3PLR – BELLO MUSA MAGAJI V. ALHAJI ISHOLA ARE OGELE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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BELLO MUSA MAGAJI

V.

ALHAJI ISHOLA ARE OGELE

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 9TH DAY OF JULY, 2012

CA/IL/23/2011

3PLR/2012/16 (CA)

 

OTHER CITATIONS

(2012) LPELR-9476(CA)

 

BEFORE THEIR LORDSHIPS

IGNATIUS IGWE AGUBE, JCA

GEORGE ITA MBABA, JCA

OBANDE OGBUINYA, JCA

 

BETWEEN

BELLO MUSA MAGAJI (Substituted for Alhaji Bami Budo-Nuhu) – Appellants

AND

ALHAJI ISHOLA ARE OGELE – Respondents

REPRESENTATION

I.O. Atofarati, Esq., (with him, S.O.Q. Giwa, Esq.,) – For Appellant

AND

Adeola Omotunde, Esq., (with him, F. Falodun, Esq) – For Respondent

 

ORIGINATING STATE

 

CONNECTED AREAS OF PRACTICE

  1. Real Estate Law

 

MAIN ISSUES

 

 

APPEAL– when an appellate court will interfere with the concurrent findings of facts by lower courts- what a miscarriage of justice denotes

 

 

CONSTITUTIONAL LAW– whether cross-examination of witness of an adverse party is an inviolable constitutional right of a party to fair hearing

 

 

LAND LAW– duty of a party who seeks for declaration of title or right of occupancy to any land- methods of proving title to land- what respondent must prove in relying on traditional history – whether slavery can serve as a viable shield or defence to a lawfully acquired title over land-whether a defence of jus tertii can be used to defeat a grantor’s title in land- when the court should apply the principle of law evolved in the case of Kojo II vs. Bonsie- what forfeiture is- customary tenant’s acts of misbehaviour that will ground or attract forfeiture

 

 

LATIN MAXIMS– nemo dat quod non habet- expressio unius est exclusio alterius or inclusio unius est exclusio alterus or enumeratio unius exclusio alterus

 

PRACTICE AND PROCEDURE– COURT- duty to evaluate relevant and material evidence- whether a court of law is at liberty to act and rely on evidence of a party that is not refuted by an adversary

 

 

PRACTICE AND PROCEDURE– EVIDENCE- when a document is admissible or inadmissible- whether a court has the permission of the law to use any available documentary evidence as the barometer to decide the veracity of the conflicting evidence of two adverse parties in a proceeding –who puts questions under cross- examination- whether evidence given by a witness in a previous proceeding is relevant in a subsequent proceeding for proving the truth of the facts it stated- whether court can take judicial notice of a question of law

 

 

PRACTICE AND PROCEDURE -INTERPRETATION OF SECTIONS- section 4(2) of the Area Court Law, Cap, A9, Laws of Kwara State, 2006- sections 39(1) (a) and 41 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004

 

 

PRACTICE AND PROCEDURE -JUDGMENT- purport of a decision being against the weight of evidence –when a verdict of a court is perverse- when to invite the doctrine of stare decisis

 

 

PRACTICE AND PROCEDURE -JURISDICTION- ingredients of jurisdiction – duty of a party who challenges the jurisdiction of a court -whether appellant should raise the issue with the leave of court -whether parties to any proceedings can bestow jurisdiction on a court of law where none exists or expand or shrink a court’s jurisdiction

 

 

WORDS AND PHRASES-slavery

 

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  1. LEAGAL MAXIM – “NEMO DAT QUOD NON HABET”: Meaning of the legal maxim “nemo dat quod non habet”

“…nemo dat quod non habet, no one gives out what he does not have, see Famuroti vs. Agbeke (supra); Ashiru vs. Olukoya (2006) 11 NWLR (Pt. 990) 11; Ibrahim vs. Osunde (2009) 6 NWLR (Pt. 1137) 382; Omiyale vs. Macaulay (2009) 7 NWLR (Pt. 1141) 597.” Per OGBUINYA, J.C.A. (P. 107, paras. D-F)

 

  1. EVIDENCE – ADMISSIBILITY OF DOCUMENTARY EVIDENCE: When a document is admissible in evidence in any proceedings

“To begin with, admissibility is a rule of evidence and a document is admissible in evidence in any proceedings if it is relevant. In other words, relevancy is the meat of admissibility of evidence in addition to it being pleaded and admissible under the law, See Nwabuoku vs. Onwordi (supra); Avong vs. KRPC Ltd (supra); Abubakar vs. Chuks (supra). I have given an intimate study to those exhibits, P1, P5 – P11, which are all judgments and processes of various courts made at one point in time or the other. Some of them trace their roots directly to the land in dispute. The others relate to adjourning lands wherein the respondent’s family was either a party or involved in their alienation. It means that those exhibits, to all intents and purposes, are proximately connected to the fact in issue-who, as between the appellant and respondent, owns the disputed land, Budo Nuhu. In the common legal parlance, those exhibits, though not the fact in issue, are facts relevant to the fact in issue in that they are so linked to the said fact in issue thereby constituting one whole transaction even though they occurred at different times, not contemporaneously. Also, they are, in one way or the other, the immediate or remote cause of the relevant facts or fact in issue which afforded an opportunity of their happening and so qualify as relevant facts, see sections 7 and 8 (now sections 4 and 5) of the Evidence Act; Abubakar vs. Chuks (supra). In a nutshell, some of those exhibits were forerunners of the fact in issue while others occurred contemporaneously or concurrently with the existence of the fact in issue. These dissected hallmarks of those exhibits make them connected to the fact in issue, who owns the disputed land, and are, de jure, relevant documentary evidence.” Per OGBUINYA, J.C.A. (Pp. 90-91, F-G)

 

  1. EVIDENCE – ADMISSIBILITY OF DOCUMENTARY EVIDENCE: Whether where an inadmissible documentary evidence is admitted, even without opposition from an adverse party, a Court which received it in evidence and an Appellate Court have the power, or duty, to reject and expunge the inadmissible evidence at judgment stage and on appeal respectively

“Nevertheless, before I venture to look at the mainstay of the issue, it is remarkable to observe that the appellant, at the cradle of the issue, conceded, a good sense of advocacy to behold, that the trial court which admitted those documentary evidence, exhibits P1, P5 – P12, is not bound by the provisions of the Evidence Act. The concession, an undiluted one, is in accord with the law grounded on the provision of section 1(2) (c) (now section 256(1) (c)) of the Evidence Act, see Kuusu vs. Udom (1990) 1 NWLR (Pt. 127) 421; Nuhu vs. Ogele (2003) 18 NWLR (Pt. 852) 251. This admission is sufficient to do away with the issue without much ado. Nonetheless, I will treat the inadmissibility or otherwise of those documents in relation to the grounds mentioned by the appellant. The rationale behind it is clear. The law is that where an inherently inadmissible evidence, which encompasses documentary evidence, is admitted, even without opposition from an adverse party, a court which received it in evidence and an appellant court have the power, or duty, to reject and expunge the inadmissible evidence at judgment stage and on appeal respectively because a court of law acts only on legal evidence, see Abubakar vs. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar vs. Chuks (2007) 18 NWLR (Pt. 1066) 386. In keeping with this cardinal rule of law, I will sieve or winnow those exhibits, sought to be impugned, with a view to ascertaining which are admissible or inadmissible.” Per OGBUINYA, J.C.A. (Pp. 89-90, paras. C-C)

 

  1. EVIDENCE – CONFLICTING EVIDENCE: Whether where two adverse parties in a proceeding render contradictory evidence/testimonies, a Court can use any available documentary evidence as the barometer to decide the veracity of the conflicting evidence

“Where two adverse parties in a proceeding render testimonies that are antithetical to one another, a court has the permission of the law to use any available documentary evidence as the barometer to decide the veracity of the conflicting evidence. The raison d’etre for this principle is rooted in the permanent and indestructible nature of documentary evidence as against the ephemeral oral evidence that issue out from the vocal cord of man. In the process of using documentary evidence as a hanger, a witness whose evidence is buttressed by it is credited as a truthful witness and vice versa, that is, the evidence unsupported by it is taken as half-truth, see Ogbe vs. Asade (2009) 18 NWLR (Pt. 1172) 106; Jinadu vs. Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55; Jolasun vs. Bamgboye (2010) 18 NWLR (pt. 1225); Mil. Gov., Lagos State vs. Adeyiga (2012) 5 NWLR (pt. 1293) 291.” Per OGBUINYA, J.C.A. (P. 105, paras. A-E)

 

  1. EVIDENCE – CROSS-EXAMINATION: Proper party to put questions to an adversary’s witness under cross-examination

“In law, it is the cross-examiner, invariably, learned counsel for an opposing party, who puts questions, using documents for the purposes of this case, to an adversary’s witness under the fire of cross-examination- a noble art which constitutes a legal instrument in the arm of an opponent for demolition of an adversary’s case. It is never the law that a witness should ask himself questions during cross-examination.” Per OGBUINYA, J.C.A. (P. 95, paras. D-F)

 

  1. JUDGMENT AND ORDER – DECISION OF COURT: Purport of a decision of Court being against the weight of evidence

“The purport of a decision being against the weight of evidence was, graphically, captured in the case of Mogaji vs. Odofin (1978) 4 SC 91 AT 93, when Fatayi – Williams, JSC (as he then was) opined: “When an appellant complains that a judgment is against the- “weight of evidence, all he means is that the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.” See, also, Anyaoke vs. Adi (1986) 3 NWLR (Pt. 31) 731 at 742; Akinlagun vs. Oshoboja (supra); Nwokidu vs. Okanu (supra).” Per OGBUINYA, J.C.A. (P. 117, paras. D-G)

 

  1. LAND LAW – DEFENCE OF JUS TERTII IN LAND LAW: Whether the defence of jus tertii can be used to defeat a grantor’s title in land

“As can be deciphered from the appellant’s evidence, apart from claiming ownership of the land, he raised two legal defences. The one was that the land belonged to a third party, Mogaji Baboko, and not the respondent. In the common legal parlance, the appellant raised a defence of jus tertii which, in land law, cannot be used to defeat a grantor’s title in land, see Jinadu vs. Esuronbi – Aro (2009) NWLR (Pt. 1145) 55.” Per OGBUINYA, J.C.A. (P. 114, paras. B-D)

 

  1. EVIDENCE – DOCUMENTARY EVIDENCE: Effect of a document made pendelite, during the pendency of a suit

“The appellant picked holes in exhibit P 12 – that it is a document made during the pendency of the respondent’s matter and so null and void. In this perspective, the provision of section 91(3) and (4) (now section 83 (3) and (4)) of the Evidence Act is of note. That, clear and unambiguous, provision has been construed, in a volley of cases, to mean that a document will become inadmissible in any proceedings if it was made by a person interested in that proceeding and at a time it was pending or anticipated, see Bamgboye vs. Olusoga (supra); Ugwu vs. Ararume (2007) 18 NWLR (Pt.1048) 367; Owie v. Ighiwi vs. Ighiwe (2005) 5 NWLR (pt. 917) 184; N.S.I.T.F.M.B. vs. Klifco Nig. Ltd. (2010) 13 NWLR (Pt. 1 211) 307.” Per OGBUINYA, J.C.A. (P. 96, paras. B-E)

 

  1. EVIDENCE – EVALUATION OF EVIDENCE: Primary duty of a Trial Court to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by parties in a matter having regard to their pleadings

“It is trite law that a trial court, like the one here, has the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by parties in a matter having regard to their pleadings. In doing that, the court must demonstrate how and why it arrived at its findings of fact and final determination of the issues before it. The court has to be wary and understand the wide gulf between summary or restatement of evidence and evaluation of evidence as the latter denotes assessment or appraisal of evidence and giving probative value to them. A trial court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. It, then, weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, See Mogaji vs. Odofin (supra); Oyekola vs. Ajibade (supra); Olagunju vs. Adesoye (2009) 9 NWLR (Pt. 1146) 225 at 263; Oyewole vs. Akande (2009) 15 NWLR (Pt. 1163) 119 at 147; Ayuya vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei vs. Adebayo (2012) 3 NWLR (Pt. 1288) 534.” Per OGBUINYA, J.C.A. (Pp. 101-102, paras. E-C)

 

  1. EVIDENCE – EVIDENCE IN A PREVIOUS PROCEEDING: When evidence in a previous proceeding can only be used

“By virtue of the provision of section 34(1) ((now section 46 (1)) of the Evidence Act, evidence given by a witness in a previous proceeding is relevant in a subsequent proceedings for proving the truth of the facts it stated when such witness is dead or cannot be found or is incapable of giving evidence or kept out of the way by the adverse party, or when his presence cannot be secured without unreasonable amount of delay or expense, provided the proceeding was between the same parties, the witness was cross-examined by the adverse and questions in issue were the same in the two proceedings. The provision has been interpreted to mean that evidence in a previous proceeding can only be used in a later one to cross-examine the witness who gave it as to his credit, but not for any higher value, see Odusote vs. Mil Gov. Ogun State (supra); Sanyaolu vs. Coker (supra); Ikenyi vs. Ofune (supra); Shanu vs. Afribank (Nig) Plc (supra/(2002) 17 NWLR (pt. 795) 185; Yusuf. Vs. Adegoke )(2007) 11 NWLR (Pt. 1045) 332; Dada vs. Bankole (2008) 5 NWLR (Pt. 1079) 26; Elegushi vs. Oseni (2005) 14 NWLR (Pt. 945) 348.” Per OGBUINYA, J.C.A. (Pp. 99-100, paras. C-A)

 

  1. LAND LAW – EVIDENCE OF RECENT ACTS OF POSSESSION AND OWNERSHIP: Whether Court can resort to other evidence of recent acts of possession and ownership to help it reach a decision on which side to believe where the traditional histories presented by both warring parties are inconclusive

“More than that, I have reached a finding that the traditional history, usually based on hearsay, of the respondent is more probable than that of the appellant owing to other pieces of evidence that back it up. The corollary of that, which I even found earlier, is that the traditional evidence of the appellant is contradictory and incoherent rendering it most improbable. As I have found the traditional history of the respondent is more probable or plausible, I am no longer compelled by law to visit the hallowed principle of law evolved in the case of Kojo II vs. Bonsie (supra). This is because a court is impelled to apply that ageless principle when the traditional histories presented by both warring parties are inconclusive and it is in a fix as to which to accept. Where such scenario plays out, it will resort to other evidence of recent acts of possession and ownership to help it reach a decision on which side to believe, see Nwokidu vs. Okanu (2010) 3 NWLR (Pt. 1181) 362; Momoh vs. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ogun vs. Akinyelu (2004) 18 NWLR (PT. 905) 362. Irrespective of all these, since this court is the penultimate court in the judicial ladder in this country, I will proceed to consider other evidence of recent acts of possession and ownership which the evidence demonstrate. The object of this exercise is simple. It will afford the Supreme Court, on appeal to it, the opportunity of having the benefit of the view of this court on recent acts of possession and ownership in case it has a contrary view point on traditional history. That will save the scarce judicial time and costs for the court and parties alike. It is imperative to emphasise that the respondent was/is in effective possession of the land. By exhibits P12 and DX3, the respondent rented parts of the land to other people meaning that he is, certainly, in de jure possession even though he is not in de facto or physical possession of the land, see Ezeukwu v. Ukachukwu (supra); Tanko vs. Echendu (2011) 18 NWLR (Pt. 1224) 253. Also, the evidence of the appellant’s witness, DW3, that he built a house on the land 40 years ago peters out in the face of the respondent’s proof that he had been in possession thereof for over 160 years ago. With that de jure possession, the burden shifted to the appellant, under the provision of section 146 (now section 143) of the Evidence Act, to show that the respondent is not the owner of the disputed land, see Dada vs. Bankole (2008) 5 NWLR (Pt.1079) 26. The appellant failed to discharge that burden, saddled upon him by law, thereby making the respondent hold an ace over him on the ownership of the land.” Per OGBUINYA, J.C.A. (Pp. 108-110, paras. G-E)

 

  1. LEGAL MAXIM – EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS OR INCLUSIO UNIUS EST EXCLUSIO ALTERUS: Meaning of the principle of law embodied in the legal maxim “expressio unius est exclusio alterius or inclusio unius est exclusio alterus or enumeratio unius exclusio alterus”

“…the principle of law embroidered and weaved in the legal maxim. expressio unius est exclusio alterius or inclusio unius est exclusio alterus or enumeratio unius exclusio alterus – the expression of one thing is the exclusion of another, See Ehuwa vs. O.S.I.E.C. (2006) 18 NWLR (Pt. 1012). 544 at 568 – 569.” Per OGBUINYA, J.C.A. (P. 88, paras. B-C)

 

  1. CONSTITUTIONAL LAW – FAIR HEARING: Whether cross-examination of witness of an adverse party is an inviolable Constitutional right of a party to fair hearing

“…cross-examination of witness of an adverse party is an inviolable constitutional right of a party to fair hearing as guaranteed in section 36(1) of the 1999 Constitution, as amended, which constitution the law compels every court, including the trial court, to observe any of its provisions to the letter, see Nuhu vs. Ogele (supra).” Per OGBUINYA, J.C.A. (P. 94, paras. E-G)

 

  1. LAND LAW – FORFEITURE: What are customary tenant’s acts of misbehaviour that will ground or attract forfeiture

“A customary tenant’s acts of misbehaviour that will ground or attract forfeiture include, but not limited to, (a) refusal to pay rent or tribute; (b) refusal to provide the customary services stipulated; (c) use of land for a different purpose; or (d) denial of title of the overlord, see, Akpgbue vs. Ogun (supra); Akinlagun vs. Oshoboja (supra); Ogun vs. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Elegushi vs. Oseni (2005) 14 NWLR (Pt.945) 348; Adedeji vs. Oloso (2007) 5 NWLR (Pt. 1026) 133; Iroagbara vs. Ufomadu (2009) 11 NWLR (pt. 1153) 587.” Per OGBUINYA, J.C.A. (Pp. 112-113, paras. G-B)

 

  1. LAND LAW – FORFEITURE: What is forfeiture in customary tenancy relationships

“Forfeiture is a mantra in customary tenancy relationships. “Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner’s land, tenements or hereditaments, whereby he loses all his interest therein, as a recompense for the wrong which either he alone, or the public together with himself, has sustained”, see Akinlagun vs. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 89, per Tobi JSC. In a more compressed or succinct form, forfeiture is, “The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”, see Black’s Law Dictionary, Seventh Edition, Page 661.” Per OGBUINYA, J.C.A. (P. 112, paras. C-F)

 

  1. LAND LAW – GRANT AND SETTLEMENT OVER LAND: Distinction between grant and settlement with respect to title to land

“It is not lost on this court that the respondent founded his root of title on grant, as distinct from settlement, which “comes from a previous title holder to a subsequent one called a grantee”, see Kode vs. Yusuf (2001) 4 NWLR (Pt. 703) 392 at 409, per Onu, JSC and Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332.” Per OGBUINYA, J.C.A. (Pp. 107-108, paras. F-A)

 

  1. APPEAL – INTERFERENCE WITH CONCURRENT FINDINGS OF FACTS BY LOWER COURTS: Special circumstances an appellant must establish for an Aappellate Court will interfere with the concurrent findings of facts by Lower Courts

“For an appellate court to interfere with the concurrent findings of facts by lower courts, the appellant complainant must show that: the findings were perverse, there was a clear error of law and facts, there was a violation of some principles of law or procedure or there was a miscarriage of justice, see Odunukwe vs. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Harka Air Serv. (Nig) Ltd. vs. Keazor (2011) 13 NWLR (Pt. 1264) 320; Torri vs. National Park Service of Nigeria (2011) 13 NWLR (Pt. 1264) 365; S & D Const. Co. Ltd. vs. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Wachukwu vs. Owunwanne (2011) 14 NWLR (Pt. 1266) 1; Momoh vs. Umoru (supra).” Per OGBUINYA, J.C.A. (P. 118, paras. D-G)

 

  1. APPEAL – INTERFERENCE WITH FINDINGS OF A TRIAL COURT: When an Appellate Court will interfere with the findings reached by a Trial Court

“As a prelude, a necessary one at that, an appellate court does not form the habit of interfering with the findings reached by a trial court save in exceptional circumstances where the inferences drawn from established facts are wrong or the finding does flow from the evidence adduced, see Okoye vs. Obiaso (supra); Yusuf vs. Adegoke (supra); Momoh vs. Umoru (2011) 15 NWLR (Pt. 1270) 217.” Per OGBUINYA, J.C.A. (P. 101, paras. B-D)

 

  1. COURT – JURISDICTION: Whether for issue of jurisdiction of Court, the need for leave to raise it does not usually arise

“By force of law, I will first tackle, frontally, the first issue in that it borders on vitriolic attacks on the jurisdiction of the trial court to hear the matter in inito because one of its Judges was disqualified and the subject matter being outside its competence. Before I delve into the meat of the first issue, it is my bounden duty, laden me on by the law, that I take the objection of the respondents on the competence of that issue, see FBN Plc vs. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; A. G. Rivers State vs. A. G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31. The respondent, at the dawn of his arguments, raised objection to the competence of the first issue on the main ground that the appellant ought to have obtained leave of court to raise it since it consisted of fresh evidence. It is axiomatic; as shall further unfold anon, that the points the appellant raked up under the issue, that one of the Judges of the trial court was disqualified and that the land is outside its territorial area of jurisdiction, are clear issues of jurisdiction. Being issues of jurisdiction, the law is settled as to whether or not the appellant should raise it with the leave of court. In the case of Moses vs. State (2006) 11 NWLR (Pt. 992) 458 at 503, a similar objection was raised, and the Supreme Court, per Ogbuagu, JSC, ruled: “The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained…. Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.” Also, the cases of Elugbe vs. Omokhafe (supra); Gaji vs. Paye (supra); Owners of M/V Gongola Hope vs. S.C. (Nig) Ltd (2007) 15 NWLR (Pt. 1056) 189, U.T.B. Ltd vs. Dolmetsch Pharm (Nig) Ltd (2007) 19 NWLR (Pt. 1013) 187; Aderibigbe vs. Abioye (2009) 10 NWLR (Pt. 1150) 592 and Agbiti vs. Nigeria Navy (2009) 10 NWLR (Pt. 1236) 175 are, totally, in point here. In the objection, the respondent placed, high premium on the case of Jov vs. Dom (supra)/(1999) 1 NWLR (Pt. 620) 538 at 547 to ram home his point. The decision of the Supreme Court in that case is that leave must be obtained to raise issue of jurisdiction. That decision is diametrically opposed to that in the aforementioned authorities, on the point at stake only, decided by the Supreme Court too. It is trite law, that where the decisions of the Supreme Court are irreconcilable, this court or any other lower court on the rungs of the judicial ladder in this country, will follow the one that is later in time, see Osakue vs. FCE, Asaba (2011) 10 NWLR (Pt. 1201) 1; Mpedem vs. Udo (supra). Indubitably, Jov’s case, which was decided in 1999, is older in judicial age to the other set of authorities. In due obeisance to this cardinal principle law, that later in time decisions take dominance and prominence, I will, without option anchored on the doctrine of stare decisis, adopt the decision in the more recent authorities adumbrated above, id est) that no leave of court is required to raise any issue of jurisdiction. At any rate, the issue was raised before the lower court contrary to the contention of the respondent. In this wise, I am fortified by the correct finding of the lower court, on page 402, lines 14 – 23 of the record, to the effect that for issue of jurisdiction the need for leave to raise it does not usually arise. I must add, pronto, that it is a misconception of the law, with due respect, for the respondent to classify the appellant’s issue one as fresh evidence that necessitates permission of this court to present it. The said issue one is miles away from fresh evidence that cannot be placed before this court without its permission sought and obtained. It flows from the foregoing that the appellant’s issue one, sought to be decimated in limine, sits pretty before this court. It is an issue touching on jurisdiction for which the appellant, with the, mandate of the law, has the unbridled liberty to raise it as of right in any court of law, be it the Supreme Court. This is because, jurisdiction, the power or authority of a court to hear a matter, is the linchpin, spinal cord, heart or lifeline of any adjudications. It is to adjudications what oxygen is to mammals. Any defect in jurisdiction of a court, no matter how infinitesimal and the quantum of dexterity and diligence invested in a case, is, inescapably, marooned in the web of nullity.” Per OGBUINYA, J.C.A. (Pp. 75-78, paras. G-F)

 

  1. COURT – JURISDICTION: Duty of a party who challenges the jurisdiction of a Court to entertain a matter to establish that the Court is stripped of the requisite jurisdiction

“The law is that a party who challenges the jurisdiction of a court to entertain a matter has the burden to establish that the court is stripped of the requisite jurisdiction, see Our Line Ltd vs. S.C.C. (Nig) Ltd (supra).” Per OGBUINYA, J.C.A. (P. 82, paras. E-F)

 

  1. COURT – JURISDICTION: Ingredients of jurisdiction of Court; effect of any defect

“In the case of Madukolu vs. Nkemdilim (supra)/(1961) 2 NSCC 374 at 379/(2006) 2 L.C. 208, a locus classicus on jurisdiction, the Supreme Court, per Bairamian F.J’., evolved the ingredients of jurisdiction in these illuminating words: “Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when:- 1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and 2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and. 3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of its jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity.” These ingredients of jurisdiction, chronicled in Madukolu’s case (supra), which must co-exist in any matter, have been applied and restated in a galaxy of judicial authorities in the Nigerian legal system, see DENR Ltd. vs. Trans International Bank Ltd (supra); WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270; Alao vs. ACB (2000) 2 SCNQR 1067; AG, Anambra vs. A.G. Fed. (2007) 12 NWLR (Pt. 1047) 4; Agbiti vs. Nigerian Navy (supra); Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465; SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317; Obande Ogbuinya, Understanding The Concept Of Jurisdiction In The Nigerian Legal System, Snaap Press Ltd., Enugu, 2008, pages 71 – 83 and passim.” Per OGBUINYA, J.C.A. (Pp. 79-80, paras. C-E)

 

  1. COURT – JURISDICTION: Whether parties or Court in any proceedings can by their consent, collusion, connivance, acquiescence, compromise or waiver bestow jurisdiction on a Court where none exists nor expand or shrink a court’s jurisdiction by any of these acts

“The law is settled, beyond any equivocation, that parties to any proceedings cannot by their consent, collusion, connivance, acquiescence, compromise or waiver bestow jurisdiction on a court of law where none exists nor expand or shrink a court’s jurisdiction by any of these acts or are the courts themselves permitted to allot, expand or downsize or oust their jurisdiction, see Okolo vs. UBN (2004) 3 NWLR (Pt. 859); Gafar vs. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Tukur vs. Govt. of Gongola State (supra); I.T.P.P. Ltd vs. UBN (2006) 12 NWLR (Pt. 995) 483; Umaru vs. Aliyu (2011) 5 NWLR (Pt. 1241) 600; CLB Consortum Ltd vs. NNPC (supra); Ohakim vs. Agbaso (2010) 19 NWLR (Pt. 1226) 172;” Per OGBUINYA, J.C.A. (P. 82, paras. A-E)

 

  1. JUSTICE – MISCARRIAGE OF JUSTICE: What a miscarriage of justice denotes

“A miscarriage of justice denotes such departure from the rules which pervade all judicial procedure as to make what transpired, in court, not, in the proper sense of it, judicial procedure at all. It occurs when a court, after a thorough examination of the entire case, inclusive of the evidence, which encompass both oral and documentary, is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error the appellant complained of, see Amadi vs. NNPC (2000) 10 NWLR (Pt. 674) 76 at 112; Akpan vs. Bob (2010) 17 NWLR (Pt. 1223) 421.” Per OGBUINYA, J.C.A. (P. 116, paras. A-D)

 

  1. JUDGMENT AND ORDER – PERVERSE DECISION OF COURT: Vitiating elements of perverse decision of Court

“In the eyes of the law, a verdict of a court is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shorts its eye to the evidence or its decision has occasioned a miscarriage of justice, see Onyekwelu vs. Elf Pet (Nig) Ltd (2009) 5 NWLR (Pt. 1133) 181; Osuji vs. Ekeocha (2009) 16 NWLR (Pt.1166) 81; Momoh vs. Umoru (supra); Joseph vs. State (supra).” Per OGBUINYA, J.C.A. (Pp. 115-116, paras. F-A)

 

  1. COURT – POWER OF COURT: Power of Court to take judicial notice of the location of the property in dispute thereby obviating the necessity for evidence of proof of its location

“I agree, without any reservations, with the appellant that the location of the land in dispute, Budo Nuhu, is a matter of law, not fact. Being a question of law, the law gives me the unfettered licence to take judicial notice of the location of the property in dispute thereby obviating the necessity for evidence of proof of its location, see Joseph vs. State (2011) 16 NWLR (Pt. 1273) 226. To this end, I invite the provision of section 74.(1) (a) (now section 122 (1) (a)) of the Evidence Act which gives the courts the latitude to take judicial notice of “all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.” Per OGBUINYA, J.C.A. (P. 86, paras. C-F)

 

  1. INTERPRETATION OF STATUTE – SECTION 4(2): The provision of Section 4(2) of the Area Court Law, Cap, A9, Laws of Kwara State, 2006 with respect to composition of an Upper Area Court

“By virtue of the prescription of section 4(2) of the Area Court Law, Cap, A9, Laws of Kwara State, 2006, “An Upper Area Court shall consist of at least two Area Court Judges.” By employing the phrase “at least two”, it implies that the trial court is, properly, constituted with a minimum of two Judges without an upper limit as to its maximum number of Judges. It follows that when the Hon. Judge engaged in the proceedings in the trial court, he brought the number of Judges therein to three which is well within its statutory composition.” Per OGBUINYA, J.C.A. (P. 84, paras. A-C)

 

  1. INTERPRETATION OF STATUTE – SECTIONS 39(1) AND 41: The interpretation of Sections 39(1) (a) and 41 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004 with respect to jurisdiction of Courts to adjudicate proceedings touching on lands lying in both urban and rural areas

“Now, the appellant grounded his excoriation of the decision on the provision of sections 39(1) (a) and 41 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004. Those provisions had fallen for interpretation by the court, especially the apex court, in a battery of cases. They have been construed to mean that: while the High Court has an exclusive jurisdiction to entertain matters in respect of lands in the urban area which are subject to a grant of statutory right of occupancy granted or deemed granted by the Governor, it has concurrent jurisdiction with an Area Court, a Customary Court or other court of equivalent jurisdiction to hear matters over lands in respect of a customary right of occupancy granted by a Local Government under the Land Use Act. Simply put, an Area Court or a Customary Court is dispossessed of the jurisdiction to adjudicate proceedings touching on lands lying in the urban area while a High Court has unlimited jurisdiction over lands in both urban and rural areas, see Adisa vs. Oyinwola (2000) 10 NWLR (Pt.674); Ezeukwu vs. Ukachukwu (supra); Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865); Adetayo vs. Ademola (2010) 15 NWLR (Pt. 1215) 169; Olaleye-Ote vs. Babalola (2012) 6 NWLR (Pt. 1297) 574.” Per OGBUINYA, J.C.A. (Pp. 85-86, paras. C-B)

 

  1. CASE LAW – STARE DECISIS: Condition for the invitation/invocation of stare decisis

“It is trite that facts of cases, which have been described as the fountain heads and forerunners of the law, must be in pari materia before the invitation of stare decisis.” Per OGBUINYA, J.C.A. (P. 84, para. E)

 

  1. LAND LAW – TITLE TO LAND: Whether a party who seeks for declaration of title to land must prove same on the strength of his own case and not on the weakness of the defence

“I am not oblivious of the law that a party who seeks for declaration of title or right of occupancy to any land has the bounden duty to establish same on the strength of his own case and not on the weaknesses of the defence, see Nwokidu vs. Okanu (supra); Odunze vs. Nwosu (2007) 13 NWLR (Pt. 1050) 1.” Per OGBUINYA, J.C.A. (P. 112, paras. A-B)

 

  1. LAND LAW – TITLE TO LAND: Methods of proving title to land

“In our legal system, there are five methods of proving title to land to wit: (a) by traditional evidence; (b) by document of title; (c) by various acts of ownership and possession numerous and positive enough to warrant inference of ownership; (d) by acts of long possession and enjoyment of land; or (e) by proof of adjacent land to the land in dispute in such circumstances which render it probable that the owner of the former is the owner of the latter. These five ways, enunciated in the case of Idundun vs. Okumagba (supra), have received further judicial blessings in tons of decided authorities, see Yusuf vs. Adegoke (supra); Momoh vs. Umoru (supra); Odunze vs. Nwosu (2007) 13 NWLR (Pt. 1050); Nwokidu vs. Okanu (2010) 3 NWLR (Pt. 1181) 362; Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 553.” Per OGBUINYA, J.C.A. (Pp. 102-103, paras. D-A)

 

  1. LAND LAW – TITLE TO LAND: Whether slavery can serve as a viable shield or defence to a lawfully acquired title over land

“Slavery, the state of a person who is a chattel of another, and slavocracy were banished from human race a long time ago. Slavery was a paradigm of man’s inhumanity to man and as such a debasement of mankind in all ramifications. Apart from its global abolition and extinction, it cannot, to my mind, serve as a viable shield or defence to a lawfully acquired title over land. This is because, the provision of section 34(1)(b) of the 1999 Constitution, as amended, extinguishes slavery in Nigeria Again, by virtue of the provision of sections 42 and 43 of the said Constitution, a citizen of this country has a right to freedom from discrimination and to acquire and own immovable property anywhere in Nigeria respectively. The Constitution is the fons et origo of our laws. To allow the appellant’s defence of slavery to sail through, by nullifying the respondent’s legally acquired title over the land by grant as proved, will desecrate the inviolate provisions of the Constitution aforementioned. I am not prepared for such a sacrilege that will be antithetical and injurious to the provisions of the Constitution. As a result of these, I discountenance that defence of slavery for want of legality.” Per OGBUINYA, J.C.A. (Pp. 114-115, paras. G-E)

 

  1. LAND LAW – TITLE TO LAND: Trinity elements required in traditional history with respect to proof of title to land

“In the case of Atanda vs. Ajani (1989) 3 NWLR (Pt. 111) 511 at 533, Craig, JSC, opined: “It has been held that when a party relies on a grant and proves that grant by traditional evidence, he need not go further and prove possession or acts of ownership or any of the other four ways stated above” See, also, Yusuf vs. Adegoke (supra). Not only that, the respondent is enjoined to prove the three elements required in traditional history, id est, who founded the land in dispute, how the land was founded and the particulars of intervening owners through who he claims, see Elegushi vs. Oseni (2005) 14 NWLR (Pt. 945) 348; Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 553; Iroagbara vs. Ufomadu (2009) 11 NWLR (Pt. 1153) 587.” Per OGBUINYA, J.C.A. (P. 108, paras. B-F)

 

  1. EVIDENCE – UNREFUTED EVIDENCE: Effect of an unrefuted evidence

“Indisputably, a court of law is at liberty to act and rely on evidence of a party that is not refuted by an adversary, see, N.S.I.F.T.M.B. vs. Klifco Nig. Ltd (supra); Nasir vs. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253; Chabasaya vs. Anwasi (2010) NWLR (Pt. 1201) 163. Adim vs. N.B.C. Ltd (2010) 9 NWLR (pt. 1200) 543.” Per OGBUINYA, J.C.A. (P. 106, paras. E-F)

 

  1. EVIDECNE – WRONGFUL ADMISSION OF EVIDENCE: When a wrongful admission of evidence is insufficient to upturn the decision of the Lower Court

“I have juxtaposed the findings of the lower court with the outlined vitiating elements of perverse decision. It seems clear to me that the findings are not at variance with the evidence on record. They are rather a complete reflection of the evidence. Those findings do not contain extraneous matters in any form. It follows that the appellant would not have earned more favourable result but for the error they complained of. At this juncture, it is important to state that the excision of exhibit X2 from this appeal does help the appellant’s case an inch. This is because the wrongful admission of that evidence is insufficient to upturn the decision of the lower court as the decision would have been the same in the absence of it and in the presence of other strong evidence, both oral and documentary, see section 227 (now section 251) of the Evidence Act, Ntuks vs. NPA (2007) 13 NWLR (Pt. 1051) 392; Archibong vs. State (2006) 14 NWLR (pt. 1000) 349; Oguimi vs. Nigeria Const. Ltd (supra).” Per OGBUINYA, J.C.A. (Pp. 116-117, paras. D-B)

 

MAIN JUDGMENT

 

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment):

 

This appeal is an offshoot of the judgment of the High Court of Kwara State, Coram M. O. Adewara and H. O. Ajayi, JJ, in suit No KWS/7A/2009, delivered on 28/09/2010, wherein the lower court upheld the decision of the Upper Area Court 1, Ilorin given in favour of the plaintiff/respondent against the defendant/appellant in suit No. CVF/43/2004.

 

As can be garnered from the records, the respondent’s case, which culminated in this appeal, is fraught with bends. The subject-matter of the case, real property, is not a stranger to litigations, having witnessed a litany of them. It, the res, was greeted by another batch of litigation in suit No. CVF/23/91 filed, in the trial Upper Area Court 1, Ilorin, by the respondent. In that case, the respondent, as the plaintiff, claimed against the appellant, as the defendant for:

 

“i.      The declaration of title to Budo Nuhu.

 

  1. Order of forfeiture of the land granted by the plaintiff to defendant’s father due to defendant’s acts of challenging the customary ownership and title of the plaintiff over the land and failure to pay customary tributes.

 

iii.      Arrears of tributes at the rate of One Thousand and Five Hundred Naira (N1,500.00) per annum for 32 years.

 

  1. Cost of litigation”.

 

That case snaked from that trial upper Area Court through the High Court and the Court of Appeal to the Supreme Court, in Appeal No.SC/96/1998. The Supreme Court delivered its decision on 12/12/2003 wherein it upheld the judgment of the Court of Appeal which ordered that that case be heard de novo because the decision of the trial Upper Area Court was delivered in chambers.
Sequel to that, final, order, the parties returned to the trial Upper Area Court, abridged to “the trial court” hereunder, and that gave birth to the suit No. CVF/43/2004 which, eventually, led to this appeal with the same claims made by the parties in the earlier one for adjudication.

 

The case went through a full-scale trial before the trial court. In proof of his case, the respondent testified and called four other witnesses, that is, PW1 – PW5 and the plaintiff. On the other hand, the appellant did not testify in person, but fielded four witnesses, PW1 – PW4, to disprove the respondent’s claims and in proof of his counter-claim. A flurry of exhibits were tendered by both parties in the case. The trial court gave its judgment, on 12/09/2008, wherein it, on pages 226 – 227 of the record of appeal, ordered:

 

“… we grant the plaintiff’s claim and dismiss the counter-claim of the defendant. The act of the defendant also warrant the order of forteiture over the disputed land, we therefore so order. We do not know how the alleged tribute of one keg of cheese, Fifty Kobo and a cock transform into N1,500.00 per annum, since it is not proved, it is refused.”

 

The appellant was, naturally, dissatisfied with the trial court’s decision. Consequently, he appealed against it, via suit No KWS/7A/2009, to the High Court of Kwara State, appellate division, by a dint of a notice of appeal, filed on 07/10/2008, hosting 13 grounds of appeal therein. The High Court, the lower court for short, duly, heard the appeal in its appellate division. The lower court gave its verdict on 28/09/2010 in which it, on page 434 of the record of appeal, held: “In the result, we hold that all the grounds of appeal argued in this appeal lack merit and they all fail. The judgment of the trial court is upheld and the appeal is accordingly dismissed.”

 

Again, the appellant was aggrieved by the decision of the lower court. Hence, the appellant filed 9-ground notice of appeal, found on pages 435 – 441 of the record of appeal, on 16/12/2010. Subsequently, the appellant, on 25/01/2011, filed an amended notice of appeal, housing eleven (11) grounds of appeal and located on pages 442 – 449 of the record of appeal. In the said amended notice of appeal, the appellant prayed this court for: “Order setting aside the Judgment of the High Court and in its stead dismiss the respondent’s claims while granting the reliefs sought by the Appellant before the trial court.” During the pendency of the appeal, the court, on 31/01/2012, at the behest of the appellant, substituted the name of the deceased original appellant, Alhaji Banni Gaa Budo Nuhu, with Bello Musa Magaji as the present appellant.

 

The parties, duly, filed and exchanged their briefs of argument in the manner prescribed by law.

 

The appeal was heard on 31/05/2012. In that regard, on that day, 31/05/2012, learned counsel for the appellant, I. O. Atofarati, Esq., adopted the appellant’s brief of argument and the appellant’s reply brief of argument, both filed on 01/03/2012, as representing his arguments in support of the appeal. He prayed the court to allow the appeal. Similarly, learned counsel for the respondent, Adeola Omotunde, Esq., adopted the respondent’s brief of argument, filed on 27/03/2012, as forming his arguments against the appeal. He urged the court to dismiss the appeal.

 

The appellant, in his brief of argument, crafted four issues for determination of the appeal to wit:

 

“(1)   Whether the lower court was not wrong  in holding that the trial court was properly constituted and affirmed the jurisdiction of the trial Upper Area Court to entertain the Respondent’s claim in the circumstance.

 

(2)     Whether the lower court was not wrong in upholding the admission of inadmissible evidence by the trial court and relying on same, thereby occasioning a grave miscarriage of justice on the Appellant.

 

(3)     Whether the lower court was not wrong in the way and manner it failed to carry out a comprehensive and conjunctive review of evidence led before the trial court and draw proper inference there from, thereby occasioning a grave miscarriage of justice on the appellant.

 

(4)     Whether the lower court was not wrong in affirming the judgment of the trial court when same was against the weight of evidence led at the trial and whether the judgment of the trial court as affirmed by the lower court is not liable to be set aside in the circumstance of this case.”

 

On the other hand, the respondent, in his brief of argument, distilled three issues for determination of the appeal viz.

 

“i.      Considering the circumstances of this case whether the lower court was not right in holding that the trial Upper Area Court has jurisdiction to entertain this case.

 

  1. Having regard to the totality of the evidence placed before the lower court whether the allegation of slavery status by the appellant against the respondent could amount to a defence capable of denying the respondent the ownership of the land in dispute.

 

iii.      In view of the meticulous consideration of issue raised by the parties whether the lower court was not right in holding that the trial Upper Area Court has done substantial justice to this case,”

 

I have situated the appellant’s issues for determination with those of the respondent’s adumbrated above. In my humble view, the respondent’s issue one matches with that of the appellant’s issue one, one a clone of the other. The respondent’s issue two can be subsumed under the appellant’s issue three. Also, the respondent’s issue three can dissolve into the appellant’s more encompassing issue four. Since the two sets of issues exhibit symmetrical qualities, I will consider the appeal on the more all-embracing issues formulated by the appellant, particularly as he is the one peeved with the decision of the lower court.

 

Arguments on the issues:

 

Issue One:

 

Learned counsel for the appellant submitted that the issue as to when a court would have jurisdiction or competence over a dispute had been settled in the jurisprudence of Nigeria in the decision of the court in the celebrated case of Madukolu vs. Nkemdilim (1962) ANLR (pt.5) 581 at 590 or (1962) 2 SCNLR 241 wherein the three elements of jurisdiction were enumerated. He stated those enumerated essentials must exist conjunctively before a court of law could adjudicate over a matter and the absence of any of them would rob the court of its jurisdiction to determine the matter. He placed reliance on the case of DENR Ltd. vs. Trans International Bank Ltd (2009) All FWLR (pt. 456) 1823 at 1840; adding that the trial court suffered from two vices which rendered it incapable of adjudicating over the subject-matter of the litigation therein.

 

Learned counsel explained that as at the time the judgment of the trial court was delivered, on 12/09/2008, and even when part of the proceeding that culminated in the judgment took place, the trial court was not properly constituted because Hon. M. O. Abdulkadir (hereunder abbreviated to “the Hon. Judge”) who participated in the hearing proceeding and judgment was already appointed as a Registrar of the Sharia Court of Appeal, Ilorin Kwara State (a superior court of record) on 14/04/2008 and that he always came down, from his exalted office, to sit and preside over the matter in the trial court until judgment was delivered under the pretence that a fiat was granted by the Chief Judge that the same panel must hear the matter to conclusion. He, then, further submitted that when the trial court delivered its decision on 12/09/2008, it did so without jurisdiction because the Hon. Judge was no longer a Judge of that court, as he had ceased to hold office, and as such its decision with him as a Judge was null and void and of no effect. He relied on the case of Ogbunyiya vs. Okudo (1979) 12 NSC C 77 at 86. He added that the court by virtue of section 74(1)(j) of the Evidence Act should take judicial notice of the fact that the Hon. Judge was so appointed the Registrar of the Sharia Court of Appeal so that fact needed no further proof. He insisted that the continuance of the Hon. Judge on the bench of the trial court despite his appointment, as a Registrar of another court, rendered the proceeding a nullity and liable to be set aside.

 

He contended, that the trial court lacked the jurisdiction to adjudicate on a land situated in an urban area and deemed to be covered by a statutory right of occupancy such as the land in dispute in the case. He reasoned that by the combined reading of sections 34(1), (2) and (C) and 39 (1) of the Land Use Act, the only court with the requisite jurisdiction over the matter was the High Court of Kwara State and the only court with exclusive jurisdiction to adjudicate over a claim for declaration of title to land in an urban area. He noted that evidence abounds on the record to the effect that the land in dispute was opposite Ilorin International Airport (the Airport) with only a road separating them. He relied on the evidence of PW1, PW2 and the respondent found on pages 105, 121 – 122 and 146 of the record respectively to support his view.  He posited that it was judicially noticeable that the Airport  was within the capital of Kwara State and in an urban area and so also the land deemed to be covered with a statutory right of occupancy and that the lower court fell into a grave error when it held to the contrary on page 408 of the record.

 

Learned Counsel further contended that the issue of the jurisdiction being fundamental, it could be raised by a party at any stage of court’s proceedings even at the level of the Supreme Court. He cited the cases of Durwode vs. State (2000) 15 NWLR (Pt.691) and Otukpo vs. John (2000) 8 NWLR (Pt. 669) 507. He observed that the lower court noted that legal principle on page 402 of the record. He took the view that the issue of proper venue to conduct a matter being a jurisdictional issue could be raised at any stage of the proceedings and in any court; adding that the order made by the Supreme Court would not preclude the issue of jurisdiction from being raised in the case, especially as that issue was never raised before it and it did not make any pronouncement on whether or not the trial court was the proper court to adjudicate upon the matter. He maintained that the fact that the Supreme Court remitted the case back to the trial court for re-trial merely because it initially emanated from it would not confer jurisdiction on it. He explained that jurisdiction was conferred by law and the Supreme Court did not have the power to expand the jurisdiction of the trial court or confer jurisdiction on it where there was none. In support of the above contention, he cited the case of A – G. Lagos State vs. Dosunmu (1989) 3 NWLR (pt. 111). He posited that any proceedings conducted without jurisdiction would be rendered null and void. He placed reliance on the case of Shittu Bey vs. A G., Fed (1988) 10 NWLR (Pt. 570). He maintained that the lower court’s jurisdiction was afflicted with the vices which rendered the proceedings null and void.

He urged the court to so hold and set aside the decision founded on the proceedings.

For the respondent, his learned counsel reacted that the entire issue one was not competent because it was a fresh issue raised for the first time in the lower court as it was not part of the proceedings in the trial court. He noted that the case had traversed the trial court, the lower court, the Court of Appeal and the Supreme Court, but the appellant did not raise it in any of them. He stated that the fact that the appellant tagged a ground of his notice of appeal one of law and jurisdiction did not automatically make it so; adding that it was the content of the ground that would indicate what it really was. He relied on the case of Jov. vs. Dom (2001) FWLR (pt. 62) 2026 at 2033. He persisted that the trial court was not afforded the opportunity of pronouncing on that issue. He posited that the issue was one of fact; adding that whether or not the Hon. Judge was a member of the trial court as at 12/09/2008 and the land was in the urban area were matters of fact to be proved by evidence.

 

Learned counsel submitted that the court, an appellate court, would decide on decisions of the lower court and not what it had not pronounced upon. He explained that the appellant wanted to raise a fresh issue on appeal not raised at the lower court, that is, additional evidence. He persisted that the conditions for additional evidence were absent in the appellant’s case and that the evidence was available at the trial, but he did not raise it. He posited that the appellant could not have raised it as of right in the lower court; adding that it could only be valid after the appellant had sought and obtained the leave of the lower court. He relied on the case of Ehinlanwo vs. Oke (2008) All FWLR (Pt. 442) 1007 at 1028 – 1029 and UBA Plc. Vs. BTL Nig. Ltd. (2005) 10 NWLR (Pt.933) 356 at 371. He stated that even if ground one and issue one raised issue of jurisdiction, it would still not have availed the appellant as the issue would be incompetent. He referred to the case of Jov. Vs. Dom (supra) to support his submission.

 

In the alternative to the objection, learned counsel contended that the cases of Madukolu vs. Nkemdilim (supra) and DENR Ltd vs. Trans International Bank Ltd (supra), cited by the appellant, were irrelevant because the three elements enunciated in them were complied with by the trial court. He stated that from the onset, although the trial court was composed of three members, it was just a mere surplusage as it would be properly constituted with only two members. He referred to section 4(2) of the Area Courts Law (KWS 1994, Cap. 13) to support his contention. He categorically denied the date of appointment of the Hon. Judge as the Registrar of the Sharia Court of Appeal on 14/04/2008. He noted that the Hon. Judge’s participation in the proceedings could not be faulted at all because the respondent not out of necessity, but abundance of caution applied for and obtained fiat of the Chief Judge of Kwara State and the Grand Khadi of Kwara State to enable him complete adjudication of the case. He referred the court to those letters requesting for the permission and the fact contained on pages 1 – 13 of the additional record.

 

He further contended that the elevation of the Hon. Judge to the administrative position of a Registrar of the Sharia Court of Appeal did not affect his competence as a Judge of the trial court as he remained a judicial officer who could function in any capacity assigned to him by either the Chief Judge or the Grand Khadi of Kwara State. He observed that the appellant appeared before the trial court, with the Hon. Judge as a member, without protest, complaint or raising any observation against it.

 

He, then, posited that the case of Ogbunyiya vs. Okudo (supra), cited by the appellant, was not applicable to the case nor would that section 74(1)(J) of the Evidence Act assist him. He postulated that the judgment of the trial court was unanimous as the three Judges gave judgment to the respondent and a removal of the contribution of the Hon. Judge would leave the judgment as that of the majority as the court was properly constituted by two members.

 

Learned Counsel, on the subject-matter being in an urban area submitted that the trial being complained was not at the instance of the respondent but on the order of the Supreme Court which affirmed the judgment of the Court of Appeal, delivered on 13/09/1997, ordering “a retrial of the case before another Upper Area Court of Kwara State differently constituted.” He noted that the order meant only one court, Upper Area Court, and no other. He persisted that if the evidence referred to were available at the trial court and the appellant failed to raise the issue of whether the land was in urban or rural area, then he could not be heard to be raising the issue for the first time in the lower court. He cited the case of Jov. Vs. Dom (supra) in support of his submission. He maintained that the court could not take judicial notice of Budo Nuhu, a separate village from the Airport and without airport facilities on it, as a land in the urban area; adding that the fact that it was separated from the Airport by Ilorin- Ogbomosho Road did not, ipso facto, make it part of the Airport. He insisted that the appellant must prove the contrary and he woefully failed to do that. He denied that the evidence of PW1, PW2 and the plaintiff lent credence to the appellant’s submission.

He further maintained that whether or not the land was in an urban area was a question of evidence to be led at the lower court without prejudice to the order of the Supreme Court that specified the venue of the retrial to be the Upper Area Court. He stated that the decision of the Supreme Court was final and under the doctrine of stare decisis every court must obey it, as a court order, particularly one emanating from the Supreme Court, must be obeyed. He relied on the cases of the Atolagbe vs. Awuni (1997) 9 NWLR (Pt. 522) 536 at 577 and Anaekwe vs. Mashasha (2001) 12 NWLR (Pt. 726) 70 at 90. He posited that in the absence of the evidence as regards the location of the land, section 34(1) (2) and (3) and 39(1) of the Land Use Act would become irrelevant; adding that the latter, section 41, expressly conferred jurisdiction on Area Courts in respect of proceedings of a nature concerning customary right of occupancy. He cited the cases of Sadikwu vs. Dalori (1996) 5 NWLR (Pt. 447) 151 and Jov. Vs. Dom (supra) to support his contention. He noted that the cases of Durwode vs. State (supra); Utukpo vs. Johnson (supra); A G. Lagos State vs. Dosunmu (supra), cited by the appellant, were not apposite. He described the decision of the lower court, on pages 406-408 of the record, as both reasonable and unassailable. He reasoned that the appellant having failed to plead and adduce evidence to prove location of the land could not do so under the guise of jurisdiction. He relied on the cases of Oba vs. Ajoke (1962) SCNJ 137; Emegokwe vs. Okadigbo (1973) 4 SC. 113; Shittu vs. Olaegbe (2010) All FWLR (Pt.549) 1000 at 1013. He urged the court to resolve the issue in favour of the respondent. On points of law, learned counsel for the appellant submitted that the issue of jurisdiction was raised in the lower court and referred to its finding on it, on page 402 of the record. He insisted that if the respondent was dissatisfied with that finding, he should have filed a cross-appeal. He cited the cases of Christlieb Plc. vs. Majekodummi (2008) 16 NWLR (Pt. 113) 334 and SPDC Nig. Vs. Okonedo (2008) 9 NWLR (Pt. 1091) 75 to  support the submission. He took the view that the cases of Ehinlawo vs. Oke (supra) and UBA Plc. Vs. BTL (Nig..) Ltd (supra) were inapplicable and the decision in Jov vs. Do m (supra) was no longer the law. He relied on the case of Elugbe vs. Omokhafe (2004) 18 NWLR (Pt. 905) 319 at 334 and Gaji vs. Paye (2003) 8 NWLR (Pt. 823) 583 at 599-600 to buttress his view. He urged the court to follow the decision in the latter cases because there were later in time. He placed reliance on the case of Mpedem v. Udo (2000) 9 NWLR (Pt. 673) 631 at 644-645. He prayed the court to dismiss the respondent’s objection and apply the decision in the case of Madukolu vs. Nkemdilum (supra)

 

Learned counsel contended, on the Hon. Judge being a member of the trial court, that jurisdiction would usually be circumscribed by statute; relying on the case of Obi vs. INEC (2007) 11 NWLR (Pt. 1046) 482 and Iwuagolu vs. Azyka (2007) 5 NWLR (Pt. 1028) 613 at 633. He posited that the Chief Judge and Grand Khadi of Kwara State did not have the power to confer or expand the trial court’s jurisdiction by fiat. He persisted that the Hon. Judge could not function as a member of the trial court as well as the Registrar of the Sharia Court of Appeal in that those courts were created by different law, that is, Sharia Court of Appeal Law and Area Courts Law respectively, and that his participation in the matter, after his appointment, went to its jurisdiction. He cited the case of Our Line Ltd. vs. SCC (Nig) Ltd. (2009) All FWLR (Pt.498) 210 at 237. He argued that the removal of the Hon. Judge’s contribution would not make the trial court to have jurisdiction as any defect in jurisdiction would render a trial a nullity and a court would not exercise jurisdiction when its members were half competent and half incompetent. He referred to the cases of Our line Ltd. v. SCC (Nig.) Ltd (supra); Tukur v. Govt., Gongola State (1998) 4 NWLR (Pt.117) 517, Iwuagolu v. Azyka (supra) to support the argument.

 

He further submitted, on the subject matter within or outside jurisdiction of the trial court, that an order of retrial by the Supreme Court would not preclude the appellant from raising the most fundamental issue for jurisdiction of the trial court based on the nature of the subject-matter. He reasoned that whether or not the land was within urban or rural area was a question of law, not fact, which needed no evidence to be led before being determined. He noted that the land was located within the Area of the Airport, located in the urban, and that the court should take judicial notice of that under the provision of the Evidence Act. He added that the case of Afolagbe v. Awuni (supra) was inapplicable. He prayed the court to resolve the issue in favour of the appellant.

Issue two:

 

Learned counsel conceded that the trial court was not ordinarily bound by the provisions of the Evidence Act, but by the dictates of substantial justice, relying on section 1(2) (a) of the Evidence Act. He, however, submitted that the dictates of substantial justice included a level playing ground for the litigants so that the same rule of proceeding must be applied to all the parties. He cited the case of Kenon vs. Tekam (2001) 14 NWLR (pt. 732) 12 at 41 in support of that submission. He informed the court that the trial court employed the provisions of the Evidence Act in admitting exhibits P1- P12 and in rejecting exhibits A and B.  He, then, posited that to ensure a level playground and procedural equality, the provisions of the Evidence Act must be held applicable generally to the admissibility of exhibits, particularly in the course of proceedings before the trial court, as the introduction of double standard would in no doubt truncate fair hearing or fair trial.

 

He stated that a document would only be admissible when relevant to the proceeding. He relied on the cases of Nwabuoku vs. Onwordi (2006) All FWLR (Pt. 331) 1236 at 1251 and Avong vs. KRPC Ltd (2002) 14 NWLR (Pt. 788) 508 at 531. He, then, posited that the relevancy of exhibits P1, P5 – P11, being judgments of a court of law, was determined by law and not fact. He referred to sections 49, 50, 51 and 52 of the Evidence Act and persisted that those exhibits, P1, P5 – P11, being judgments of a court of law, were irrelevant by the provision of section 52 of the Evidence Act which he reproduced its full text. He noted that the exceptions, that is, circumstances in which judgments, orders or decree such as those exhibits would be relevant were provided for under sections 49, 50 and 51 of the Evidence Act and they included: where such judgment formed basis of a plea of res judicata, emanated from probate, matrimonial causes, admiralty or insolvency jurisdiction or covered matters of public nature. He insisted that those exhibits did not qualify for the exceptions under sections 49 – 51 of the Evidence Act to make them relevant. He pointed out that no foundation was laid for the admission of the documents expressly pronounced to be irrelevant by law; adding that those exhibits were inadmissible because they were irrelevant by operation of law.

 

It was the further submission of learned counsel that the trial court erred when it placed reliance on the inadmissible exhibits to find that the respondent had successfully proved his claim for declaration of title thereby occasioning a miscarriage of justice. He reasoned that the reliance on those exhibits beclouded the sense of evaluation of evidence as laid down before the trial court and he demonstrated that by reproducing its findings on pages 224 – 225 of the record. He contended that those exhibits did not cover the land in dispute and were not binding on the appellant who was not a party to the dispute settled in the judgment. He postulated that those exhibits were not tied to any plan and the judgment contained therein could not amount to act of possession as wrongly inferred by the trial court.

 

He relied on the case of Mbameanyi vs. Abosi (1995) 7 NWLR (Pt.405) 54 at 65 to support that proposition. He persisted that those exhibits could not be conclusive against the appellant because they suffered a malady of territorial jurisdiction as they covered lands situated in two states of the Federation namely, Kwara and Oyo States. He placed reliance on sections 53 and 54 of the Evidence Act. He added that those exhibits contained evidence which were not demonstrated before the court and all attempts to cross-examine the respondent and his Witnesses proved abortive because they denied knowledge of what they contained. He maintained that despite all that, the trial court relied and attached much weight to them as the cardinal points of its decision and that occasioned a miscarriage of justice. He postulated that it was never demonstrated in the proceeding in the court room or during visit to the locus in quo that the land which was the subject-matter of the decision in those exhibits were closely connected to the disputed land to have made them relevant to the fact in issue. He stated that the trial court reclined in its chambers to ferret evidence which were not led in the open court from the exhibits and placed heavy reliance on same to the detriment of the appellant.

 

Learned counsel took the view that exhibit P12 was procured during the pendency of the action, precisely on 20/01/1985, whereas the dispute  between the parties had been ongoing since 1975 or thereabout as indicated in exhibit X2 and the evidence of, PWs. He referred the court to the weighty inference the trial court drew from it and insisted that it wrongly relied on exhibit P12 being a document obtained pendelite and, therefore, null and void. He cited the case of Bamgboye vs. Olusoga (1996) 3 – 4 MAC 82 at 90 to support his view. He added that the trial court failed to draw proper inference from the fact that at all material time to exhibit P12, the issue of ownership had not been resolved and was still subject of litigation. He posited that but for the wrongful admission of inadmissible evidence, the respondent’s claim ought to have been dismissed, relying on the case of Igbojimadu vs. Ibeabuchi (1998) 1 NWLR (Pt.533) 179 at 190. He persisted that the case provided the recipe for reversing the decision of the trial court, which was based on inadmissible pieces of evidence and erroneously affirmed by the lower court, because same had occasioned a miscarriage of justice. He referred to the case of Trade Bank Plc vs. Chami (2004) All FWLR (Pt.235) 118 at 149. Learned Counsel urged the court to set aside the decision of the lower court. On behalf of the respondent, learned counsel submitted that whatever malady exhibits P1, P5 – P,11, suffered, exhibits X1 – X4 suffered the same, if not a worse malady. He observed that the appellant complained of the use the lower court made of exhibit P series while he was silent on the use it made of exhibit X series tendered by him through the respondent’s witnesses. He noted that exhibit P2 so long as it covered Budo-Nuhu, the subject of the conflict, or the adjacent land, it was very relevant to the case being an alienation permit which had neither been annulled nor challenged. He posited that the findings of the trial court that exhibits P1 and P2 established the ownership of the respondent on the land having received compensation for adjacent land acquired for the Airport while exhibits X2, P4, P6, P7, P9, X1, X3 and X4 were judgments in favour of the respondent could not be faulted. He insisted that the finding of the lower court that all those who made rival claims against the respondent lost at various courts as shown in exhibits P2, P5 – P11 could not be faulted without any contrary evidence since those exhibits were either in respect of the land or adjacent land.

 

Learned counsel contended that the appellant’s submission that those exhibits were not tied to any plan was untenable because plan was not necessary where the identity of the land was not in dispute and both parties were ad idem on the location and description of the disputed land. He relied on the case of Ugoji vs. Onukogu (2005) 16 NWLR (Pt.950) 97 at 118 to support his submission; describing the case of Mbameanyi v. Abosi (supra) as inapplicable to the case.

He maintained a contrary view that none of those exhibits was outside Kwara state and they did not suffer any malady of territorial jurisdiction; adding that sections 53 and 54 of the Evidence Act were irrelevant. He described as untenable the appellant’s submission that documents admitted after various submissions on both sides contained evidence not demonstrated before the lower court; adding that the appellant should blame himself for failure to destroy those evidence by means of cross-examination. He insisted that the trial court did not ferret evidence not led in the open court. He posited that the evidence led in the course of the proceedings were to the effect that the land subject matter of the decisions in the admitted exhibits were closely related to the disputed land so that the appellant should not feign ignorance of the reason for the visit to the locus in which he actively partook of. He stated that exhibit P12 was not made during the pendency of the suit because while it was made in 1995, the suit had its origin in 1991 bearing suit No. CVF/23/91 while on the order of the Supreme Court it stated de novo in 2004 with suit No. CVF/43/2004.

 

He maintained that exhibit X2 dealt with another case entirely and the lower court was right in attaching weight to exhibit P12 which showed that the two brothers of the appellant, Alfa Baba and Jimoh Gaa, obtained land from the respondent knowing full well that they were his customary tenants and the appellant had no land except the one given to him by the respondent. He added that the case of Bamgboye vs. Olusoga (supra) was not relevant because exhibit P12 was not made during the pendency of the proceedings and even it was; it was not made by persons interested in the subject matter of the suit.
Learned counsel drew the courts attention to the provisions of section 227 (1) and (2) of the Evidence Act on when wrongful admission or rejection of documents might or might not cause reversal of any decision. He, then, submitted that assuming, without conceding, that the trial court wrongfully admitted exhibits P1, P5 – P11 and exhibit X2 and wrongfully rejected exhibits A and B, its decision would still be the same even if they had not been admitted and admitted respectively, because there were sufficient evidence on record outside those exhibits to ground the respondent’s claim. He cited the case of Ogbimi vs. Nigeria Const. Ltd. (2006) 9 NWLR (Pt. 986) 474 at 496 to support that submission.

 

He pointed out that the case of Kenon vs. Tekan (supra) was irrelevant and maintained that the appellant had a fair hearing in line with the provisions of the 1999 Constitution, as amended. He posited that the trial court was right to reject exhibits A and B as it must not accept all evidence brought by the appellant when it was not proper to do so since admission of evidence was by a judicial and judicious consideration, of same in relation to the trial. He persisted that there was no procedural inequality to warrant the appellant’s bogug, claim and unfair allegation against the trial court. He added that the cases of Nwabuoku vs. Onwordi (supra) and Avong vs. KRPC (supra) were not relevant and if properly constructed were against the appellant’s position.
Learned counsel repeated that exhibits P1, P5 – P11 dealt with the land in dispute or adjacent land in dispute or adjacent land in contested actions between the respondent and others and so relevant to his case.

 

He postulated that the appellant’s reference to sections 49- 51 of the Evidence Act to justify the fact that those exhibits were not admissible was contrary to his initial position that the trial court was not bound by the provisions of the Evidence Act. He stated that the proviso to section 52 of the Evidence Act support the tendering of judgments as exhibits as they were facts in issue and relevant to the case.

 

Issue three:

 

Learned counsel for the appellant argued that the evaluation of evidence and findings of the trial court were not based on proper and dispassionate appraisal of the evidence in support of each party’s case and so perverse. He added that it was apparent that justice was not done in the case and it was the duty of the lower court to carry out a comprehensive review of evidence led before the trial court and draw proper inferences therefrom. He reminded the court that the appellant called four witnesses and tendered documentary evidence in the case, adding that the trial court did not evaluate the appellants evidence, but only reviewed the evidence led by both parties at the beginning of the judgment. He conceded that it was the prerogative of every Judge to adopt his own style of judgment writing so far as it complied with the minimum standard stipulated in the case of Mogaji vs. Odofin (1978) 4 SC 65 AT 67, that a Judge must consider the totality of the evidence led by both sides before ascribing probative value to their cases. He reasoned that summary of evidence as done by the trial court in the case was not the same as evaluation of evidence. He cited the case of Oyekola vs. Ajibade (2004) 17 NWLR (Pt. 902) 356 at 379.

 

He argued that the trial court erred and failed to accord the appellant fair trial when it failed to evaluate his evidence before making inferences from the respondent’s case. He explained that the trial court failed to put the evidence of both parties on an imaginary scale of justice before believing them and it accorded the appellant’s evidence value before making conclusive findings against him and in favour of the respondent. He referred to the testimonies of the appellant and their summary on pages 67-103 and 217-220 of the record respectively. He quoted the trial court’s findings and conclusions on pages 222-223 of the record and persisted that they were drawn ever before consideration of the appellant’s evidence before it. He posited that considering the testimonies of witnesses of the respondent before those of the appellant showed that the trial court had made up its mind against him without evaluating his rebuttal evidence. He further argued that the procedure adopted by the trial court amounted to abdication of its duty as an impartial arbiter and ran foul of the decision in the case of Mogaji vs. Odofin (Supra); Nwankpu vs. Ewulu (1995) 7 NWLR (pt. 407) 269 at 287 – 288; and Stephen vs. State (1986) (sic) (pt.46) 978 at 1003 and 1005. Learned counsel contended that the trial court, by its approach, violently, violated the appellant’s right to fair and equal hearing with the respondent as he was not placed on equal pedestal with him and that such a judgment on that fundamentally faulty approach would not be allowed to stand because he, the appellant, was not afforded a fair trial. He placed reliance on the case of Adigun vs. A. G. Ogun State (1987) 1 NWLR (Pt. 53) 628 at 709 and Duru vs. Nwosu (1989) 4 NWLR (Pt. 1 13) 24 at 50 – 51.

 

Learned counsel further “contended’ that the trial court was not dispassionate in the way it treated the evidence of the appellant’s witnesses; adding that it treated them in a perfunctory manner by refusing to ascribe due probative value to them.  He insisted that if the trial court had correctly and did passionately considered the appellant’s witnesses, it would have reached a different conclusion contrary to the one it reached on page 224 of the record which he quoted. He maintained that the irresistible conclusion the trial court would have reached on the converse would have been that the appellant’s oral and documentary evidence of traditional history preponderated over that of the respondent and that could have led to the dismissal of his claim in its entirety and a grant of his counter-claim. He submitted that the trial court wrongly applied exhibit X2 as the respondent’s testimony when it was used to cross-examine and discredit him thereby admitting inadmissible evidence and setting up difficult case for the respondent. He stated that exhibit X2 was used to cross-examine the respondent to show the fallacy and contradictions in his root of title and that the trial court used it as his evidence and arrived at perverse finding.
He urged the court to discountenance that finding.

 

It was his further submission that exhibit X2 was the proceeding of Area Court Grade 1, Afon and evidence given in a previous proceeding was inadmissible by a court trying a later case except in circumstances provided in section 34(1) of the Evidence Act. He relied on the case of Shanu vs. Afribank Nig. Plc. (2003) FWLR (pt. 136) 823. He posited that the respondent did not lay the foundation to make exhibit X2 relevant under any of the conditions in section 34 (1) of the Evidence Act and the trial court was in error to have relied on it. He referred to the case of Ikenyi vs. Ofune (1985) 2 NWLR (pt. 5) at 8. He noted that exhibit x2 could only be used for the purpose of cross-examination and not as evidence of a living witness without any foundation as to impossibility of getting him to attend. He cited the case of Sanyaolu vs. Coker (1983) 14 NSCC 119 at 128 to support the contention.

 

Learned counsel reiterated the point that exhibit x2 was tendered for a particular purpose to cross-examine the respondent and contradict his testimony as shown on page 157 of the record and had the trial court had applied exhibit x2 properly it would not have refused the respondent’s declaration of title to the land. He stated that the two testimonies of the respondent were inconsistent and ought not to be believed, relying on the case of Alade vs. Aborisade (1960) 5 FSC 167 at 171. He persisted that the trial court erred by using exhibit x2 as evidence before it and that occasioned a miscarriage of justice; adding that had it used it properly it would have discovered that the respondent’s case was unreliable and contradictory and it would not have granted declaration of title to him. He placed reliance on the case of Adeleke v. Asani (2002) FWLR (Pt. 106) 982 at 1999. He urged the court to hold that exhibit x2 was improperly applied which caused miscarriage of justice and to reverse the trial court’s decision.

 

Learned counsel submitted that a claimant for declaration of title must prove same on the strength of his own case and not on the weakness of the defence; adding that the appellant led credible, cogent and logical evidence which ought to have led to the grant of his counter-claim if properly evaluated by the trial court. He referred to the evidence of DW1, on pages 67-73 of the record, where he testified that the appellant’s forefather was granted the land due to wars he fought; noting that the evidence was corroborated by the respondent and DW4 on pages 146 and 189 of the record respectively. He insisted, based on those pieces of evidence, that the land was granted to warriors and that parties agreed on that. He posited that the appellant was obliged to take advantage of the respondent’s evidence which supported his case, placing reliance on the case of Okpala vs. Ibeme (1989) 2 NWLR (pt.102) 208 at 222.

 

He stated that the trial court agreed that the respondent’s forefather was not a warrior, but a slave and referred to the finding on page 222 of their record and the evidence of PW1 on page 113 of the record. He persisted that it was demonstrated before the trial court that the wars fought, which led to the grant, were not during the reign of the 2nd Emir but the 4th Emir (Ola Aliyu). He referred to the evidence of DW1, DW3 and DW4, on pages 167, 83-86 and 190 of the record respectively, and exhibits D3, D3(a) and (b), D4, (a), D5(a)-(e) and D6. He maintained that if the trial court had given any thought to all those pieces of evidence, it would have arrived at the conclusion that the respondent could not have been granted the land by the 2nd Emir as it would have followed the logical sequence of its finding on page 226 of the record. He posited that the time wars were fought was a determinant factor to help the court in determining the traditional evidence that was believable and predated the other. He described the finding of the lower court that the wars were fought during the reign of the 2nd Emir as perverse and should be reversed in favour of the appellant.

Learned counsel took the stand that the trial court ought to have found that the respondent’s ‘case for declaration of title on traditional evidence was not proved and dismissed it and granted the appellant’s counter-claim. He added that apart from traditional evidence, the appellant led uncontradicted evidence of possession and acts of ownership through DW3 on page 184 of the record. He submitted that the trial court found, on possession, that the land on which Hadhiru Islamic Foundation Mosque was created 40 years was sold by the appellant; though the respondent claimed he resold it without producing any document and that his ipse dixit would not avail him after he had agreed that the appellant sold the land that he went to court to stop further development thereon as shown on page 220 of the record. He insisted that the only evidence of his approach to the court would be court processes and not oral evidence, relying on sections 109 and 112 of the Evidence Act.

 

He argued that those evidence on acts of ownership and possession were acts in recent times which buttressed the appellant’s traditional evidence. He added that the evidence of boundary men to the appellant, DW1 and DW2, was confirmed at the visit to the locus wherein the boundary was demonstrated as evidenced on page 220 of the record. He reasoned that the trial court ought to have found for the appellant if all those pieces of evidence were, carefully, evaluated, but it abandoned its sacred duty and went on a voyage on pages 223-224 of the record. He observed that the trial court misconstrued the parties’ cases that the land being claimed and counter-claimed was the Budo Nuhu land which led it to wrong conclusion contrary to the law. he placed reliance on the cases of Ladejobi vs. Oguntayo (2004) All FWLR (Pt.231) 1209 at 1231 and Adejugbe vs. Ologunja (2004) All FWLR (Pt. 201)s 204. It was learned counsel’s argument that the primary duty of a trial court was to evaluate and ascribe probative value to evidence before it and the appellate court would not interfere with that except where it led to perverse finding and miscarriage of justice. He cited the case of Chukuwuogor V. A.-G., Cross River (1998) 1 NWLR (Pt. 534) 375 399- 400 and Olanloye vs. Fatonbi (1999) 8 NWLR (Pt.614) 203 at 227-228 to support that argument. He postulated that since the trial court failed in that sacred duty, the lower court ought to have carried out a comprehensive and conjunctive review of those pieces of evidence and drew the proper inferences therefrom and its failure to do so, occasioned a grave miscarriage of justice on the appellant. He urged the court to interfere with the findings of both courts, set aside same and grant the appellant’s relief before the trial court.

 

On the part of the respondent, learned counsel denied the submission of the appellant that PW1 gave evidence that the respondent’s father was a slave. He referred to the evidence of PW1 on pages 106 and 113 of the record. He stated that even if he was a slave, he was that of Emir of Ilorin, not that of the appellant, and that would not deprive him of the land he was legitimately granted. He posited that the appellant was incompetent to raise the issue of slavery because only a person attached by an occurrence of an event who could complain against it. He relied on the case of Mobil Prod. (Nig.) Ltd. vs. LASEPA (2002) 18 NWLR (Pt.798), at 33 for that Proposition.

 

Learned counsel argued, per contra, that exhibit x2 was an evidence in previous proceedings which was not admissible in a later proceeding except to cross-examine a witness and that it was wrong to have used it to cross-examine the respondent who was not a witness in earlier proceeding. He cited the case of Odusote vs. Mil. Gov. Ogun State (2002) 10 NWLR (pt.776) 566 at 598 – 600. He noted that the evidence in exhibit x2 was not accepted by the trial court. He persisted that the exhibit was against the appellant who said therein he had no defence to make. He referred the court to the content of exhibit x2. He stated that all the respondents’ witnesses denied that the ancestor of the respondent was a slave; adding that even appellants’ witnesses who made the allegation, quickly, swallowed their words and stated that there were no slaves in Ilorin He referred to the evidence of DW2 and DW4 on pages 182 and 203 of the record respectively.

 

He stated that slavery and slave trade were abolished in 1807 so that the appellant premised his case on an arrant illegal act which no court would assist no matter the circumstances. He placed reliance on the case of C.C.B. (Nig.) Ltd. vs. Onwechekwa (1998) NWLR (Pt. 562) at 395. He maintained that slavery was repugnant to natural justice, equity and good conscience, barbaric, uncivilized, incompatible with our laws, and against public policy and against the intendment of the provisions of sections 42, 43 and 44 of the 1999 Constitution, as amended. In support of that contention, he relied on the cases of Laoye vs. Oyetunde (1944) A.C. 170; Eshugbayi Eleko vs. Officer Administering the Government of Nigeria (1931) A.C.662; Nwosu vs. Uche (2005) 17 NWLR (Pt.955) 574 at 594-595. He insisted that the judgment of the trial court, on pages 222 – 223, could not be faulted as it properly evaluated the evidence given that it was a court only expected to do substantial justice.

 

Learned counsel submitted that the cases of Chukwuogor V. A.-G., River State (supra) and Olanloye vs. Fatonbi (supra) were not applicable to the cases because both courts, the trial and lower courts, properly evaluated the evidence and no need for interference by this court. He stated that the fact that the appellant called four witnesses and tendered documentary evidence was not a ground to give judgment to him as what was important was the quality not the quantity of evidence adduced. He relied on the case of Omonua vs. Okpere (1991) 5 NWLR (pt. 198) 36; Mogaji vs. Odofin (1978) 4 SC 91 at 94. He posited that the lower court did not merely review the evidence, but evaluated them and agreed with the appellant in some cases.

 

He, stoutly, contended that while the appellant tendered exhibit x2 to discredit the respondent, he could not limit the extent of its use; adding that the appellant could not contend that exhibit x2 he tendered was inadmissible. He asserted that the trial court was right to use it for both parties, justice being a two-way traffic. He relied on the case of Omobuwa vs. Owhofalosho (2006) 5 NWLR (Pt.972) 40.

 

He further contended that there was no contradiction in the evidence of the respondent, particularly as he did not testify in exhibit x2 so that the case of Adeleke vs. Asani (supra) was not applicable. He stated that the appellant was aware of section 34 (1) of the Evidence Act and the case of Shanu vs. Afribank Nig. Plc (supra) when he tendered and used exhibit x2 and that he was estopped from complaining against it. He relied on the case of Lazarus Igwe vs. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt. 363) 459. He further asserted that the respondent did not need to lay foundation before making use of an exhibit tendered through him despite his protest so that the case of Ikenyi vs. Ofune (supra) was inapplicable. He reiterated the point that exhibit x2 could not be used to cross-examine the respondent since he did not give evidence in it so that the case of Sanyaolu vs. Coker (supra) was inapplicable. He insisted that the cases of Alade vs. Aborishade (supra) and Igbojimadu vs. Ibeabuchi (supra) were not applicable since there were other evidence supporting the respondent’s case in line with the provision of section 227 (2) of the Evidence Act. He reasoned that the appellant wrongly cited the cases of Mogaji vs. Odofin (supra), Oyekota vs. Ajibade (supra) Nwankpu vs. Ewuru. (supra) and Stephen vs. State (supra) as the lower trial court duly evaluated the evidence before it. He stated that the appellant was afforded fair hearing and equal opportunity thereby making the cases of Adigun V. A.-G., Oyo State (supra) and Duru v. Nwosu (supra) irrelevant.

 

Learned counsel submitted that there was no cognizable counter-claim before the trial court as the appellant did not counter-claim nor give any evidence thereof, a counter-claim being an independent action; adding that denial of liability would not amount to a counter-claim. He placed reliance on what the appellant said on page 105 of the record and the case of Dahiru v. Kamala (2005) 9 NWLR (Pt.929) 117 at 143. In the alternative, he posited that the appellant did not prove his counter-claim on the strength of his own case and that it must fail since the claim succeeded. He placed reliance on the cases of Usman v. Garke (1999) 1 NWLR (Pt. 587) 466 and Aunam (Nig.) Ltd vs. UTC (Nig.) Ltd. 1995) 4 NWLR (Pt.392) 753 at 765.  He stated that there were contradictions in the evidence of DW1 while the evidence of DW4 supported the respondent’s case. He added that evidence of the respondent never supported the case of the appellant to warrant interference and that the trial court never agreed with the appellant that the forefather of the respondent was not a warrior, but a slave as to make the case of Okpara vs. Ibeme (supra) relevant. He referred to the finding on page 223 of the record. He maintained that the respondent’s case was that the land was granted to him during the reign of the 2nd Emir of Ilorin and not that wars were fought during that period. He referred to the evidence of PW2, PW3, PW4 and PW5 which were never challenged under cross-examination and should be taken as proved, relying on the case of Gaje vs. Paye (2003) 5 SC 33 at 61. He stated that the evidence of DW4, DW1, DW2, and DW3 were contradictory on the traditional evidence and he referred to pages 180-190, 172, 184 and 204 of the record.

 

He stated that the appellant based his counter-claim on the evidence of DW4 who said that he gave him land. He, then, submitted that the appellant could not pass any title to anybody on the principle of nemo dat quod non habet and any allocation or selling would be invalid, relying on the case of Famuroti vs. Agbeke (1991) 5 NWLR (Pt. 198) 1. He posited that a grant of land to DW4 where there was an existing right or right of occupancy in favour of the respondent did not amount to a revocation of his right therein. He placed reliance on the case of C. S. S. Bookshops Ltd. V. R.T.M.C.R.S. (2006) 11 NWLR (Pt. 972) 530 at 567-568. He further posited that once the respondent was adjudged to be the rightful owner of the land, the principle of quic quid plantatur solo solo cedit applied and he cited the case of Kupoluyi vs. Phillips (1996) 1 NWLR (Pt.427) 691.

 

Learned counsel enumerated the five ways of proving title to land in Nigeria as stated in the case of Idundun vs. Okumagba (1976)s 10 NSCC 445. He contended that there were no conflicts in the traditional evidence of the parties and in the unlikely event there were, he urged the court to examine the recent acts of possession and ownership and it would discover that the respondent granted all the land in Budo Nuhu to all the people residing there and he had more recent facts. He placed reliance on the case of Elegushi vs. Oseni (2005) 14 NWLR (Pt.945) 348 at 378 and the evidence of witnesses. He noted that evidence of DW3 that he built a house on the land 40 years was dwarfed by that of the respondent that he had been in possession for over 160 years ago. He added that once the title of the appellant failed that of DW3 would follow it. He stated that the age of the Hadhiru Islamic Foundation Mosque was not in evidence and even if it was, its age of 40 years was far more recent than over 160 years. He observed that there was evidence that the respondent’s father was granted the land more than 160 years ago and he had never been successfully challenged. He asserted that the respondent granted the land to people so that he was in both constructive and de jure possession of Budo Nuhu. He cited the case of Ezeukwu vs. Ukachukwu (2004) 17 NWLR (Pt.902) 227 at 257. He added that the appellant had no moral justification to say that the respondent did not produce documentary evidence to show that he resold the land where the mosque was as he did not produce any.

 

He further argued that despite the fact that Budo Nuhu was in issue, proof of ownership of adjacent land and evidence of boundary were relevant and the lower court did not draw a wrong conclusion so that the cases Ladejobi vs. Oguntayo (supra) and Adejugbe vs. Ologunju (supra) were irrelevant. He described the evidence of DW1 and DW3, called by the appellant, as in relation to boundary of the land. Learned counsel contended that the respondent showed in exhibits Dx3-P12 that he sold the land to NASFAT and Alfa Baba and Jimoh Gaa and to late Emir of Ilorin, Sulu Gambari. He stated that none of the appellant’s witnesses had a direct link with Aliyu while the respondent called PW’1 who was the direct descendant of Oba Shitta. He posited that if there was another grant by Oba Aliyu to the appellant after that of Oba Shitta to the respondent, the former would have no leg to stand and it would be null and void. He persisted that the respondent exercised several acts of ownership over the land by collection of tributes, its control and administration, such as installation of successive Baales and management of it. He relied on the evidence of PW4, PW5, DW1-DW4 as shown on the record.

 

He submitted that the appellant was a mere customary tenant of the respondent and mere possession of the land, however long, by a customary tenant would not mature to confer statutory right on him. He cited the case of Dagaci of Dere vs. Dagali of Eba (2006) 7 NWLR (Pt. 979) 382 at 452. He further submitted that a first settler or founder of a land would become its owner and head of subsequent settlers thereon. He relied on the case of Titilayo vs. Olupo (1991) 7 NWLR (Pt.205) 51 at 544. He posited that the appellant put up the defence that the land belonged to Mogaji Baboko, a third party, and that where a party failed to establish his title to land, he would not use the right of a third party to defeat the possessory right of his adversary. He cited the cases of Adelekan ys. Iseogbekun (2003) 7 NWLR (Pt.819) 295 and Anukanti vs. Ewunyeaso (1978) 14 NSCC 15 in support.

 

He stated that DW4 testified that the appellant was granted Gaa  Budo Nuhu, but he then extended the claim to the entire Budo Nuhu; adding that land granted for a limited purpose could not ripen into an absolute ownership. He relied on the case of Ajao vs. Obele (2005) 5 NWLR (Pt. 918) 400 at 420. He referred to the evidence of DW4, who tendered tax receipts exhibits D5 (a) – (e), showing that the appellant was a subject of the respondent as his Gaa Budo Nuhu was under Ogele village and that his customary tenancy was limited only to Gaa Budo Nuhu. Learned counsel further argued that the respondent showed that he owned adjacent lands to the disputed land such as the Airport and others. He referred to the evidence of DW2, DW1, DW4 and exhibits P1. P2, P3 and Dx3 to support that argument. He posited that the appellant challenged the title of his customary overlord by denying same and reposing it in Mogaji Baboko – one of the greatest acts of misbehaviour by a customary tenant that would ground forfeiture which were never made by his forefather. He cited the cases Ogun vs. Akinyelu (2004) 18 NWLR (Pt.905) 362 and Akpgbue vs. Ogun (1976) NSCC 311 at 312 and 315. He urged the court to affirm the orders of recovery and forfetture of Gaa Budo Nuhu from the appellant as made by the trial and lower courts.

 

Issue four

 

Learned counsel for the appellant submitted that a superior court would not make the practice of interfering with concurrent of fact by the lower courts except under special circumstances such as where the findings were perverse or not supported by evidence or wrongful application of substantive or procedural law. He relied on the case of Okoye vs. Obiaso (2010) LPELR 232 at 2003. He further submitted that the judgment of the trial court as affirmed by the lower court was against the weight of evidence led in support of traditional history and the court should interfere with same of the following reasons: (a) The respondent premised his case of the grant of land to his forefathers on the fact of wars fought and not that of slavery or good cooking. (b) Oral and mentary evidence were led to buttress the fact that the wars were fought during the reign of Oba Aliyu and not Oba Shitta as claimed by the respondent. He posited that the trial court, contrary to the evidence led, found for the respondent on the fact of slavery and good cooking which was not supported by the respondent’s evidence and it, also, agreed that the wars, upon which the respondent based his claim, were not fought during the reign of the 2nd Emir. He observed that despite the above, the trial court held that the respondent’s traditional history predated that of the appellant when the respondent’s traditional history was unbelievable. He contended that the trial court, contrary to evidence led, held that all the people who benefited from the land were paying tribute to Are Ogele before the introduction of poll tax when the Emir made him a tax collector.
He referred to the evidence of PW1 and PW4 and insisted that they showed that the appellant was on the land before the respondent and that the assertion that the appellant arrived there during the reign of Bakare, the 2nd Baale of Budo Nuhu, could not be trice. He described the lower court’s finding that the appellant was settled at Gaa Budo Nuhu as against the weight of evidence. He referred to the finding of the trial court, on page 224 of the record, and postulated that it somersaulted and granted the respondent’s claim contrary to the evidence led. He took the view that the trial court failed to draw proper inference from the evidence of the proceeding that took place during the visit to locus in quo on issue of boundary in line with the decision in Kojo II vs. Bonsie (1957) 1 WLR 1223. He added that there was nothing to demonstrate that the respondent owned the adjacent land in a manner so as to render it most probable that he owned the disputed land so that trial court was wrong, using exhibits P1 and P2, to find for the respondent.

 

Learned counsel argued that the trial court’s reliance on exhibits P2, P5 – P11 to find long possession of the law in the respondent was perverse. He maintained that the trial court wrongly granted the respondent’s claim in the absence of valid proof of his title to Budo Nuhu.

He further maintained that the trial court ought to have dismissed the respondent’s claim because its fulcrum had collapsed. He referred to the findings of the trial court and the lower court in favour of the respondent, on pages 223 and 419 – 420 of the record respectively, and posited that both courts made a case different from that of the parties which occasioned a miscarriage of justice on the appellant based on that misconception. He cited the cases of Ladejobi vs. Oguntayo (supra) and Adejugbe vs. Ologunja (supra) to support the contention. He described the effect of that as a wrong finding for the respondent contrary to the evidence led. He urged the court to resolve the issue in favour of the appellant. He concluded by praying the court to allow the appeal.

 

For the respondent, learned counsel submitted that the lower court properly evaluated the evidence in relation to the ownership of the land and came to the right conclusion in favour of the respondent as the appellant had no cogent evidence for it to do otherwise, particularly as evidence showed that the respondent’s title, traced to the 2nd Emir, predated that of the appellant traced to the 4th Emir. He stated that the evidence of PW1 about the name of the land was not material as parties had no dispute over its identity. He relied on the case of Ugoji vs. Onukogu (2005) 16 NWLR (Pt.950) 97; Odofin vs. Oni (2001) FWLR (Pt.36) 807. He added that the evidence of PW4 that people lived in the land before the first Bade was installed would not assist the appellant since it was not the respondent’s case that it was found by the first Baale. He posited that the evidence of PW4 must be read together to get its purport and if there were minor contradictions therein or in evidence of other witnesses that would not defeat the action because as human beings they were bound to give accounts with different details, relying on the case of Egesimba vs. Onuzuruike (2002) 15 NWLR (Pt. 791) 466.

 

He contended that the courts did not somersault in their judgments because they merely stated the position that document of title would not stand without proof of traditional evidence. He observed that the evidence at locus in quo supported the respondent’s case and referred to the finding on page 230 of the record and the unreliable evidence of DW1 and DW2 at the locus. He noted that the respondent never agreed that the appellant sold the land to Hadhiru Islamic Foundation over 40 years. He maintained that the ownership of adjacent land was not in issue as the appellant’s witnesses conceded the point and that if the principle in the case of Kojo vs. Bonsie (supra), on recent acts, was considered it would be in favour of the respondent who still appointed the Baales and administered the town till date.

 

Learned counsel maintained that the concurrent findings by both courts were not perverse, unsupported by evidence and wrongful application of substantive or procedural as to warrant disturbing them so that the case of Okoye vs. Obiaso (supra) was inapplicable. He described the findings as unassailable as they were based on evidence. He stated that the appellant’s evidence of traditional history was unreliable:

 

He added that the appellant did not claim that he owned any adjacent land and that he denied ownership of the Airport and NASFAT areas and admitted facts needed no proof, relying on the case of UBN vs. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 400. He emphasized that the decision being complained about came from the Upper Area Court 1, Ilorin so that there should be need to exercise sufficient caution and restraint in approaching it as the legal finenesses associated with the High Court were not obtainable. He placed reliance on the cases of Chike Ogo vs. Adiba Ogo (1964) NMLR 117 and Dinsey vs. Ossei (1939) 5 WACA 177. He, based on the above submissions, urged the court to resolve the issue in the favour of the respondent and to dismiss the appeal.

RESOLUTION OF THE ISSUES:

 

By force of law, I will first tackle, frontally, the first issue in that it borders on vitriolic attacks on the jurisdiction of the trial court to hear the matter in inito because one of its Judges was disqualified and the subject matter being outside its competence. Before I delve into the meat of the first issue, it is my bounden duty, laden me on by the law, that I take the objection of the respondents on the competence of that issue, see FBN Plc vs. TSA Ind. Ltd (2010) 15 NWLR (Pt. 1216) 247; A. G. Rivers State vs. A. G., Akwa Ibom State (2011) 8 NWLR (Pt. 1248) 31.

 

The respondent, at the dawn of his arguments, raised objection to the competence of the first issue on the main ground that the appellant ought to have obtained leave of court to raise it since it consisted of fresh evidence. It is axiomatic; as shall further unfold anon, that the points the appellant raked up under the issue, that one of the Judges of the trial court was disqualified and that the land is outside its territorial area of jurisdiction, are clear issues of jurisdiction. Being issues of jurisdiction, the law is settled as to whether or not the appellant should raise it with the leave of court. In the case of Moses vs. State (2006) 11 NWLR (Pt. 992) 458 at 503, a similar objection was raised, and the Supreme Court, per Ogbuagu, JSC, ruled:

 

“The consequence is long settled in a number of decided authorities to the effect that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court, without the leave of the court having been had and obtained…. Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary.”

 

Also, the cases of Elugbe vs. Omokhafe (supra); Gaji vs. Paye (supra); Owners of M/V Gongola Hope vs. S.C. (Nig) Ltd (2007) 15 NWLR (Pt. 1056) 189, U.T.B. Ltd vs. Dolmetsch Pharm (Nig) Ltd (2007) 19 NWLR (Pt. 1013) 187; Aderibigbe vs. Abioye (2009) 10 NWLR (Pt. 1150) 592 and Agbiti vs. Nigeria Navy (2009) 10 NWLR (Pt. 1236) 175 are, totally, in point here.

 

In the objection, the respondent placed, high premium on the case of Jov vs. Dom (supra)/(1999) 1 NWLR (Pt. 620) 538 at 547 to ram home his point. The decision of the Supreme Court in that case is that leave must be obtained to raise issue of jurisdiction. That decision is diametrically opposed to that in the aforementioned authorities, on the point at stake only, decided by the Supreme Court too. It is trite law, that where the decisions of the Supreme Court are irreconcilable, this court or any other lower court on the rungs of the judicial ladder in this country, will follow the one that is later in time, see Osakue vs. FCE, Asaba (2011) 10 NWLR (Pt. 1201) 1; Mpedem vs. Udo (supra). Indubitably, Jov’s case, which was decided in 1999, is older in judicial age to the other set of authorities. In due obeisance to this cardinal principle law, that later in time decisions take dominance and prominence, I will, without option anchored on the doctrine of stare decisis, adopt the decision in the more recent authorities adumbrated above, id est) that no leave of court is required to raise any issue of jurisdiction.

 

At any rate, the issue was raised before the lower court contrary to the contention of the respondent. In this wise, I am fortified by the correct finding of the lower court, on page 402, lines 14 – 23 of the record, to the effect that for issue of jurisdiction the need for leave to raise it does not usually arise. I must add, pronto, that it is a misconception of the law, with due respect, for the respondent to classify the appellant’s issue one as fresh evidence that necessitates permission of this court to present it. The said issue one is miles away from fresh evidence that cannot be placed before this court without its permission sought and obtained. It flows from the foregoing that the appellant’s issue one, sought to be decimated in limine, sits pretty before this court. It is an issue touching on jurisdiction for which the appellant, with the, mandate of the law, has the unbridled liberty to raise it as of right in any court of law, be it the Supreme Court. This is because, jurisdiction, the power or authority of a court to hear a matter, is the linchpin, spinal cord, heart or lifeline of any adjudications. It is to adjudications what oxygen is to mammals. Any defect in jurisdiction of a court, no matter how infinitesimal and the quantum of dexterity and diligence invested in a case, is, inescapably, marooned in the web of nullity. On this premise, the respondent’s objection stands on quicksand and it must perforce collapse. In the result, I overrule the objection as it has no jot of merit in it and the same is, hereby, dismissed. Since the respondent’s objection has fallen flat, there are no legal hiccups in the terrain of the appellant’s issue one to prevent its due consideration. The issue one is composed of two prongs. The first centres on the improper composition of the trial court while the second revolves around its lack of power over the subject-matter. I will handle them in the order stated, particularly as their effects are at par, both being jurisdictional points.

For a balanced consideration of the two prongs, however, it is pertinent to showcase the common elements of jurisdiction that are, mutatis mutandis, applicable to them. In the case of Madukolu vs. Nkemdilim (supra)/(1961) 2 NSCC 374 at 379/(2006) 2 L.C. 208, a locus classicus on jurisdiction, the Supreme Court, per Bairamian F.J’., evolved the ingredients of jurisdiction in these illuminating words:

 

“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a court.

Put briefly, a court is competent when:-

 

  1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and

 

  1. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and.

 

  1. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of its jurisdiction.

 

Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity.”

 

These ingredients of jurisdiction, chronicled in Madukolu’s case (supra), which must co-exist in any matter, have been applied and restated in a galaxy of judicial authorities in the Nigerian legal system, see DENR Ltd. vs. Trans International Bank Ltd (supra); WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270; Alao vs. ACB (2000) 2 SCNQR 1067; AG, Anambra vs. A.G. Fed. (2007) 12 NWLR (Pt. 1047) 4; Agbiti vs. Nigerian Navy (supra); Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465; SLB Consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317; Obande Ogbuinya, Understanding The Concept Of Jurisdiction In The Nigerian Legal System, Snaap Press Ltd., Enugu, 2008, pages 71 – 83 and passim. The appellant picked quarrel with the trial court’s failure to satisfy the first ingredient of jurisdiction. It is germane to observe that parties are at odds on this prong. Whilst, the appellant, tenaciously, contended that the Hon. Judge was disqualified from being a member of the trial court, the respondent, heavily, aligned himself with the stance of the lower court that he was not. It is not in contest that the Hon. Judge partook in the proceedings in the trial court from the beginning of the matter till judgment. The parties are at one on that. The parties are, also, consensual on the fact that the Hon. Judge was promoted to the position of the Registrar of the Sharia Court of Appeal while he sat, contemporaneously, as a Judge in the trial court.

 

One outstanding defence, erected by the respondent, waiting to be thrashed out, is that the appellant consented to the Hon. Judge’s membership of the trial court. To begin with, it is not correct that the membership of the Hon. Judge was not a subject of protestation before the trial court. After hot arguments by learned counsel on the point, the trial court, on page 133 of the record, ruled as follows:

 

“Court -After deliberation, the court has prevailed on the Honourable Judge applying to withdraw to reconsidered (sic) his stand. He has accordingly agreed subject however to a condition. The condition is that the court will henceforth sit over this case every Tuesday at 2.30 p.m until it is finally adjourned for judgment, or any other time to be announced by the court before such dates come up. Case is 18/7/2006 for contribution.”

 

This extract, plucked raw from the record, puts paid to the seemingly iron-cast defence invented on the non-opposition of the appellant to the composition of the trial court by the respondent. Put starkly, the appellant did not acquiesce in the membership of the Hon. Judge in the trial court without protest.

 

In any event, the defence is indefensible and untenable in the eyes of the law. The kernel of the defence is that the appellant consented to the disqualification of the Hon. Judge by going on with the case. Even if the appellant did not, it will not strengthen the respondent’s defence an inch. The reason is simple. The law is settled, beyond any equivocation, that parties to any proceedings cannot by their consent, collusion, connivance, acquiescence, compromise or waiver bestow jurisdiction on a court of law where none exists nor expand or shrink a court’s jurisdiction by any of these acts or are the courts themselves permitted to allot, expand or downsize or oust their jurisdiction, see Okolo vs. UBN (2004) 3 NWLR (Pt. 859); Gafar vs. Govt., Kwara State (2007) 4 NWLR (Pt. 1024) 375; Tukur vs. Govt. of Gongola State (supra); I.T.P.P. Ltd vs. UBN (2006) 12 NWLR (Pt. 995) 483; Umaru vs. Aliyu (2011) 5 NWLR (Pt. 1241) 600; CLB Consortum Ltd vs. NNPC (supra); Ohakim vs. Agbaso (2010) 19 NWLR (Pt. 1226) 172;
Be that as it may, the point at stake is an issue of jurisdiction. The law is that a party who challenges the jurisdiction of a court to entertain a matter has the burden to establish that the court is stripped of the requisite jurisdiction, see Our Line Ltd vs. S.C.C. (Nig) Ltd (supra). Taking a cue from this extant position of the law, it is incumbent on the appellant to prove that the Hon. Judge was disqualified to sit as a member of the trial court. It seems to me that the appellant failed to discharge that arduous burden saddled on him by law. The contention of the appellant that the appointment of the Hon. Judge as a Registrar of the Sharia Court of Appeal, Ilorin, Kwara State is, by all considerations, deficit in the fulfillment of that required standard of proof laden on him by law.

 

To start with, the appellant implored this court to take judicial notice of the fact that the Hon. Judge is a Registrar of the Sharia Court of Appeal under section 74 (1) (j) (now section 122 (1) (j)) of the Evidence Act. While I concede that that provision enables me to do that, I will turn down his supplication, with respect to the Hon. Judge’s cessation as a Judge of the trial court, for want of production of a document to guide me do that. I take cover under the sanctuary of the provision of section 74(3) (now section 122 (4)) of the selfsame Evidence Act. In order to dislodge that herculean burden, the appellant ought to go further to show that the Hon Judge has, by his elevation, been disrobed of his appointment as a Judge of the trial court. That is the only way, this court would have been satisfied and convinced that the Hon. Judge has ceased to be a judicial officer worthy to sit and hear cases in the trial court. Short of that, I am of the view that the Hon. Judge still wears the toga and regalia of a Judge of the trial court while occupying his new Post-Registrar of the Sharia Court of Appeal. The attendant corollary is that the Hon. Judge was qualified to partake in the determination of the respondent’s case in the trial court.

By virtue of the prescription of section 4(2) of the Area Court Law, Cap, A9, Laws of Kwara State, 2006, “An Upper Area Court shall consist of at least two Area Court Judges.” By employing the phrase “at least two”, it implies that the trial court is, properly, constituted with a minimum of two Judges without an upper limit as to its maximum number of Judges. It follows that when the Hon. Judge engaged in the proceedings in the trial court, he brought the number of Judges therein to three which is well within its statutory composition.
For the cases of Ogbunyiya vs. Okudo (supra) and Our Line Ltd vs. S.C.C. (Nig) Ltd (supra), on which the appellant pegged his view point to avail him, the Hon. Judge would have been elevated as a Judge of any other court different from the trial court. Simply put, the facts and circumstances of those cases are not on all fours with those of the case in hand. It is trite that facts of cases, which have been described as the fountain heads and forerunners of the law, must be in pari materia before the invitation of stare decisis. So, I decline the appellant’s inviting invitation to kowtow to the decision in those other cases on account of facts differentials.

 

All in all, going by these later reasons, which overshadow the appellant’s contention, I hold that the trial court was not improperly constituted with respect to its number and qualification of its members as to run foul of the first ingredient of jurisdiction as propounded in the case of Madukolu vs. Nkemdilim (supra). This prong fails as I resolve it against the appellant.

 

That leads me to an examination of the second prong. Here, the appellant derided the decision of the trial court as delivered without jurisdiction on the reason that it offended the second ingredient of jurisdiction, because the land in dispute is outside its jurisdiction. In a plain language, that castigation is a challenge to the subject-matter and territorial jurisdiction of the trial court in relation to the disputed land, see Tukur vs. Govt. of Gongola State (supra); Dalhatu vs. Turaki (2003) 15 NWLR (Pt. 843) 310.

 

Now, the appellant grounded his excoriation of the decision on the provision of sections 39(1) (a) and 41 of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria, 2004. Those provisions had fallen for interpretation by the court, especially the apex court, in a battery of cases. They have been construed to mean that: while the High Court has an exclusive jurisdiction to entertain matters in respect of lands in the urban area which are subject to a grant of statutory right of occupancy granted or deemed granted by the Governor, it has concurrent jurisdiction with an Area Court, a Customary Court or other court of equivalent jurisdiction to hear matters over lands in respect of a customary right of occupancy granted by a Local Government under the Land Use Act. Simply put, an Area Court or a Customary Court is dispossessed of the jurisdiction to adjudicate proceedings touching on lands lying in the urban area while a High Court has unlimited jurisdiction over lands in both urban and rural areas, see Adisa vs. Oyinwola (2000) 10 NWLR (Pt.674); Ezeukwu vs. Ukachukwu (supra); Okonkwo v. Okonkwo (2004) 5 NWLR (Pt. 865); Adetayo vs. Ademola (2010) 15 NWLR (Pt. 1215) 169; Olaleye-Ote vs. Babalola (2012) 6 NWLR (Pt. 1297) 574.

The knotty question that emerges is: where is the land in dispute, Budo Nuhu, situated, in the urban or rural area? I agree, without any reservations, with the appellant that the location of the land in dispute, Budo Nuhu, is a matter of law, not fact. Being a question of law, the law gives me the unfettered licence to take judicial notice of the location of the property in dispute thereby obviating the necessity for evidence of proof of its location, see Joseph vs. State (2011) 16 NWLR (Pt. 1273) 226. To this end, I invite the provision of section 74.(1) (a) (now section 122 (1) (a)) of the Evidence Act which gives the courts the latitude to take judicial notice of “all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.” In this wise, the Designation of Certain Places as Urban Areas Order, 2009 of Kwara State, a subsidiary instrument, made pursuant to the provision of section 3 of the Land Use Act, which came into operation on 26/08/2009, comes in handy here. I have taken the pains to leaf through the Order. The Order has, systematically, in its schedule enumerated places designated as urban areas in each of the sixteen (16) Local Governments Area that make up Kwara State. I searched in vain, even with the eagle and prying eyes of a court, in the sense that I was not able to see the name of the disputed land in any of the outlined Local Government Ar.eas. I, then, zeroed my examination in on Ilorin West Local Government Area where I found Airport, which was a recurring decimal in the proceeding as having boundary with the land, but my efforts were fruitless as Budo Nuhu is not among the area mentioned therein. For the avoidance of doubt, I will reproduce the urban areas listed under Ilorin West Local Government, verbatim ac litteratim, as follows:

 

“Ilorin West Local Government

  1. Ilorin Township
  2. Odota
  3. Galadima
  4. Airport
  5. Egbejila
  6. Odore
  7. Oloje
  8. Ita-Amoh
  9. Baba-Ode
  10. Osin-Aremu
  11. Osin-Agako
  12. Gaa-Imam

13 Olunlade West

  1. Wara
  2. Gerewu
  3. Adewole.”

The point I want to ram home is that, from all indications, Budo Nuhu does not make the list of urban areas in the said Order. In holding this viewpoint, I employ the principle of law embroidered and weaved in the legal maxim. expressio unius est exclusio alterius or inclusio unius est exclusio alterus or enumeratio unius exclusio alterus – the expression of one thing is the exclusion of another, See Ehuwa vs. O.S.I.E.C. (2006) 18 NWLR (Pt. 1012). 544 at 568 – 569. The net effect of these is that the land  in dispute is lying in a rural area of Ilorin West Local Government and so, by law, not in the urban area. It follows that the res in the matter, the disputed land, is situated within the territorial jurisdiction of both the High Court and the Area Court, Customary Court or other court of equivalent jurisdiction. Put clearly, the disputed land is within the jurisdiction of the trial court. It means, that the respondent’s action has not done any violence or injury to the second ingredient of jurisdiction. I, therefore, hold that the trial court was equipped with the requisite jurisdiction to entertain the respondent’s action. In consequence of that, I endorse, completely, the finding of the lower court on this prong as being impeccable and unworthy to be harmed in any manner. Accordingly, I resolve this prong against the appellant.
Altogether since the two prongs went against the appellant, I have no option than to resolve the issue against him, the appellant. That means the trial court was clothed with ample jurisdiction to entertain the respondents action as constituted before it.

 

I proceed to deal with issue two. The hub of the appellant’s grouse on the issue is that the lower court uphold and relied on inadmissible evidence admitted by the trial court. The appellant lampooned the admission of exhibits P1, P5 – P12 branding them as inadmissible for a litany of reasons. I will treat those grounds in relation to the inadmissibility or otherwise of those documents on the footing of substantial justice on which the appellant predicated his arguments.
Nevertheless, before I venture to look at the mainstay of the issue, it is remarkable to observe that the appellant, at the cradle of the issue, conceded, a good sense of advocacy to behold, that the trial court which admitted those documentary evidence, exhibits P1, P5 – P12, is not bound by the provisions of the Evidence Act. The concession, an undiluted one, is in accord with the law grounded on the provision of section 1(2) (c) (now section 256(1) (c)) of the Evidence Act, see Kuusu vs. Udom (1990) 1 NWLR (Pt. 127) 421; Nuhu vs. Ogele (2003) 18 NWLR (Pt. 852) 251. This admission is sufficient to do away with the issue without much ado. Nonetheless, I will treat the inadmissibility or otherwise of those documents in relation to the grounds mentioned by the appellant. The rationale behind it is clear. The law is that where an inherently inadmissible evidence, which encompasses documentary evidence, is admitted, even without opposition from an adverse party, a court which received it in evidence and an appellant court have the power, or duty, to reject and expunge the inadmissible evidence at judgment stage and on appeal respectively because a court of law acts only on legal evidence, see Abubakar vs. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar vs. Chuks (2007) 18 NWLR (Pt. 1066) 386. In keeping with this cardinal rule of law, I will sieve or winnow those exhibits, sought to be impugned, with a view to ascertaining which are admissible or inadmissible.

 

Now, the exhibits, without their contents, are: Exhibit P1 Judgment of the Sharia Court, Kwara State; Exhibit P5 – Judgment of the High Court, Kwara State; Exhibit PO Judgment of the Court of Appeal, Kaduna Division; Exhibit P7 – Judgment of the Supreme Court; Exhibit P8 – writ of possession; Exhibit P9 Judgment of the High Court of Kwara State, Appellate Division; Exhibit P10 -Judgment of the High Court of Kwara State, Appellate Division, Exhibit P11 – Judgment of the Court of Appeal, Ilorin Division and Exhibit P12 – An agreement.

To begin with, admissibility is a rule of evidence and a document is admissible in evidence in any proceedings if it is relevant. In other words, relevancy is the meat of admissibility of evidence in addition to it being pleaded and admissible under the law, See Nwabuoku vs. Onwordi (supra); Avong vs. KRPC Ltd (supra); Abubakar vs. Chuks (supra). I have given an intimate study to those exhibits, P1, P5 – P11, which are all judgments and processes of various courts made at one point in time or the other. Some of them trace their roots directly to the land in dispute. The others relate to adjourning lands wherein the respondent’s family was either a party or involved in their alienation. It means that those exhibits, to all intents and purposes, are proximately connected to the fact in issue-who, as between the appellant and respondent, owns the disputed land, Budo Nuhu. In the common legal parlance, those exhibits, though not the fact in issue, are facts relevant to the fact in issue in that they are so linked to the said fact in issue thereby constituting one whole transaction even though they occurred at different times, not contemporaneously.

Also, they are, in one way or the other, the immediate or remote cause of the relevant facts or fact in issue which afforded an opportunity of their happening and so qualify as relevant facts, see sections 7 and 8 (now sections 4 and 5) of the Evidence Act; Abubakar vs. Chuks (supra). In a nutshell, some of those exhibits were forerunners of the fact in issue while others occurred contemporaneously or concurrently with the existence of the fact in issue. These dissected hallmarks of those exhibits make them connected to the fact in issue, who owns the disputed land, and are, de jure, relevant documentary evidence.
The appellants next onslaught against those documents, exhibits P1, P5 – P11, is that they are irrelevant by operation of law based on the provisions of sections 49 – 52 (now section 59 – 62) of the Evidence Act. I am clear in my mind that the appellant’s attack against the exhibits on this ground stands on a weak wicket. I have reached a finding ante, which I have no reason to upset, that the exhibits are not disconnected from the fact in issue and so constitute facts which are relevant to the facts in issue They are res gestae documentary evidence. With this evidential status, those exhibits will take refuge under the exception ingrained in the provision of section 52 (now section 62) of the Evidence Act as they are “relevant under some provision of this or any other Act” by virtue of the prescription of sections 7 and 8 (now sections 4 and 5) of the selfsame Evidence Act. This, no doubt, clearly proves that those exhibits are far from being irrelevant by operation of the law just as it deflates the appellant’s attack on them on this point.

 

The appellant found another attack against those exhibits on the reason that they do not cover the disputed land and so not binding on them. Here, to avoid needless duplication of efforts, I adopt, intoto and wholeheartedly, my reason and explanation on the last attack-that they are irrelevant by operation of law. Beside, the reception of those exhibits as evidence only goes to signify that they are admissible in law for want of ex facie features militating against their admission. Whether or not they are binding on the appellant is a matter of weight that will be attached to them during evaluation of evidence. By law, admissibility, a rule of evidence grounded on relevancy, is a precursor to weight to be credited to admitted documents. The yawning gap between the two is captured in the case of Abubakar vs. Chuks (supra) at 403 – 404.
Incidentally, the appellant’s quarrel with those exhibits, on this point, is that they are inadmissible not on the probative value credited to them. I have, sufficiently, shown that they are not inadmissible. That is enough to quench or douse the appellant’s groan as, their binding relationships with him, the appellant, is accommodated in their weight which is outside his grouch here. In sum, the appellant’s attack on this point is castrated.

 

Furthermore, the appellant attacked those exhibits as suffering from a malady of territorial jurisdiction because they cover lands in two States, Kwara and Oyo, and not conclusive against the appellant. I agreed with the appellant that those exhibits, except those he is a party or privy to, are not conclusive judgments against him by virtue of the provision of section 54 of the Evidence Act. Nonetheless, that is the extent I can fall in with him on this adjunct point. As already noted, those exhibits, at the expense of notoriety but borne out of necessity, are res gestae evidence, facts relevant to the fact in issue, and are, ipso facto and de jure, relevant to the respondent’s case.

 

In any event, their inconclusiveness against the appellant does not go to the prop of their admissibility as x-rayed above. Having given a microscopic examination to those exhibits, I am at one with the respondent that they do not unveil any amphibious feature of inter-state origins as to make them susceptible to “a malady of territorial jurisdiction” coined by the appellant. All the exhibits trace their judicial history to lands within Kwara State. Similarly, whether or not those exhibits are tethered to any plan (s) does not erode their admissibility even as that is inconsequential to the case in hand. These make mincemeat of these two side-attacks launched against those exhibits by the appellant.

There is still an outstanding attack against those exhibits contrived by the appellant. The appellant took serious swipe against them on the ground that they were not demonstrated because the respondent’s witnesses refused to answer questions on them. I have, painstakingly, burrowed through the mountainous record of 499 pages in an avowed desire to verify the cogency and veracity of that attack. This is precipitated by the law that cross-examination of witness of an adverse party is an inviolable constitutional right of a party to fair hearing as guaranteed in section 36(1) of the 1999 Constitution, as amended, which constitution the law compels every court, including the trial court, to observe any of its provisions to the letter, see Nuhu vs. Ogele (supra).
I discovered, in my search through the record, that the appellant, through his learned counsel, used those exhibits to cross-examine two of the respondent’s witnesses, that is, PW3 and the plaintiff. Admittedly, on page 129 of the record, PW3, under the crucible of cross- examination, said, initially, he did not know the contents of exhibits P1 and P2.

 

However, at the twilight of that page, lines 27-32 thereof, the witness answered questions put to him based on those exhibits. In the same vein, the plaintiff, as a witness, who claimed to be an illiterate, under the furnace of cross-examination, on pages 163-164 of the record, responded to questions directed to him in respect of exhibits P5 – P12, particularly P5, P6 and P12.

 

Against the backdrop of these, it is incorrect for the appellant to assert that the respondent’s witnesses were averse to questions on those exhibits. In law, it is the cross-examiner, invariably, learned counsel for an opposing party, who puts questions, using documents for the purposes of this case, to an adversary’s witness under the fire of cross-examination- a noble art which constitutes a legal instrument in the arm of an opponent for demolition of an adversary’s case. It is never the law that a witness should ask himself questions during cross-examination. It was incumbent on the appellant, via his learned counsel, to ask the respondent’s witnesses questions and elicit answers from them using those exhibits as templates for such questions. Having failed or neglected to wake up to this legal responsibility, foisted on him by law, he is estopped from passing blames to the respondent’s witnesses in the name of non-demonstration of those exhibits before the trial court. I hold that the appellant’s constitutional right to cross-examination was not trampled upon as to render those exhibits inadmissible. This attack, like the others, is a non-starter.

 

That is not all. The appellant picked holes in exhibit P 12 – that it is a document made during the pendency of the respondent’s matter and so null and void. In this perspective, the provision of section 91(3) and (4) (now section 83 (3) and (4)) of the Evidence Act is of note. That, clear and unambiguous, provision has been construed, in a volley of cases, to mean that a document will become inadmissible in any proceedings if it was made by a person interested in that proceeding and at a time it was pending or anticipated, see Bamgboye vs. Olusoga (supra); Ugwu vs. Ararume (2007) 18 NWLR (Pt.1048) 367; Owie v. Ighiwi vs. Ighiwe (2005) 5 NWLR (pt. 917) 184; N.S.I.T.F.M.B. vs. Klifco Nig. Ltd. (2010) 13 NWLR (Pt. 1 211) 307.

 

In the instant case, the exhibit P12, sought to be jettisoned by the appellant, was made on 20/01/1985. It is an agreement made between Bello Akanbi Are Ogele and Jimoh Gaa and Alfa Baba for grants of land to the latter for farming and/or agricultural purposes. It was suit No. CVF/23/91, commenced in the trial court, between the same parties, that gave birth to CVF/43/2004 which is the mother of this appeal. From its number, the former case was instituted in 1991 and it meandered, at its millipede or snail speed, from the trial Upper Area Court to the Supreme Court which affirmed the order of the Court of Appeal for retrial before a differently constituted panel of the trial court. It is in obedience to that order that the case acquired a new suit No. CVF/43/2004. Indisputably, the exhibit P12, which came to limelight on 20/01/1985, came to life months before the respondent’s action was instituted in 1991 in suit No. CVF/23/91.
The exhibit P12 was at least six(6) years old before the respondent’s suit was born. In view of these, I hold that the exhibit P12 was not made pendelite, during the pendency of the respondent’s action.

 

For a good measure, the exhibit P12 was not signed by the respondent in the manner ordained by the prescription of section 91(4) (now section 83(4) of the Evidence in the sense that it was not written, signed or initialled by him nor did he recognize it “in writing as one for the accuracy of which he is responsible.” For exhibit P12 to be ruined by the above provision, the two conditions that it was made during the currency of the proceeding and by a person interested must be satisfied conjunctively.

 

A fulfillment of one of the conditions runs short of the standard of requirement of that provision. In a word the exhibit P12 is not drowned by the doctrine of lis pendens as to make it inadmissible evidence before the trial court.

 

Let me add that exhibits A and B, as they were christened by the trial court, were properly rejected. Exhibit A was refused in evidence because it did not satisfy the requirement of the Evidence Act while exhibit B was not admitted for it was part of exhibit A that had already been rejected. The appellant’s attack here is unwarranted and has no place in law. By way of summation, I have, dispassionately, handled all the terminal attacks unleashed against exhibits P1, P5 – P12 by the appellant. It stems from the foregoing expositions that those attacks have no backing of the law. It is crystal clear that the appellant was never denied far hearing and was given an even keel with the respondent vis-a-vis those exhibits so that the case of Kenon vs. Tekam (supra) is inapplicable here.

 

Since the attacks are not shored up by law, the strictures passed by the appellant on those exhibits pale into insignificance. The admission of those exhibits has not afflicted any miscarriage of justice on the appellant. In the circumstance, I hold that the lower court was right when it upheld their admission and usage in the trial court. They, also, remain relevant before this court and I welcome them as admissible and usable documentary evidence in this appeal. In the end, I resolve issue two against the appellant and in favour of the respondent.

 

I move on to attend to issue three. I will, however, consolidate issues three and four and settle them together. This is because they are not dissimilar. Indeed, issue four looks like the tentacle of issue three. As a result of this closeness, their joint consideration will save time and space in this appeal.

 

My starting point, in dealing with these two critical issues, is to resolve whether or not exhibit X2, proceedings in Area Court 1 Afon, was admissible and usable by the trial court. This will assist this court to know the admissible evidence for utilisation before it. It is a common ground that the said exhibit X2, tendered by the appellant through the respondent’s witness, is evidence in previous proceedings. By virtue of the provision of section 34(1) ((now section 46 (1)) of the Evidence Act, evidence given by a witness in a previous proceeding is relevant in a subsequent proceedings for proving the truth of the facts it stated when such witness is dead or cannot be found or is incapable of giving evidence or kept out of the way by the adverse party, or when his presence cannot be secured without unreasonable amount of delay or expense, provided the proceeding was between the same parties, the witness was cross-examined by the adverse and questions in issue were the same in the two proceedings. The provision has been interpreted to mean that evidence in a previous proceeding can only be used in a later one to cross-examine the witness who gave it as to his credit, but not for any higher value, see Odusote vs. Mil Gov. Ogun State (supra); Sanyaolu vs. Coker (supra); Ikenyi vs. Ofune (supra); Shanu vs. Afribank (Nig) Plc (supra/(2002) 17 NWLR (pt. 795) 185; Yusuf. Vs. Adegoke )(2007) 11 NWLR (Pt. 1045) 332;  Dada vs. Bankole (2008) 5 NWLR (Pt. 1079) 26; Elegushi vs. Oseni (2005) 14 NWLR (Pt. 945) 348.

 

In the case in hand, the respondent, Alhaji Ishola Are Ogele, who testified as the plaintiff before the trial court did not give evidence as a witness in the exhibit X2. To that extent, the touchstone of tendering the exhibit was non-existent ab inito, coupled with the fact that there was no evidence that the witness who volunteered the evidence, in the exhibit X2, was dead, unfound, kept away by adverse party or could not be secured without unreasonable amount of delay or expense. Since the respondent was not a witness in the exhibit X2, it follows that the adverse party therein had no right and opportunity to cross-examine him therein in satisfaction of the condition – precedent for the proper invocation of the provision as entrenched in its Proviso.

 

Given these reasons, I entertain no doubt that the admission of exhibit X2 does not find succour with the law. The use it was put was, legally, wrong as it had no judicial utility. The concurrent finding reached based on it was a mock-decision par excellence. A court of law, be it of first instance or appellate, is prohibited from using an inherently inadmissible evidence even when it is counted in evidence without any objection from an opposing party, see Abubakar vs. Joseph (supra); Abubakar vs. Chuks (supra). Consequently, I am minded, in keeping with the law, to weed out exhibit X2 from this appeal as it is an unwelcome and unwholesome evidence. Accordingly, the exhibit X2, including the phoney-finding predicated on it, be and is hereby expunged for want of legality. Having done away with that tangential point, I now get down to the nitty-gritty of the issues three and four. The appellant’s main grievance is that the tower court did not comprehensively review the evidence before the trial court. In other words, the appellant is asking this court to interfere with the finding of the lower court. As a prelude, a necessary one at that, an appellate court does not form the habit of interfering with the findings reached by a trial court save in exceptional circumstances where the inferences drawn from established facts are wrong or the finding does flow from the evidence adduced, see Okoye vs. Obiaso (supra); Yusuf vs. Adegoke (supra); Momoh vs. Umoru (2011) 15 NWLR (Pt. 1270) 217.

It is trite law that a trial court, like the one here, has the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by parties in a matter having regard to their pleadings. In doing that, the court must demonstrate how and why it arrived at its findings of fact and final determination of the issues before it. The court has to be wary and understand the wide gulf between summary or restatement of evidence and evaluation of evidence as the latter denotes assessment or appraisal of evidence and giving probative value to them. A trial court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. It, then, weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, See Mogaji vs. Odofin (supra); Oyekola vs. Ajibade (supra); Olagunju vs. Adesoye (2009) 9 NWLR (Pt. 1146) 225 at 263; Oyewole vs. Akande (2009) 15 NWLR (Pt. 1163) 119 at 147; Ayuya vs. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei vs. Adebayo (2012) 3 NWLR (Pt. 1288) 534.

 

In the light of these dissected positions of the law, which I will, constantly, bear in mind and use same as yardsticks, I will deal with the appellant’s complaints on these issues. As already noted, the contest between the parties is ownership of Budo Nuhu land. In our legal system, there are five methods of proving title to land to wit: (a) by traditional evidence; (b) by document of title; (c) by various acts of ownership and possession numerous and positive enough to warrant inference of ownership; (d) by acts of long possession and enjoyment of land; or (e) by proof of adjacent land to the land in dispute in such circumstances which render it probable that the owner of the former is the owner of the latter. These five ways, enunciated in the case of Idundun vs. Okumagba (supra), have received further judicial blessings in tons of decided authorities, see Yusuf vs. Adegoke (supra); Momoh vs. Umoru (supra); Odunze vs. Nwosu (2007) 13 NWLR (Pt. 1050); Nwokidu vs. Okanu (2010) 3 NWLR (Pt. 1181) 362; Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 553.

 

Interestingly, both parties premised their cases on traditional evidence and the roots/tentacles of each side extended to the other modes I have given a minute and careful scrutiny to the evidence of the parties, tendered before the trial court, as  manifested in the cold record of appeal. The synopses of the case of the appellant are that the land was granted to his great grandfather, Dan Musa, by Oba Shitta, the 2nd Emir, over 160 years ago owing to his prowess in wars and that since then his family had been in possession and control of the land by alienation of same and receiving tributes from customary tenants such as those from the appellant’s family. Contrariwise, the appellant’s case was that the land was given to great grandfather, due to his success in wars, by Oba Aliyu, the 4th Emir, and not to the respondent who were slaves and cooks of the Emir and that they had been in possession and control of same since then. In consonance with the requirement of the law, I have put the evidence rendered by the feuding parties in an imaginary judicial scale which I have evolved. I have, also, duly appraised and weighed their evidence, both viva voce and documentary, with a view to discerning which is higher in weight in terms of judicial quality and not quantity. In my humble view, the evidence offered by the respondent, through PW1-PW4 and himself, in proof of his case were not in the least contradicted under the cross-fire of cross-examination by the appellant. The witnesses for the respondent were consistent and coherent in their evidence both in examination in-chief and under cross-examination. I daresay, the verbose cross-examination by the appellant, through his learned counsel, was not potent enough to puncture the cogency of their traditional evidence with a regard to the land in dispute.

On the contrary, the evidence adduced by the appellant’s witnesses are dotted with loose ends and contradictions elicited under the furnace of cross-examination. DW1 and DW3 failed or neglected to state who gave the land to the appellant’s forebears which is a desideratum in ownership of land based on traditional evidence. The witnesses admitted that the 2nd Emir, Oba Shitta, reigned before the 4th Emir, Oba Aliyu, and that the latter was the son of the former. DW1 conceded, under cross-examination, that the respondent owns the land and not the appellant. While DW1 agreed that the respondent appointed all the Baales in Budo Nuhu, DW2 and PW4 disagreed with him, both during cross-examination. DW4 agreed, under cross-examination, that the land is under Ogele Village and that tributes collected by Baale Budo Nuhu were not given to the appellant. These highlighted pieces of evidence show internal evidential conflict in the testimonies of the appellant’s witnesses.

 

While the respondent’s evidence, via his witnesses, is that he gave the land in exhibit P12 to Jimoh Gaa and Alfa’ Baba, the appellant, through DW2 and DW4, testified to the contrary. Ditto for the cheque, exhibit P4. To decipher the truth, I will deploy one decisive principle of law. Where two adverse parties in a proceeding render testimonies that are antithetical to one another, a court has the permission of the law to use any available documentary evidence as the barometer to decide the veracity of the conflicting evidence. The raison d’etre for this principle is rooted in the permanent and indestructible nature of documentary evidence as against the ephemeral oral evidence that issue out from the vocal cord of man. In the process of using documentary evidence as a hanger, a witness whose evidence is buttressed by it is credited as a truthful witness and vice versa, that is, the evidence unsupported by it is taken as half-truth, see Ogbe vs. Asade (2009) 18 NWLR (Pt. 1172) 106; Jinadu vs. Esurombi-Aro (2009) 9 NWLR (Pt. 1145) 55; Jolasun vs. Bamgboye (2010) 18 NWLR (pt. 1225); Mil. Gov., Lagos State vs. Adeyiga (2012) 5 NWLR (pt. 1293) 291.

In this regard, exhibit P12, the agreement, becomes useful I have given a careful reading to the exhibit and it is clear from it that it was made by Bello Akanbi Are Ogele, the respondent’s predecessor-in-title over the land. It means that exhibit P12, a documentary evidence, shores up and consolidates the testimony of the respondent that he was the one that gave the land to Jimoh Gaa and Alfa Baba, the appellant’s brothers. Moreover, in exhibit DX3, the respondent’s predecessor transferred part of the land to NASRUL-LAHI-IL-FAITH SOCIETY OF NIGERIA, NASFAT, on 29/02/2002, showing that the respondent owns the disputed land. Again, exhibit P4, the cheque for compensation for ownership of part of Airport land, was drawn in the name of the respondent, Alhaji Ishola Are Ogele. It, also, solidifies the respondent’s evidence that the land in dispute is an extension of the Airport premises. It shows that the evidence of the respondent on those facts are corroborated by those two documentary evidence without supporting that of the appellant. Then, using that principle as the parameter, I hold that the evidence of the respondent is the truth and crown same with the toga of credibility while I discredit that of the appellant and take same with a pinch of salt.

 

Furthermore, I had found that the evidence of the respondent was not, successfully, contradicted or controverted by the appellant.  Indisputably, a court of law is at liberty to act and rely on evidence of a party that is not refuted by an adversary, see, N.S.I.F.T.M.B. vs. Klifco Nig. Ltd (supra); Nasir vs. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253; Chabasaya vs. Anwasi (2010) NWLR (Pt. 1201) 163. Adim vs. N.B.C. Ltd (2010) 9 NWLR (pt. 1200) 543.

Moreover, exhibit P12, an incorruptible documentary evidence, shows that the respondent is the undoubted owner of the land in dispute. Also, exhibit D4, on page 11 thereof-exhibit D4A, demonstrates that Oba Shitta was the 2nd Emir who reigned from 1842-1860 while Oba Aliyu Shitta was the 4th who reigned from 1868-1891. Exhibit D6(iv), also, confirms the period of the reign of Oba Aliyu Shitta as between 1868-1891. These historical antecedents are significant for three reasons. Firstly, they confirm that Oba Shitta begat Oba Aliyu Shita. Secondly, they show that Oba shitta was earlier in the saddle of Emir before Oba Aliyu, implying that any grant made by the former predated that of the latter. Thirdly, they indicate that the grant of the land to the respondent by Oba Shitta who, by dint of undebunked evidence was earlier on the throne of Emir, was first in time. The unavoidable inference to be drawn therefrom is that by that grant made by Oba Shitta, Oba Aliyu Shitta had nothing more to vest in the appellant on the agelong principle of nemo dat quod non habet, no one gives out what he does not have, see Famuroti vs. Agbeke (supra); Ashiru vs. Olukoya (2006) 11 NWLR (Pt. 990) 11; Ibrahim vs. Osunde (2009) 6 NWLR (Pt. 1137) 382; Omiyale vs. Macaulay (2009) 7 NWLR (Pt. 1141) 597. All these pieces of evidence go a long way to establish that the respondent’s traditional evidence was more believable, impregnable and convincing than that of the appellant.
It is not lost on this court that the respondent founded his root of title on grant, as distinct from settlement, which “comes from a previous title holder to a subsequent one called a grantee”, see Kode vs. Yusuf (2001) 4 NWLR (Pt. 703) 392 at 409, per Onu, JSC and Yusuf vs. Adegoke (2007) 11 NWLR (Pt. 1045) 332. Since the respondent’s root of title is predicated on a grant, his cogent and uncontradicted traditional evidence, without more, are sufficient to earn him declaration to right of occupancy over the land.

 

In the case of Atanda vs. Ajani (1989) 3 NWLR (Pt. 111) 511 at 533, Craig, JSC, opined:

 

“It has been held that when a party relies on a grant and proves that grant by traditional evidence, he need not go further and prove possession or acts of ownership or any of the other four ways stated above”
See, also, Yusuf vs. Adegoke (supra).

 

Not only that, the respondent is enjoined to prove the three elements required in traditional history, id est, who founded the land in dispute, how the land was founded and the particulars of intervening owners through who he claims, see Elegushi vs. Oseni (2005) 14 NWLR (Pt. 945) 348; Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 553; Iroagbara vs. Ufomadu (2009) 11 NWLR (Pt. 1153) 587. The respondent proved these trinity elements by establishing that the land was founded by his forefather, Dan Musa, by grant of it to him by Oba Shitta, the 2nd Emir of Ilorin, for his unparalleled conquests and success in wars. He, also, narrated the particulars of intervening owners, that is, those the land devolved on before he inherited same.

 

More than that, I have reached a finding that the traditional history, usually based on hearsay, of the respondent is more probable than that of the appellant owing to other pieces of evidence that back it up. The corollary of that, which I even found earlier, is that the traditional evidence of the appellant is contradictory and incoherent rendering it most improbable. As I have found the traditional history of the respondent is more probable or plausible, I am no longer compelled by law to visit the hallowed principle of law evolved in the case of Kojo II vs. Bonsie (supra). This is because a court is impelled to apply that ageless principle when the traditional histories presented by both warring parties are inconclusive and it is in a fix as to which to accept. Where such scenario plays out, it will resort to other evidence of recent acts of possession and ownership to help it reach a decision on which side to believe, see Nwokidu vs. Okanu (2010) 3 NWLR (Pt. 1181) 362; Momoh vs. Umoru (2011) 15 NWLR (Pt. 1270) 217; Ogun vs. Akinyelu (2004) 18 NWLR (PT. 905) 362.

 

Irrespective of all these, since this court is the penultimate court in the judicial ladder in this country, I will proceed to consider other evidence of recent acts of possession and ownership which the evidence demonstrate. The object of this exercise is simple. It will afford the Supreme Court, on appeal to it, the opportunity of having the benefit of the view of this court on recent acts of possession and ownership in case it has a contrary view point on traditional history. That will save the scarce judicial time and costs for the court and parties alike.

 

It is imperative to emphasise that the respondent was/is in effective possession of the land. By exhibits P12 and DX3, the respondent rented parts of the land to other people meaning that he is, certainly, in de jure possession even though he is not in de facto or physical possession of the land, see Ezeukwu v. Ukachukwu (supra); Tanko vs. Echendu (2011) 18 NWLR (Pt. 1224) 253. Also, the evidence of the appellant’s witness, DW3, that he built a house on the land 40 years ago peters out in the face of the respondent’s proof that he had been in possession thereof for over 160 years ago.

 

With that de jure possession, the burden shifted to the appellant, under the provision of section 146 (now section 143) of the Evidence Act, to show that the respondent is not the owner of the disputed land, see Dada vs. Bankole (2008) 5 NWLR (Pt.1079) 26. The appellant failed to discharge that burden, saddled upon him by law, thereby making the respondent hold an ace over him on the ownership of the land.

 

These apart, the respondent went further to prove that he was the owner in possession of part of the land where the Airport is situated. He did that through the instrumentality of exhibits P2 and P4. Exhibit P2 is an Arbitration Report which shows that the respondent was a part-owner of the Airport premises.

Exhibit P4 was a Union Bank Cheque, drawn in the name of the respondent, as recompense for the Federal Government acquisition of his own part from him. There are evidence, in heaps and bounds, on the record that the Airport is separated from the land by the Ilorin-Ogbomosho Road. That qualifies the Airport premises an adjacent or adjourning land to the land in dispute. That makes the respondent qualify, too, to take benefit under the provision of section 46 (now section 35) of the Evidence Act in the sense that his acts of possession and enjoyment of part of the Airport premises are also evidence of his ownership of the disputed adjacent land because it is connected with it by locality or similarity such that those acts are true to both of them, see Nwokorobia vs. Nwogu (2009) 10 NWLR (Pt. 1150) 592. Again, this act reinforces the respondent’s evidence of ownership of the land in dispute. There are, also, avalanche of evidence, uncontradicted ones at that, that the respondent or his predecessors had been recipients of tributes in the form of cocks, kegs of cheese, yams and money from locust beans, from various occupants of the land including the predecessors of the appellant over the land. There are myriads of evidence showing that those occupants used to render social services to the respondent’s predecessors like using grasses to roof their thatched houses until the advent of zinc sheets which supplanted grasses. There are loads of evidence that the respondent and, by extension,  his predecessors have the sole responsibility of appointing Baales of Budo Nuhu. All these, to my mind, pointedly point to the fact that the respondent had/has control over the land with the deductive reasoning of being the owner in possession thereof. I am not oblivious of the law that a party who seeks for declaration of title or right of occupancy to any land has the bounden duty to establish same on the strength of his own case and not on the weaknesses of the defence, see Nwokidu vs. Okanu (supra); Odunze vs. Nwosu (2007) 13 NWLR (Pt. 1050) 1. Methinks, the respondent has lived upon to this duty, going by the above analyses, on the balance of probabilities as decreed by law.

 

Now, I beam my search light on whether the respondent’s claim for forfeiture was proved or not. Forfeiture is a mantra in customary tenancy relationships. “Forfeiture is a punishment annexed by law to some illegal act or negligence, in the owner’s land, tenements or hereditaments, whereby he loses all his interest therein, as a recompense for the wrong which either he alone, or the public together with himself, has sustained”, see Akinlagun vs. Oshoboja (2006) 12 NWLR (Pt. 993) 60 at 89, per Tobi JSC. In a more compressed or succinct form, forfeiture is, “The loss of a right, privilege, or property because of a crime, breach of obligation, or neglect of duty”, see Black’s Law Dictionary, Seventh Edition, Page 661.

 

A customary tenant’s acts of misbehaviour that will ground or attract forfeiture include, but not limited to, (a) refusal to pay rent or tribute; (b) refusal to provide the customary services stipulated; (c) use of land for a different purpose; or (d) denial of title of the overlord, see, Akpgbue vs. Ogun (supra); Akinlagun vs. Oshoboja (supra); Ogun vs. Akinyelu (2004) 18 NWLR (Pt. 905) 362; Elegushi vs. Oseni (2005) 14 NWLR (Pt.945) 348; Adedeji vs. Oloso (2007) 5 NWLR (Pt. 1026) 133; Iroagbara vs. Ufomadu (2009) 11 NWLR (pt. 1153) 587.

 

There are floods of unchallenged evidence on record that the forefather of the appellant, who was allowed to stay on the land after much protestation and negotiation, was paying yearly tributes (Ishakole) to the respondent’s forefather in the form of cocks, kegs of cheese, yams and money from harvested locust beans and provided customary social services like using grasses to roof the latter’s thatched houses. There are abundant unrefuted evidence that the appellant, three months after his father’s death, refused to pay those tributes, perform the social services and claimed ownership of the disputed land. Evidence, by DW3, showed that the respondent passed the property in the land to a third party, Mogaji Babako. That amounts to an unpardonable denial of the respondent’s allodial title over the land. These pieces of concrete evidence, amply, demonstrate, beyond any equivocation, that the respondent established his relief for forfeiture in the manner ordained by law. A customary landlord, and, indeed, any landlord, husbands ownership of his title to land. That informs why the law, seriously, frowns upon a customary tenant denying his overlord’s title and visits or meets such cavalier act of misbehaviour with forfeiture as the penalty. The appellant having abdicated his other duties, such as payment of tributes and provision of customary social services, he owed to the respondent, coupled with his arrant denial of the respondent’s title to the land, it will meet the ends of justice for him to incur the wrath of the law by way of his forfeiture of land.

 

As can be deciphered from the appellant’s evidence, apart from claiming ownership of the land, he raised two legal defences. The one was that the land belonged to a third party, Mogaji Baboko, and not the respondent. In the common legal parlance, the appellant raised a defence of jus tertii which, in land law, cannot be used to defeat a grantor’s title in land, see Jinadu vs. Esuronbi – Aro (2009) NWLR (Pt. 1145) 55. In so far as that defence does not enure to the appellant, he cannot, legitimately, take shelter under its canopy to either acquire or destroy the respondent’s solid title granted to him over the disputed land. That defence is of no moment here and it is an absolute waste to the appellant. The other was that the respondent’s forefathers were slaves and cooks of the Emir and he could not have granted the land to them.

 

I must observe, upfront, that I am jolted by that defence coming before a court of law in the 21st century of human existence. Slavery, the state of a person who is a chattel of another, and slavocracy were banished from human race a long time ago. Slavery was a paradigm of man’s inhumanity to man and as such a debasement of mankind in all ramifications. Apart from its global abolition and extinction, it cannot, to my mind, serve as a viable shield or defence to a lawfully acquired title over land. This is because, the provision of section 34(1)(b) of the 1999 Constitution, as amended, extinguishes slavery in Nigeria Again, by virtue of the provision of sections 42 and 43 of the said Constitution, a citizen of this country has a right to freedom from discrimination and to acquire and own immovable property anywhere in Nigeria respectively. The Constitution is the fons et origo of our laws. To allow the appellant’s defence of slavery to sail through, by nullifying the respondent’s legally acquired title over the land by grant as proved, will desecrate the inviolate provisions of the Constitution aforementioned. I am not prepared for such a sacrilege that will be antithetical and injurious to the provisions of the Constitution. As a result of these, I discountenance that defence of slavery for want of legality.

Having regard to the foregoing legal expositions, are the findings of the lower court perverse? I have my doubts.

 

In the eyes of the law, a verdict of a court is perverse when: it runs counter to the evidence and pleadings before it, a court takes into account matters it ought not to take into consideration, a court shorts its eye to the evidence or its decision has occasioned a miscarriage of justice, see Onyekwelu vs. Elf Pet (Nig) Ltd (2009) 5 NWLR (Pt. 1133) 181; Osuji vs. Ekeocha (2009) 16 NWLR (Pt.1166) 81; Momoh vs. Umoru (supra); Joseph vs. State (supra).

A miscarriage of justice denotes such departure from the rules which pervade all judicial procedure as to make what transpired, in court, not, in the proper sense of it, judicial procedure at all. It occurs when a court, after a thorough examination of the entire case, inclusive of the evidence, which encompass both oral and documentary, is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error the appellant complained of, see Amadi vs. NNPC (2000) 10 NWLR (Pt. 674) 76 at 112; Akpan vs. Bob (2010) 17 NWLR (Pt. 1223) 421.

I have juxtaposed the findings of the lower court with the outlined vitiating elements of perverse decision. It seems clear to me that the findings are not at variance with the evidence on record. They are rather a complete reflection of the evidence. Those findings do not contain extraneous matters in any form. It follows that the appellant would not have earned more favourable result but for the error they complained of. At this juncture, it is important to state that the excision of exhibit X2 from this appeal does help the appellant’s case an inch.
This is because the wrongful admission of that evidence is insufficient to upturn the decision of the lower court as the decision would have been the same in the absence of it and in the presence of other strong evidence, both oral and documentary, see section 227 (now section 251) of the Evidence Act, Ntuks vs. NPA (2007) 13 NWLR (Pt. 1051) 392; Archibong vs. State (2006) 14 NWLR (pt. 1000) 349; Oguimi vs. Nigeria Const. Ltd (supra).

 

I, therefore, hold that there is no bubble of perversion in the finding and decision of the lower court to warrant my interference as that will be an insult to the law.

The appellant was not yet done on his excoriation of the findings of the lower court. He chastised them as being against the weight of evidence before the trial court. The purport of a decision being against the weight of evidence was, graphically, captured in the case of Mogaji vs. Odofin (1978) 4 SC 91 AT 93, when Fatayi – Williams, JSC (as he then was) opined:

 

“When an appellant complains that a judgment is against the- “weight of evidence, all he means is that the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.”

 

See, also, Anyaoke vs. Adi (1986) 3 NWLR (Pt. 31) 731 at 742; Akinlagun vs. Oshoboja (supra); Nwokidu vs. Okanu (supra).

I had, at the inception of these issues, measured the evidence of both parties by weighing and balancing them in the proverbial imaginary judicial scale. I found that the evidence offered by the respondent, in terms of quality and not quality, outweighed, and preponderated over that of the respondent. I have not seen any extenuating evidential circumstances to make me make a volte face in that finding. Giving all that I have x-rayed in the consideration of these issues, this allegation is completely unfounded and lame.

 

In the result, I decline the appellant’s inviting invitation to brand the findings of the lower court as being against the weight of evidence. Finally, the appellant was yet to rest on his ears. He condemned the concurrent findings of both the trial court and the lower court as wrong in law. For an appellate court to interfere with the concurrent findings of facts by lower courts, the appellant complainant must show that: the findings were perverse, there was a clear error of law and facts, there was a violation of some principles of law or procedure or there was a miscarriage of justice, see Odunukwe vs. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Harka Air Serv. (Nig) Ltd. vs. Keazor (2011) 13 NWLR (Pt. 1264) 320; Torri vs. National Park Service of Nigeria (2011) 13 NWLR (Pt. 1264) 365; S & D Const. Co. Ltd. vs. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Wachukwu vs. Owunwanne (2011) 14 NWLR (Pt. 1266) 1; Momoh vs. Umoru (supra).

I have married the concurrent findings of the lower courts with the special circumstances, the appellant is enjoined to show, listed above. In my view, the findings flow from the evidence placed before the trial court by the parties and, ipso facto, do not reek of any perversion. Again, the lower courts did not fall into any apparent error of law and facts nor did they infract any principles of law or procedure. I say ditto for their findings. Moreover, the findings do not smack of any miscarriage of justice in that the appellant was far from obtaining a more favourable result without the error he complained about. In sum, those concurrent findings by the lower court do not deserve the crucifixion passed on them by the appellant and I will not, in order not to draw the ire of the law, lend credence to their unjustifiable vilification.

 

It can be gleaned from these findings that both the trial and lower courts did not exhibit any slipshod attitude in the evaluation of the evidence. For that reason, I am not persuaded by the appellant’s stance that those courts carried out shoddy evaluation of the evidence, contrary to the rules as enunciated in the case of Mogaji vs. Odofin (supra), as to undermine his inalienable constitutional right to fair hearing. Perhaps, it was lost on the appellant that the trial court, an Upper Area Court, is not by the prescription of law, a prisoner of cumbersome procedure, see Chike Ogo vs. Adibia Ogo (supra). It is a court nearer to the people and not bound to follow, strictly, faithfully or religiously, the rigorious procedures in adjudication in so far as it attains substantial justice fairly, efficiently, transparently and devoid of any miscarriage of justice. The proceedings and judgment of the trial court were lucid so much so that it, the trial court, deserves my accolades. No wonder the lower court in its succinct judgment affirmed that decision. In the result, I have no cause at all to tamper, in any manner, with those concurrent findings and decisions of the two lower courts. Accordingly, I have no option than to resolve the two crucial issues three and four against the appellant and in favour of the respondent.
Overall, going by the reasons advanced ante, it is clear that the appeal is, totally, drained of any merit.  It is stillborn. Consequently, I dismiss the appeal for want of merit. For the avoidance of doubt, I affirm the decision of the lower court, appellate division, delivered on 28/09/2010, wherein it upheld the decision of the trial court and dismissed the appellant’s appeal before it. The parties shall bear their respective costs of prosecuting and defending the doomed appeal.

IGNATIUS IGWE AGUBE, J.C.A.:

 

I have been privileged to read in advance the lead Judgment of my learned brother OBANDE F. OGBUINYA, JCA, and as usual he has succinctly dealt with all the teething issues raised by parties in the Appeal at hand before arriving at the conclusion that the Appeal is unmeritorious. I therefore have nothing else to add but to adopt all his reasonings and conclusion as mine.

 

I too shall dismiss the Appeal for lacking in merit and uphold the Judgment of the trial Court. I abide by all consequential orders cost inclusive.

ITA G. MBABA, J.C.A.:

 

Having been privileged to take part in the hearing of and conference on this case and to read, ahead of time, the lead judgment just delivered, I agree with the reasoning and conclusions of my learned brother O. F. Ogbuinya JCA in the lead judgment, and hereby adopt the same as mine, as I have nothing more useful to add. I too dismiss the appeal for want of merit and abide by the consequential orders therein.

 

 

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