3PLR – INTERNATIONAL BEER AND BEWERAGES INDUSTRIES LIMITED & ANOR V. MUTUNCI COMPANY (NIG) LTD.

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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INTERNATIONAL BEER AND BEWERAGES INDUSTRIES LIMITED & ANOR

V.

MUTUNCI COMPANY (NIG) LTD.

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 10TH DAY OF MAY, 2011

CA/K/138/2007

3PLR/2011/49 (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

MARY U. PETER-ODILI, JCA

JOSEPH TINE TUR, JCA

OBANDE F. OGBUINYA, JCA

 

BETWEEN

1. INTERNATIONAL BEER AND BEWERAGES INDUSTRIES LIMITED
2. MIDLANDS CONSULTANCY SERVICES LTD – Appellants

 

AND

MUTUNCI COMPANY (NIG) LTD. – Respondents

 

MAIN ISSUES

 

1. PRACTICE AND PROCEDURE – CONSISTENCE OF A PARTY IN PRESENTING HIS CASE: Whether or not a party must be consistent in his case before a court law and effect thereof

” By law, a party must be consistent in his case before a court law. Where a party presents antithetical or diametrically opposed positions in a case, a court is bound not to choose any of them. In the case of Abubakar vs Yar’Adua (2008) 19 NWLR (Pt.1120) at 153-154, Tobi, JSC, warned: “A party must be sure of his case and he must present it in one-lung breath not in two-lung breath. If a party makes a case bearing two opposing positions, which positions affect the substance or merit of the issue, it crumbles. A court of law is not competent to make a choice or repair the case and give the party in default judgment.” Per OGBUINYA, J.C.A. (P. 38, paras. A-C)

 

2. PRACTICE AND PROCEDURE – COURT – JURISDICTION OF COURT: Whether or not a court lacks the vires or jurisdiction to grant to a party an unclaimed relief

“Generally, a court lacks the vires or jurisdiction to grant to a party an unclaimed relief. In the case of Agu vs odofin (1992) 3 SCNJ 161 at 173, Karibi-Whyte, JSC, stated: “Our adjudicatory system has severely circumscribed and restricted the awards to be made by the court within the scope of the claims made and reliefs sought by the parties before the court. The view of this court is that it is without power to award to a claimant or grant a relief that which he did not claim… A court of law may award less and not more them what the parties have claimed… A fortiori the court should never award that which was not claimed or pleaded by other Party.” Per OGBUINYA, J.C.A. (Pp. 34-35, paras. G-C)

 

3. PRACTICE AND PROCEDURE – JUDGMENT – JUSTICE – MISCARRIAGE OF JUSTICE: Connatation of Miscarriage of Justice

“The mantra miscarriage of justice connotes a detraction or departure from known judicial rules which inflicts injustice on the party alleging it. Thus, the case of Gbadamosi vs Dairo (2007) 3 NWLR (Pt.1021) 282 at 306, Tobi, JSC, explained miscarriage of justice in these illuminating words: “Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party. Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried.” Per OGBUINYA, J.C.A. (P. , paras. ) In the case of Akpan vs Bob (2010) 17 NWLR (Pt.1223) 421 at 479, Muhammad, JSC, succinctly said of miscarriage of justice: “…I think, a miscarriage of justice can only be said to present itself lo a court of law when that court, after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable lo the appealing party would have been reached in the absence of the error complained.” Per OGBUINYA, J.C.A. (P. 30, paras. A-F)

 

4. PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – PROOF OF DELAYED JUDGEMENT: What a party complaining against a delayed judgment, must prove

“Simply put, a party complainant against a delayed judgment, usually the appellant, must prove that the delay robbed the Judge, who delivered it, his expected capacity to appreciate the case and evidence thereby handing down a perfunctory decision. It must be shown that he lost his impression about the matter owing to the delay. Anything short of these will not persuade a court to nullity a judgment on ground of miscarriage of justice. In the case of Chief Osigwe Egbo & Ors. v. Chief Titus Agbara & Ors. (1997) I NWLR (Pt.481) 293 at 316, Iguh, JSC, succinctly observed: “For the complaint to succeed, it has to be further established that the delay, occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay…. It is therefore, not in every case where inordinate delay is established that the appellate, court must necessarily set aside the decision of the trial court. An appellant, to succeed, must go further to show, from the record of recordings, that the trial Judge had lost his impression of the trial or had not taken proper advantage of having seen or heard the witnesses testify as a result of the delay complained of.” Per OGBUINYA, J.C.A. (Pp. 24-25, paras. D-C)

 

5. LAND LAW – PROVE OF TITLE TO LAND: What will the Court inquire from the respondent’s in proving its title to the disputed plot

“In law, the respondent’s mode of proving its title to the disputed plot, production of instrument or document of title is not conclusive. It carries with it the need for a Court to inquire into the following: (a) whether the document is genuine and valid; (b) whether the document has been duly executed, stamped and registered: (c) Whether the grantor had the authority and capacity to make the grant: (d) Whether the grantor had in fact what he purported to grant: and (e) Whether it had the effect claimed by the holder of the document. ” Per OGBUINYA, J.C.A. (P. 39, paras. B-D)

 

6. LAND LAW – PURCHASER OF LAND: Whether or not a purchaser of land who paid the purchase price and is put in possession thereof acquires an equitable interest

“Unarguably, it is the law that a purchaser of land who paid the purchase price and is put in possession thereof acquires an equitable interest that defeats a legal interest except the person armed with that legal interest is a purchaser for value without notice of the pre-existing equitable interest. In this wise; that existing equitable interest is as good as a legal estate.” Per OGBUINYA, J.C.A. (P. 36, paras. C-E)

 

7. PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – TIME OF DELIVERING JUDGEMENT: What is the Constitutional Provision on time of delivering judgement

“In resolving these issues, I will begin with issue one, the heartbeat of this appeal, whether the entire judgment of the court below was a nullity. It will be recalled that the reason for the excoriation of the judgment as a nullity was because it was delivered outside the months provided by the constitution. On this score, the provision of section 291 (1) and (5) of the constitution is of note and it Provides: “294 (1). Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision of the within seven days of the delivery thereof- (5) The decision of ct court shall not be set aside or treated as a nullity solely on the ground of non – compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered ct miscarriage of justice by reason thereof. ” The parties are consensus ad idem that the judgment of the court below was delivered beyond the three months stipulated in subsection (1) of section 294 of the constitution. Having examined the record thoroughly, I am at one with them.” Per OGBUINYA, J.C.A. (P. 22, paras. A-G)

 

8. TORT AND PERSONAL INJURY – TRESPASS: Connotation of Tort of Trespass

“The tort of trespass is any slightest unlawful or unauthorised interference in a property that is in the possession of another, see omotayo’s C.S.A (2010) 16 NWLR (Pt.1218) 1” Per OGBUINYA, J.C.A. (P. 40, paras. F-G)

 

MAIN ISSUES

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

 

Before the High Court of Kaduna State, presided over by Hon. Justice Abdulkadir Othman, the respondent, as plaintiff, in suit No. KDH/KAD/313/03, sued the appellants, jointly and severally, claiming a declaration, orders damages and injunction over a plot of land situate and known as plot E7 Kudenda Industries Layout, Kaduna. The parties filed and exchanged pleadings.

From the processes filed, the facts of the matters are not complicated. The plot in dispute originally belonged to a company called Yakamata Multicom Ltd. The first appellant claimed that it purchased a strip of that plot, measuring 169.53M by 6m, from the said Yakamata Multicom Ltd. in July, 1999 because its underground pipes, which discharged waste products from its factory into Kaduna Rivers, were buried therein.

On its part, the respondent claimed that it purchased the entire plot of land from the same Yakamata Multicom Ltd; in 2001, without the latter disclosing the earlier sale to the first appellant to it (the respondent). When the respondent noticed the underground pipes, it instituted Suit No. KDH/AD/101/2001 for possession of it. The Kaduna State Ministry of Lands and Survey intervened and it was agreed that the respondent cede to the first appellant that strip previously bought it. Consequently, that suit was struck out. In 2003, the said ministry issued a certificate of occupancy over the entire plot, including that strip bought by the first appellant, to the respondent and on the basis of which it (the respondent) instituted the action that led to this appeal.

Thereafter, the matter proceeded to full scale trial. The respondent, in prove of its claims, called four witnesses, PW1 – PW4. To disprove the respondent’s claims, the appellants fielded three witnesses. At the conclusion of hearing, learned counsel for both parties addressed the court through filed written addresses in line with their applications to the court. On 09/11/2006, the court below delivered its judgment in which it entered judgment for the respondent in terms of its claims over the entire plot.

The appellants were aggrieved by that judgment.

Consequently, they filed a four-ground notice of appeal on 28/11/2006. Later on, and pursuant to the leave of this court granted to them, they filed an amended notice of appeal hosting six grounds of appeal.
Eventually, the appeal came up for hearing on 09/02/2011.

On that day, learned counsel for the appellants, O. Okoye, Esq adopted the appellants brief of argument, deemed filed on 26/11/2007, and their reply brief of argument, deemed filed on 15/11/2010, as representing his arguments in support of the appeal.

Similarly, learned counsel for the respondent, S.K. Dawi, Esq, adopted the respondent’s brief of argument, deemed filed on 14/04/2010, as representing his submissions against the appeal.

The appellants, in their brief of argument, identified four issues for determination in this appeal to wit:

“1.     Whether the entire judgment of the lower court is Not a nullify?

2. Whether the lower court was right in awarding N2, 000,000.00 as general damages?
3. Whether the lower court was right in ordering the defendant to demolish the entire wall erected without KASUPDA approval and pack away all the debris when there was no prayers claimed before it in respect (sic) that relief?
4. Whether the lower court was correct in her findings and conclusion that the plaintiff is the rightful owner of plot No E7 Kudenda Industrial Layout, Kaduna on the basis of the deed of assignment” (Exhibit “A”) and the certificate of occupancy (Exhibit “D”) alone and adjudging the defendant a trespass’s into the plot in dispute? “

On the other hand, the respondent, in its brief of argument, formulated four issues for determination in the manner following:

“ISSUE ONE:
Was the trial court right lo grant title to the Respondent against the appellants and award consequential reliefs against them?

ISSUE TWO.’
Was the trial court right in awarding the Respondent general damages for trespass against the Appellants?

“ISSUE THREE.
Was the judgment of the trial court completely nullified because it was delivered more than three months after final address of counsel?

“ISSUE FOUR:
Was it right for the trial court to use the Respondent’s amended statement of claim though it was unsigned and undated? ”

I have married these two sets of issues for determination crafted by both sides of the duel in this appeal. I must confess that both are, in substance, the same. The respondent’s issue one can be properly, subsumed under the appellants’ issues three and four. Again, the respondent’s issue two is a clone of the appellants’ issue two. Also, the appellants’ issue one and the respondent’s issue are perfectly, symmetrical. Moreover, the respondent’s issue four can be rightly dissolved in the respondent’s issue one. In the light of these striking similarities, I will use the issues crated by the appellants as the indices for the determination of this appeal because they- are more all – encompassing.
ISSUE ONE:

On this issue, learned counsel for the appellants submitted that the judgment of the court below was a nullity because it was delivered after three months, one year and six months in breach of the mandatory provision of Section 294 (1) of the 1999 Constitution; adding that breach went to the root of those proceedings. He further submitted that the decision was not saved by the provision of subsection (5) of Section 294 of the Constitution in the court below after a period of one year and six months, lost its perception of the evidence, the processes filed, the facts of the case, the opportunity  of seeing, hearing and observing demeanour of witnesses. He relied on the cases of olasope v. Babatayo (2005) All FWLR (Pt.272) 339; Ogbu v. State (2003) FWLR (Pt. 1-17) 1102; Total (Nig.) Ltd. v. Nwako (197S) 5 SC1, the last for the meaning of miscarriage of justice.

He further submitted that the respondent filed its writ of Summons and, with the leave of the lower court a statement of claim which, in law. Superseded the former, He noted that the court based its judgment on the writ of summons instead of the statement of claim even when the relief’s in both were different’ He took the view that that occasioned a miscarriage of justice to the appellants, particularly as reliefs contained in the statement of claim, but not in the writ of summons, were abandoned. He insisted that the court below lacked the jurisdiction to grant those abandoned reliefs in the writ of Summons. He cited the cases of Arabambi v. NIDB Ltd (2005) 12 SCNJ 331; oladeji v. Nigerian Breweries Plc (2007) 1 SCNJ 375; Oseyomon v. Ojo (1997) 7 SCNJ 365; Appeal No. CA/K/226/96, Eweluka v. Sanusi (unreported). He added that the court below, due to undue delay in giving its judgment, forgot that the respondent’s initial statement of claim was amended and replaced by another one that was undated and unsigned and it did not pronounce on that. He observed that an undated and unsigned statement of claim was worthless and ought not to be relied upon, citing Omega v.Bark (Nig.) Plc v. O.B.C. Ltd (2005) ALL FWLR (Pt.249) 1964.

On the other hand, learned counsel for the respondent, on this issue one, conceded that the judgment was delivered outside the three months prescribed in Section 294 (1) of the constitution.

He, however, added that by the provision of subsection (5) of section 294 of the constitution, the appellants must show that it suffered a miscarriage of justice by that delay, citing the case of Atungwu v. ochekwu (2004) 17 NWLR (Pt.901) 18 in support.

He held the view that the appellants had not suffered any miscarriage of justice because they were in possession of the land while the delay lasted and the first appellant, continued to discharge untreated effluent on the plot and the gullies deepened. Learned counsel maintained that the court below correctly and accurately reviewed the case and evidence of witnesses, including those obtained on the visit to locus in quo. He added that the reliefs granted by the court below were those contained in the amended statement of claims, which, except for damages claimed, were the same as those in the statement of claim.

About the unsigned amended statement of claim, learned counsel conceded that unsigned document, tendered in evidence had no evidential value. He, however, noted that that principle of law did not apply to pleadings which were governed by the rules of courts. Referring to order 24 rule 28 of the Kaduna state High Court (Civil Procedure) Rules, 1987, he argued that non-signing pleading was a technical objection that went to form. He further argued, based on order 2 rule 2 (1) of the said Rules, that the appellants did not take the objection to the unsigned statement of claim timely and that they had waved their right of objection having taken part in the proceedings. He relied on the case of ACB Plc v. Haston (1997) 8 NWLR (Pt. 515)110. He insisted that the case of omega Bank (Nig) Plc v. OBC Ltd. (supra) was in applicable because pleadings were not evidence. He placed reliance on the case of Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322.

Learned Counsel further argued that an undated statement of claim was still a valid court process when no injustice was suffered by an opponent, ACB Plc V. Haston (supra). He noted that the date the statement of claim was filed was not in dispute and that the omission to date it was an obvious inadvertence of counsel for which the respondent would not be punished. He cited the case of Okumagba v. Essi (2005) 4 NWLR (Pt.9t6) 501. He urged the court to treat the point as a technicality that would not defeat the ends of justice. In support, he cited the cases of: Omabuwa v. Owhofatsho (2005) 5 NWLR, (Pt.972) 40; Buhari v. Obasanjo (2003) 17 NWLR (Pt.850) 510.

ISSUE TWO:
Learned counsel for the appellants contended that the N2m general damages awarded to the respondent, by the court below, was manifestly wrong, not supported by evidence and violated all known principles guiding such award. He drew the court’s attention to paragraph 37 (e) and (g) of the amended statement of claim in which the respondent claimed for exemplary and special damages respectively. He then explained that the court below awarded general damages instead of the claimed exemplary or special damages. He persisted that that was wrong as the former was no substitute for the latter.

He further contended that the court below applied the wrong principles or no principle in making the award of general damages and the Same unwarranted, excessive, extravagant, unreasonable and it (the award) should not be allowed to stand. He placed reliance on the cases of: Gari v. Sicralina (Nig) Ltd in appeal No- CA/K/351/2001 (unreported) delivered by this court on 08/02/2007; Okoko v. Dakolo (2006) 7 SCNJ 284. Placing reliance on the case of SPDC v. Tiebo, (2005) ALL FWLR (Pt.265) 990, he repeated that once special and exemplary damages were refused, the court lacked the jurisdiction to award general damages as substitute. He concluded that there was no claim for general damages before the court below and that it was trite that it lacked the jurisdiction to grant it.

For the respondent, learned counsel contended that the court below rightly awarded general damages to the respondent as general damages naturally flew from tort of trespass. He cited the case of Adeniran v. Alao (2001) 18 NWLR (Pt- 745) 361. He observed that the appellants failed to appeal against the findings of the court below that they were trespassers and it remained valid; He stated that to prove special damages, a party must particularize his claim and lead evidence thereon, Rean Plc v. Anumnu (2003) 6 NNWLR (Pt. 815) 52. He added that the appellants did not traverse the respondent’s pleading on special damages and it was  deemed admitted. In support of it, he cited the cases of: F.I.B Plc v. Pegasus Trading office (2004) 4 NWLR (Pt.863) 369; Daggash v. Bulama (200a) 14 NWLR (Pt. 592)144. He took the view that the expert evidence of DW2, on special damages was unchallenged and the court below ought to have granted it. Uman v. Olaniyi (2000) 5 NWLR (Pt. 657) 485.
On the claim for exemplary damages, learned Counsel contended that the Court below ought to have awarded it to the respondent because it proved that the conducts of the appellants were scandalous and outrageous. He referred to the cases of A.-G. Fed. V. Ajayi (2000) 12 NWLR (Pt.566) 370; Odiba vs Azege (1998) 9 NWLR (Pt.566) 370 and the uncontroverted evidence of PW1, PW2 PW3 and PW.1 and true admissions by DW2. He observed that the sum awarded as general damages was equal to the sum total of the special and exemplary damages claimed.

He admitted that the court below did not pronounce on the claims for special and exemplary damages. He added that  this court, under section 16 of the court of Appeal Act, had the power to make the proper order in that regard. He urged the court to grant the claims for special and exemplary damages to the respondent.

ISSUE THREE:
It was the contention of the learned counsel for the appellants, on this issue, that the respondent never asked for the demolition of the walls erected without the approval of KASUPDA and the court below lacked the jurisdiction to grant it.

He pressed on the court to set aside the grant in line with decided authorities, Joe Golday Co Ltd. v. CDB Plc (2003) FWLR  (Pt. 153) 376; Okoko v. ACB (2006) 12 SCNJ 159.

ISSUE FOUR:
On behalf of the appellants, its learned counsel submitted that it was an undisputed fact that the underground pipes were in the disputed area before the respondent bought the whole plot from Yakamata Multicom Ltd. in 2001. He held the view that whilst the previous suit between the parties, KDH/KAD/101/2001, was being settled, the respondent, without the first appellant’s knowledge, surreptitiously obtained a certificate of occupancy over the entire plot from the Ministry of Lands, Kaduna State and commenced its action two months thereafter. He informed the court that the court below based its judgment on that certificate of occupancy (exhibit B ) and the deed of assignment (exhibit A).
He went to submit that that finding was wrong because it did not take cognisance of the existing equitable interest of the first appellant over the disputed portion and which issuance of the certificate of occupancy would not defeat. He insisted that the memorandum of sale between Yakamata Multicom Ltd. and the first appellant was admissible, but wrongly rejected, to prove its existing equitable interest over the disputed portion. He sought in aid the cases of Dr. Joseph Okole vs Dumez (Nig) Ltd. Kad. (1985) 6 SC 3; Wakama vs Kalio (1991) 8 NWLR (Pt.207)123.

He pressed on the court to set aside the ruling of the court below rejecting the memorandum of sale and admit it in evidence on the authority of Ogunjumo v. Ademolu (1995) 4 SCNJ 45.

Learned counsel maintained that the lower court’s finding that the first appellant trespassed on the disputed land was wrong in that it was in possession since 1979 by virtue of its underground pipes buried therein. He posited that since the first appellant was in possession and had prior equitable title, the respondent had the duty, to show that it had a better title. He stated that only a person in possession, like the first appellant, could sue for damages for trespass even as he who asserted must prove. To support these submissions, he cited the cases of: Justina Paul vs E. Ozokpo (1995) 4 SCNJ I 19; Universal vulcanizing (Nig.) Ltd. vs I.U.T.T.C. Ltd. (1992) 11/12 SCNJ 243.

On the part of the respondent, its learned counsel referred to paragraph 4-8 of its statement of claim and paragraph 2 of the appellant’ statement of defence and argued that parties joined issues as to the ownership of the said plot. He stated that to prove a better title a party must provide credible evidence that might tilt the imaginary scale in his favour, Ezinwa vs Agu (2004) 3 NWLR (Pt.861) -131. Referring to the evidence of PW1 and exhibits A-E, he argued that the respondent had prayed its title over the plot. He cited the cases of: Iheanacho v. Chigere (2004) 17 NWLR 130; Mechanic v. Onisesin (1998) 2 NWLR (Pt.538) He was of the view that the evidence of DW3 was that both parties derived titles from the same predecessors-in-title, but no document was tendered in proof of the sale to the first appellant nor did it prove its title by any of the known ways of proving title to land, He referred to the cases of Ezeannah v. Atta (2004) 7 NWLR (Pt.S73) -168; Ezinwa v. Agu (supra). He added that the first appellant did not call its predecessor – in – title or anyone who witnessed the sale to testify and thereby failed to prove its root of title. He relied on the case of Balogun v. Agbesanwa (2001) 17 NWLR (Pt.711) 118. He urged the court to uphold the lower court’s finding that the respondent proved a better title, especially as that finding was based on credible evidence. He cited the case of Ihekoronye v. Hart (2000) 15 NWLR (Pt. 692) 840 in support.

Learned Counsel submitted that the submission of the appellants’ counsel on when the pipes were buried went to no issue as it was neither pleaded nor supported by evidence and the address of counsel would not substitute lacking credible evidence, Ishola v. Ajibola (1998) 1 NWLR (Pt.532) 81; Aigbadion v, state (1999) 1 NLR (Pt.586) 284 Ndigwe v. Ibekendu (1998) 7 NWLR (Pt.586) 486. He persisted that the issue of the first appellant’s prior equitable interest over the plot was never raised in their pleadings nor did they call any evidence to prove same.

He conceded that the only evidence of possession which it had was that granted to it by the respondent in exhibit a and thereby making the case of Dr. Joseph okoye v. Dumez (Nig.) Ltd. (supra) inapplicable.

Learned counsel pressed on the court to uphold the lower court’s finding that the appellants trespassed on the disputed land particularly as they did not appeal against it thereby making it (the finding) valid in law, P.N. Uctoh Trading co. Ltd. v Abere (2001) 11 NWLR (Pt.723) 114. He agreed that from the evidence, the respondent allowed the appellants entry into the land for a limited purpose of laying its pipes, but revoked same by virtue of exhibits G, H and K. He stated that by the limited purpose grant, the appellants were licencees as defined in the case of Kari v. Ganaram (1997) 2 NWLR (Pt.488) 380. He posited that when licenses, such as the appellants, abused their possession” the licence might be revoked and they would become trespassers ab initio not withstanding their initial lawful entry. In support, he referred to the case of: Dantosho v. Mohammed (2003) 6 NWLR (Pt. s 17) 457. Referring to the case of Balogun v. Agbesanwa (supra), he restated the law, that possession was a good defence for trespass against the whole world except the true owner of the property.
Contrariwise, learned counsel for the appellants, in the appellants’ reply brief of argument, insisted that the issue of granting the appellants licence on the land to lay their pipes went to no issue as it was not supported by the pleadings and evidence. He persisted that the first appellant was, by virtue of its pipes’ in possession of the land as averred in paragraph 20 of their amended statement of defence which the respondent never denied. He referred to paragraph 5.2, on page 15 of the respondent’s brief of argument, wherein it admitted that the appellants were in possession up to the point of delivery of the judgment. He relied on the cases of Hilary Farms Ltd. v. M/V Mahtra & Ors (2007) 6 SCNJ 292; SCC (Nig.) Ltd. v Elemadu (2004) ALL FWLR (Pt. 230) 1168. He maintained that the appellants, in grounds 1, 3 and 4 of their amended notice of appeal, appealed against the lower court’s finding on trespass and that they could be heard on it. He posited that the appellants denied the claim of special damages in paragraph 24 of their statement of defence. Based on the foregoing arguments, he urged the court to allow the appeal.

In resolving these issues, I will begin with issue one, the heartbeat of this appeal, whether the entire judgment of the court below was a nullity. It will be recalled that the reason for the excoriation of the judgment as a nullity was because it was delivered outside the months provided by the constitution. On this score, the provision of section 291 (1) and (5) of the constitution is of note and it Provides:

“294 (1). Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and  final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision of the within seven days of the delivery thereof-

(5)     The decision of the court shall not be set aside or treated as a nullity solely on the ground of non – compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. ”

The parties are consensus ad idem that the judgment of the court below was delivered beyond the three months stipulated in subsection (1) of section 294 of the constitution. Having examined the record thoroughly, I am at one with them.  The learned counsel for both parties, before the court below, adopted their written addresses on 18/05/2005 and the learned trial Judge adjourned the matter to 11/07/2005 for judgment, see page 117 of the record. However, for inexplicable reason, the judgment, sought to be impugned, was delivered on 09/11/2006 as indicated on page 152 of the record. By simple lunar computation, that was a period of about one year and six months, far in excess of the constitutionally preserved period of three months. Obviously, it is axiomatic that the court below flouted, with impunity, the prescription of subsection (1) of section 294 of the Constitution.

Hitherto the introduction of the ameliorating provision in subsection (5) by section 258(4) of the Constitution (Suspension and Modification) (Amendment) Decree No. 17 of 1985, a decision handed down outside a period of three months incurred the wrath of subsection (1) in that it must be declared a nullity by the court. see Utih v. Onoyivwe (1991) 1 NWLR (Pt. 166) 166; Obadiaru v. Uyigue (1986) 17 NSCC (Pt.1) 439; Ifezue v. Mbadugha (1981) 1 SCNLR 427; Odi v. Osafile (1985) 1 NWLR (Pt.1) 17.

For an historical purposes, that saving provision, which was factored into the 1999. Constitution as subsection (5) of section 294 thereof, is a tumaround in the destiny of judgments delivered outside three months. This is because, it is now incumbent on the party seeking to impugn any judgment to establish, before an appellate court, that he suffered a miscarriage of justice as a result of the delay in rendering a judgment after three months of final addresses. In the case of S.B.N. Ltd. v. S. Ltd . O. Corp. (2009) 8 NWLR (Pt.1144) 491 at 500, Ogebe, JSC, stated:

“With this amendment, the current position of the law is that judgment given outside the three months stipulated can be saved by the court exercising jurisdiction by way of appeal or review if it is satisfied that the party complaining of such non – compliance has not suffered any miscarriage of justice as a result. See the classical case of Ojokolobo & Others V. Alantu & Another (1987) 2 NSCC Vol.18 (Pt.2) at p.991 (1987) 3 NWLR (Pt.61) 377. It is clear therefore that for a party to impugn a judgment delivered after 3 months of final addresses must show that he has suffered a miscarriage of justice as a result” See also Igwe v. Kalu (2002) 5 NWLR (Pt.761) 687; Ogundele v. Fasu (1999) 12 NWLR (Pt.632) 662.

Simply put, a party complainant against a delayed judgment, usually the appellant, must prove that the delay robbed the Judge, who delivered it, his expected capacity to appreciate the case and evidence thereby handing down a perfunctory decision. It must be shown that he lost his impression about the matter owing to the delay. Anything short of these will not persuade a court to nullity a judgment on ground of miscarriage of justice.

In the case of Chief Osigwe Egbo & Ors. v. Chief Titus Agbara & Ors. (1997) I NWLR (Pt.481) 293 at 316, Iguh, JSC, succinctly observed:

“For the complaint to succeed, it has to be further established that the delay, occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay…. It is therefore, not in every case where inordinate delay is  established that the appellate, court must necessarily set aside the decision of the trial court. An appellant, to succeed, must go further to show, from the record of recordings, that the trial Judge had lost his impression of the trial or had not taken proper advantage of having seen or heard the witnesses testify as a result of the delay complained of.”
See, also, Akpan v. Umoh (1999) 11 NWLR (Pt.627) 349; Olasope v. Babatayo (supra); Ogbu v. State (supra).

At this point, it is germane to note that all the authorities x-rayed on this critical point were decided under the provision of section 258 (1) and (4) of the 1979 Constitution. That provision is in pari materia with the extant provision of section 294(1) and (5) of the 1999 Constitution. Interestingly, the law gives me the nod to use those authorities in construing the latter provision since it is a mirror of the former, see A.-G. Abia State v. A.-G. Fed. (2005) 12 NWLR (Pt.910) 152 Bakare v. NRC (2007) 17 NWLR (Pt.1061) 606.

On the premise of the above background, has the appellants proved that they suffered a miscarriage of justice as a result of the one and half-year delay in delivering the judgment? As can be gleaned from the foregoing analyses, to elicit an answer to this stubborn query necessarily involves an intimate perusal and appreciation of the record of proceedings. That I have done with a fine tooth comb and the prying eyes of a court.

To start with, the appellants picked holes in the validity of the respondent’s amended statement of claim on the ground that it was not dated and signed. Their learned counsel made a meal of that attack. He urged the court disregard it.

Undoubtedly, that process was not dated and signed, see page 55 of the record. Admittedly, by virtue of the Provision of Order 24 rule 2(4) (1) of the Kaduna State High Court (Civil Procedure) Rules, 1988, pleadings should be signed by a lawyer or a party. However, the court below, granted leave to the respondent to file it without objection from the appellants. The appellants saw the defects, played ostrich, and continued with the proceedings. In law, objection to irregularity, such as that apparent  on that process, must be raised timeously before taking further steps in the proceedings, see Order 2 rule 2(1) of the Rules. Where  a party, like the appellants, dithers in that regard, it will be too late in the day for him to raise it, see Anyanrvoko v. Okoye (2010) 5 NWLR (Pt.1188) 197; Odua’s Investment Co. Ltd. v. Talabi (1997) 7 SCNJ 600.
By the same token, the appellants having fully participated in the proceedings, in the court below, in the full glare of that irregularity, they are deemed to have acquiesced in the irregularity or voluntarily surrendered or relinquished their right to object to the utilisation of that process. In a word, the appellants, by their indolent conduct, are marooned in the intractable web of waiver vis-a-vas that process, see Odua Invest. Co. Ltd. v. Talabi (supra); Ndayako v. Santoro (2001) 13 NWLR (Pt.889) 187.

At any rate, I am at liberty by virtue of the provision of Order 2 rule 1 (1) of the selfsame Rules to treat the non – compliance with the Provision of Order 24 rule 2 (4) (1) of the Rules as a curablc irregularity that will not nullify that undated and unsigned document. see Famfa Oil Ltd. v. A.-G., Fed. (2003) 18 NWLR (Pt.852) -153; Anyanwoko v. Okoye (supra); Dingyadi V. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1.

It is against the back-drop of these reasons that I decline the invitation of the learned counsel for the appellants to ignore the respondent’s undated and unsigned amended statement of claim.

In effect, I will use it, whenever the need arises, in the determination of this appeal.

Be that as it may, there are some aspects of the judgment, raked up by learned counsel for the appellants, which pointedly demonstrate that the learned trial Judge lost track or trend of the matter on account of his tardiness in giving his decision. The learned trial Judge goofed, at the very dawn of his judgment, on pages 131-132, when he kick-started it (the judgment) with the respondent’s claim as contained in the writ of summons. I hold this view in the sense that the respondent filed an amended statement of claim which, in law, superseded its writ of summons  that was then defunct, see Ezenwa vs Oko (2008) 3 NWLR (Pt.1075) 610. On page 132 of the record, the court below alluded to the existence of a statement of claim, not even the subsisting amended statement of claim contained on pages 51-55 of the record. Surprisingly, and a paradox at that, the court below, at the tail end of its judgment, granted the respondent’s relief as outlined in its neglected amended statement of claim.

That act of abandonment of the relevant and apposite amended statement of claim amply demonstrates that the court below could not see its way clear as to the proper process. To my mind that clearly should, but, the learned trial Judge, due to the longevity before the delivery of his judgment, lost absolute track of the matter.

That was not all. The respondent’s claims, in paragraph 37 of its amended statement of claim, were for exemplary and special damages with their relevant grounds and particulars. The respondent’s witnesses gave evidence in the direction of those heads of tortious claims. Curiously, the learned trial Judge damnified the appellants with general damages that the respondent never requested for. Nothing can be further from loss of impressions about the case and the evidence. In a manner that is commendable of an advocate, the learned counsel for the respondent admitted that the court below never made findings or pronouncement on those other claims.

For a good measure, the court below in its infinite wisdom, turned a blind eye to the testimonies of the appellants’ witnesses.

The last that was heard of their evidence was at the cradle of the judgment when the learned trial Judge restated or paraphrased the evidence of witnesses. Restatement or summary of evidence of witnesses is a world away from evaluation or appraisal of evidence. Drawing the vast dichotomy between the two terms, Ogbuagu, JSC, in the case of Olagunju vs Adesoye (2009) 9 NWLR (Pt.1146) 225 at 263, opined:

“I will add as this is also settled that a summary of restatement of evidence by a trial court is not the same thing, as evaluation of evidence which entail the assessment of evidence so as to give value or quality to it. ”

In the case of Oyewole v. Akande (2009) 15 NWLR (Pt.1163) 119 at 147,   Adekeye, JSC, observed:

“A trial court has a primary duty after hearing evidence from witnesses and watching their demeanour to evaluate relevant and material evidence adduced by both parties having regard to the pleadings of the parties. The court must thereafter show how and why he came to its findings of fact and final determination of the issue before  him. ”

That judgment ran foul of the law on evaluation of evidence.
When these highlighted deficiencies in that judgment, pinpointed by the appellants in their amended notice of appeal and brief of argument, are pooled together, they, to my mind, snowball into a miscarriage of justice as envisaged under subsection (5) of section 291 of the Constitution. The mantra miscarriage of justice connotes a detraction or departure from known judicial rules which inflicts injustice on the party alleging it.

Thus, the case of Gbadamosi vs Dairo (2007) 3 NWLR (Pt.1021) 282 at 306, Tobi, JSC, explained miscarriage of justice in these illuminating words:
“Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party.
Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it. The burden of proof is on the party alleging that the justice has been miscarried. ”

In the case of Akpan vs Bob (2010) 17 NWLR (Pt.1223) 421 at 479, Muhammad, JSC, succinctly said of miscarriage of justice:

“…I think, a miscarriage of justice can only be said to present itself lo a court of law when that court, after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained.
See, also, Total (Nig) Ltd vs Nwako (supra); S.B.N. Ltd. vs S. Ind. O. Corp (supra); Akayepe vs Akayepe (2009) 11 NWLR (Pt.1152) 217.

It seems clear to me that if the judgment were free from those articulated defects or flaws, the appellants, the party alleging miscarriage of justice, would have obtained “a result more favourable” to them than that reached in the presence of those errors. The point I am struggling to ram home is that the appellants have ably satisfied me that they “suffered a miscarriage of justice”
Flowing from the failure of the court below to deliver its judgment within the prescribed time frame of three months after final addresses. That is to say, the respondent’s matter is not salvaged even by the saving sanctuary of subsection (5) of section 294 of the Constitution. The end result of that is not a moot point. The said judgment is entrapped in the miasma of nullity as ordained or decreed by subsection (5) of section 294 of the Constitution. In the aggregate, I return a positive answer to the earlier question the appellants have established a miscarriage of justice precipitated by that ordinate delay in delivering that judgment. In the end, I resolve this critical and terminal issue one in favour of the appellants.

Ordinarily, with the success of issue one, I need not proceed with the other issues. Nevertheless, this is a penultimate court, not the final arbiter, in the Nigeria judicial ladder. For this reason, I will go on to consider the other remaining issues so that if the apex court, the Supreme Court, differs with my finding on issue one it will not be hamstrung. In the case of Tanko vs UBA Plc (2010) 17 NWLR (Pt.1221) 80 at 9293, Muhammad, JSC, stated:
“The position of the law is very clear that the Court of Appeal has primary duty to consider all issues brought to it for consideration especially this Fundamental issue which borders on fair hearing…

This applies with equal force to all Courts of law, Perhaps the only exception to that general rule is the Supreme Court which may decline to consider all issues placed before it by an appellant once it is satisfied that the just resolution of the appeal can turn on the only issue(s) decided by it… It is thus, a statutory responsibility of all Courts to consider adequately and properly all issues placed before them. Failure to do so will lead to denial of fair hearing which is, capable of rendering any proceedings a nullity. ”
See, also, Ada vs NYSC (2001) 13 NWLR (Pt.891)

On the strength of this, I will move on to look at issue two, id est, whether the court below was right in awarding N2m general damages to the respondent. To determine the propriety, or otherwise of that award, the respondent’s claims as encapsulated in paragraph 37 of its amended statement of claim, on pages 54 and 55 of the record are relevant. They are:

“37.   WHEREOF the plaintiff claims against the defendants jointly und severally as follows:

” (a)   A DECLARATION THAT the plaintiff is the owner of all that landed property known as lying being and situate at Plot E7, Kudenda Industrial Estate. Kaduna South, Kaduna covered by Kaduna State Government Certificate of Occupancy No. 12690 issued on 8th March, 2003.
And bounded by beacon numbers KDA 324, KDA 325. KDA 326, KDD 342, KDA 343, KDA, 344 and KDA 323.

(b)     A PERPETUAL INJUNCTION restraining the  Defendants, either directly or indirectly and whether through its agents, staff, donees or directors or any other person(s) whatsoever from further trespassing or causing further acts of nuisance on the plaintiff’s aforesaid plot.

(c)     AN ORDER compelling the 1st Defendant to remove its asbestos pipes buried in the plaintiffs plot.

(d)     AN ORDER compelling the Defendants to fill up the deep gully created by erosion caused by waste products emitted through the said asbestos pipes and compact it with construction compatible latterite.

OR IN THE ALTERNATIVE to (c) and (d) above, an  order compelling the 1st Defendant to pay the plaintiff the cost of removing the said asbestos pipes and filling up the gully.

(e)     The sum of N13,640, 000.00 (Thirteen million Sic Hundred and Forty Thousand Naira) only, being Exemplary damages for;

(i)      Unlawfully burying asbestos pipes on the Plaintiff’s plot.

(ii)     Negligently causing foul smelling industrial waste products to be deposited on the Plaintiff’s Plot.

(iii)    Causing erosion and waste of the Plaintiff’s aforesaid Plot.

(iv)    Causing nuisance on the said plot

(v)     Trespass on the aforesaid plot by the Defendants.

(f)      AN ORDER COMPELLING THE DEFEDANTS to pay the Plaintiff the cost of this litigation.

(g)     THE SUM OF N6, 360, 000.00 (Six Million, Three Hundred and Sixty Thousand Naira) only being Special damages.

PARTICULARS OF SPECIAL DAMAGES:

(i)      Cost of removing substandard wall and pipes laid by the Defendant -N60,000.00

(ii)     Imported laterite             -N2,500,000.00

(iii)    Cost of compaction         – N300,000.00

(iv)    Reconstruction of wall     – N3,500,000.00

TOTAL          – N6,360,000.00

I have given a minute examination to the respondent’s prayers as set out above. Incontestably, there is no clause in which it made a claim for general damages against the appellants. It only claimed exemplary and special damages against them. The trio, exemplary, special and general damages, are not coterminous with one another. They are different species of damages with different principles governing their grant or refusal, see Akindugbe vs. E.H (Nig.) Ltd. (2008) 12 NWLR (Pt.1098) 375; Usang vs. Hanseatic Int’l Ltd. (2009) 11 NWLR (Pt.1153) 522; Kopek const. Ltd. vs Ekisola (2010) 3 NWLR (Pt.1182) 618; Adim vs. N.B.C. Ltd. (2010) 9 NWLR (Pt.1200) 543.

Going by the wide chasm among the three classes of damages, the court below ought not to have granted general damages as a substitute to the other two claimed. This is more so, when general damages were not solicited by the respondent.

Generally, a court lacks the vires or jurisdiction to grant to a party an unclaimed relief. In the case of Agu vs odofin (1992) 3 SCNJ 161 at 173, Karibi-Whyte, JSC, stated:

“Our adjudicatory system has severely circumscribed and restricted the awards to be made by the court within the scope of the claims made and reliefs sought by the parties before the court. The view of this court is that it is without power to award to a claimant or grant a relief that which he did not claim… A court of law may award less and not more them what the parties have claimed… A fortiori the court should never award that which was not claimed or pleaded by other Party.

See, also, Agbi vs ogbe (2006) 11 NWLR (Pt.990) 65; Veepee Ind. Ltd vs Cocoa Ind. Ltd (2003) 13 NWLR (Pt.1105) 486; Eagle Super Pack (Nig) Ltd vs ACB Plc (2006) 19 NWLR (Pt.1013) 20; Agip (Nig) Ltd vs Agip Petroli Int’l (2010) 5 NWLR (Pt.1187) 348; Oduwole vs west (2010) 10 NWLR (Pt.1203) 598; Obapde Ogbuinya, (Understanding The Concept of Jurisdiction In The Nigerian Legal System, Snaap Press Ltd, 2008, 103-115.

On account of this current position of the law, that award of general damages, dished out to the respondent by the Court below, flies in the face of the law. That unclaimed grant, with all due respect to the court below, portrayed it as a santu claus or a philanthropic body. Since an unasked award does not find succour with the law, I hold that the court below was wrong to have made it. In sum. I will nor hesitate to resolve this jurisdictional issue in favour of the appellants.

It would appear that issue three turns on the outcome of issue four. In this perspective, I will leap-frog issue three and consider issue four first to wit. Whether the court below was right to have awarded title to the disputed plot to the respondent and adjudged the appellants trespassers thereon. To do justice to this vexed issue, I will kick off with tackling the contention of the appellants that the first appellant had a prior equitable interest over the portion (strip) of the plot in dispute. As can be garnered from the pleadings and evidence of the parties, the first appellant and the respondent purchased the disputed part from a common vendor, Yakamata Multicom Ltd, the former in July, 1999 and the latter (respondent) in 2001.

Unarguably, it is the law that a purchaser of land who paid the purchase price and is put in possession thereof acquires an equitable interest that defeats a legal interest except the person armed with that legal interest is a purchaser for value without notice of the pre-existing equitable interest. In this wise; that existing equitable interest is as good as a legal estate. See Briggs vs C.L.O.R.S.N. (2005) 12 NWLR (Pt.938) 59; Nsiegbe vs Mgbemena (2007) 10 NWLR (Pt.1042) 364; Ezenwa vs oko (200s) 3 NWLR (Pt.1075) 610; Owie vs Ighiwi (2005) 5 NWLR (Pt.9 17) 184; Kachalla vs Banki (2006) 8 NWLR (Pt.982) 364.

It is also correct that where two persons, as in the case in hand, claim titles from a common vendor the first in time takes priority as he is stronger in law. The second claimant is deemed as having purchased nothing in that their common vendor, who divested his right to the first purchaser, cannot transfer an empty interest on the hollowed principle of nemo dat quod non habit- see omiyale vs Macauley (2009) 7 NWLR (Pt.1141) 597; Ibrahim vs osunde (2009) 6 NWLR (Pt.1137) 382; Ashiru vs olukoya (2006) 11 NWLR (Pt.990) 1; Dantosho vs Mohammed (supra).

Indisputably, the first appellant’s claimed purchase of the disputed portion was earlier in time than that of the respondent. In this wise, having regard to the positions of the law as dissected above, the first appellant’s interest ought to rank first before that of the respondent. Alas, it is not so. In the first place, the first appellant’s sale agreement with their common vendor, made on 12-07-1999. was rightly rejected in evidence by the court below as it was tendered as a document of title, not as a purchase receipt. That took it outside the realm of the principle in the case of Dr. Joseph Okoye v. Dumez (Nig.) Ltd. (supra). As a result of that, the first appellant was left without a document to protect its priority right.

With that scenario, the argument of the learned counsel for the appellants on this point pales into insignificance.

There is another albatross around the first appellant’s title. In their statement of defence, the first appellant hinged his title on two inconsistent sources. First, they pleaded that it purchased the disputed portion from that common vendor. In another breath, they pleaded that it was ceded to the first appellant by the respondent.

They tailored their evidence in that pattern too. By law, a party must be consistent in his case before a court law. Where a party presents antithetical or diametrically opposed positions in a case, a court is bound not to choose any of them. In the case of Abubakar vs Yar’Adua (2008) 19 NWLR (Pt.1120) at 153-154, Tobi, JSC, warned:

“A party must  be sure of his case and he must present it in one-lung breath not in two-lung breath. If a party makes a case bearing two opposing positions, which positions affect the substance or merit of the issue, it crumbles. A court of law is not competent to make a choice or repair the case and give the party in default judgment.”See, also, Ezemba vs Ibeneme (2004) 4 NWLR (Pt.894) 617; Akpan vs Bob (supra). These constitute hiccups in the first appellant’s strive to clinch or reclaim its priority position over the acquisition of that disputed portion.
On the contrary, the respondent placed before the court below better evidence of title, particularly exhibit “B” – the deed of assignment with the common vendor made on 20-04 -2001 and exhibit “E” – a certificate of statutory right of occupancy issued to it on 08-03-2003. registered 201/201/105 in the Bureau for Lands, Surveys and country Planning, Kaduna. To my mind, the respondent established one of the five ways of proving title to land in the Nigeria legal system,  viz Production of document of title duly authenticated and executed, see Idundun vs Okamagba (1976) 9-10 SC 227; Nwokidu v. okanu (2010) 3 NWLR (pt.1181) 362; Madu vs Maclu (2008) 6 NWLR (Pt.1083) 296; olagunju vs Oyeeneyin vs Akinkugbe (2010) 4 NWLR (Pt.1184) 265; Salami vs Lawal (2003) 14 NWLR (Pt.1108) 546; Jolasun vs Bamgboye (2010) 18 NWLR (Pt.1225) 285.
In law, the respondent’s mode of proving its title to the disputed plot, production of instrument or document of title is not conclusive. It carries with it the need for a Court to inquire into the following:

(a)     whether the document is genuine and valid;

(b)     whether the document has been duly executed, stamped and registered:

(c)     Whether the grantor had the authority and capacity to make the grant:

(d)     Whether the grantor had in fact what he purported to grant: and

(e)     Whether it had the effect claimed by the holder of the document.

See Romainer v. Romaine (1992) 4 NWLR (Pt.238)650; Dabo v Abdunahi (2005) 7 NWLR (pr.923) 181; oyeneyin vs Akinkugbe (2010) 4 NWLR (Pt.11854) 265); Jolasun vs Bamgboye (supra). The appellants were unable to put up evidence to puncture the authenticity of the respondent’s instruments of title using the outlined questions as template.

It must be placed on record that the respondent’s certificate of occupancy, exhibit “E”, constitutes, in  law, a prima facie evidence or presumption of title in its favour, Kyari vs Alkali (2001) 11 NWLR (Pt.725) 412; Dabo vs Abdullahi (supra); Ezennah vs Atta (supra); Madu vs Maclu (supra); omiyale vs Macaulal. (supra). A certificate of occupancy, possessed by the respondent, extinguishes all existing rights in respect of land over which it is granted, see olagunju vs Adesoye (supra); Dantosho vs Mohammed (supra).

Even then, it is in evidence that the respondent ceded or let the disputed portion of the plot to the first appellant’ This signal piece of evidence indicates that the respondent was the owner of the ceded area, see Tanko vs Echenclu (2010) 18 NWLR (Pt.1221) 253.

Not only these, the respondent’s instruments of title over the plot remain incorruptible documents that constitute the best evidence in law, see Agbareh vs Mimra (2008) 2 NWLR (Pt.1071) 378.

In the light of these reasons, I fall in with the learned trial Judge in his finding, at page 149 of the record, that: “I have no doubt and hesitation to hold that the plaintiff (the respondent herein) are (sic) the owner of (sic) title holder of plot No.E7 under reference. ” I find it unimpeachable and I will not tinker with it.
A tangential point, on this issue four, is that the appellants chided the court below for adjudging them trespassers on the disputed portion. The tort of trespass is any slightest unlawful or unauthorised interference in a property that is in the possession of another, see omotayo’s C.S.A (2010) 16 NWLR (Pt.1218) 1. I am afraid, the finding, by the court below, that the appellants were trespassers on the disputed portion, in my view, are unassailable.

Firstly, the respondent, by dint of exhibit “Q” allowed the first appellant into possession of the disputed area on fulfilment of the terms and conditions enumerated in that exhibit’ Nonetheless’ by exhibit “H”, a correspondence from the counsel to the respondent to counsel for the appellants, the respondent withdrew its permission when it askes the first appellant to vacate the disputed portion. By  withdrawing its leave to the , first appellant on its possession thereof, the first appellant became a trespasser ab initio even though its entry into the plot was originally lawful, see Dantosho v. Mohammed (supra); omotayo vs C.S.A. (supra)

This is especially so as there are evidence, in heaps and bounds, that appellants carried out shoddy work in the disputed portion contrary to the terms of their agreement.

In the second place, the first appellant’s source of title, which I had found to be ambivalent, was a non-starter and its acts of possession on the plot will crumble as well. Thus’ in the case of Dabo vs Abdullahi (supra) at 207, Onu, JSC, stated:
“…The law is equally settled that where the radical  title pleaded is not proved, it is not permissible to support a non-existent root of title with acts of possession. It is not permitted to substitute a root of title that has failed, with acts of possession which could have derived from that root…”

See, also odunukwe vs ofomata (2010) 18 NWLR (Pt.1225) 404.
Moreover’ having found that the respondent has a better title to the disputed plot, there is a legal presumption, in its favour, that it is the party in exclusive possession. This bestows on it the locus to sue the appellants for trespass on the plot. In the case of Carrena vs Akinlase (2008) 14 NWLR (Pt.1107) 262 at 281-282,Tabai, JSC, re-echoed the law thus:

“….A person who has title over a piece of land though not in de fucto physical possession; is deemed, in the eyes of the law to be the person in possession.
This is because the law attaches possession to title and ascribed it to the person who has title. Such a possession is the legal possession which is sometimes also called constructive possession. Conversely a  trespasser, though in actual physical possession of the land, is regarded in law not to be in any possession since he cannot, by his own wrongful act of trespass acquire any possession recognised at law. This gives credence to the principle that where there are rival claimants to possession of a piece of land, the law ascribes possession to the party who has title or better title. ”

See, also, okoko vs Dakolo (2006) 14 NWLR (Pt.1000) 401;  Oyeneyin vs Akinkugbe (supra); Omotayo vs C.S.A. (supra); Tanko vs Echendu (supra).
Given the forgoing, the argument of learned Counsel for the appellants, that the court below wrongly branded the first appellant trespasser on the plot, with due deference, stand on a quicksand. It has no backing of the law. Put together, having regard to the above analyses, I resolve this issue (four) in favour of the respondent.

Haying dispensed with the fourth issue, I will now reverse to consider the by passed issue three – whether the court below Was right to order the appellants to demolish the entire wall erected without KASUPDA approval and pack away all the debris when that was not claimed. As already noted’ during the consideration of issue two, a court of law, not being a donor agency, is bereft of the requisite jurisdiction to grant a relief not supplicated by a party. See odofin v Agu (supra); Agbi vs ogbe (supra); veepee Ind. Ltd. vs cocoa Ind. Ltrl. (supra); Eagle Super Pack (Nig) Ltd. vs ACB Plc (supra); Agip (Nig) Ltd vs Agip Petroli Int’l (supra); Oduwole vs West (supra).

Let me add apace that this agelong rule of law admits of a litany of exceptions. One of the qualifications to this rule is in the realm of consequential order – an order that stems from the judgment of a court and gives efficacy to it. In the case of Akinbobola v. Plisson Fisko (1991) 1 NWLR (Pt.167) 270 at 288, Nnaemeka-Agu, JSC, expounded the purport of consequential order thus:
“A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally  from, and inevitably consequent upon it. It must be giving effect to the judgment already given, not by granting a fresh  and unclaimed or unproven relief.”
See, also, Briggs v. C.L.O.R.S.N (2005) 12 NWLR (Pt.938) 59; Inakoju vs Adeleke (2007) 4 NWLR (Pt.1025) 427; Dingyadi vs INEC (No.2) (2011) 18 NWLR (Pt. 1224) 154.

I have given a closer look at the order sought to be deflated by, the appellants. I hold the view that it comes squarely within the four walls of consequential order. I drum up support or draw on the case of Regd. Trustee, Apostolic Church vs Olowoleni (1990) 6 NWLR (Pt.158) 514 at 531. In the High court of Kwara state, the appellant sued the respondent for trespass on its church land which it acquired through a certificate of occupancy. The respondent, joined issues with the appellant and based her defence on inheritance, from her father. During trial, the court discovered that the appellant erected a fence around the disputed land. At the conclusion of the trial, the trial court dismissed the appellant’s claim and ordered that the fence be pulled down. The appellant, lost in his appeals to the Court of Appeal and the Supreme Court.

Regarding consequential order, olatawura, JSC, said:

“In this case the defendant agreed that a defined parcel of land was granted to the plaintiff. After the plaintiff land issued its writ and before the case was heard, it erected a wall fence enclosing not only the area granted to it by also enclosing more than was granted to it. The judge was right to have ordered the demolition of the wall fence. This order is a consequential order that flow from the evidence. It is not a separate head of claim expected to be found in a writ. ”

See, also, Amaechi V. INEC (2008) 5 NWLR (PT.1080) 227. On account of the above state of law, I have no difficulty in resolving this issue (three) against the appellants.

On the whole, there is no doubt that some issues, precisely issues three and four, are resolved in favour of the respondent in this appeal. Nevertheless, the respondent merely scored a pyrrhic or palliative victory on those issues. The reason is plain enough. I had, after a painstaking consideration of issue one, resolved it in favour of the appellants and declared the judgment of the court below a nullity. I have no reason to upset that finding. It remains.
The dire consequence of nullity is graphically captured by Nnaemeka-Agu. JSC, in the case of okoye v. Nigeria, Const. & Furniture co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 538 that:

When a judgment or order is a nullity, it is as if it was never given or made. It can be set aside without much a do”.
See, also, Bello vs INEC (2010) 8 NWLR (Pt.1196) 342-
More than that, such a null order or judgment is a barren victory as it confess no sight on the beneficiary party nor does it impose any obligations on the victim party, see Ajiboye v. Ishola (2006) 13NWLR (Pt.998) 628; Oyeneyin vs Akinkugbe (supra).

It follows that when the full judgment of the court below is set aside, there is no substratum upon which those issues’ resolved in favour of the respondent, will hang on to and survive.

All in all, the appellant’s appeal, on the sound footing of issue one, succeeds. The null judgment of the court below cannot stand. Accordingly, the judgment delivered by the court below, on 09/11/2006, which led to this appeal, be and is hereby set aside for being a nullity. Parties shall bear their respective costs of prosecuting and appeal.

MARY U. PETER-ODILI, J.C.A.:  I agree.

JOSEPH TINE TUR, J.C.A.: Having read in advance a copy of the judgment just delivered by my Lord Obande F. Ogbuinra. JCA. I do concur. I shall add a few comments of mine.

The writ of Summons was taken out in the Registry of the High Court of Justice Kaduna in Kaduna State on 05-05-2003. The original statement of claim was filed on 15-10-1003 and subsequently amended with leave of Court. The Amended Statement of claim was filed on 21-06-2004. The defendant also filed a Statement of Defence which, which leave of court, was later amended. Paragraphs 4-8 of the Amended Statement of Claim reads as  follows:

“1.     By a Deed of Assignment dated 20th April, 2001 and after conducting necessary searches at the relevant ministry the Plaintiff purchased all that property lying and situate at Plot E7 Kudendu Industrial Layout (hereinafter culled Plot E7) from Yakamata Multicom Limited a liability company the then beneficial owner of Plot E7.

5. The Plaintiff took possession of the said Plot E7 Kudenda Industrial layout, Kaduna and commenced acts of ownership on the said plot.
6. Plot E7 approximately measures 9.26 acres and is bounded by beacon numbers KDA324, KDA325. KDA336. KDA312, KDA343, KDA344, and KDA323 and Was covered by Kaduna State Government Certificate of Occupancy No.KD8106 issued in March, 1999.
7. After conducting the necessary searches, the Plaintiff stamped and filed the Deed of Assignment mentioned in paragraph 4 above. And upon the application of Yakamata Multicom Limited, was issued with an Approval of Consent to Assign Plot E7 conveyed via a letter from the Kaduna State Bureau for lands, Surveys and Country Planning dated 5th July, 2001 with Reference No.KDL/50973. The Plaintiff will rely on the said letter at the hearing of this case.
8. After filing the necessary application und paying the prescribed fees, the previous certificate of occupancy in favour of Yakamata Multicom Limited was cancelled and a new Certificate of occupancy No.KD.12690 dated 8th March, 2003 was issued in favour of the Plaintiff.

The Plaintiff will rely an the said Certificate of Occupancy at the trial of this case.”

Paragraph 2-3 of the Amended Statement of Defence filed on 23-03-2004 pleaded the following facts:

2. In reply to paragraphs 4, 5, 6, and 7, the Defendant shall contend at the trial that it purchased the strip of land measuring 169.53mx6m from YAKAMATA MULTICOM LIMITED in July, 1999. At the trial the Defendant shall lead evidence and hereby plead the Deed of assignment dated 12th July, 1999. The Defendant strongly deny that the plaintiff purchased the whole land and thereby took ownership to exclusion of the Defendant’s interest.
3. In reply to paragraph 8 and 9 Defendant shall lead evidence at the trial to the effect that prior to filing and paying for the new certificate of Occupancy in its name a meeting was called by the Ministry of land and Survey Kaduna to resolve the contending claim over the land. Specifically the plaintiff was claiming the whole land while the Defendant was claiming the strip measuring 169.53mx6mm. That it was at the meeting held on the 19th of 2002 (sic) that the contesting claim was resolved in accordance with paragraph 7 of the statement of Defence. At the trial the Defendant shall lead evidence to the effect that by procuring a certificate of Occupancy in its name for the whole land after conceding the aforementioned land to the certificate of Occupancy is underhand and meant to overreach the Defendant.”

From the state of the amended pleadings filed by the parties, it can be seen that while the plaintiff laid claim to the whole land through purchase as evidenced by a Deed of Assignment dated 20-04-2001 from Yakamata Multicom Ltd the beneficial owner of plot E7 JUDENDA Industrial Layout and that she took possession and commence acts of ownership on the plot, the Defendants pleaded that they had purchased only strip of the land measuring 169.53x6m form the same Yakamata Multicom Ltd and also founded on a Deed of Assignment date 12-07-1999. Thus the Defendant bought the strip of land on 12-07-1999 while the plaintiff bought the whole land inclusive of the strip on 20/04/2001. If that is true, Yakamata Multicom Ltd could not have included the strip of land sold to the Defendant on 12-07-1999 while was sold to the plaintiff on 20/04/2001.

Having divested herself of the strip of land in favour of the Defendant on 12-07-1999. on the principle of nemo dat quod non habet, the Vendor would have no title to pass to the defendant by way of sale. Therefore, no valid title passed from the Vendor to the plaintiff over the strip of land when it was sold on 20-04-2001. The learned trial Judge, due to the fact that judgment was delivered after one year and six months in contravention of the provisions of Section 294(1) of the 1999 Constitution without recourse to the facts in the amended pleadings entered judgment for the plaintiff/Respondent and made the following orders at 152 lines 4-24 of the printed records:

“I therefore accordingly hereby declare as follows:

1. That the plaintiff is the rightful owner of the plot No.E7 Kudenda Industrial Layout, Kaduna carried by a certificate of occupancy No.12690 issued on 08/03/2003.
2. I perpetual issue our an injunction restraining the defendant either directly or through its agent. Staff Doke donors or directors from further trespass or causing further act of nuisance on the plaintiff aforesaid plot.
3. I hereby compel the defendant to remove its pipes buried in the plaintiff plot and also fill up the deep gully created by erosion caused by waste product entering through the said pipes. And compact it with construction compatible literate.
4. The defendants are also hereby directed to demolish the entire walls erected without KASUPDA approval and pack away the asbestos all at their expense.
5. I also award general damages in the sum of N2m against the defendant and in favour of the plaintiff for trespass into its land and for burying asbestos pipes without going  into a tentative agreement clearly defining rights and obligations as for creating nuisance on the plot under  reference and erosion.”

A judgment that does not take into cognizance the pleaded facts, and was also delivered outside the three months period stipulated under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended ought not to be allowed to stand. The learned trial Judge has been shown by my learned brother to have failed to appreciate the pleadings, oral and documentary exhibits tendered at the trial. The appellants have shown how they- have suffered miscarriage of justice. See Ojokolobo & Ors vs Alamu & Anor (1937) 18 NSCC (Pt.2) 991; SBN Ltd vs Ind. O. Corp (2009) 8 NWLR (Pt.1144) 491 at 500 and Kalu vs Igwe (2002) 5 NWLR (Pt.761) 637.

The judgment cannot stand even if it had been delivered within the three months’ period stipulated under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1990 as amended. The appeal is allowed. I abide by the orders of my learned brother Obande F. Ogbuinya, JCA.