(2018) LPELR-44808(CA)

Transcription

1 NABOBO & ANOR v. MUSA & ORS CITATION: TIJJANI ABUBAKAR In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON WEDNESDAY, 25TH APRIL, 2018 Suit No: CA/L/401/2010 UGOCHUKWU ANTHONY OGAKWU Before Their Lordships: Justice, Court of Appeal Justice, Court of Appeal ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice, Court of Appeal 1. CHIEF SAFELE NABOBO 2. YEWA NABOBO 1. CHIEF FATAI MUSA 2. BABA MUSILIU 3. BASHIRU MUSA 4. FATAI MUSA 5. ALHAJI AYUBA NDAKOLO 6. WAHAB MUSA RATIO DECIDENDI Between And - Appellant(s) - Respondent(s) 1. APPEAL - INTERFERENCE WITH FINDING(S) OF FACT(S): Instances when an appellate Court will not interfere with findings of fact of the lower Courts "The Lower Court duly discharged its primary duty of evaluating the evidence and ascribing probative value thereto. The evaluation of evidence and appraisal of facts by the Lower Court cannot be faulted. It is not the business of the appellate Court where the trial Court has justifiably evaluated the evidence to substitute its views for the views of the Court of trial. See NGILLARI vs. NICON (1998) 8 NWLR (PT. 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT. 571) 534 or (1998) LPELR (222)1 at The evaluation of evidence and the findings made by the Lower Court are not perverse so an appellate Court has no basis to intervene."per OGAKWU, J.C.A. (Pp , Paras. E-B) - read in context

2 2. EVIDENCE - EVALUATION OF EVIDENCE: Duty of the trial Court as regards perception, evaluation and findings of fact "The duty of a trial Court is to adequately evaluate evidence adduced in a case and give judgment based on the balance of probability. Therefore the quality of evidence before the Court will determine in whose favour the decision will swing. See the case of AJIBAIYE v. AJIBAIYE & ORS (2007) LPELR-8775 (CA). The Appellants assertion of been entitled to four plots of land at the New Alaguntan land was not backed by credible evidence enough to tilt the scale of justice to their side. See the case of AREMU V. CHUKWU (2011) LPELR (CA), per SAULAWA, JCA, where it was held that: "It is a trite and well settled doctrine, that civil cases are normally decided upon the balance of probabilities. Thus, where part to a case is unable to adduce a credible evidence to title the [pendulum of] the scale of justice to the side thereof, the Court is under a duty to enter judgment against that party..." The Lower Court was therefore right when it stated that even without a statement of defence by the Respondents; the Appellants could not have succeeded on their claims. The quality of evidence adduced by the Appellants was not enough as to entitle it to the reliefs claimed. The Appellants failed to call any witness to prove the assertion that they were entitled to two plots of land at the New Alaguntan land for every one plot at the Old Alaguntan. Therefore, the trial Court having discharged its primary duty of evaluating evidence and ascribing probative value therefore, the decision reached cannot be faulted as it is not perverse."per OBASEKI-ADEJUMO, J.C.A. (Pp , Paras. D-E) - read in context 3. EVIDENCE - UNCHALLENGED/UNCONTROVERTED EVIDENCE: Whether where the evidence adduced before a trial Court is unchallenged, the Court still has a duty to evaluate same "Even though I have held that the Appellants condoned the defective Statement of Defence and waived their right to object to the same, I need to state that even if it were that the Statement of Defence was defective and the action undefended, the Appellants sought declaratory reliefs and still had the burden of proving their entitlement to the declarations sought. The law is that evidence, even if uncontroverted and unchallenged still has to be evaluated by the Court to see if it is credible enough to sustain the claim. See OGUNDIPE vs. A-G KWARA (1993) 2 NWLR (PT. 313) 588, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB LTD (supra) at 27 and BUHARI vs. OBASANJO (2005) 8 MJSC 1 at 268. As stated by Oguntade, JCA (as he then was) in HARUNA vs. SALAU (1998) 7 NWLR (PT 559)653 at 659; "The argument that because the plaintiff's evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak...that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff, even if unchallenged may still be insufficient to sustain the claim made by the plaintiff..."per OGAKWU, J.C.A. (Pp , Paras. E-E) - read in context 4. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in a claim "By Sections of the Evidence Act, 2011, the claimant in an action has the legal burden of establishing his claim. The onus probandi rests on him as he is the one who would fail if no evidence is led at all. The doctrine of the burden of proof is encapsulated in the Latin maxim eiqui affirmat non ei qui negat incumbit probatio, that is, the burden of proof lies on one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 3 NWLR (PT. 331) 178 at 192. The related and associated Latinism is expressed as ei incumbit probatio, qui dicit non qui negat, cum perrerum naturam factum negantisprobatio nulla sit, that is, the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he who denies a fact cannot produce any proof: AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at So what was the Appellants evidence to establish their affirmation that the agreement was that two plots of land were to be given? There is only the ipse dixit of the CW1 and CW3 that they were present when it was so stated but that nothing was put in writing in that regard. It is instructive that under cross examination at page 206 of the Records, the CW1 stated: "Alhaja Ayuba, Chief Lamidi (the present Baale) were at the meeting were[sic] we agreed that we will be given two plots at the new site in lieu of one plot at the old site. We were many at the meeting I cannot remember everyone. It was the government that said this. There is no document. It was suggested that we will sell one of the plots and the proceeds will be used to develop the other. This agreement was not in writing." (Emphasis supplied) On his part, the CW3 stated as follows under cross examination at page 208 of the Records: "I was present at the meeting where it was decided to give everyone 2 plots in New Alaguntan to replace one plot at Old Alaguntan. Alhaji Ayuba, Fatai Muniru Musa and the Late Baale. Also my mother, grandmother, Pa Momodu, Alhaji Ogidan were present. There were so many people there." Testifying further under re-examination on the same page 208 of the Records, the CW3 stated: "The Lagos State Officials said that anyone who had a developed structures would get two plots at New Alaguntan." (Emphasis supplied) It is limpid that the evidence is that it was Lagos State Government Officials that said that two plots should be given "at the new site in lieu of one plot at the old site." Surprisingly, the Appellants did not call any Lagos State Government Official to testify in this regard, leaving the Court with the mere ipse dixit testimony of 'it was said and it was not said'. Furthermore, the Appellants did not call any plot owner at Old Alaguntan who got two plots of land at New Alaguntan for his one plot at Old Alaguntan. Undoubtedly, the quality of the evidence adduced by the Appellants did not preponderate in favour of the basic proposition which they sought to establish, id est, that for the two plots of land they had at Old Alaguntan, they were entitled to four plots of land at New Alaguntan. See OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26 and NEKA B.B.B. MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 15 WRN 1 at 26. The Appellants therefore did not adduce credible, cogent and compelling evidence to discharge their burden of proof: ARASE vs. ARASE (supra) and OKI vs. OKI (2001) 13 NWLR (PT. 783) 89 at 105."Per OGAKWU, J.C.A. (Pp , Paras. B-C) - read in context

3 5. INTERPRETATION OF DOCUMENT - CONSTRUCTION OF DOCUMENT(S)/INSTRUMENT(S): Cardinal rule of interpretation of instrument, document or agreement "In construing and interpreting Exhibits C and D, the Lower Court reasoned and concluded as follows: "After a careful perusal of Exhibit C and D, I am inclined to believe the statements of the Defendants which in my view is more probable that [sic] the explanation of the Claimant. Exhibit C was the allocation of Plot 21 and 22 to the Claimant and his wife (deceased). The 2nd paragraph of Exhibit C reads thus. 'We regret the unfortunate development regarding the delay in your allotment and hereby inform you that in the interest of quick dispensation of justice, you and the estate of your late wife have been allotted Plots 21 and 22 in Block 9 of Alaguntan Village layout prepared by the Lagos State Government on behalf of the community. Exhibit C did not refer to the allotting of additional plots to the Claimant in the future. The 1st paragraph of Exhibit D dated 18/3/2008 reads thus: 'With reference to the above and our letter of 6th February 1998 and subsequent meeting at Lion Building Police Station Lagos we hereby inform you that you have been re-allotted Plot 15 Block 9 of the Alaguntan Village Layout Ikota.' The Defendants used the word 'Re-Allotted.' The word RE could have two meanings. According to the Blacks Law Dictionary 8th Edition the word RE means Regarding; in the matter of; the term is often used as a signal or introductory title announcing the subject of business correspondence. Again, in the New Webster's Dictionary of the English Language International Edition. The word RE could also mean 'again' another time, back to a former state or condition. Thus apply the two definitions of RE to Exhibits D I am convinced that that the Defendants intention was to cancel the former allocation and allocate a fresh plot to the Claimant. The beginning of the opening paragraph had already referred to the topic of discussion with the words 'With reference to the above' therefore re-allotted was a new allocation by going back to the former position and allocating Plot 15 Block 9. Thus by the use of the word RE in this respect I have used the second meaning of the word RE which fits the surrounding circumstances of the case." (See page 271 of the Records)?I have insightfully considered Exhibits C and D and in keeping with the exhortation that where the words employed are clear and unambiguous they should be given their plain, ordinary and natural interpretation, vide AMASIKE vs. REGISTRAR-GENERAL, CORPORATE AFFFAIRS COMMISSION (2005) LPELR (5407) 1 at and NIGERIA SHIPPERS COUNCIL vs. UNITED WORLD LTD INC. (2001) 7 NWLR (PT. 713) 578 at ; I am in no doubt that the interpretation placed on the documents by the Lower Court is the correct interpretation. To underscore this, it is pertinent to highlight a few key words employed in the said Exhibits. In Exhibit C, the word used is 'allotted', while in Exhibit D, the word used is 're-allotted.' Exhibit D refers to Exhibit C and the subsequent meetings held thereafter leading on to the re-allotment of the Plot in Exhibit D. It would seem to me that the subsequent meetings referred to in Exhibit D are consequent upon developments in respect of the plots allotted in Exhibit C therein referred, and for which another plot was now given in Exhibit D. The finding of the Lower Court in this regard is unassailable."per OGAKWU, J.C.A. (Pp , Paras. F-E) - read in context 6. JUDGMENT AND ORDER - REASON FOR JUDGMENT: Whether the reason given for a Court's decision will be immaterial where the decision is right "before I end, let me state that an appellate Court is concerned with whether the correct decision was arrived at and not whether the reasons are correct: NDAYAKO vs. DANTORO (2004) 13 NWLR (PT. 889) 187 at 220, DAIRO vs. UBN PLC (2007) 16 NWLR (PT. 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36. From what I have said thus far, there is no doubt that the Lower Court arrived at the correct decision. It is therefore immaterial that part of the reason given by the Lower Court, which is that the Appellants did not prove any of the five ways of proving title to land, may not be the correct reason."per OGAKWU, J.C.A. (P. 29, Paras. B-E) - read in context

4 7. PRACTICE AND PROCEDURE - IRREGULAR PROCEDURE/PROCEDURAL IRREGULARITY: Whether a party who consents or acquiesced to an irregular/wrong procedure can later challenge same "there is the need to resolve the Appellants contention in their issue number three that there was no valid Statement of Defence. By all odds, the Statement of Defence was signed in a firm name. This raises the question of whether it was a proper and valid Statement of Defence in the light of the provisions of Sections 2 and 24 of the Legal Practitioners Act and the cases of OKAFOR vs. NWEKE (supra) and SLB CONSORTIUM LTD vs. NNPC (supra) referred to by the Appellants. Let me at this outset draw a parallel in the process in issue in this matter and the processes involved in the cases relied upon by the Appellants. In those cases, the processes involved were originating processes. In the instant matter, the scarified Statement of Defence is not an originating process. Does this make any difference? We will find out in a trice. The Statement of Defence was filed on 6th August, In reaction to the Statement of Defence, the Appellants filed a Reply to the Statement of Defence on 6th September, 2004 (See pages of the Records). The Reply to the Statement of Defence was amended by the Appellants in their Amended Reply to the Statement of Defence filed on 5th June, 2008 (see pages of the Records). There is no doubt that the Statement of Defence which was signed in a firm name was not signed in the proper form as stipulated in Sections 2(1) and 24 of the Legal Practitioners Act: FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR (9713) (SC), OGUNDELE vs. AGIRI (2009) 18 NWLR (PT. 1173) 219 at and OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 at Forgive my being circumferential, but I restate that the process in question in this matter is not an originating process; it is a Statement of Defence. Upon being served with the irregular Statement of Defence, the Appellants reacted thereto by filing their Reply which they later amended four years after the irregular Statement of Defence had been filed. They took further steps in the proceedings as the Respondents called their witnesses to testify on the averments in the said irregular Statement of Defence. The Appellants duly cross examined the said witnesses called by the defence. It was after adduction of evidence and after having taken several sizzling steps in the proceedings that the Appellants raised the issue of the competence of the Statement of Defence in their final written address. Recently, in a similar situation the apex Court pronounced on the consequence of a defective process (not being an originating process) which was not challenged in a timely manner. Hear my Lord, Ejembi Eko, JSC in APPEAL NO. SC.175/2005: HERITAGE BANK LIMITED vs. BENTWORTH FINANCE (NIGERIA) LIMITED (unreported) delivered on 23rd February, 2018: "When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process having not being [sic] issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact [that] while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A.G., KWARA STATE & ANOR. v. ALHAJI SAKA ADEYEMO & ORS (2016) 7 SC (Pt.11) p. 149 is one of the most recent decisions of this Court on this distinction. Rhodes-Vivour, JSC, delivering the Lead Judgment in the case, stated: Jurisdiction is a question of Law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural Law. 2. Jurisdiction as a matter of substantive Law. A litigant may waive the former. For example, a litigant may submit to a procedural jurisdiction of the Court where a Writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. The facts of this case, particularly on this objection, are that in spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant, as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the Statement of Claim was called after the statement of defence joining issues with the defective Statement of Claim was filed. Judgment of the trial Court, based on the evidence elicited from the Statement of Claim, was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective Statement of Claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. The right of the defence to object to the irregularity ex facie the Statement of Claim is a waivable right, being a private right: A.G, KWARA & ANOR. v. ADEYEMO (supra); ARIORI v. ELEMO (1983) 1 SC 13." I kowtow. Let me hasten to add that even though the issue in that case was raised before the apex Court and in the instant case it was raised at the address stage before the trial Court, the principle applies with equal force; the Appellants not having challenged the defective Statement of Defence in a timely manner had condoned the defective Statement of Defence and waived their right to object to the irregularity in the process. In this wise, the provisions of Order 5 Rule 1 (2) and Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which were the extant Rules of Court when the matter was tried at the Lower Court are relevant. They read: 1. "(2) Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The Judge may give any direction as he thinks fit to regularise such steps." "2. (1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying had taken the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion." The several fresh steps taken by the Appellants and their full participation in the trial based on the pleadings filed made it too late for them to contend at the address stage that the Statement of Defence was defective and incompetent. See NIGER-BENUE TRANSPORT COMPANY vs. NARUMAL & SONS LTD (1986) 4 NWLR (PT. 33) 117, KISARI INVESTMENT LTD vs. LA TERMINAL COMPANY (2001) 16 NWLR (PT. 739) 381 at and ODU'A INVESTMENT CO. LTD vs. TALABI (1997) 10 NWLR (PT 523) 1. Festinately, let me state that I am aware of the apex Court decision in HAMZAT vs. SANNI (2015) LPELR (24302) where it was held that a Statement of Claim which was not signed by a Legal Practitioner in accordance with Sections 2 (1) and 24 of the Legal Practitioners Act is not a valid Statement of Claim. There is a diametrical difference in the decisions of the apex Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra) and HAMZAT vs. SANNI (supra). The decision in HAMZAT vs. SANNI(supra) was not brought to the attention of the Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra). Be that as it may, HAMZAT vs. SANNI was decided on 30th January 2015, while HERITAGE BANK vs. BENTWORTH FINANCE was decided three years later on 23rd February, By the legal jurisprudential rule of posterior construction, the decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) which is later in time is to be preferred: CARDOSO vs. DANIEL (1986)2 NWLR (PT. 20) 1 at 38-39, SERIKI vs. SOLARU (1965) NMLR 1 and IKEAKWU vs. NWANKPA (1967) NMLR 224. In the circumstances, I iterate that the Appellants had condoned and waived their right to complain about the irregular Statement of Defence and the Lower Court was right to have considered the defence and the evidence led thereon."per OGAKWU, J.C.A. (Pp , Paras. D-F) - read in context

5 UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The disputation in this appeal is in respect of the landed property situate at New Alaguntan Village, Ikota, Lagos State. The case of the Appellants who were the Claimants at the Lower Court is that consequent upon the demolition of Old Alaguntan Village by the Lagos State Government, it was agreed that every owner of a plot of land at the Old Alaguntan Village will be allotted two plots of land at the New Alaguntan Village. The Appellants claim that rather than allot them a total of four plots at the New Alaguntan Village, they were allotted three plots and that the Respondents further trespassed into two of the said three plots and destroyed the blocks that they had there. The Respondents case is a denial that it was agreed that two plots of land will be allotted to every plot owner at the New Alaguntan Village. They asserted that the Appellants who had two plots at the Old Alaguntan Village were allotted two plots at the New Alaguntan Village, which they rejected on the ground that the said plots were in a swampy area. 1

6 The Respondents state that upon the rejection of the said two plots, the Appellants were re-allotted a replacement plot in a dry area, which plot the Appellants sold. The Respondents deny destroying any blocks on the plots which the Appellants rejected. The Appellants instituted proceedings at the High Court of Lagos State in SUIT No. LD/1373/2004: CHIEF SAFELE NABOBO & ANOR. vs. CHIEF LAMIDI MUSA & ORS; wherein they claimed the following reliefs: (a) A DECLARATION that the Claimants are the join Beneficial Allottees/Owners of the parcel of land known and marked as plots 21 and 22 at New Alaguntan Village, Ikota, Lagos State by virtue of allotment by the Alaguntan Community. (b) AN ORDER of the Honourable Court that the 1st Defendant should allot and or allocate the remaining one plot of the land due to the Claimants out of the New Alaguntan village land to the Claimants forthwith. (c) A DECLARATION that the entry into and damaging of the building blocks of the Claimants on the said 2 plots of land by the Defendants amounts to trespass. (d) Sum of N1,000,000 as general damages against the Defendants jointly and severally for entering into 2

7 the parcel of land of the Claimants (that is plot Nos 21 and 22) and the value of the damaged building blocks thereon without the consent and or authority of the Claimants. (e) AN ORDER of perpetual injunction restraining the Defendants jointly and or severally and whether by themselves, agents, servants, privies and or howsoever from carrying out any acts either by way of sale, alienating, assigning, transferring or any other act which is in adverse to the beneficial ownership rights of the Claimants on the said 2 plots of land situate at New Alaguntan village, Ikota, Lagos State. (See pages 5-6 of the Records) The parties filed and exchanged pleadings. In response to the Respondents Statement of Defence, the Appellants filed a Reply to the Statement of Defence, which they subsequently amended in the course of the proceedings. Issues having been joined on the pleadings, the matter was subjected to a plenary trial at which testimonial and documentary evidence was adduced. At the conclusion of the trial, the Lower Court dismissed the Appellants claims in its entirety. 3

8 The Appellants were dissatisfied and appealed against the decision of the Lower Court. The judgment of the Lower Court which was delivered on 9th November, 2009 is at pages of the Records, while the original Notice of Appeal which was filed on 1st February, 2010 is at pages of the Records. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 13th March The Records of Appeal having been compiled and transmitted, the Appellants filed their Appellants Brief. The Respondents however failed to file any brief and also did not attend Court at the hearing of the appeal. In the Amended Appellants Brief which was settled by Godwin Etim, Esq., three issues were distilled for determination as follows: 1. Whether the Court below was wrong in holding that the Appellants had failed to prove any of the five ways of proving title to land when there was unequivocal evidence before the Court from both sides that the Appellants were already landowners at Old Alaguntan? 2. Whether the Lower Court was wrong in its evaluation of the evidence before it in coming to its decision to dismiss the Appellants claim and whether the Lower 4

9 Court was wrong to hold that by Exhibit D, the Respondents had cancelled the earlier allocation of two plots of land to the Appellants? 3. Whether, in the absence of a valid and competent Statement of Defence, the Honourable Court was right to have considered the incompetent joint Statement of Defence and gave effect to the oral testimonies thereon? At the hearing of the appeal, learned counsel for the Appellants adopted the submissions in the Appellants Brief and urged the Court to allow the appeal and set aside the judgment of the Lower Court. I have considered the judgment of the Lower Court, the grounds of appeal and the issues formulated for determination and I am satisfied that the said issues distilled for determination aptly capture the complaints of the Appellants against the decision of the Lower Court, I therefore adopt the said issues for the determination of this appeal. SUBMISSIONS OF THE APPELLANTS COUNSEL The quiddity of the Appellants argument on issue number one is that the Lower Court was wrong in holding that the Appellants had failed to prove any of the five ways of proving title to land. 5

10 It was contended that it was agreed on all sides that the Appellants already owned land at Old Alaguntan and that the allotment of land at New Alaguntan was a grant consequent upon the demolition by Government of Old Alaguntan. It was stated that having been admitted by the Respondents it was longer necessary for the Appellants to prove any of the five ways of land ownership. The cases of NSIEGBE vs. MGBEMENA (1996) 1 NWLR (PT. 426) 607 at 619, OLOHUNDE vs. ADEYOJU (2000) 10 NWLR (PT. 676) 562 at 584, ANYABUNSI vs. UGWUNZE (1995) 6 NWLR (PT 401) 255, WEMA BANK vs. OSILARU (2008) 10 NWLR (PT. 1094) 150 at 179, ALLI vs. ALESINLOYE (2000) FWLR (PT 15) 2613 and Sections 20 and 123 of the Evidence Act, 2011 were referred to. The conspectus of the argument in issue number two is that the Lower Court did not properly evaluate the evidence as a result of which it arrived at the conclusion that the Respondents, by Exhibit D, cancelled the earlier allocation of two plots to the Appellants and thereby came to a wrong decision. It was posited that the Lower Court failed to draw the necessary inference from the facts established by the evidence and took irrelevant matters 6

11 into consideration in arriving at the decision. The case of EZEADUKWA vs. MADUKA (1997) 8 NWLR (PT. 518) 635 was relied upon. It was asserted that having found that there was no evidence to support the Respondents assertion that the Appellants rejected the two plots, as their ipse dixit did not suffice, the Lower Court erred by still believing the story, thereby approbating and reprobating based on supposition. The cases of PALMER vs. DADA (1986) 5 NWLR (PT 43) 541 at 547, INEC vs. ACTION CONGRESS (2009) 2 NWLR (PT. 1126) 524 at 586, SHAGARI vs. C.O.P. (2007) 5 NWLR (PT. 1027) 272 at 299 and KALU vs. THE STATE (1993) 3 NWLR (PT. 279) 20 at 29 were cited in support. The Appellants maintain that a document speaks for itself and that there is nothing in Exhibit D to the effect that it was allocation of one plot of land in full satisfaction of the original two plots of land. It was stated that documents are to be given their ordinary and simple meaning. The case of OKHOMINA vs. PSYCHIATRIC HOSPITAL MANAGEMENT BOARD (1997) 2 NWLR (PT. 485) 75 at 90 and YADIS (NIG) LTD vs. GREAT NIGERIA INSURANCE CO. LTD (2007) 14 NWLR (PT. 1055) 584 at 610 were called in aid. 7

12 The Appellants further submit that the findings made by the Lower Court which are not supported by any legal evidence are perverse and ought to be set aside. The cases of OLOHUNDE vs. ADEYOJU (supra) at 586 and YARO vs. AREWA CONSTRUCTION LTD (2008) ALL FWLR (PT. 400) 603 at 638 were referred to. It was conclusively submitted on the second issue that the Lower Court in its interpretation of Exhibit D, wrongly placed the burden of proof on the Appellants as a result of which a miscarriage of justice was occasioned. The cases of NWOSU vs. UDEAJA (1990) 1 NWLR (PT. 125) 188 at 223, OMONI vs. BIRIYAH(1976) 10 NSCC 329 at 331 and OLOHUNDE vs. ADEYOJU (supra) at 599 were relied upon. The synopsis of the Appellants contention on the third issue is that the Respondents did not have a valid Statement of Defence at the Lower Court as their Statement of Defence was signed in a firm name. It was opined that the said Statement of Defence was incompetent and ought to have been discountenanced by the Lower Court, in consequence of which the evidence given pursuant to the said Statement of Defence is null and void. 8

13 In the circumstances, it was posited that since there is no formal defence the Appellants are required to prove their claims by minimum proof, which burden was creditably discharged. The cases of OKAFOR vs. NWEKE (2007) 10 NWLR (PT. 1043) 521, SLB CONSORTIUM LTD vs. NNPC (2011) 9 NWLR (PT. 1252) 217 at 336, MANSON vs. HALLIBURTON ENERGY SERVICES NIG. LTD (2007) 2 NWLR (PT.1018) 211 at 228, ALAMIEYESIGHA vs. C. J. BAYELSA STATE (No. 2) (2007) 7 NWLR (PT. 1034) 524 at 588 and SHELL PETROLEUM DEV. CO. LTD vs. EDAMKUE (2009) 14 NWLR (PT 1160) 1 at 33 were cited in support. RESOLUTION In the prolegomenon, I set out the salient facts as it relates to the respective position of the parties. It is apparent that the facts of the matter are not convoluted. Indeed, the area of disceptation is very narrow. It is agreed on all sides that the Appellants had two plots of land at Old Alaguntan Village. It is further agreed on all sides that upon the demolition of Old Alaguntan Village by the Lagos State Government, the Appellants were entitled to allocation of land at the New Alaguntan Village. The parties however disagree on the number of plots the Appellants were entitled to. The Appellants contend that it is two plots each 9

14 while the Respondents deny that the Appellants are entitled to two plots each at New Alaguntan. The parties are further agreed that the Appellants were allocated two plots of land at New Alaguntan, vide Exhibit C. The Respondents however claim that the Appellants rejected the said two plots for being in a swampy area. Consequent upon which they were re-allocated another plot, vide Exhibit D, in a dry area. The Lower Court construed and interpreted Exhibit D as being a cancellation of the former allocation made to the Appellants and allocating a fresh plot to them. We will find out in the course of this judgment if the interpretation of the said Exhibit D by the Lower Court is the correct one based on the evidence on record. But first there is the need to resolve the Appellants contention in their issue number three that there was no valid Statement of Defence. By all odds, the Statement of Defence was signed in a firm name. This raises the question of whether it was a proper and valid Statement of Defence in the light of the provisions of Sections 2 and 24 of the Legal Practitioners Act and the cases of OKAFOR vs. NWEKE (supra) and SLB CONSORTIUM LTD vs. NNPC (supra) referred to by the Appellants. 10

15 Let me at this outset draw a parallel in the process in issue in this matter and the processes involved in the cases relied upon by the Appellants. In those cases, the processes involved were originating processes. In the instant matter, the scarified Statement of Defence is not an originating process. Does this make any difference? We will find out in a trice. The Statement of Defence was filed on 6th August, In reaction to the Statement of Defence, the Appellants filed a Reply to the Statement of Defence on 6th September, 2004 (See pages of the Records). The Reply to the Statement of Defence was amended by the Appellants in their Amended Reply to the Statement of Defence filed on 5th June, 2008 (see pages of the Records). There is no doubt that the Statement of Defence which was signed in a firm name was not signed in the proper form as stipulated in Sections 2(1) and 24 of the Legal Practitioners Act: FIRST BANK NIG PLC vs. MAIWADA and FRANPHINO PHARMACEUTICAL LTD vs. JAWA INTERNATIONAL LTD (2012) LPELR (9713) (SC), OGUNDELE vs. AGIRI (2009) 18 NWLR (PT. 1173) 219 at and OKETADE vs. ADEWUNMI (2010) 8 NWLR (PT 1195) 63 at

16 Forgive my being circumferential, but I restate that the process in question in this matter is not an originating process; it is a Statement of Defence. Upon being served with the irregular Statement of Defence, the Appellants reacted thereto by filing their Reply which they later amended four years after the irregular Statement of Defence had been filed. They took further steps in the proceedings as the Respondents called their witnesses to testify on the averments in the said irregular Statement of Defence. The Appellants duly cross examined the said witnesses called by the defence. It was after adduction of evidence and after having taken several sizzling steps in the proceedings that the Appellants raised the issue of the competence of the Statement of Defence in their final written address. Recently, in a similar situation the apex Court pronounced on the consequence of a defective process (not being an originating process) which was not challenged in a timely manner. Hear my Lord, Ejembi Eko, JSC in APPEAL NO. SC.175/2005: HERITAGE BANK LIMITED vs. BENTWORTH FINANCE (NIGERIA) LIMITED 12

17 (unreported) delivered on 23rd February, 2018: When, however, the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process having not being [sic] issued or filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced, and not whether the Court can ordinarily and competently assume jurisdiction and adjudicate in the matter in the first place. In most cases procedural jurisdiction is secondary to the substantive jurisdiction. The distinction between the two lies in the fact [that] while procedural jurisdiction can be waived; substantive jurisdiction cannot be waived. A.G., KWARA STATE & ANOR. v. ALHAJI SAKA ADEYEMO & ORS (2016) 7 SC (Pt.11) p. 149 is one of the most recent decisions of this Court on this distinction. Rhodes-Vivour, JSC, delivering the Lead Judgment in the case, stated: Jurisdiction is a question of Law. There are two types of jurisdiction: 1. Jurisdiction as a matter of procedural Law. 2. Jurisdiction as a matter of substantive Law. A litigant may waive the former. 13

18 For example, a litigant may submit to a procedural jurisdiction of the Court where a Writ of Summons has been served outside jurisdiction without leave or where a litigant (the defendant) waives compliance by the claimant of pre-action notice. No litigant can confer jurisdiction on the Court where the Constitution or Statute says that the Court does not have jurisdiction. The facts of this case, particularly on this objection, are that in spite of the fact that the Statement of Claim was allegedly not signed by a known legally qualified Legal Practitioner, but by a firm of legal practitioners, the Appellant, as the defendant, condoned the defective process. They participated in the proceedings and evidence arising from the Statement of Claim was called after the statement of defence joining issues with the defective Statement of Claim was filed. Judgment of the trial Court, based on the evidence elicited from the Statement of Claim, was delivered without objection. Even at the Court of Appeal no issue was made of the alleged defective Statement of Claim. The Appellant, as the defendant, had clearly condoned the defective statement of claim and waived his right to object to this defective process. 14

19 The right of the defence to object to the irregularity ex facie the Statement of Claim is a waivable right, being a private right: A.G, KWARA & ANOR. v. ADEYEMO (supra); ARIORI v. ELEMO (1983) 1 SC 13. I kowtow. Let me hasten to add that even though the issue in that case was raised before the apex Court and in the instant case it was raised at the address stage before the trial Court, the principle applies with equal force; the Appellants not having challenged the defective Statement of Defence in a timely manner had condoned the defective Statement of Defence and waived their right to object to the irregularity in the process. In this wise, the provisions of Order 5 Rule 1 (2) and Rule 2 of the High Court of Lagos State (Civil Procedure) Rules, 2004, which were the extant Rules of Court when the matter was tried at the Lower Court are relevant. They read: 1. (2) Where at any stage in the course of or in connection with any proceedings there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place manner, or form, the failure shall be treated as an irregularity and may not nullify such step taken in the 15

20 proceedings. The Judge may give any direction as he thinks fit to regularise such steps. 2. (1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying had taken the party applying has taken any fresh step after becoming aware of the irregularity. (2) An application under this rule may be made by summons or motion and the grounds of objection shall be stated in the summons or notice of motion. The several fresh steps taken by the Appellants and their full participation in the trial based on the pleadings filed made it too late for them to contend at the address stage that the Statement of Defence was defective and incompetent. See NIGER-BENUE TRANSPORT COMPANY vs. NARUMAL & SONS LTD (1986) 4 NWLR (PT. 33) 117, KISARI INVESTMENT LTD vs. LA TERMINAL COMPANY (2001) 16 NWLR (PT. 739) 381 at and ODU A INVESTMENT CO. LTD vs. TALABI (1997) 10 NWLR (PT 523) 1. Festinately, let me state that I am aware of the apex Court decision in HAMZAT vs. SANNI (2015) LPELR (24302) 16

21 where it was held that a Statement of Claim which was not signed by a Legal Practitioner in accordance with Sections 2 (1) and 24 of the Legal Practitioners Act is not a valid Statement of Claim. There is a diametrical difference in the decisions of the apex Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra) and HAMZAT vs. SANNI (supra). The decision in HAMZAT vs. SANNI(supra) was not brought to the attention of the Court in HERITAGE BANK vs. BENTWORTH FINANCE (supra). Be that as it may, HAMZAT vs. SANNI was decided on 30th January 2015, while HERITAGE BANK vs. BENTWORTH FINANCE was decided three years later on 23rd February, By the legal jurisprudential rule of posterior construction, the decision in HERITAGE BANK vs. BENTWORTH FINANCE (supra) which is later in time is to be preferred: CARDOSO vs. DANIEL (1986)2 NWLR (PT. 20) 1 at 38-39, SERIKI vs. SOLARU (1965) NMLR 1 and IKEAKWU vs. NWANKPA (1967) NMLR 224. In the circumstances, I iterate that the Appellants had condoned and waived their right to complain about the irregular Statement of Defence and the Lower Court was right to have considered the defence and the evidence led thereon. 17

22 I had already stated that the major area of disagreement in the case made out by the parties is on whether the agreement was for two plots of land to be allocated at New Alaguntan for every plot of land owned at Old Alaguntan. The Appellants contend that this was the agreement, while the Respondents case is a denial of that assertion. By Sections of the Evidence Act, 2011, the claimant in an action has the legal burden of establishing his claim. The onus probandi rests on him as he is the one who would fail if no evidence is led at all. The doctrine of the burden of proof is encapsulated in the Latin maxim eiqui affirmat non ei qui negat incumbit probatio, that is, the burden of proof lies on one who alleges and not on him who denies. See ARASE vs. ARASE (1981) 5 SC 33 at 37, UMEOJIAKO vs. EZENAMUO (1990) 1 SCNJ 181 at 189 and MAXIMUM INSURANCE CO. LTD vs. OWONIYI (1994) 3 NWLR (PT. 331) 178 at 192. The related and associated Latinism is expressed as ei incumbit probatio, qui dicit non qui negat, cum perrerum naturam factum negantisprobatio nulla sit, that is, the burden of proof lies upon him who affirms, not upon him who denies, since by the nature of things, he 18

23 who denies a fact cannot produce any proof: AHMADU BELLO UNIVERSITY vs. MOLOKWU (2004) 2 WRN 166 at 184 and IDEH vs. EJOVWO (2014) LPELR (23321) 1 at So what was the Appellants evidence to establish their affirmation that the agreement was that two plots of land were to be given? There is only the ipse dixit of the CW1 and CW3 that they were present when it was so stated but that nothing was put in writing in that regard. It is instructive that under cross examination at page 206 of the Records, the CW1 stated: Alhaja Ayuba, Chief Lamidi (the present Baale) were at the meeting were[sic] we agreed that we will be given two plots at the new site in lieu of one plot at the old site. We were many at the meeting I cannot remember everyone. It was the government that said this. There is no document. It was suggested that we will sell one of the plots and the proceeds will be used to develop the other. This agreement was not in writing. (Emphasis supplied) On his part, the CW3 stated as follows under cross examination at page 208 of the Records: I was present at the meeting where it was decided to give everyone 2 plots in New Alaguntan to 19

24 replace one plot at Old Alaguntan. Alhaji Ayuba, Fatai Muniru Musa and the Late Baale. Also my mother, grandmother, Pa Momodu, Alhaji Ogidan were present. There were so many people there. Testifying further under re-examination on the same page 208 of the Records, the CW3 stated: The Lagos State Officials said that anyone who had a developed structures would get two plots at New Alaguntan. (Emphasis supplied) It is limpid that the evidence is that it was Lagos State Government Officials that said that two plots should be given at the new site in lieu of one plot at the old site. Surprisingly, the Appellants did not call any Lagos State Government Official to testify in this regard, leaving the Court with the mere ipse dixit testimony of it was said and it was not said. Furthermore, the Appellants did not call any plot owner at Old Alaguntan who got two plots of land at New Alaguntan for his one plot at Old Alaguntan. Undoubtedly, the quality of the evidence adduced by the Appellants did not preponderate in favour of the basic proposition which they sought to establish, id est, that for 20

25 the two plots of land they had at Old Alaguntan, they were entitled to four plots of land at New Alaguntan. See OBASI BROTHERS MERCHANT COMPANY LTD vs. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) 4 MJSC 1 at 26 and NEKA B.B.B. MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 15 WRN 1 at 26. The Appellants therefore did not adduce credible, cogent and compelling evidence to discharge their burden of proof: ARASE vs. ARASE (supra) and OKI vs. OKI (2001) 13 NWLR (PT. 783) 89 at 105. As earlier stated, it is agreed on all sides that two plots were allocated to the Appellants in place of the two plots they held at Old Alaguntan. It was however contended that the Appellants rejected the plots for being in a swampy area as a result of which another plot was given to them at a dry area and that the allocation at the rejected area was therefore cancelled. The Appellants maintain that they never rejected any allocation and that the third plot was part of the four plots they were entitled to, and that one plot was still outstanding. I have already held that the Appellants did not establish that they were entitled to four plots so the determination on whether the later plot 21

26 was a replacement for the two plots allegedly rejected will depend on the interpretation placed on Exhibits C and D, being the letters by which the plots of land were allotted to the Appellants. The said Exhibits C and D are copied at pages 19 and 20 of the Records. Exhibit C states as follows: Date: 6/2/98 Mr. Sapele Nabobo and the Estate of Dora Nabobo Dear Sir/Madam, ALLOTMENT OF PLOTS 21&22 BLOCK 9 AT ALAGUNTAN RESETTLEMENT VILLAGE IKOTA- ETI OSA LOCAL GOVERNMENT AREA LAGOS STATE. We refer to the above subject and the meeting held at the Lion Building Police Station on the Area Commander s Office, Mr. Isinteme. We respect the unfortunate development regarding the delay in your allotment and hereby inform you that in the interest of quick dispensation of justice, you and the estate of your late wife have been alloted plots 21& 22 in Block 9 of Alaguntan Village layout prepared by the Lagos State Government on behalf of the community. We wish to mention however that all transfers and assignment can only legally be done through the Baale and the Land Committee in line with terms of the certificate of occupancy. 22

27 You may also contact the community for assistance regarding preparation of your survey plan. Should you have any further enquiries kindly contact any of the undersigned. Thank you for your co-operation. Yours faithfully, (sgd.) (sgd.) Baale Suala Ndakolo Shittu Ayinde Musa CC: (1) The Commissioner of Police Lagos State (2) The Area Commander Lion Building Police Station Lagos State. Exhibit D which is on page 20 of the Record reads: 18th March, 1998 Mr. Sapele Nabobo and the Estate of Dora Nabobo (Deceased) Dear Sir/s RE-ALLOTMENT OF PLOT 15, BLOCK 9, ALAGUNTAN RESETTLEMENT VILLAGE IKOTA, ETI-OSA LOCAL GOVERNMENT AREA OF LAGOS STATE. With reference to the above and our letter of 6th February, 1998 and subsequent meetings at Lion Building Police Station, Lagos we hereby inform 23

28 you that you have been re-alloted Plot 15, Block 9 of the Alaguntan Village Layout Ikota. We wish to reiterate that all transfer and assignments are only legally done through the Baale and the Land Committee in line with the terms of the Certificate of Occupancy. You may also contact the community for assistance regarding preparation of your Survey Plan. Should you have any further enquires kindly contact any of the undersigned. Kindly acknowledge receipt and acceptance of the above by endorsing the attached duplicate copy of this letter. Thank you for your co-operation. Yours faithfully, (Thumb impression) (sgd) BAALE SUALA NDAKOLO CHIEF SHITTU AYINDE MUSA CC: The A.I.G Zone 2, NPF, Lagos The Commissioner of Police, Lagos State The Area Commander, Lion Building Police Station Lagos State. In construing and interpreting Exhibits C and D, the Lower Court reasoned and concluded as follows: 24

29 After a careful perusal of Exhibit C and D, I am inclined to believe the statements of the Defendants which in my view is more probable that [sic] the explanation of the Claimant. Exhibit C was the allocation of Plot 21 and 22 to the Claimant and his wife (deceased). The 2nd paragraph of Exhibit C reads thus. We regret the unfortunate development regarding the delay in your allotment and hereby inform you that in the interest of quick dispensation of justice, you and the estate of your late wife have been allotted Plots 21 and 22 in Block 9 of Alaguntan Village layout prepared by the Lagos State Government on behalf of the community. Exhibit C did not refer to the allotting of additional plots to the Claimant in the future. The 1st paragraph of Exhibit D dated 18/3/2008 reads thus: With reference to the above and our letter of 6th February 1998 and subsequent meeting at Lion Building Police Station Lagos we hereby inform you that you have been reallotted Plot 15 Block 9 of the Alaguntan Village Layout Ikota. The Defendants used the word Re-Allotted. The word RE could have two meanings. According to the Blacks Law Dictionary 25

30 8th Edition the word RE means Regarding; in the matter of; the term is often used as a signal or introductory title announcing the subject of business correspondence. Again, in the New Webster s Dictionary of the English Language International Edition. The word RE could also mean again another time, back to a former state or condition. Thus apply the two definitions of RE to Exhibits D I am convinced that that the Defendants intention was to cancel the former allocation and allocate a fresh plot to the Claimant. The beginning of the opening paragraph had already referred to the topic of discussion with the words With reference to the above therefore re-allotted was a new allocation by going back to the former position and allocating Plot 15 Block 9. Thus by the use of the word RE in this respect I have used the second meaning of the word RE which fits the surrounding circumstances of the case. (See page 271 of the Records) I have insightfully considered Exhibits C and D and in keeping with the exhortation that where the words employed are clear and unambiguous they should be given their plain, ordinary and natural interpretation, 26