukenen (Supra) and Ifegwu V. Mbadugha (supra) can no longer be seen as good reference points or materials in matters regarding the interpretation of Section 294 (1) (5) of the 1999 Constitution of Federal Republic of Nigeria (as amended). It follows therefore that the late delivery of Judgment outside the time limit set under Section 294 (1) of 1999 Constitution will not lead to that Judgment being nullified without more to it. This is where sub-section 5 of Section 294 of the 1999 Constitution comes in.
So, talking about what Section 294 (1) (5) of the 1999 Constitution and all it is about, brings to mind such decisions as in Ogundele V.Fasa (1999) 9 SC 4 or (1999) 12NWLR (Pt. 632) 662; Mohegbami Vs. Amos Ajaji (2011) LPE LR 450 (CA); Didia Maka V. Osakwe & Ors (1999) 3 NWLR (Pt. 107); Anyashu Vs. Agazie (2006) 5 NWLR (Pt. 973) 260; Onyewuke V. Modu Sule (2011) LPELR 9084 (CA). It has been held in all those cases that non-delivery of judgment within 90 days does not perse render such a Judgment or decision invalid, null and void. It can only be treated as a nullity where an appellate Court in the exercise of its appellate jurisdiction over such decision is satisfied that the party complaining of non-compliance with the provision of Section 294 (1) (5) read together has suffered miscarriage of justice resulting from the delay in the delivery of Judgment. See: Ogundele V. Fasu (supra).
There is a consensus of opinion between counsel on both sides in their respective briefs of argument that the Judgment, now the subject of appeal to this court was delivered outside the time limit specified by the Constitution of Federal Republic of Nigeria, 1999. Indeed a look into the record of appeal at pages 157 158 indicate that parties or their counsel had not only filed and exchanged written addresses but adopted same at the sitting of the court on the 22nd May, 2013 and the court thereafter reserved Judgment to the 14/6/2013 for delivery. This did not hold. When eventually the court delivered Judgment on the 15th November, 2013 as appears at pages 159 164 of the record, it is/was clearly outside the mandatory 90 days period stipulated in the Constitution of Federal Republic of Nigeria, 1999.
There is thus, a failure of compliance on the side of the trial Court with the mandatory provisions of the Constitution. The delivery of Judgment by Court outside the Constitutional time limit is to say the least reprehensible such should not be encouraged. It is an affront against the letters and spirit of the Constitution. However the delay to render Judgment at the time it should will lead to that Judgment being declared a nullity only in circumstances where miscarriage of justice has been occasioned. The duty is on the person or party complaining of undue delay to establish that by reason of the delay the Judgment has negatively impacted on him to bring his case within the purview of Section 294 (1) (5) of the Constitution of Federal Republic of Nigeria, 1999. It is for him to prove that by reason of the delay a miscarriage of Justice was occasioned.
What constitutes a miscarriage of Justice as a concept is hydra headed and it varies from case to case depending on the particular facts of each case. See: Ogunlayo Vs. Adeleja (2009)6 7 SC (pt. 111) 91, 127. For instance the Privy Council in the case of Devi Vs. Roy (1946) A.C 508 has held with reference to the meaning and concept of miscarriage of Justice that it is:
Such a departure from the rule which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all
In Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49, the apex Court held that:
Miscarriage of Justice means failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or misappropriated.
It is an ill-conduct on the part of the court, which amounts to injustice.
On the meaning of the concept of Miscarriage of Justice, see further the decision: Ojo V. Anibere (2004) 5 SC (pt. 1) 1; Okonkwo Vs. Udo (1997) 8 NWLR (Pt. 519) 16; Irolo V. Uka (2002) 7 SC (Pt. 11) 77; Gbadamosi vs. Dairo (2007) 1 SC (Pt. 11) 151, 171; Pam Vs Mohammed (2008) 5 6 SC (pt.1) 83 and, Oguntayo v. Adelaja (Supra) (2009) All FWLR (Pt. 495) 1661.
In Molegbemi V. Amos Ajayi (2011) LPELR 450 (CA) it was held that:
In determining whether a party has suffered a miscarriage of Justice as a result of delay in the delivery of Judgment between the conclusion of trial and the delivery of Judgment, the emphasis is not on the length of time simpliciter, but on the effect the delay produced in the mind of Court. Thus if the Courts evaluation of evidence bears mark of freshness and its findings of fact are supported by credible evidence, its Judgment, will not be set aside: See: Dichia & ors V. Osakwe & Ors (1999) 3 NWLR (Pt. 107) 101; Egwu V. Egwu (supra) (505-506; Auyafulu V. Agazie (2006) 5 NWLR (Pt. 973) P. 260 Per Tsammani JCA
In the judgment appealed against, the trial court made certain observations or remarks at pages 162 163 of the record. Learned counsel for the appellant in his brief has referred to those comments and reproduced them at pages 8-9 of his brief of argument. He considers those remarks as being prejudicial to the interest of the Appellants in that the same did occasion a miscarriage of justice, arising from the undue delay in the delivery of Judgment. He argued that the trial Court had lost grips of the facts in the case.
I think it is necessary at this point to refer to those remarks or findings of the trial court as made at page 163 of the record and in doing so relate it to facts and evidence on record to fathom out whether indeed the Judgment or aspects of it were borne out of facts and evidence on record.
At page 163 of the record, the trial Court held thus:-
As if that was not enough the defendants introduced at the locus a Mading Ajiya that was living quite outside the dispute land with due respect to him the said Mading Ajiya the defendants introduces at the locus appeared more as a mercenary himself by the defendants.
The proceedings at the locus In quo were held on the 23rd March, 2013. The person identified as Dw4 took part in the proceedings at the locus In quo. This is what he said on that occasion as it appears at page 135 of the record thus:-
Dw4 I told the Court than my land in Exhibit p1 is by River Lamurde but after the Fadama before the river.
I told the court that I am the son of the 5th Plaintiff in Exhibit P1.
Speaking further under Cross examination, the witness stated thus:-
The land my father litigated on in Exhibit P1 is his land he was not given the land by the 1st defendant.
I am not now residing on the land I am only farming on the land.
Dw4 on record is by name DANIEL Mading Ajiya. See page 128 129 of the record. He is the son of Madding Ajiya, the 5th Plaintiff in Exhibit P1. The witness speaking at the locus confirmed that the land litigated upon by his father in exhibit P1 belong to his father. Although he no longer reside on the land he still cultivate and farm on his fathers land. This land, said the Dw 4 was not given to his father by the 1st defendant.
Had there been proper evaluation of evidence of witness on record and in particular evidence of Dw4, the trial court ought not to have come to the conclusion as it did that the defendants (appellants) introduced a mercenary who posed as a Mading Ajiya during the visit to the locus in quo. Dw4 did not present himself as Madding Ajiya but as the son of Mading Ajiya, who nonetheless still farm on the land of his father, a point or issue which the trial Court also overlooked in its comments or remarks. The defendants (appellants) or Dw4 himself could not have introduced anybody to appear at the locus as Mading Ajiya knowing fully well that Mading Ajiya was already dead, a fact which the appellants also pleaded at paragraph 15 of the amended Statement of defence before the trial Court.
Also worthy of mention is the trial courts failure to make any categorical statement or findings identifying the land to which the claim relates. The respondent by his claim at the trial Court had sought for an order for declaration of title in his favour and injunction against the appellants as defendants for trespass. Evidence put forward in support of his claim relates to the farmland declared for Mading Aiya the 5th Plaintiff in Exhibit P1. The 1st appellant was by the same Exhibit P1 declared the owner of his own portion of land.
So, which land does the claim relate? Is the land declared for the 1st Appellant by Exhibit P1, the same land declared for the 5th plaintiff in Exhibit P1 or are they distinct and separate farmlnds. This point needs some clarification because the Respondent as the Plaintiff at the trial Court seem to have muddled up issues as to which land his claim actually relate to. It is for the Court of trial to clarify the issue. In relation to his land Dw4 indicated in this matter that the land held by his father, the 5th Plaintiff in Exhibit P1 belong to his father and that his father did not acquire it from the 1st appellant herein or through the father of the respondent. See the Statement on Oath of Dw4. See further the Statement on Oath of Dw1 at page 83 85 his evidence is at pages 120 122 of the record; with all the scenario presented as above it is expected of the court below to make a finding and identify the actual land in dispute in this case on appeal. This failure of the trial court to make a finding identifying the land in dispute is in my view not unconnected with the long delay in the delivery of Judgment, the trial court having lost grips of the facts and evidence led in the case. It is my view therefore that in circumstances such as this it is wrong to enter Judgment in terms of a declaratory order where the identity of the land is unknown.
I am not unaware of the of the question raised by the respondent in his brief of argument touching on the credibility of the evidence of defence witness No. 4 in his brief of argument at pages 5 7. The issue of credibility in the evidence of Dw4 as it relates to the person of Mading Ajiya and Mading Sozzah being one and the same person is totally not connected with the Constitutional issue raised by the appellant in his brief of argument as Issue No. 1. I should for this reason discountenance this argument of the respondent as proffered in his brief of argument and resolve issue no 1 in favour of the Appellant and against the respondent.
Having resolved issue 1 in the affirmative, i.e the delivery of Judgment by a Court outside the 90 days period allowed by the Constitution, under Section 294 (1) (5) of the 1999 Constitution, automatically disposes all other questions or issues earmarked for determination in this appeal. If however I am wrong in coming to that conclusion, I will proceed to address Issue Nos. 2, 3 and 4.
Issue No. 2 raised in the appellant brief of argument and canvassed by counsel on both sides in their respective briefs is on the question whether the learned trial was right in law to have placed reliance in his judgment on pleadings that were no longer valid before him. This issue has been distilled out of grounds 3 and 4 of the amended Notice of appeal.
Learned counsel for the appellant in addressing this question first alluded to the joint Statement of defence filed on the 30th September, 2011, is found at pages 68 71 of the printed record and argued that by dint of leave granted at the trial Court on the 20/3/2012 at pages 56 97 of the record, the said joint Statement of defence has been amended in terms of the amended joint Statement of defence at pages 78 81 of the printed record. learned appellants counsel argued that the previous or original joint Statement of defence having been amended, it was wrong for the Court below to still rely and act on that document or process as reliance on the erstwhile joint Statement of defence of the appellant was to his detriment and this according to learned counsel has occasioned a miscarriage of Justice, citing and relying on the case of Olaniran Vs. Adebayo (2008) All FWLR (Pt. 410) 767. 779; Attanda Vs H. Saffedine Transport Ltd. (2008) All FWLR (Pt. 401) 985, 993; Jatau V. Ahmed 1 SCNJ 382, 390 391. He urged us to allow the appeal on this issue.
For the respondent or his counsel this fact about the amendment to the original statement of defence is not in dispute. Also not in dispute is the fact of reliance being placed on paragraph 24 of the original joint Statement of defence by the Court. Learned counsel however argued that paragraph 24 of the original joint Statement of defence was retained by the appellants at paragraph 22 of the amended joint statement of defence and by reason of which the facts as presented by defence still remain the same and that the trial court was right to hold as it did at page 161 lines 3 10 of the record.
Learned respondents counsel argued further and submitted that a court is at liberty to make reference to the old or original document not withstanding that it has been amended and he relied on Agbahomovo Vs. Eduyegbe (1999) 2 SCNJ 94, 102. Such reliance on the original process or document according to the learned respondents counsel did not imply that a miscarriage of justice was occasioned.
Parties and their counsel are all agreed that the appellants as defendants at the trial court had cause to amend their joint Statement of defence by leave granted at that Court on the 24th March, 2012 in terms of the amended joint Statement of defence at pages 68 71 of the record of appeal.
It has long been settled that once pleadings are amended, the amended document takes retrospective effect and it relates back to the date the original document was made or filed. See: Salami V. Oke (1987) NWLR (Pt. 63) 1 or (1987) 9 10 SC 43. Olamiran V. Adebayo (Supra). What stood before the amendment is no longer material before the Court and no longer defines the issues to be tried although the Court granting the order for amendment could make reference to the original document so far as it is in existence. What the court cannot do is act on that original pleading. The apex Court in Agbahomoro V. Eduyagbe (1999) 2 SC 79, 91 held thus:
There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. See Warner v. Sampson (1959) 1 Q.B. 297. This, however, is as far as this proposition of law goes. It does not and has not laid down any such principle that an original pleadings which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried before the court, not that it no longer exist. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of ones case in any action. Nor a court of law rely on any such original pleading which has been duly amended as the basis for its Judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings.
In the current case on appeal the trial Court did not only make reference to the former or the original pleadings of the appellants, the court relied on the said pleading and acted on it to the detriment of the appellants. While acting on paragraph 24 of the original or former joint Statement of defence the Court below made the following observations at pages 160 161 of the record thus:
Honestly this court was alarmed by these assertions of the Defendants that the plaintiff before it in this case, who is resting his tales in Suit No. TRSJ/1/97 had by the foregoing assertions of the defendants, had taken if indeed the assertions by the defendant are correct on adverse stance against the fill he now claims in this case in Suit No. TRSJ/1/97. The point being made by this court herein is that if the plaintiff had indeed been a witness for Alh. Abubakar Ibrahim as asserted then the plaintiff had by doing so, conceded title to the land in dispute in Suit No.TRSJ/1/97 to Alh. Abubakar. And since Alh. Abubakar was unsuccessful in that case it will therefore follow that the plaintiff equally cultivate the same case as Alh. Abubakar. It will amount to travesty of notice for the plaintiff who had taken such steps as alleged in the assertions of the defendant to turn around and want to assert his own title to a portion of the land that he had in Suit No. TRSJ/1/79 conceeded title thereof to Alh. Abubakar.
Upon the alarm that the assertions of the defendant brought to bear on this court curiously went on an examination of the records of Suit No. TRSJ/1/79 Regrettably the examination by this court reveals that the assertions of the defendant in paragraph 24 were before them and gross mis-representation of the truth. That is to say the plaintiff in this case never testified as a witness in Suit No. TRSJ/1/79 for Alh. Abubakar Ibrahim
This court is bewildered that the defendant will go this far to mis-present facts
Those remarks or findings made at the Court below is sequel to the averments contained at paragraph 24 of the old or former Joint Statement of defence which the appellants no longer depend on.
Learned counsel for the respondent has argued in his brief that the reference and reliance placed by the trial court on paragraph 24 of the original Joint Statement of defence has no negative effect considering that the appellants have retained those same averments (i.e paragraph 24) in the new amended Statement of defence at paragraph 22 and as such facts constituting defence case still remained the same. I consider this submission of respondents counsel as unlikely. This is far from the truth. We need to take another look at the two averments so as to discover the differences in them.
In the former or the original Joint Statement of defence the following facts are averred at paragraph 24 thus:
24. Defendants aver that the Plaintiff was at no time involved in the effort of the farm owners to regain their farms in the case of Kachalla Umaru & Ors Vs. Alhaji Abubakar Ibrahim but was rather a witness for Alhaji Abubakar and did testify against them
In the amended Joint Statement of defence on the other hand is the averment at paragraph 22 that:
22. Defendants avers (sic) that the Plaintiff was at no time involved in the effort of the farm owners to regain their farms in the case of Kachaller Umaru & Ors V. Alhaji Abubakar Ibrahim and had no farm in the land subject-matter of Suit No. TRSJ/5/1/97.
Words underlined bring out the differences in the two averments above hence the two cannot mean the same thing neither can those paragraphs produce the same result if carefully analyzed and interpreted.
Pleadings are a combination of relevant facts relied upon by each party in his claim or defence before the court. It follows therefore that parties are strictly bound by their pleadings and even the Courts are bound by those pleading before it such that the litigant or parties and the Court cannot go outside those pleadings as done by the trial court in this case. See: Yalaju Amaye Vs. A.R.E.C. Ltd (1990) NWLR (Pt. 145) 422 or (1990) 6 SC 157; Apanc & Anor. Vs Aileru & Anor (2014) Vol. 237 LRCN 1, 20. The trial Court regrettably veered outside the pleadings before it to rely and act on the original or former Statement and by so doing, the Court below was clearly in error and which error occasioned a miscarriage of Justice on the appellants as demonstrated in the Judgment appealed against
at pages 160 161 of the record. I am inclined therefore to resolve issue No. 2 in favour of the appellants and against the respondent.
Next in line are issues 3 and 4 (argued together) that is:
3. Whether regard being had to the pleadings and evidence before the trial court. The learned trial judge was right to have declared title to the disputed land in favour of the respondents.
4. Whether the learned trial judge was right in law to have ignored the evidence and addresses of counsels (sic) before him in arriving at his decision.
Learned appellants counsel in arguing Issue Nos.3 and 4together faulted the Judgment delivered at the trial Court in many respects. It is argued by him that it was wrong of the trial Court to grant to the respondent a relief he did not claim. He referred to paragraph 34 (a) of the Statement of claim to submit that the relief sought at the trial court was for:-
An Order of the Honourable Court declaring title to the land in dispute in favour of the Plaintiff
Whereas what the trial court granted as a relief was beyond what the respondent contemplated in this case. counsel referred us to the declaratory order made by court below at page 163 of the record and cited in support, the decision in Anpka V. Maikarfi (2010) All FWLR (Pt. 506)1977 to submit that a court cannot grant a relief where the relief was not sought or claimed.
Counsels further argument relate to certain findings of fact which the trial Court made as it appear at page 163 of the record, as for instance the finding that Mading Ajiya ceded his title to the plaintiff/Respondent after the decision in Suit No. TRSJ/1/97 and/or the finding that Mading Ajiya and the Plaintiff jointly inherited the land in dispute, he argued that those findings were not supported by the pleadings and evidence on record. Counsel referred us to the Statement of Claim of the respondent at paragraph 6 11 to submit that no where in the said Statement Claim did the respondent plead those facts and there was no evidence led to that effect.
On the question whether the plaintiff/respondent is related by blood to Madding Ajiya as contended by him, counsel for the Appellants disagreed stating that such a relationship did/does not exist even though the trial court purported to say so without looking at the pleadings or evidence on record adduced by the parties and their witness before jumping into the conclusion that the plaintiff is a nephew to Mading Ajiya and that the respondent is now the Head of the family. Those findings and conclusion coming from the Judgment of the trial Court, according to counsel, was not pleaded hence those conclusions negatively affected the mind of the court in that the court in coming to its conclusion held that title declared for Mading Ajiya by the Court in exhibit P1 has devolved on the respondent.
On the issue of the identity of the land to which the claim relates learned counsel argued by reference to paragraph 15 of Statement of Claim that the portion of the land declared for Mading Ajiya in Exhibit P1 was different from the land now in dispute by virtue of paragraph 4 and 21 of the same joint Statement of defence. He invited our attention to the evidence of Dw4 and evidence by the Respondent himself in support, speaking under cross-examination as Pw3 at page 115 lines 7 11. He argued that faced with this scenario, the trial court ought to make some findings of fact, so as to ascertain whether the land in dispute is the same portion of land belonging to Mading Ajiya or belonging to the 1st plaintiff in Exhibit P1.
On the issue of root of title of the respondent, learned appellants counsel submits that there is nothing in common between the respondent and his predecessors on the one hand and Mading Ajiya and his successors on the other as to suggest that the two groups have common ancestral background and thus are joint owners of the land in dispute as members of the same family.
Learned counsel on a final note further submit that the trial court was in error when he made findings without considering evidence and address of counsel before him and urged us to allow the appeal since the finding made at the court below were contrary to Pleadings and evidence before it.
The response from the opposite party on Issue Nos. 3 and 4 is contained at pages 10 16 of the Respondents brief of argument wherein his counsel has urged us to affirm the Judgment of the Court below on issue 3 and 4 argued together.
Dwelling on the specifics, the respondent or his counsel argued that the court below was not at sea or acting Father Christmas when made the final declaratory order granting to the respondent the land in dispute. He argued that the order made was in accord with respondents Statement of claim at paragraphs 7, 10, 12, 22 and 25 at pages 7 9 of the record.
On the issue of the identity of the land being claimed by the respondent, counsel in his brief drew our attention to evidence of witness relative to the land declared for Mading Ajiya in Exhibit P1, to submit that it was that same portion of land that form the basis for the claim of the respondent in this case and to further buttress his point, learned respondents counsel referred us to Exhibit P2 and in particular to the fact that one Hon. Salihu Dovo who he claimed is the son of the respondent was a signatory to Exhibit P2, the document tendered in this case on appeal as the Memorandum of settlement between Alh. Abubakar Ibrahim and the 22 farm owners in Exhibit P1.
I should say from the onset that much as can seen on the face of Exhibit P2 that one Hon. Salihu Dovo is a Signatory to that document, there is nothing to suggest to me that Salihu Dovo signed as one of the farmers in Exhibit P1 or signed Exhibit P2 on behalf of any of those farmers let alone for and on behalf of Mading Ajiya, the 5th Plaintiff in Exhibit P1. Unless those facts are brought to bear by or through evidence of witnesses, it cannot be suggested as learned counsel for the respondent seem to do in his brief of argument, that by the mere appendage of the signature of Salihu Dovo to Exhibit P2, he had by that singular act graduated to become a farmer or one of the farmers recognized as a party in Exhibit P1.
There is also no evidence as to suggest that at the time the contest was on in Exhibit P1, Mading Ajiya, the 5th Plaintiff thereto was contesting that case not for himself alone but also for the family of the respondent herein. In other words for the present respondent to lay claim to the land declared for the 5th Plaintiff in Exhibit P1 (if at all that is the claim) he must show and prove by evidence that the 5th Plaintiff in Exhibit P1 fought the case in a representative capacity and protecting his interest in the Suit. The Judgment in the case covered by Exhibit P1 in which Mading Ajiya was/is the 5th plaintiff as Suit No. TRSJ/1/97 was admitted in evidence in this case on appeal at the instance of the respondent. I have gone through Exhibit P1 and I find nothing either by the name of the parties to the suit or by the record of Judgment itself that the 5th plaintiff in Suit No. TRSJ/1/97 instituted the case on behalf of the respondents herein and his family members. Indeed from the record of evidence and in particular, by the evidence of Dw4 it can safely be concluded that the respondent herein and his predecessors in title have nothing in common with Mading Ajiya and his successors in title relative to the land declared for the latter vide Exhibit P1.
Before I address the question whether as a matter of practice or the law it is within the province of the Courts to grant a relief not sought for in a claim, I should I think first consider a very fundamental question and this relates to the identity of the land under contest in a claim for a declaration of title to land and since the trial court failed to address this area or aspect of plaintiffs case, I believe this court on good authority, can do so, in so far as the credibility of witness is not involved. See: Nweazema V. Nweeriyeke (1990) NWLR (Pat. 137) 230; Fatuade V.Onwoamanem (1990) 3 SC (Pt. 11) 138.
The identity of the land in question must be known from the onset at the commencement of hearing so as to forestall any order of dismissal on account of failure by the claimant to scale the first hurdle in his quest for an order for declaration of title to land. See: Francis Adesina Ayanwale V. Olumuyiwa Olumide Odusani (2011) 12 SCNJ 362. 371 where the apex Court held:
In a claim for declaration of title to land, the starting point is the identity of land. The identity of the land must be clearly ascertained. The identity of the land would be in issue if and only if the defendant in his pleadings disputed either the area of the land or its location.
By paragraph 4, 5, 6, 7, 10, 12, 22, and 25 of the statement of claim put together it does appear to me that the claim of the respondent relates to the land declared for Mading Ajiya by the Court in Exhibit P1.
However by the averment at paragraphs 31, 32, 33 of the same Statement of claim the respondent alleges trespass on that land by the Appellants.
In response to the statement of claim is the amended Joint Statement of defence of the appellants wherein at paragraphs 2, 3, 4, 5, 6, 7, 8 among others the appellants did not only deny the averments in the Statement of Claim alleging trespass by them but went ahead to state that they are the owners of the land referred and described by the plaintiff in his claim having inherited a large expanse of land from their predecessor in title and that the land now being claimed by the respondent was just a tiny or small portion of the large portion of land litigated upon by the 1st appellant herein vide the suit in Exhibit P1.
At paragraph 15 of the amended joint Statement of defence the appellant further aver that:
Defendants avers that Madding Ajiya the plaintiff in Suit No. TRSJ/1/97 before the High Court is deceased but his family are still on their portion of land. The Plaintiff is not a member of Mading Ajiyas family and is not related to the Ajiyas family who is the original owner of the portion of the land but not brought on that land by the Plaintiffs father which land is even different from the land in dispute
So on the state of pleadings of parties on both sides 2 (two) distinct and separate parcels of land now appear as the land in dispute hence the location and the actual identity of the land claimed by the respondent become imperative as an issue which the claimant must prove by evidence. The duty lie with the respondent as the claimant to prove his case, nay, the identity or the location of the land his claim relates.
Respondent in his bid to prove his case led evidence through 4 (four) witness but the evidence in chief led through Pw1, Pw2 and Pw3 on the issue of the identity and or the location of the land in dispute deserve some attention.
Pw1 at paragraphs 3 and 9 of his Statement on Oath gave the description and the location of the land which he says is in dispute as the same land or farmland upon which the appellant committed acts of trespass by planting cassava, maize, guinea corn and groundnuts. There is no direct statement or evidence coming from him to suggest that this piece of land is the same land that was declared for Mading Ajiya vide Exhibit P1.
Pw2 whose evidence (Statement on Oath) is at pages 37 40 said the land claimed by his father (the respondent) is the same land that Mading Ajiya had a case on. That Mading Ajiya at the time of the case was the occupant of that land being the brother to Plaintiff (respondents) father. His evidence under cross examination is at pages 111 -112 of the printed record.
Evidence in chief (Statement on Oath) given by Pw3 is at pages 44 47 of the record. He stated that the land now being claimed by him as the Plaintiff is the same land occupied by Mading Ajiya over which (Mading Ajiya) prosecuted the case as the 5th Plaintiff in Exhibit P1. His evidence under Cross-examination further reveal that it is Daniel Mading Ajiya (Dw4) who now occupies the portion of the land his father had occupied.
The Appellants on the other hand as defendants called evidence of 4 witnesses among whom are Dw2 and Dw4. The 1st appellant himself speaking as Dw2 traced the antecedents leading to this case on appeal to the acts perpetrated by the respondent whose children he said entered and cultivated yam heaps on the land used by the 3rd appellant. When the 3rd and 4th appellants chased those children away from the land, the respondent in turn instituted action against the appellants for trespass among other reliefs. Speaking further the 1st appellant said he is the owner of this land which he inherited from his predecessors in title and that he filed a case vide Exhibit P1 and title was declared for him in respect of this land. See pages 82 92 of his Sworn Statement on Oath (as adopted) in his evidence at pages 120 122 of the same record.
Dw4 is the son of Mading Ajiya. He says he is not related to the respondent or any of his family members and that his father had nothing in common with the respondent let alone the land occupied by his father. He told the court that he is the person who now cultivate the land left by his father who instituted action vide Exhibit P1 and was declared the owner of his own portion of the land. He further told the court that the land in dispute belong to the 1st appellant and members of his family. See witness sworn Statement at pages 86 88 and pages 128 132 and his evidence under cross-examination.
Going by those evidence on the printed record especially evidence coming from Pw2, Dw2 and Dw4 the land in dispute could not have been the land declared for Mading Ajiya in Exhibit P1 and now being occupied by his son Daniel Mading Ajiya, the Dw4. Parties on both sides are all agreed in their evidence that Dw4 now cultivate and farm on the land left behind by his father. This land cannot therefore be the same land that the appellant trespassed into as alleged by the respondent. Indeed the Sworn Statement of Pw2 at paragraph 25 lend credence to this conclusion, that it is not the land occupied by Mading Ajiya that is in dispute in this case on appeal. He deposed thus at paragraph 25 of his witness statement on Oath:
That when the Plaintiff and we his children went and started preparing the remaining part of the land for farming the 1st defendant also instructed his children the 2nd, 3rd and 4th defendants to go and farm on the land which they did
The land in dispute (to use the language used by Pw2) is the remaining part. That land not being the land occupied by Mading Ajiya or his son, Daniel Mading Ajiya, is the land in dispute. This land in dispute, coincidentally is the same land that the respondent has instituted action claiming against the appellant a declaratory order of injunction for trespass which action or Suit was confirmed by the 1st Appellant in his evidence (Sworn Statement) at paragraph 19. See page 91 of the printed record of appeal, where he deposed thus:
That the plaintiffs children during the 2011 farming season came and made yam heaps inside the land in dispute where the 3rd defendant used to cultivate every successive year after the judgment of this Court.
When they were discovered the 3rd and forth defendants forbade them which act provokes this action
To succeed in a claim for declaration of title, the claimant must also lead evidence to prove his root of title. The respondent in paragraphs 6 11 of the Statement of claim pleaded his root of title where he averred thus:
(6) The plaintiff states that while he inherited this piece of land from his father Pitti Sankurmi, Pitti Sankurmi himself inherited the land from his father Sankurmi while Sankurmi was the first settler on the land.
(7) The plaintiff state that when his father inherited the land, he was using the same for farming and later permitted one Mading Ajiya his brother to settle on part of the land while Pitti Himself was still settled on the other part of the land.
(8) The plaintiff aver that his grandfather, Sankurmi was buried on the land when he died. There are also on the land a Mango tree, Rimi tree, dorowa tree, etc
(9) The plaintiff state that his father Pitti later moved out of the land and crossed the Lamurde stream and settled at a place called Ardo-kola village presently Ardo-Kola Local Government Area of Taraba State leaving behind his brother Mading Ajiya still on the land.
(10) The plaintiff state that after settling across he stream, Pitti continued to come back and join Mading Ajiya to farm on this land which he inherited from his father every farming season with his family
(11)The plaintiff aver that his father Pitti continued to farm on the land till his death upon which the plaintiff inherited the land
Exhibit P1 was admitted in evidence at the instance of the respondent but himself was/is not among the 22 land owners who instituted action in Exhibit P1 and obtained Judgment. The land in dispute in the current case on appeal forms part or portion of the land in dispute in Exhibit P1. The attempt by the respondent to proffer reasons or explanation as to why he did not feature as a party vide Exhibit P1 is unacceptable, because:
(1) The case filed by Mading Ajiya as 5th Plaintiff in Exhibit P1 was not fought in a representative capacity and there was no evidence on record to suggest that the suit was so contested on behalf of the respondent and members of his family by the 5th Plaintiff in exhibit P1.
(2) In any case, the land held or occupied by Mading Ajiya is not the land in dispute.
(3) The respondent stood by and watched the proceedings go on in the case covered by Exhibit P1.
The primary duty of all courts lie in the settlement of disputes arising between contending parties in the exercise of their duties of review of evidence. Unless evidence placed before the court especially the court of first instance are properly reviewed and or evaluated it would have failed in its duties and the resultant order or Judgment liable to be set aside as perverse. I dare say that the trial court, without recourse to the facts and evidence before it made an award and granted a relief that was not sought when by the order made the court held at page 163 of the record thus:
Title that had been declared by this court in Suit No. TRSJ/1/97 to Mading Ajiya is hereby declared to have devolved to plaintiff as head of the family which had Mading Ajiya as member.
By this order the trial Judge did not declare title as requested by the respondent. The relief sought by the respondent in his claim at paragraph 34 (a) of the Statement of claim, among others state thus:
34 (a) an order of the Honourable Court declaring title to the land in dispute in favour of the Plaintiff.
This order and declaration is unquestionably outside the claim of the respondent. The Court has thus exceeded it jurisdiction by making that order. That order cannot stand being a nullity. See: Odofin Vs. Agu (1992) NWLR (Pt. 229) 350; Oluwole V. West (2010) 10 NWLR (Pt. 1203) 598; Anpka Vs. Maikarfi (2010) All FWLR (Pt. 506) 1977, 2009.
In some other cases as earlier pointed out by counsel for the appellant in his brief of argument, there are certain findings of fact made by the court below which have no support either by the pleadings and/or evidence. As for instance the finding at page 163 of the record that Mading Ajiya ceded his title to the respondent and the finding to the effect that Mading Ajiya and the respondent jointly inherited the land in dispute, are facts which the Court below on its own introduced into the Judgment and there is no support either from the pleadings and evidence adduced before it. I am in agreement with counsel for the appellant with that submission on those points hence Issue Nos. 3 and 4 argued together should and same are hereby resolved in favour of the appellants and against the respondent.
All issues having been resolved against the respondent, the appeal succeeds and same is allowed. The Judgment delivered at the High court of Taraba State on the 15th November, 2013 is hereby set aside and in its place is entered this Judgment striking out the claim before the trial court in Suit No. TRSJ/106/2010. Cost is assessed in the Sum of N50, 000. 00 against the respondent.
JUMMAI HANNATU SANKEY, J.C.A.
I had the privilege of reading in draft the lead Judgment just delivered by my lord, Husaini, J.C.A. and I entirely agree with the reasoning and conclusion reached.
By way of contribution, I will make a few comments on Section 294 of the Constitution of the Federal Republic of Nigeria.
Section 294(1) & (5) of the 1999 Constitution (as amended), which are relevant for the purposes of this Appeal, state as follows:
294 (1) Every Court established under this Constitution shall deliver its Judgment 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.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of 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.
The spirit behind the ninety day period in Section 294(1) of the Constitution of the Federal Republic of Nigeria (as amended) is to ensure that the decision of the Court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the mind of the Judge. It is settled law that a delay in the delivery of Judgment raises a strong presumption that the trial Court may not have made use of its advantage of seeing and observing the demeanour of the witnesses who testified before it. Nonetheless, the presumption may be rebutted where the delay complained of did not occasion a miscarriage of justice, in which case the delay occasioned is regarded as inconsequential. Per contra however, where the delay has affected the trial Courts perception, appreciation and evaluation of the evidence such that it is obvious that it has lost the impression made on it by the witnesses, then there is a possibility that a miscarriage of justice may have occurred, and it is in such a circumstance that an appellate court can interfere. See See Okon V Ita (2010) LPELR-9010(CA); Ayinke Stores Ltd V Adebogun (2008) LPELR-3883(CA); Gagarau V Pashiri (2006) 1 NWLR (Pt. 962) 521. In Dibiamaka V Osakwe (1989) 3 NWLR (Pt. 107), Oputa JSC added:
The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.
In the instant case, from the evidence on record vis a vis the findings of the trial Court, especially with regard to the status of the 4th Respondent (now 4th Appellant) in the suit as the son of the original 4th Respondent (since deceased) who substituted his late father, and his evidence at the Court inspection of the disputed land, it is evident that the learned trial Judge had lost a proper grasp of the evidence that had been adduced due to the length of time it had taken, outside the Constitutional 90 days time limit, for him to deliver his Judgment. This is in addition to the failure of the trial Court to make any finding on the identification of the land in dispute in spite of the evidence adduced thereon. Thus, the printed Record plainly bears out the submission of learned Counsel for the Appellants that the learned trial Judge made a wrong evaluation of the evidence adduced before him in the suit due to the inordinate delay in delivering Judgment. He apparently did not appreciate the evidence or had lost control and/or full understanding of the evidence given in the suit before Judgment was written and delivered. In the circumstances of this, I agree that the Appellants have succeeded in convincingly demonstrating that the non-compliance with Section 294(1) of the 1999 Constitution (as amended) by the learned trial Judge, did occasion a miscarriage of justice to them.
It is for the above reasons, and for the more elaborate reasons advanced by my learned brother that I endorse the lead Judgment. I abide by the consequential orders contained therein.
BIOBELE ABRAHAM GEORGEWILL, JCA:
1. Boniface Iorkumbur Esq, for the Appellants.
2. G. T. Ieave Esq, for the Respondent.