OKUNRIBOYE v. OSUMA

CITATION: (2016) LPELR-41373(CA)

In the Court of AppealIn the Akure Judicial Division

Holden at Akure

ON TUESDAY, 10TH MAY, 2016Suit No: CA/AK/16/2014

Before Their Lordships:

MOJEED ADEKUNLE OWOADE Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealJAMES SHEHU ABIRIYI Justice, Court of Appeal

BetweenCHIEF SENATOR REMI OKUNRIBOYE - Appellant(s)

AndCHIEF KOFO ADEYEMI OSUMA - Respondent(s)

RATIO DECIDENDI

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1. ACTION - REPRESENTATIVE ACTION:Nature of the rule as to representative actions"... A corporation aggregate as in the natureof a family can only act by or defend throughrepresentatives so authorized and approvedby the Court. The respondent had so doneand was allowed without any objection at thetrial Court. It is rather too late in the day tonow complain. Nonetheless, the law is thatonce evidence led shows indisputably that therespondent defended in a representativecapacity, judgment for or against may beentered in that capacity. See Mbanfor V.Molokwu 2014 ALL FWLR (Pt. 742) 1665 at1681. BC; Supo & Anor Vs. Sunmonu (2010) 2SCM 204 and a host of other cases in line ascited by the respondent's counsel in hisaddress."Per DANJUMA, J.C.A. (P. 43, Paras. A-E) - readin context

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2. APPEAL - BRIEF OF ARGUMENT: Effect ofuncontested issue that was validly raised in abrief of argument"On the merit of the appeal there was only arepeat of the submission in respect of issues1 and 9 on issues 2 on identity of the land, itwas contended that it was not addressed bythe respondent and should be deemed tohave been conceded on the authority ofBottling Industry Limited v. Union Bank ofNigeria Plc. (2010) ALL FWLR 510, Page 786at 804 . Where this Court Benin Division said"where a material point canvassed in anappellants' brief is not contained in therespondent's brief, the point is deemed tohave been conceded to the appellant."Adeyeye & Anor. V. Governor, Ekiti State &Ors. (2012) ALL FWLR Pt. 652. Page 1744 at178 Paragraphs C - F."Per DANJUMA, J.C.A. (P. 34, Paras. A-C) - readin context(2

016)

LPELR

-4137

3(CA)

3. CONSTITUTIONAL LAW - BREACH OFRIGHT TO FAIR HEARING: What a denial offair hearing connotes"A hearing cannot be fair if any of the partiesis refused a hearing or denied the opportunityto be heard, present his case call witnesses.See Military Governor, Imo State V. Nwauwa(1997) 2 NWLR (Pt. 490) Pg. 675; Saley V.Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR(Pt. 801) Page 221; Bamigboye Vs. Universityof Ilorin (1999) 10 NWLR (Pt. 622) page 290and Kotoye v. CBN (1989) 10 NWLR (Pt. 98)page 419."Per DANJUMA, J.C.A. (P. 39, Paras.D-F) - read in context

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4. COURT - JURISDICTION: Importance ofjurisdiction in the process of adjudication"I shall determine the preliminary objectionfirst, as the issue of the competence of a suitis a jurisdictional issue. This is because beforea Court can exercise jurisdiction in a casewhether at the trial or on appeal, it must havejurisdiction and the suit must have come to itby due process of law and upon fulfillment ofany condition precedent to the exercise ofjurisdiction. Jurisdiction is a radical and crucialquestion of competence once there is adefect in competence, It is fatal and theproceedings are a nullity however wellconducted and decided. Tanko V UBA Ltd. perAdekeye JSC at page 99 Paragraphs C - D(2010) 17 NWLR Part 1221 page 80 at 98. Seealso (1) Okem Enter. Nig. Ltd V. Governmentof Gongola State (1989) 4 NWLR (Pt. 117)517. See also my contribution judgment in theunreported ruling of this Court in Appeal No.CA/AK/98/2015, - Dangote Integrated SteelPlc. V. Alhaji (PA) Salami Nasiru Oyeniyi (Headof Sogbodede Royal Family of Oshogbo (2)Alhaji (PA) Salami Mogaji Head of Lahanmi -Oyepi (Royal Family of Oshogbo (3) Alhaji (PA)Ashiru Oyewole (Head of Matanmi Royalfamily of Oshogbo)."Per DANJUMA, J.C.A. (Pp. 34-35, Paras. F-F) -read in context

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5. COURT - JURISDICTION: Importance ofjurisdiction"In the instant appeal, the objection relates tojurisdiction and jurisdiction has been held tobe the spinal cord of every litigation and,once raised, it must be resolved before anyfurther step is taken in the matter. It is athresh hold matter. See Odedo V. INEC (2008)17 NWLR Pt. 1117 Page 554: Oriorio V. Osaain(supra)."Per DANJUMA, J.C.A. (P. 36, Paras. B-C) - read in context

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6. EVIDENCE - BURDEN OF PROOF/ONUS OFPROOF: On whom lies the burden of proof incivil cases"... it is elementary law that a plaintiff has theburden to prove the reliefs sought in thestatement of claim for him to obtain judgmentin his favour. This burden does not shift. Thisis because he is the party who claims thereliefs in the statement of claim and so theonus probandi rests upon him. He must prove theaffirmative content of his statement of claim.Our adjectival law is as strict as that; seeOkechukwu and Sons V. Ndah (1967) NMLR368: Elemo V. Omolade (1968) NMLR 359:Frempong II V. Erempong II (1952) 14 WACA13: and a host of cases referred to withapproval in A. G. Anambra V. AG Federation(2005) 131 LRGN 2282 - 2584. The burden ofthe plaintiff is however limited to the liveissues which will determine the case one wayor the other. In other words the plaintiff hasno duty to prove issues which are not in anyway related to the reliefs sought in thestatement of claim as such issues are seen asmerely gallivanting in the pleadings and to noissue. See AG Anambra V. AG Federation(Supra)."Per DANJUMA, J.C.A. (Pp. 41-42,Paras. E-D) - read in context

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7. LAND LAW - SURVEY PLAN: Purpose of asurvey plan"In the law of real property, there is no doubtthat difficulty in establishing the identity ofthe land in dispute has always been the baneof otherwise successful c laims. Theappellant's claim to a specific land havingbeen denied, it was encumbent for him tohave a survey plan that showed clearly andspecifically the land claimed and itsboundaries. See Epi V. Aigbedion (1973)NMLR Page 31 at 35 if the land is a vacantland, it is desirable to have a plan to show theportion. See Ibuluya V. Dikibo (1978) 1 ALLNLR Page 395 at 408."Per DANJUMA, J.C.A.(Pp. 44-45, Paras. F-B) - read in context

8. LAND LAW - IDENTITY OF LAND: Effect offailure to prove identity of land"A party wins on the strength of his case andtherefore the failure to prove the identity ofthe land claimed disentitles a claimant to adeclaration of title and/or damages intrespass and injunction. These were theclaims or reliefs sought by the appellant. As Istated in Karimu V. Lagos State Government(2012) 1294 5 NWLR part 1295, Page 620 thelack of proof of the identity of the land madeit impossible for any declaration or injunctionto issue."Per DANJUMA, J.C.A. (P. 45, Paras. D-F) - read in context

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9. P R A C T I C E A N D P R O C E D U R E -PRELIMINARY OBJECTION: Duty on a partywho raises preliminary objection"Although the law is that a party intending torely on a notice of preliminary objection mustcomply with the rules of Court in that regard,such as by filing the copies of the notice inthe required number at the Court of trial orthe appellate Court see Oriorio Vs. Osain(2012) 16 NWLR Pt. 1327. Page 569 at 578Paragraphs D - H."Per DANJUMA, J.C.A. (Pp.35-36, Paras. F-A) - read in context

10. P R A C T I C E A N D P R O C E D U R E -PRELIMINARY OBJECTION: How to raise apreliminary objection"It is not the law that an objection can betaken to an objection, such as a preliminaryobjection. All that is known to law andpractice is that an answer is proffered to anobjection."Per DANJUMA, J.C.A. (Pp. 38-39,Paras. F-A) - read in context(2

016)

LPELR

-4137

3(CA)

MOHAMMED AMBI-USI DANJUMA. J.C.A. (Delivering

the Leading Judgment) : This is an appeal against the

decision of the High Court of Ondo State which was

delivered at Owo on 6th May, 2013 dismissing the plaintiffs

claims in its entirety and granting the counter - claims of

the defendant, thereat.

PRECIS OF THE FACTS LEADING TO THIS APPEAL

The appellant claimed to have been granted a piece of land

by the 2nd defendant/2nd respondent's father in 1992,

whereat he erected the foundation of a shopping complex.

Whilst laying the foundation, the 2nd respondent's father

PW1, PW2 and other Osuma family members were alleged

to be in attendance. He was then at the Senate in Abuja.

The Senate and all democratic structures were then sacked

following the Abacha coup; the appellant could not

continue with his building project on the land.

The 2nd respondent's father died in 1995 and then he - the

2nd respondent stepped into his father's shoes as the

Osuma IV. 2nd respondent sued the appellant over this land

with 6 other persons. The Suits were amicably settled out

of Court with the other parties and that involving the

appellant was withdrawn. The

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appellant claims that it was a withdrawal necessitated by

the explanation to the 2nd respondent as plaintiff then that,

that land had been granted to the appellant's and re-

granted in affirmation to him by the respondent's

father before his death

In 2008, the respondent purported to sell the land to 1st

and 3rd defendants at the trial and who claimed to have

erected structures on the land which were demolished.

The present appellant, as plantiff at the trial Court had

sued in respect of the land and had claimed as follows:

1. A declaration that the defendants are trespassers

on the land in dispute verged red more clearly

delineated in the dispute survey plan------

The 2nd defendant now respondent counter - claimed

against the plaintiff now appellant as follows:-

1..............

The respondent raised some points of preliminary objection

to the appeal in his brief of argument thus:

''A. Parties to this appeal are different from the

parties at the trial Court.

B. Appeal is a continuation of the case at the trial

Court and not a new case.

C. Appellant altered the names of parties to the case

as sued at the trial Court.

D. Relief sought in this appeal is

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against all the defendants, including 1st and 3rd

defendants who are not made parties to this appeal.''

The appellants formulated a prolix 9 issues for

determination; while the respondent posed 10 (ten) issues,

an issue above those raised by the appellant!

It must be observed that in the same character of

multiplicity of issues by the respective parties, the

appellant who had initially filed 6 (Six) grounds of appeal,

had obtained the leave of this Court and filed 5 additional

grounds of appeal on 16th April, 2015, after which he filed

an amended appellants brief of argument leading to a

consequential amendment of the respondent's brief of

argument filed on 2nd of October, 2015.

The appellant also filed a reply to the respondent's

amended brief of argument. Now to the arguments in the

appellants brief of argument which issues he tags as issues

A to I (for the issues 1 - 9). Now to the issues.

ISSUE A

Whether the lower Court was right in unilaterally amending

the relief contained in the respondent's counter claim to

include the Osuma family members when no one prayed for

such gesture.

It was argued that the respondent

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was not sued in a representative capacity but in his

personal capacity and defended the suit in that capacity by

filing a counter claim which is contained at page 177 of the

records of appeal.

That the Osuma family did not pray to be joined nor

claimed any relief in the suit before the Court.

That the trial Court was wrong to have amended the claims

by giving judgment to a person who was not a party before

the Court.

Learned counsel referred to Ogieva Vs. Igbinedion

(2005) ALL FWLR (Pt. 250), Pg 85 at page 100

Paragraphs E – H wherein this Court (at the Benin Judicial

Division

"A Court cannot give and should never award a relief

that is not sought or pleaded by a party. Courts of law

are legal institution of matters and award of reliefs

duly sought by the parties in the litigation process. To

put it in a simple language, a Court should not award

a relief not specifically pleaded or sought."

See also Ikare Community Bank Nig. Ltd Vs.

Ademuwagun (2005) ALL FWLR pg. 265 Page 1089 at

1106, Paragraphs A - C.

It was contended that the judgment was a nullity as a relief

not prayed for was granted in favour of the Osuma

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family, that was not a party before the Court. That such

orders for or against a non - party to a case was a nullity.

Awonivi vs. Registered Trustees Amorc (2000) FWLR

Pt.25 pg. 1592 at pg. 1604 Paragraphs D - G.

Wherein Mohammed JSC (as he then was, now CJN) stated

thus:

"It is an elementary procedure in prosecuting Civil

Claims that all parties necessary for the invocation of

the judicial powers of the Court must come before it

so as to give the Court jurisdiction to grant the reliefs

sought. See Oloriode Vs. Oyebi (1984) 1 SC NLR 390;

and Okafor V. Nnaife (1973) 3 SC 85. The failure of

the applicants to make the Registrar General of the

Corporate Affairs Commission and the Inspector

General of Police as necessary parties has rendered

the applicants motion incompetent.” Was relied upon

We have been urged to resolve this issue in favour of the

appellant and to set aside the judgment of the trial Court

on the basis of this issue.

ISSUE B

Whether the lower Court was right in unilaterally amending

the reliefs of the respondent in view that there was no basis

for it and there by descended into the arena of conflict?

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Ground 10.

Learned counsel reiterated his argument on the first issue

that the respondent was sued in his personal capacity and

counter claimed in his personal capacity. That the Court

can only amend the capacity of a party where it is evident

from the pleadings and evidence that the suit was sought in

a representative capacity that it is only in deserving cases

in the interest of justice.

Learned counsel quoted the Supreme Court decision in

Shell Petroleum Development Company Nigeria

Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 pg

407 at 428 Paragraphs E - H thus:

"Once pleadings and evidence establish conclusively a

representative capacity and that the case has been

fought throughout in that capacity, a trial or

appellate Court can and will be entitled to enter

judgment for or against that party in that capacity

even if an amendment to reflect that capacity has not

been applied for or obtained. It will be otherwise if

the case is not made out in a representative capacity.”

That there was no basis for amending the respondents

reliefs by the Court; that the respondent by his pleadings as

well as his evidence and that of his witnesses did

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not at any time or place state that the respondent

represented the Osuma family in the suit.

The learned counsel, however, submits for his client that

infact the respondent gave evidence to the effect that he is

the all in all in the Osuma family as he claimed to be the

head but that even the trial Court had not agreed to this

stand.

That the suit was not fought by the respondent in a

representative capacity and that the purported amendment

to the respondent's claims to include "the Osuma family"

was erroneous. He relied on Sapo V. Sunmonu (2010)

ALL FWLR Pt. 531. pg. 1408 at 1425, Paragraphs E -

G and Shell Petroleum Development Company Nigeria

Limited Vs. Edamkue (2009) ALL FWLR Pt. 489 at

page 407 at 428 Paragraphs E - H.

Learned counsel contended that the trial Court amended

the capacity of the Respondent/defendant/counter claimant

with a view to providing an enabling platform for his action.

That the capacity of the appellant remained unchanged and

that is that, it was a suit or defence in personal

capacity. That the respondent's counter claim ought to have

been dismissed for lack of jurisdiction, as the respondent

lacked the

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competence to maintain the action in that capacity.

Oyewole vs. Lasisi (2000) FWLR pt. 1606 page 1619

Paragraph H referred.

Learned counsel contended that the trial Court merely

propped up the case of the respondent when it had no

jurisdiction so to do.. In NTA v. NPA (2013) ALL FWLR

pt. 709, page 1149 where this Court at its Benin Division

stated thus:

"It is not the duty of the Court to make out a case for

the parties for a Court to make an order which no

party has asked for and which the parties were not

heard is a breach of the party's constitutional right of

fair hearing. It amounted to making a case out for the

parties and the decision reached was over turned on

appeal"

Counsel relied on the above decision and proceeded to

argue that "since the Osuma Family as an entity was never

in Court, the learned trial Judge was wrong to have made

orders concerning and touching on the family.

Finally, the learned counsel referred us to the case of Hon.

Justice Oladele Vs. Akintaro (2011) ALL FWLR Pt.590

pg. 1346 at 1361 Paragraphs B - 6 wherein it was held -

thus:

"A Court or Tribunal will not make an order or give

judgment that will affect the interest

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or rights of a person or body that is not a party to a

case and who was never heard in the matter."

And contended that this issue be resolved in favour of the

appellant and the judgment be set aside.

ISSUE TWO

Whether the trial Court was right in holding that the land

in dispute was uncertain in view of the fact that the

respondent and the other defendants and their witnesses

claimed to know the land in dispute, it was argued that

from the evidence of the defendants witnesses DW1,DW2,

and 2nd defendant the land in dispute had been

ascertained.

That the parties were all in agreement with the identity of

the land claimed and therefore, that no clog should be

placed on the path of justice by mischievously raising the

issue of identity of land; Odofin Vs. Oni (2001) 1 Sc 129

at 136 referred.

That what was more is that the defendant filed a counter

claim and wondered how that could be done if the identity

of the land was not known. Anyanwu v. Uzowuaka (2009)

ALL FWLR Pt. 419 Page 411 at 436 Paragraphs G - H.

The learned counsel contended that Exhibits A, D and F

existed in respect of the land; and the fact that they were of

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different dimensions and an allegation in respect of that

was explained by the surveyor PW5 called by the appellant.

That the said explanation was not challenged. That the

unchallenged evidence of PW5 that the land in Exhibits A,

D and F were the same ought to have been relied upon

rather than holding that the land was uncertain.

That the appellant was not unmindful of the evidence of

PW5 and PW6 respecting Exhibits A and D as forgeries but

that the appellant had not been shown to be linked to it,

red copy of the exhibits with the surveyor General did not

render the survey a nullity. Section 4 (3) Survey Law of

Ondo State refers

That the appellant ought to have been non – suited in line

with the case of EPI V. Aigbedion (1972) ALL NLR 805

rather than dismiss the case over the fault of the surveyor

the appellant did not partake in. In Olumolu V. Islamic

Trust (1996) 2 SCNJ 29 the Supreme Court ordered a

retrial where the boundaries of the land were not

satisfactorily proved. That a reconsideration of the

boundary issue be made as the appellant was an innocent

client of the surveyor.

Counsel contended that the fact that the survey

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plans were fraudulently made did not warrant that they be

shoved aside as they were still evidence of the identity of

the land claimed and that it was not in tandem with justice

to shove them aside.

ISSUE 3

On whether the Court below had the jurisdiction to grant

the respondents counter claim: it was contended that the

Court lacked the jurisdiction as the counter claim was

prosecuted in a personal capacity. That it ought to have

been dismissed for lack of proper parties. That the

defendant had no locus standi to prosecute the counter

claim and therefore the Court had no jurisdiction. Oyewole

V. Lasisi (2000) FWLR Part 10 Page 1606 at 1619

Paragraph H.

Counsel argued that the land in dispute was described such

that it never included the supermarket which was on the

land since 1992 unchallenged. Was surprised that the

Court granted more than what was asked for by including

an order that the supermarket be removed.

The 1st and 3rd defendants had filed a plan showing the

land in dispute and the plaintiff/respondent relied on the

said plan did not file any counter plan. That the Court was

not a Father Christmas and should not grant what

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was not asked for. NTA V. NPA (supra)

Learned counsel further argued that though the land was

granted to the appellant in 1992 and he immediately built

the shopping complex on it and fenced a part behind it,

which was sold out by the respondents to 1st and 2nd

defendants, he commenced an action against them leading

to the counterclaim of 2008. That the action was brought

outside the 12 year limitation of action period for

declaration of title to land. That the trial Court was wrong

to have said the grant was in 2005 by appellant and in

contradiction.

ISSUE E

Whether it was proper for the trial Court to hold that there

was no proof of appellant's root of title, it was argued that

having pleaded and testified that the land was granted to

appellant by respondent father, it was wrong to hold that

the root of title was not proved. Akaniyemi V. Etim

(2013) ALL FWLR Part 709 Page 1167.

That title having been traced to the respondent's father, it

was encumbent on the respondents to show how their

possession ousted the title of the respondent's father.

ISSUE F

Whether the lower Court was right in refusing to grant the

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appellants claims despite the fact that the grant of the land

in dispute to him was proved on the balance of

probabilities; that the PW1 – a junior sister of the

respondent gave evidence unchallenged of the grant made

by their father. That their father took the appellant to the

land, gave and witnessed the foundation laying ceremony of

the shopping complex, all in her presence. That she was the

one who took their father to the land that date and in the

presence of other members of the Osuma Family.

That when the respondent sued the appellant, he was told

by the Osuma Family Members that the appellant was

given the land by their father and respondent then

withdrew his suit in 2005. PW2, PW3 and PW4 all

corroborated this evidence.

That both the respondents and the 1st and 2nd defendants

were not cross - examined on this aspect of evidence led.

Daggash V. Bulama (2004) ALL FWLR Part 212. Page

1666 at 1745 Paragraphs E - G thus:

"The consequence or effect of failure of a party to

cross - examine a witness called by his adversary

means the acceptance in its entirety the evidence of

the witness as true where an adversary does not

accept a

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witness testimony as true, and fails to cross -examine

him on that fact or facts a Court can take his silence

as an acceptance that the adversary does not dispute

the fact or facts."

That as vital as the evidence of those witnesses were, they

were not challenged on that issue of grant. Exhibit 'B' - a

letter to the respondent's father thanking him of the grant

was not denied.

The respondent did not produce the original copy said to be

with the father, whose bulk file of documents were testified

to be with him per (PW2) and inspite of the notice to

produce the original copy thereof.

There was no cross examination on the authenticity of

Exhibit B either! That the evidential value of the letter was

not considered as the trial Court kept mum over it. That

rather than cross -examine on the grant, the respondent

called DW4 who gave evidence that no grant was made to

the appellant.

This, the appellants counsel submitted, was a wrong way of

challenging a witness, refers to Offorlette V. State

(2000) FWLR (PART 12) Page 2081 at 2102

Paragraphs D - F wherein the Supreme Court held thus:

"A party also fails to cross - examine a witness upon a

particular matter in respect of which it proposed

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to contradict him or impeach his credit by calling

other witnesses tacitly accepts the truth of the

witnesses evidence in chief in that matter, and will

not thereafter be entitled to invite the jury to

disbelieve him in that regard."

Achike JCA (as he then was at Pages 2098 - 2099

Paragraphs H – A stated thus:

"Plainly, it is unsatisfactory if not suicidal bad

practice for counsel to neglect to cross examine a

witness after his evidence - in - chief to contradict

him or impeach his credit while being cross -

examined but attempt at doing so only by calling

other witness or witnesses thereafter. That is

demonstrably wrong and will not even feebly dent

that unchallenged evidence by counsel leading

evidence through other witnesses to controvert the

unchallenged evidence."

It was, therefore, on the above authority submitted that the

failure of cross examine PW1 , PW2 and PW3 on the grant

to PW3 by the respondent's father was fatal to the case of

respondents and the DW4's evidence to the contrary should

be discountenanced.

We are urged to resolve this issue in favour of the appellant

and to set aside the decision of the trial Court and grant

the

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claims of the appellant.

ISSUE G

Whether the Court was right in dismissing the appellant's

claims when facts and evidence favourable to appellant

were neither considered nor evaluated.

Learned counsel contended that the decision was perverse

as the evidence was completely not considered or

disregarded. He referred to the unchallenged evidence of

the suit in 2005 that was withdrawn by the respondent on

being told of the grant to him in 1992,

2. The fact that no terms of settlement was extracted

from the appellant in 2005 when suit was withdrawn

although terms were extracted from other defendants.

3. The non - tender of diary pleaded as containing the

names of persons respondent's father granted land to

and without any excuse.

4. The unchallenged evidence Exhibit B - letter

thanking the respondent's father for the grant.

5. The non challenge to the evidence of PW1, PW2

and PW4 of grant made in their presence.

6. Respondent father did not chase the appellant on

the land when he Returned from lagos in 1985.

7. The contradiction in DW2 and respondent’s

evidence on why no terms of settlement was extracted

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while withdrawing suit in 2005 was not evaluated.

8. The DW4 never confirmed that his father was ever

bed ridden.

9. None proof of respondents father being bed ridden.

For the facts enumerated supra, counsel argued that it was

the duty of a the Court to consider all evidence adduced

before it and failing which the decision reached should be

set aside as perverse. Dantata V. Mohammed (2013)

ALL FWLR Part 673 Page 279 at 309 Paragraphs G -

D: Jegede V. Oluwasesan (2013) that such failure also

amounted to the breach of the appellant's right to fair

hearing.

International Beer of Beverages Industries Ltd. V.

Muntunti Co. Nig. Ltd. (2013) ALL FWLR Part 670,

Page 1253 at 1281 Paragraphs A- B and Etajata V.

Ologbo refered.

We have also been urged to evaluate the evidence indicated

as the facts did not involve the credibility of witnesses.

lreugbu V. Mpama (2010) ALL FWLR Part 549. Page

1146 - 1147, Paragraphs G - C; Nwokearu V. State

(2010) ALL FWLR Part 542. Page 1659 at

1677, Paragraph A and Nini Lodge Limited V. Ngie

2010 FWLR Part 506 at Page 1506 at 1834. Paragraph

D - G referred.

Whether the lower Court was right to refuse to attach

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weight to the evidence of PW1, PW2 and PW4. It was

argued that there was no evidence on record to show that

PW1 and PW2 had an axe to grind with the respondent to

warrant that view and to hold their evidence unreliable.

That the PW1 neither supported appellant or respondent

but was a truthful witness who took the middle course.

Learned counsel wondered where the judge got that

impression of "axe to grind" when the respondent never

said so. Counsel argued that there were no contradictions

in PW1, PW2 and PW4's evidence. Relies on lwachukwu V.

Onwunwanne (2011) ALL FWLR Pt. 589. pg. 10. that in

any case it was only material contradictions that have

occasioned miscarriage of justice that could lead to the

rejection of evidence. Relied on Bassey v. The State

(2012) ALL FWLR Pt. 633 pg. 1816 at 1832. That what

the trial Court held as contradictions were infact nothing

more than discrepancies not warranting the rejection of

their evidence.

That it was unfair to dump the evidence of PW4 merely

because he had a long relationship with the appellant.

1. Whether the lower Court was right in refusing to grant

appellants claims to the land in dispute in

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view of the fact that the respondent and his family

members had acquiesced to the grant of the land to him.

It was argued that the respondent and his Osuma family

had acquiesced to the grant and occupation of the land by

the appellant. That they knew of their rights, delayed in

instituting the suit and the circumstances were such that

they could be taken as having abandoned such right. lge V.

Fagbohun (2002) FWLR p. 91, Page 1545 at 1568 be

referred.

That the appeal be allowed and the judgment set aside and

the claims of the appellant be allowed granted and counter

claim of the respondent be dismissed

On his part, the respondent by his brief of argument dated

and filed on 2 - 10 - 2015 and deemed filed on 21-10-2015

raised a point of preliminary objection to the competence of

this appeal. The notice of the objection is found on page 4

Paragraph 2.01 of the brief and the argument thereon is

contained at pages 5 - 6 Paragraphs 2.02 - 2.09 thereof.

The objection is taken on the following grounds:

A. Parties to this appeal are different from the parties at

the trial Courts.

B. Appeal is a continuation of the case

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at the trial Court and not a new case.

C. Appellant altered the names of parties to the case as

sued at the trial Court.

D. Relief sought in this appeal is against all the defendants,

including 1st and 3rd defendants who are not made parties

to this appeal.

Counsel draws our attention to the writ of summons and

the statement of claim and the notice of appeal, pointing

out that 3 defendants were sued by the appellant and he

claimed reliefs against them at the trial and before this

Court. And yet has appealed against only one respondent.

Learned counsel argued that the appropriate thing to do is

to file the appeal against all the parties/defendants as they

were sued at the trial Court and then apply for the

discountenance against those respondents not intended to

be proceeded against after the appeal has been entered.

Contracts & Anor. Vs. Uba (2011) 10 SCM 1 at 9 – 10

F – I, A – B; Monday Edet & Ors V. INEC & Ors, (2011)

3 SCM, 63 AT 81 – 82 1, A – D.

It is contended that the names on the notice of appeal must

remain the same as in the writ of summons, unless it has

been formally withdrawn

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Shinning Star Ltd. V. Ask Steel Nig. Ltd. (2011) 3

SCM 196 at 219. B - D.

Furthermore, that the relief sought is against the

defendants, including the 1st and 3rd defendants who have

been excluded.

That the appeal herein is different from the case at the trial

Court as the parties are not the same. That the implication

is that there is no foundation for this appeal, as an appeal

lies from the decision of a lower Court. Urges that the

appeal be struck out/dismissed for being incompetent.

That the 1st and 3rd defendants against whom reliefs are

sought in this appeal are not parties in this appeal. The

respondent herein was sued as 2nd defendant and 1st and

3rd defendants were joined and reliefs sought against

them.

Learned counsel queried whether this appeal as constituted

can be entertained without breaching the right of fair

hearing of the 1st and 3rd defendants unilaterally dropped

by the appellant.

We have been urged to uphold the preliminary objection

and to act accordingly. Proceeding on the merit of the

appeal in the event of non success in the preliminary

objection raised

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He formulated 10 (ten) issues for

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determination all of which are strikingly similar to the

appellants' issues. It should be noted that the Courts have

frowned at the practice of respondent framing or

formulating more issues than the appellant.

It is the appellants appeal as he is the dissatisfied party; it

is he that formulates the issues he complains or thinks are

germane and recondite to address his points of grievance

as epitomized or as highlighted in his grounds of appeal.

How then can a respondent raise more issues than him, a

respondent may adopt the appellant's issues or raise same

or less/fewer number in different or modified form. I can

conceive of no other practice that will not offend common

sense and lead to the contradictory fusion of the position of

the parties in an appeal.

On issue No. 1 the respondent countered that it was

obvious from the amended statement of defence and the

counterclaim of the defendants that the defendants

defended the suit and also counter claimed in a

representative capacity as the land in issue was testified to

as a family land which the respondent is the head and

exercised control for and on behalf of the Osuma family.

It

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was argued that where pleadings and evidence led in

support of a demonstrates conclusively a representative

capacity, the trial judge can justifiably and properly enter

judgment for or against the party in that capacity even

where an amendment to reflect that capacity has not been

sought and obtained. Mbane V. Molokwu (2014) ALL

FWLR (Pt. 742) 1665 at 1681, BC Sapo & Anor. V.

Sunmonu (2010) 2 SCM 204; Salisu & Ors V.

Odunmade & Anor (2010) 2 SCM 219; Haastrup

Wines Ltd V. Wiche (2006) ALL FWLR (Pt 304) 483 AT

497; KYARI v. Alkali (2001) 5 SC (Pt.11) 191 at

291,220; Ayeni V. Sowemimo (1982) 5 SC 60; Obiode

V. Orewere (1982) 1 ALL NLR (Pt. 1) 12; Ndidi V.

Osademe (1971) 1 ALL NLR 14 and Shell V. Asajen

(1957) 2 FSC 68 were relied upon.

Counsel also referred to pages 178-192 of the written

address of the appellant at the trial Court and as admitted

of pages 180 - 181 of the record of appeal.

Learned counsel argued that parties must be consistent

with their cases at the trial and appeal and must not

approbate and reprobate as the appellant's counsel seeks

to do on appeal now. Urges that the issue be resolved in

favour of the

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respondent.

On the 2nd issue; the respondent contended that the

identity of the land claimed by the plaintiff had not been

proved as held by the trial Court. Counsel posited that the

argument by the appellant that Exhibits A, D, F (Survey

plans) had been accepted by the parties as relating to land

in dispute was not correct as a party succeeds or losses on

the strength of his own case. That it was the appellant that

must lead credible evidence as a plaintiff to succeed and

that the weakness of his opponents case was not material.

Ogunjemila V. Ajibade (2010) 11 NWLR (Pt. 1206)

539 at 582 C- D; Odunze V. Nwosu (2007) ALL FWLR

(PT. 379) 1295; Akinduro V. Alaya (2007) ALL FWLR

(Pt. 381) 1653; Eya & Ors V. Olapade & Anor, (2011) 6

SCM, 13; Michael Eyo V. Onuaha & Anor. (2011) 2

SCM 178; Audu Otukpo V. John & Anor, (2012) 6 SCM

149.

Learned counsel proceeded to argue that a plaintiff for a

declaration of title must prove his case not minding any

admission on the part of the defendant or default of

pleadings. Okonkwo V. Okonkwo (2010) 10 SCM 209.

That it was firmly established that the onus on the plaintiff

seeking declaration of title

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is to show clearly the area to which his claim relates. This

can be by oral description of the land in such a way that

any surveyor acting on such description can produce a plan

of the land he claims or by tendering a plan. Nwokidu &

Ors. v. Okanu & Anor. (2010) 1 SCM 126. Nwokorobia

V. Nwoqu & Ors (2009) 5 SCM 110 and Okworonkwo

v. Okworokwo Supra were referred to.

Counsel, relying further on Ekpemupolo & Ors. V.

Edremoda & Ors. (2009) 4 SCM 63. at 80 says the land

was not identified precisely and accurately.

That the record did not bear out the claim of counsel for

the appellant that the defendants and their witness

admitted knowing the land in dispute when Exhibit A, D &

F were tendered. That the defendants/respondent put the

identity of the land in dispute by their further amended

statement of defence and counter claim Paragraphs 8 and

31 on pages 169 - 177 of the record.

Additionally that fraud was pleaded and testified to by

PW3, PW5 and DW6. That parties who were defendants and

not before this Court now had put the identity of the land in

dispute and had tendered Exhibits 'G and 'M' as counter

plans

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disputing the plaintiff/appellants Exhibits A, D and F.

After a reference to a host of authorities the respondent’s

counsel urged that the identity of the land had not been

proved and the issue be resolved against the appellant.

ISSUES 3

On whether the trial Court granted more than what was

claimed by the respondent, it was argued that Exhibit M,

covering the land of Chief Emmauel Adeyemi Osuma was

tendered and without objection and in evidence as the land

counter claimed. That the Exhibit 'M' had proved the

boundaries of the land claimed. That the said Exhibit 'M'

also proved the area and or size of the land he

counterclaims with certainty.

Counsel argued that by his argument on his issue 'C' the

appellant had admitted/conceded that the respondent

tendered Exhibit 'M' which showed the land.

ISSUE 4

Whether from the totality of the pleadings and evidence on

record (oral and documentary) the counterclaim of the 2nd

defendant now respondent is statute barred, thus robbing

the Court of jurisdiction.

Counsel contended that the writ of summons and statement

would be looked at with a view to determining whether an

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action is statute barred and that in this case, it was the

counter claim which stood as an independent action

commenced by the counter/claimant as a plaintiff - Bilante

V. N. D. I. C. (2011) 8 SCM 40.

Counsel referred to Paragraphs 16,18,19 and 20 of the

statement of defence and counterclaim pages 171 -172 of

the record and submitted that the cause of action arose in

2005 by his pleadings. That the appellant had put paid to

that fact by his admission that "the whole transaction that

brought us here commenced in 2005."

That this admission under cross - examination sealed the

issue of the action being statute barred. Citing Godwin &

Ors. V. Okwey & Ors. (2010) 11 SCM.55: Anyanwoko v.

Okoye & Ors. (2010) 1 SCN 21 he prayed that this issue

be resolved in favour of the respondent.

ISSUE 5

Whether the refusal to ascribe probative value to the

testimonies of PW1, PW2, PW3, PW4 and PW5 had

occasioned a miscarriage of justice.

Learned counsel pointed out inconsistencies in the

evidence of the appellant and his witnesses and contended

that the trial judge was right in not placing weight on them.

ISSUE 6

Whether the

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respondent had acquiesced to the appellants possession of

the land, it was argued that the appellant having sued, it

presupposes that he was not in possession and therefore

was using the defence wrongly as a defence, rather than a

shield. He cannot while in possession use the defence of

long possession as a sword to found an action, but only as a

defence.

Atunrase V. Sunmola (1985) 1 NWLR (Pt. 1) 105 at

113, Kawu, JSC cited with approval the case of

Olayioye V. Oladeinde (1959) 1 ALL NLR 281 at 285

thus.. ''he was in error in employing the plea of long

possession as a sword instead party in long possession is

entitled to resist the claims of a rightful owner by pleading

long possession but understandably, he cannot make that a

basis of a claim in an action instituted at his instance for a

declaration of title as against the true owner".

There is no record of any grant by the respondent's father.

The evidence of PW1 and PW2, were said to contradict PW3

and PW4 and PW1 and PW2 contradict themselves and

were rightly held by the trial Court as unreliable. That the

trial judge observed the demenour of PW2 and his

utterances and rightly found that he

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had an axe to grind with 2nd defendant.

That PW2 was self contradictory and unreliable and that

PW1 and PW2 had an axe to grind with their blood brother,

the 2nd defendant.

Referring to the findings of the trial judge that PW1 would

have temptingly be relied upon particularly as to the

alleged grant to the plaintiff, but her admission that she did

not know how many plots of land were given to the plaintiff

by her father even though she purportedly witnessed the

grant, raised doubt whether she actually witnessed the

grant, as she could not identify the boundaries of the land,

nor identify Exhibits A, D and F.

That the trial judge was right in disregarding the evidence

of PW1 , PW2, PW3 and PW4 for having their interests to

serve and for their inconsistency and unreliability on

whether the judgment of the trial Court is against the

weight of evidence.

The learned counsel reviewed the evidence of all the

plaintiff/appellants' witnesses and agreed that the trial

Court rightly found them contradictory and unreliable. That

PW1 said she did not know how many plots her father gave

the plaintiff/appellant.

Appellant as PW3 in

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Cross examination gave damaging evidence that "my

mother had five of us and she gave me this land because I

took care of her" and in cross examination by counsel for

respondent - said his father who gave the land to me was

alive then.

Counsel referred to the different dimensions of the land

testified to and the admission of appellant that by simple

mathematics the land in Exhibits A and D have different

measurements and are different.

Counsel relying on the case of Olly v. Tunji (2012) ALL

FWLR (Pt. 654) 39 at 65 C - D submitted that self

contradictory evidence destroys the facts intended to be

proved.

Harping strongly on PW5 who was a surveyor called by

plaintiff, but who advised the Court not to rely on the

Exhibits A, D and F as they were fraudulent and not having

been re - examined even when the Court prompted, counsel

contends that the plaintiff/appellant's case was unproved

and he had no defence to the counter claim.

ON ISSUE 9

Whether there was a unilateral amendment of the reliefs of

the respondent and a descent into the arena of conflict by

the Court:

That the finding to that effect that plaintiff/appellant

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claimed the land as belonging to the Osuma Family as a

whole and not as a personal property and that he is the

head of the family had not be appealed against and

therefore deemed accepted. That the appellant had agreed

with this stand at the trial Court but now on appeal argues

differently.

Counsel therefore argued that where the pleadings and

evidence led in support of a case demonstrate conclusively

a representative capacity that trial Court can justifiably and

properly enter judgment for or against a party in that

capacity. Sapo & Anor. V. Sunmonu (2010) 6 SCM 204

at 220 D - E.

That the trial judge was therefore right to have entered

judgment for the entire members of the 2nd respondent's

family which the 2nd respondent is the head. Submitting

that facts are sacred and parties should not approbate and

reprobate, that the issue be resolved in favour of the

respondent.

ISSUE 10

Whether the appellant had successfully proved the alleged

grant of the land to him by the respondents' father to

warrant the grant of the claims sought by him.

The learned counsel reviewed and repeated the

submissions in a nutshell in the issues

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1 - 9 and urged that appellant did not prove the alleged

grant to him by the respondent's father. He therefore urged

that the issue be resolved in his favour and the trial

judgment be affirmed and the appeal dismissed.

Of course, as expected, the appellant filed an appellant's

reply brief dated 15/10/2015 and filed on 16/10/2015

By the said, reply brief, submitted that the preliminary

objection was incompetent as it had been raised and

decided at the trial Court; when the challenge was taken to

the competence of the motion for stay of execution filed by

the appellant/judgment creditor/plaintiff/respondent to the

counter - claim on the ground that the respondent ought to

include the other respondents. Who were not part to the

counter claim.

Referring to page 4 of the additional record of appeal which

is the ruling on the objection taken to the non joinder of the

1st and 3rd defendants to the motion as respondents and

the overruling thereof or dismissal of same on the ground

that the claim against 1st defendant had been dismissed

and 3rd defendant's counter claimed had also been

dismissed. They had not appealed and their journey in the

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case had ended.

The application for stay was in respect of the judgment in

the counter claim of the respondent wherein the 1st

defendants were not parties. Therefore, there was no

alteration of parties and objection rightly overruled.

However, the respondent contended that the ruling was a

finding that subsisted so long as there was no appeal

against it; that on the authority of the case of Onafowokan

V. Wema Bank Plc. (2011) ALL FWLR Pt. 585. Page

201 at 225. D - F and Oseni V. Bajolu (2010) ALL

FWLR Pt.511 Page 813 at 829. Paragraphs E - G. That

it was on attempt to reargue the issue through the back

door rather than through an appeal.

That the authorities cited were not apposite and

distinguishable. That the 1st and 3rd defendants who chose

not to appeal cannot be compelled or be made so by the

appellant and likewise that they cannot be made

respondents as the judgment was against them. That the

role of a respondent is to defend the judgment and that the

judgment was against the said respondent and how they

could cope as respondents was unimaginable, as they were

not interested in the appeal.

That the preliminary objection be

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dismissed with substantial costs.

On the merit of the appeal there was only a repeat of the

submission in respect of issues 1 and 9 on issues 2 on

identity of the land, it was contended that it was not

addressed by the respondent and should be deemed to have

been conceded on the authority of Bottling Industry

Limited v. Union Bank of Nigeria Plc. (2010) ALL

FWLR 510, Page 786 at 804 . Where this Court Benin

Division said "where a material point canvassed in an

appellants' brief is not contained in the respondent's brief,

the point is deemed to have been conceded to the

appellant.” Adeyeye & Anor. V. Governor, Ekiti State &

Ors. (2012) ALL FWLR Pt. 652. Page 1744 at 178

Paragraphs C - F

On issue 6 on laches and acquiescence, being used as a

sword rather than a shield, counsel said no more than that -

---"it was pleaded in the Appellant's reply to 2nd

defendant's amended statement of defence and defence to

counter claim''. On page 110/147 of the record.

That since the defence was pleaded in the appellant's

defence to counter claim, it will be misconceived to allege

that the defence was used as a sword. That the issue be

resolved in the appellant's favour.

I shall determine the

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preliminary objection first, as the issue of the competence

of a suit is a jurisdictional issue. This is because before a

Court can exercise jurisdiction in a case whether at the

trial or on appeal, it must have jurisdiction and the suit

must have come to it by due process of law and upon

fulfillment of any condition precedent to the exercise of

jurisdiction. Jurisdiction is a radical and crucial question of

competence once there is a defect in competence, It is fatal

and the proceedings are a nullity however well conducted

and decided. Tanko V UBA Ltd. per Adekeye JSC at

page 99 Paragraphs C – D (2010) 17 NWLR Part 1221

page 80 at 98. See also (1) Okem Enter. Nig. Ltd V.

Government of Gongola State (1989) 4 NWLR

(Pt. 117) 517

See also my contribution judgment in the unreported ruling

of this Court in Appeal No. CA/AK/98/2015, - Dangote

Integrated Steel Plc. V. Alhaji (PA) Salami Nasiru

Oyeniyi (Head of Sogbodede Royal Family of Oshogbo

(2) Alhaji (PA) Salami Mogaji Head of Lahanmi -

Oyepi (Royal Family of Oshogbo (3) Alhaji (PA) Ashiru

Oyewole (Head of Matanmi Royal family of Oshogbo)

Although the law is that a party intending to rely on a

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notice of preliminary objection must comply with the rules

of Court in that regard, such as by filing the copies of the

notice in the required number at the Court of trial or the

appellate Court see Oriorio Vs. Osain (2012) 16 NWLR

Pt. 1327. Page 569 at 578 Paragraphs D - H.

In the instant appeal, the objection relates to jurisdiction

and jurisdiction has been held to be the spinal cord of every

litigation and, once raised, it must be resolved before any

further step is taken in the matter. It is a thresh hold

matter. See Odedo V. INEC (2008) 17 NWLR Pt. 1117

Page 554: Oriorio V. Osaain (supra).

So it shall be considered no matter how it is brought to the

notice of the Court so long as the appellant is seized of the

objection as raised in the brief of argument filed by the

respondent.

There is no doubt that the appellant’s complaint is against

the judgment in suit No HOW/5/2008 delivered on 6th of

May, 2013 which dismissed in i ts ent irety the

plaintiff/appellants claims and allowed the counter claim of

the respondent herein respondent herein.

Any appeal against the composite decision as made in this

instance must reflect

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all the parties as sued at the trial Court i.e. in the 2 in 1

suit. In this wise, the 1st and 3rd defendants must be joined

as respondents for there to be a properly constituted

appeal against the decision in which they were parties and

had claims made against them or made by them. This is

absolutely so as, the findings made in their favour or

against them that led to the judgments cannot be altered

without them being heard.

To do so, will be in violation of their right of fair hearing, as

the relief sought in the appeal is to set aside the decision

entered in the suit involving the 1st and 3rd defendants

who have not been joined in the notice of appeal herein.

I agree with the respondent/preliminary objector,

therefore, when he argued that an appeal is a continuation

of the hearing at the trial Court. Where a party or parties

have not being withdrawn or struck out by the leave of

Court upon an application to that effect, he shall continue

to be a party to the suit as constituted by the Originating

process, which is the writ of summons.

The appellant as indicated in the notice of appeal i.e. the

new originating process being the

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aggrieved party is correctly reflected. This cannot however

be said in respect of the lone/sole sole respondent indicated

in the said notice of appeal. He may be the main

respondent and the other defendants may be thought to be

“Nominal” but must be so reflected, as in this matter, it

cannot be heard to say that they are not necessary and

desirable parties; reliefs against them having been sought.

The appellant wants the claim against them as trespassers

and injunction granted by setting aside the trial decision

that dismissed his claims against them inclusive of the

present appellant.

There is, therefore, no nexus shown between the notice of

appeal initiating the hearing culminating to this ruling and

the decision at the trial as regards parties. Shining Star

Ltd. Vs. Ask Steel Nig. Ltd. (2011) 3 SC 196 at 219, B

– D; see also Awoniyi V. Registered Trustees Amorc

2000 FWLR Pt.25. Page 592.

The appellant has curiously tried to raise an objection

within an objection. It is not the law that an objection can

be taken to an objection, such as a preliminary objection.

All that is known to law and practice is that an answer

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is proffered to an objection.

This s trange genre of object ion is , therefore

discountenanced, by me. The preliminary objection raised

is in order. Accordingly, I shall and do strike out the notice

of appeal in this suit as filed between the parties indicated

thereon as incompetent.

As a corollary, the proceedings and judgment arising

therefrom are set aside and quashed as the right of fair

hearing is a fundamental Constitutional right guaranteed

by the Constitution of the Federal Republic of Nigeria 1999

and a breach of it particularly in trials, vitiates such

proceedings rendering them null and void.

A hearing cannot be fair if any of the parties is refused a

hearing or denied the opportunity to be heard, present his

case call witnesses. See Military Governor, Imo State V.

Nwauwa (1997) 2 NWLR (Pt. 490) Pg. 675; Saley V.

Monguno (2003) 1 NWLR (Pt. 2003) 1 NWLR (Pt.

801) Page 221; Bamigboye Vs. University of Ilorin

(1999) 10 NWLR (Pt. 622) page 290 and Kotoye v.

CBN (1989) 10 NWLR (Pt. 98) page 419.

That is the natural effect of the non - joinder in this case.

This Court will have no jurisdiction to entertain the appeal

as relating

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to the main suit of the appellant at the trial that was

dismissed as the parties thereat as defendants have not

been joined in this appeal.

This Court can have no jurisdiction to determine and make

any order let alone the type sought by the appellant in

respect of that suit. Since, we cannot sever the appeal of

the appellant to deem the appeal as one against the

respondent alone as relating to his counter claim that was

allowed, the only reasonable order to make shall be one

striking out the appeal for the two claims are interwoven

and cannot be severed, hence the order. They were heard

in the one single proceeding. See Tanko V. UBA Plc.

(2010) 17 NWLR 80.

In addition, upon a perusal of the record of appeal, I note

that the grounds of appeal concern questions of facts and

issues of mixed law and fact as the appellants complaints

against the findings of facts or evaluations of evidence as

done at the trial Court. All those instances raise the issue of

facts or mixed law and facts. issue of facts is the crux and a

common denominator in all the ground of the appeal.

In accordance with Section 243 of the Constitution of the

Federal Republic

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of Nigeria, 1999, leave of the trial Court or the Court ought

to have been secured before appealing as the appeal would

not have been as of right, in view of the grounds there of.

See Opuipyo V. Omoniwari (2008) 156 LRCN 229 Page

240.

Accordingly, the appeal must be and is hereby struck out.

Notwithstanding my order striking out the notice of appeal

and appeal, for incompetence and consequential lack of

jurisdiction in this Court; I am mindful that as an

intermediate Court and not being the final Court, the

decision of this Court on the basis of jurisdiction or

incompetence of an appeal should not make me to end or

terminate the matter, as after all the Supreme Court could

review it to a contrary view.

I shall, therefore, proceed in brief to consider all the issues

as argued by the appellant on their merit. Before I set sail,

it must be understood that it is elementary law that a

plaintiff has the burden to prove the reliefs sought in the

statement of claim for him to obtain judgment in his favour.

This burden does not shift. This is because he is the party

who claims the reliefs in the statement of claim and so the

onus pro

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bandi rests upon him. He must prove the affirmative

content of his statement of claim.

Our adjectival law is as strict as that; see Okechukwu and

Sons V. Ndah (1967) NMLR 368: Elemo V. Omolade

(1968) NMLR 359: Frempong II V. Erempong II

(1952) 14 WACA 13: and a host of cases referred to with

approval in A. G. Anambra V. AG Federation (2005) 131

LRGN 2282 - 2584.

The burden of the plaintiff is however limited to the live

issues which will determine the case one way or the other.

In other words the plaintiff has no duty to prove issues

which are not in any way related to the reliefs sought in the

statement of claim as such issues are seen as merely

gallivanting in the pleadings and to no issue. See

AG Anambra V. AG Federation (Supra).

On issue one, it is my view that there was no unilateral

amendment of the reliefs claimed at the trial Court in the

counter claim. Evidence emerged at the hearing and which

was in line with the pleadings of the respondent that he

defended the suit and also counter claimed on behalf of the

Osuma Family in respect of the family property.

In the circumstances, therefore, there is no basis for this

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contention to the contrary in his issue one as argued.

The Osuma family could not have appeared in Court as an

entity as suggested by the appellant's counsel, as that

would have been an impossibility. A corporation aggregate

as in the nature of a family can only act by or defend

through representatives so authorized and approved by the

Court.

The respondent had so done and was allowed without any

objection at the trial Court. It is rather too late in the day to

now complain.

Nonetheless, the law is that once evidence led shows

indisputably that the respondent defended in a

representative capacity, judgment for or against may be

entered in that capacity. See Mbanfor V. Molokwu 2014

ALL FWLR (Pt. 742) 1665 at 1681. BC; Supo &

Anor Vs. Sunmonu (2010) 2 SCM 204 and a host of

other cases in line as cited by the respondent's counsel in

his address.

Appellant's counsel had in his written address admitted

that the respondent defended and counter claimed in a

representative capacity. What better facts are needed for

the trial Court to arrive at the conclusion that the relief was

sought against the Osuma family whilst the relief in the

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counter claim was for the benefit of the said Osuma family?

See pages 178 - 192 of the record of appeal. This issue is

resolved in favour of the respondent.

On the issue of identity of the land as claimed by the

plaintiff/appellant herein, that is issue 2, it is obvious that

the respondent had put the identity of the land in dispute

by his further amended statement of defence and counter

claim. See Paragraphs 8 and 31 on pages 169 - 177 of the

record. He pleaded fraud and testified thereto by PW3,

PW5 and in particular PW6.

Exhibits 'G' and 'M' were counter plans tendered by

parties, i.e the defendants who are not parties in this

appeal now, showing the land as being different from what

the appellant claimed. Exhibits 'A', 'D' and 'F' tendered by

the appellant are contradictory in the dimension of the land

claimed and as against the respondent who tendered

Exhibit 'M' showing the entirety of the land, which

appellant agreed was claimed by the respondent.

In the law of real property, there is no doubt that difficulty

in establishing the identity of the land in dispute has always

been the bane of otherwise successful

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claims.

The appellant's claim to a specific land having been denied,

it was encumbent for him to have a survey plan that

showed clearly and specifically the land claimed and its

boundaries. See Epi V. Aigbedion (1973) NMLR Page

31 at 35 if the land is a vacant land, it is desirable to have

a plan to show the portion. See Ibuluya V. Dikibo (1978)

1 ALL NLR Page 395 at 408.

The appellant said the parties and their witnesses knew the

land in dispute. However, the boundaries have not been

testified to and the Exhibits tendered by him, have been

shown to be contradictory and allegedly a fraud. How, then

can the Court hold that the identity of the land had been

proved?

A party wins on the strength of his case and therefore the

failure to prove the identity of the land claimed disentitles a

claimant to a declaration of title and/or damages in

trespass and injunction. These were the claims or reliefs

sought by the appellant.

As I stated in Karimu V. Lagos State Government

(2012) 1294 5 NWLR part 1295, Page 620 the lack of

proof of the identity of the land made it impossible for any

declaration or injunction to issue.

Issue No. 2

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resolved in favour of the respondent.

ISSUE 3

The respondent defended and counter claimed in a

representative capacity. The evidence copiously disclosed

that fact. The counter claim was proved strictly and the

Court had the jurisdiction to enter judgment for the counter

claimant/respondent as the land was clearly proved by the

counter claimants Exhibit 'M' and his root of title was

traced to his father whom the appellant acknowledged. He

had a herculean task to dislodge the respondent's title in

the circumstances.

I agree with the respondent that the appellant did not

prove his root of title. The purported grant to the appellant

by the respondent's father, was demolished as the identity

of the land granted was not shown.

The Pw1 could not show the land despite allegedly being an

eye witness to the grant; so also all other witnesses called

by the plaintiff/appellant.

There was also a contradictory evidence of a grant by

plaintiffs father and also a gift purportedly made by the

appellant's mother of the same land.

The documents in proof of the land and its size were shown

to be forgeries and unreliable. The amorphous

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root of title could not be said to have been proved,

therefore.

Issue 4 is resolved against the appellant.

On issue 5 there was no proof of grant as all the evidence

in that regard had been demolished.

Whilst it is correct that the correct procedure is to

demolish a witness's evidence by cross - examination rather

than calling a witness to testify to the contrary, as that will

not be an effective rebuttal but be taken as admitted,

however, the preponderance of evidence in demolition of

the appellant's case overwhelmed the self destruct case

built by him.

ISSUE 6

The learned counsel for the appellant had contended that

the respondent had acquiesced to the plaintiff/appellant

possession of the land. I do not agree.

The appellant was the claimant and not a defendant and

cannot raise the defence of acquiesce as a sword. He could

only use it as a defence, as he claimed he did to the counter

claim. But could he do that in the circumstances?

Trespass, being a continuing act in the circumstances of

the occupation that only became an issue in 2005 when the

respondent sued the appellant and others over the land, the

cause

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of action only arose then and was not limited by time yet,

nor could the respondent be said to have acquiesced as he

complained before taking out his action. His suit preceded

the appellant's claim (suit), the precursor of this purported

appeal.

ISSUE 7

The appellant had argued that on the totality of the

evidence led, he had made out a case whilst the judgment

was against the weight of evidence.

The totality of the evidence led by the appellant at the trial

was largely self defeating such that his claims could not be

made out; to the contrary there was a self destruct

evidence led that was rightly evaluated by the trial Court.

ISSUE 8

The counter claim was simply proved with ease as it had no

serious challenge thereto.

In the circumstance, I do not find any reason to interfere

with the findings and conclusions leading to the judgment

complained against.

Technicality shall not take over or be allowed to defeat

justice. See Tsokwa Motors Ltd. V. UBA Plc.(2008) SC

1.

The appellant's learned counsel propped up some isolated

principles of law and suppositions/ assumptions and argued

thereon; such as the

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fact that he had written a letter of gratitude to the

respondent’s father expressing gratitude for the grant of

the disputed land and wondered why the original was not

tendered by the respondent, the respondent shall suffer no

peril as the duplicate had not been tendered In the face of

the failure to tender the original. Secondly, the said letter

was not a document of title or letter of grant.

It is therefore not necessary for this Court to consider all

matters raised and argued which are not issues material to

the proof of the appellant’s claim or defence as made.

Indeed matters or issues that only gallivant and do not

determine the appeal are not necessary issues and may not

be considered. They may be safely and rightly jettisoned.

However, the material issues relevant for the determination

of this appeal have been sufficiently addressed, in my

humble view. I shall stop here.

Although a Court has no jurisdiction to embark on an

advisory expedition but it may make remarks as I shall do.

The suit leading to this appeal is a family matter that

appears to have been triggered by perceived ego - flexing

and hurt feelings over

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manners of relationship and supposed over stepping of

bounds.

Home grown resolutions are not impossible for these

parties who are family relations, as disclosed by the

evidence led and on record.

The essence of law is to build a harmonious and safe

society, and not to break bonds. Alternative dispute

mechanism may be explored after all is said and done.

Nevertheless, in view of my resolutions of the issues as

made, I hold that the appeal lacks merit; however, for the

incompetence of the appeal, herein, as resolved relating the

preliminary objection, I should rather strike out the appeal.

See my decision in Appeal No. CA/B/288/2006 Between

CHIEF M. I. KUDEHINBU & ANOR VS. MR. NEWTON

OLUWOLE & ORS. Delivered on Friday 6th May, 2016.

Accordingly, Appeal No. CA/AK/16/2014 between Chief

(Senator) Remi Okunrinboye and Chief Kofo Aderemi

Osuma is hereby struck out for being incompetent.

Parties to bear their respective costs of prosecuting and

defending the paralytic appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read before

now in draft the judgment just delivered by my learned

brother Mohammed A.

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Danjuma, JCA. The issues raised in this appeal were dealt

with and effectively resolved. For the reasons contained in

the lead judgment, I too strike out the appeal for being

incompetent.

I abide by the consequential order(s) contained therein

including order as to costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in

draft the lead judgment just delivered by my learned

brother Danjuma, JCA. He has exhaustively dealt with the

issues for determination.

For the reasons contained in the lead judgment, I too strike

out the appeal.

I abide by the order as to costs

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