MR. EBENZER OLADIMEJI ADETULA V. MR. PHILIP OLUSOLA AKINYOSOYE & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of January, 2017
Before Their Lordships
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of NigeriaBetweenMR. EBENZER OLADIMEJI ADETULA –Appellant
1. MR. PHILIP OLUSOLA AKINYOSOYE
2. MR. GBENGA AKINYOSOYE
3. MRS. ESTHER MAKINDE (Nee AKINYOSOYE)
(For themselves and on behalf of the family of late High Chief M. G. Akinyosoye) –Respondents
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the rightness of the decision of the High Court of Ondo State, sitting at Ondo (hereinafter called “the lower Court”), coram judice: Adesola Sadiq, J., in Suit No. HOD/59/2008, delivered on 27th May, 2014. Before the lower Court, the appellant and the respondents were the defendant and the plaintiffs respectively.
The facts of the case, which gave birth to the appeal, are submissive to easy appreciation. Many years ago, the Oloka family of Ondo Town gave a large tract of land situate at both sides of the new Ondo/Ore Road, Ondo, Ondo West Local Government Area, to respondents great grandfather: late Pa Oluyole Famakinwa. The Oloka family, also, granted the disputed land, lying and being at Awoyaya off Ondo/Ore Road, Ondo, Ondo West Local Government Area of Ondo State, personally to the respondents’ father: late High Chief M. G. Akinyosoye. The respondents inherited the disputed land on the demise of their father and same devolved on them. The respondents alleged that the appellant unlawfully entered into the disputed land during the life time of their father and he was warded off. After his death, the appellant again encroached on the land in dispute and destroyed the crops planted by the respondents. Sequel to these, the respondents beseeched the lower Court and solicited for: a declaration that they are entitled to be granted a certificate of statutory right of occupancy over the disputed land; a declaration that any purported certificate of statutory right of occupancy issued to the appellant over the disputed land was null and void; N5 Million special and general damages for trespass committed the appellant and an order of perpetual injunction restraining the appellant, his servants, agents and privies from further trespass on the disputed land.
As expected, the appellant joined issue with the respondents and denied liability. The appellant claimed that part of the land granted to Oluyole family by Oloka family was, after partition, sold to him by members of the Oluyole family. Later on, he transferred his interest in the disputed land to Oke Ayo Farms Limited, which obtained certificate of occupancy over it, and later passed its interest to Sunshine Cassava and Food Processing Limited.Consequently, the appellant counter-claimed and prayed for: a declaration that he is entitled to a statutory right of occupancy over the disputed land; N5 Million damages for trespass against the respondents and an order restraining the respondents, their servants, agents, privies or assigns from further trespass on it.
Following the rival claims, the lower Court proceeded to a full-scale determination of the case. In proof of the case, the respondents fielded three witnesses, CW1 – CW3, and tendered documentary evidence: Exhibits C1 – C5. In disproof of the case, the appellant testified in person, as DW1, and tendered documentary evidence: Exhibits C6 – C10. After the closure of evidence, the parties, qua counsel, addressed the lower Court.
In a considered judgment delivered on 27th May, 2014, found at pages 205 – 222 of the record, the lower Court granted the respondents’ claim and dismissed the appellant’s counter-claim.
The appellant was dissatisfied with the decision. Hence, on 3rd June, 2014, he lodged a 3 – ground notice of appeal, located at pages 223 and 224 of the record, and prayed this Court: “(i) To allow the appeal. (ii) To set aside the judgment of the lower Court.” Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 8th December, 2016.
During the hearing of the appeal, learned counsel for the appellant, Yomi Oshodi, Esq, adopted the appellant’s brief of argument, filed on 16th July, 2015 and deemed properly filed on 17th May, 2016, as representing his arguments for the appeal. He urged the Court to allow the appeal.
Similarly, learned counsel for the respondents, A. F. Adejayan, Esq, adopted the respondent’s brief of argument, filed on 2nd June, 2016, as forming his reactions against the appeal. He urged the Court to dismiss the appeal.
In the appellant’s brief of argument, he distilled two issues for determination to wit:
ISSUE 1: Whether the lower Court has jurisdiction to entertain Suit No. HOD/59/2008 or whether the plaintiff/respondent suit before the lower Court was statute barred.
ISSUE 2: Whether the lower Court is competent to raise a point suo motu without inviting parties or their counsel to address it before reaching a decision on it.
The respondents in their brief of argument crafted two issues for determination viz:
3.01. Whether or not the plea of statute of limitation can avail the case of the appellant in the instant appeal.
3.02. Whether or not the evaluation of documentary evidence and ascription of probative value to same as was done by the lower Court is the same thing as raising a fresh point suo motu.
A look at the two sets of issues shows that they are identical in substance: one a mirror image of the other. Indeed, the respondents’ issues can, conveniently, be subsumed under the appellant’s. For this reason I will decide the appeal on the basis of the issues formulated by the appellant: the undisputed owner of the appeal.
Arguments on the issues:
Learned counsel for the appellant defined jurisdiction as noted in Anyanwu v. Ogunewe (2014) 231 LRCN 42. He explained its importance and why it must be dealt with first in proceedings. He submitted that it would be raised for the first time even in the Supreme Court. He relied on NITEL Plc. v. Ocholi (2001) FWLR (PT. 74) 254; S. E. C. v. Kasunmu (2009) 10 NWLR (Pt. 1150) 509 to support the submission.
He posited that once the issue of jurisdiction was not raised in a trial Court, leave of appellate Court would be required to raise it. He referred to Nitel v. Ocholi (supra) for the point. Learned counsel then sought for leave to raise and argue the issue one on jurisdiction. He added that statement of claim determined jurisdiction of Court to try a suit before it. He cited Stabilini visinoni Ltd. v. FBIR (2009) 13 NWLR (Pt. 157) (sic) 200; Oladipo v. NCSB (2009) 12 NWLR (Pt. 1156) 563 for the view.
Learned counsel described how the respondents’ suit was commenced by writ of summons and statement of claim which showed when the cause of action arose. He explained cause of action as noted in Ogbah v. Bende Divisional Union (2001) FWLR (pt. 63) 25. He reasoned that the respondents’ cause of action arose in 1989 while the matter was filed on 2nd June, 2008: a period of 19 years. He insisted that their right of action had extinguished in 2002 under Section 6(2) of the Ondo State Limitation Law, 2006, Cap. 83, Volume 2, which provided for 12 years limitation of action. He referred to Forestry Research Institute of Nigeria v. Enaifoghe(2007) 5 SCNJ 302; Elabanjo v. Dawodu (2006) 6 SCNJ 204; NPA v. Lotus (2005) 12 SCNJ 165; Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637; SPDC Ltd. v. Farah (1995) 5 NWLR (pt. 382) 148; Araka v. Ejeagwu (2001) FWLR (Pt. 36) 830 for the point. He postulated that the failure to file the action within 12 years was a feature which prevented the Court from exercising jurisdiction. He relied on Madukolu v. Nkemdilim (1962) 2 SCNLR 31; Rossek v. ACB (1993) 10 SCNJ 20; Oloruntola-Ojo v. Adbulraheem (2009) 13 NWLR (PT. 1157) 83 for the postulation. He described the entire process, proceedings, judgment and orders emanating from the action as a nullity. He referred to UAC v. Macfoy (1966) ALL ER 1172; Ayeni v. A.-G, Ekiti State (2002) FWLR (Pt. 110) 1781 for the point.
For the respondents, learned counsel contended that a Court must limit itself to issues in pleadings otherwise it would lead to denial of fair hearing. He referred to Allied Bank of Nig. V. Akabueze (1997) 51 LRCN 1638; Aminu v. Hassan (2014) 231 LRCN 84; Gbadamosi v. Akinloye (2013) 223 LRCN 1 for the contention. He posited that the appellant never pleaded the defence of limitation as required by law and to raise it now would spring surprise on the respondents. He relied on Order 15 Rule 7 (1) and (2) of the High Court of Ondo State (Civil Procedure) Rules, 2012 (the Rules for short); Kano v. Oyelakin (1993) 3 NWLR (Pt. 282) 399; Oyebamiji v. Lawanson (2008) 163 LRCN 1, Adeniran v. Alao (2001) 18 NWLR (Pt. 745) 361 for the view. He narrated how the cause of action arose. He maintained that even if the appellant pleaded the defence of limitation the cause of action arose in 2002 not in 1989. He relied on Adekoya v. FHA (2009) 168 LRCN 205 for the point. He added that the appellant could not show he was in adverse possession or the respondents had been dispossessed of the disputed land, citing Sections 6 (2) and 12 (1) of the Limitation Law of Ondo State. He asserted that a true owner of land could not be in adverse possession at the same time. He referred to Akinkunmi v. Sadiq (2001) 2 NWLR (pt. 696) 110 for the view.
Learned counsel further contended that the plea of limitation was not applicable to the facts of the case because the grant was under native law and custom. He relied on Section 1 (2) of the Limitation Law of Ondo State, the evidence of CW1 and CW3:
Odekilekun v. Hassan (1997) 54 LRCN 2819; Mogaji v. Cadbury (1985) 2 NWLR (Pt. 77) 383; Section 1 (2) Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 for the contention.
Learned counsel for the appellant submitted that a Court should not raise a point suo motu and resolve it without a hearing from the parties as that would breach a party’s right to fair hearing. He relied on Katto v. CBN (1999) 69 LRCN 1119 for the submission. He explained that Exhibits C61 – 2 were admitted as purchase receipts and were admissible documents, citing Obienu v. Okeke (2006) ALL FWLR (Pt. 340) 1166. He stated that those documents were duly executed, but ought not be stamped and registered. He took the view that the issue whether those documents were duly executed, stamped and registered was never raised in the pleadings and evidence of the parties. He persisted that the lower Court raised it suo muto contrary to the law of hearing parties on it. He relied on Moses v. State (2006) ALL FWLR (Pt. 322) 1437; Araka v. Ejeagwu (Supra) for the point.
On behalf of the respondents, learned counsel argued, per contra, that the lower Court merely evaluated those documentary evidence tendered by the appellant who, also, had a burden of proof as he counter-claimed. He noted that evaluation of evidence and ascription of value to it was the primary function of the lower Court. He relied on Gbemisola v. Bolarinwa (2014) 234 LRCN 137. He added that the issue was raised in the address of the respondents in the lower Court. He reasoned that those documents qualified as instruments that were not registered and ought not be pleaded or tendered in evidence. He referred to Sections 2 and 16 of the Land Instruments Registration Law, Cap 74, Laws of Ondo State, 2006.
He insisted that the lower Court was right not to attach weight to them. He noted that the lower Court or this Court had the power to expunge them as improperly admitted documents. He cited Gbadamosi v. Akintoye (supra); Kayili v. Yilbuk (2015) 244 LRCN 108; Aminu v. Hassan (supra) for the point. He posited that since Exhibit C61-2 had no evidential value, Exhibit C9 founded on them was invalid. He relied on Mcfoy v. UAC (supra); Rossek v. ACB (supra). He concluded that a certificate of occupancy was a prima facie evidence of title that could be nullified when wrongly obtained. He relied on Otukpo v. John (2012) 212 LRCN 141; Dakat v. Dashe (1997) 54 LRCN 2723; Atanda v. Iliasu (2012) 214 LRCN 220 for the point.
Resolution of the issues:
By paying due obeisance to the dictate of the law, I will settle issue one first. The reason is simple. It centres on the jurisdiction of the lower Court to hear the suit which metamorphosed into this appeal. The law commands and compels the Courts to handle issue of jurisdiction first when raised in any proceedings, see Okwu v. Umeh (2016) 4 NWLR (Pt. 1501) 120; Brittania – U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193.
The rationale for this prime attention is firmly rooted in the despicable province of nullity which taints any decision of Courts conducted without any requisite jurisdiction, see INEC v. Ogbadibo L. G. (2016) 3 NWLR (pt. 1498) 167; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Oni v. Cadbury Nig. Plc. (supra): B.B. Apugon & Sons Ltd. v. O. H. M. B. (2016) 13 NWLR (Pt. 1529) 206. No Court of law desires that its decision be marooned in a nullity thereby wasting the scarce judicial time.
At the cradle of the issue one, the appellant sought the leave of the Court to raise and argue the defence of limitation which was not raised before the lower Court. The respondents registered a vehement protest against the application in that it was both unpleaded and belated. The plea of limitation, which the appellant sought to table before this Court, is the kernel of ground one of the appeal. It did not germinate from the judgment of the lower Court. It, therefore, translates to a fresh issue. A fresh issue is one which was not adjudicated and pronounced upon by a lower Court whence an appeal emanated, see Olalomi Ind. V. NIDB (2009) 16 NWLR (Pt. 1167) 577; C. G. G. (Nig.) Ltd. v. Aminu (2015) 7 NWLR (Pt. 1459) 577. An appellate Court is not clothed with the jurisdiction to entertain a fresh issue save with the leave of court sought and obtained, see Odom v. INEC (2015) 6 NWLR (Pt. 1456) 527; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284.
However, this cardinal principle of law, that a fresh issue cannot be
attended to by an appellate Court except with the leave of Court, is not inelastic. It admits of an exception. Its rider is well – founded in the wide domain of jurisdiction. If a new point borders on jurisdiction of a Court, a party has the licence of the law to raise it on appeal without the leave of Court, see Elugbe v. Omokhafe (2004) 18 NWLR (Pt.905) 319; Moses v. State (2000) 11 NWLR (Pt. 992) 458; Owners M/V Gongola v. S. C. (Nig.) Ltd., (2007) 15 NWLR (Pt. 1056) 189; U.T.B. Ltd. v. Dolmetsch Pharm. (Nig.) Ltd. (2007) 16 NWLR (Pt. 1278) 387; Opobiyi v. Muniru(2011) 18 NWLR (Pt. 1278) 387; C. G. G. (Nig.) Ltd. v. Aminu (supra); Agbule v. W. R. & R. Go. Ltd. (2013) 6 NWLR (pt. 1350) 318; Dangote Gen. Text. Prod. Ltd. v. Hascon Ass. (Nig.) (2013) 16 NWLR (Pt. 1379) 60; NNPC v. Orhiowasele(2013) 13 NWLR (pt. 1371) 211: Salisu v. Mobolaji (2014) 4 NWLR (Pt. 1396) 1; Unilorin v. Adesina (2014) 10 NWLR (Pt. 1414) 159; Oni v. Cadbury Nig. Plc. (supra); Sakati v. Bako (2015) 14 NWLR (Pt. 1480) 531; Wema Sec. & Fin. Plc. V. NHC (2015) 10 NWLR (Pt. 1484) 93.
Incontestably, the question of whether or not an action is caught by limitation law or statute – bar touches on the jurisdiction of a Court. A successful plea of limitation law makes a plaintiff, usually the initiator of a suit, to be destitute of the right of action and judicial relief. In other words, a plaintiff’s cause of action becomes banished, see Egbe. v. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) 1; Nasir v. C. S. C. Kano State (2007) 5 NWLR (pt. 1190) 253; Cotecna Intl Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (PT. 1225) 346. In this regard, the Court ceases to be vested with the jurisdiction to entertain the action that offends the Limitation Law, see Owners of MV “Arabella” v. NAIC (2008) 10 NWLR (Pt.1097) 182; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; J. F. S. Inv. Ltd. v. Brawal Ltd. (2010) 18 NWLR (Pt. 1225) 495; Sylva v. INEC (2015) 16 NWLR (Pt. 1486) 576; INEC v. Ogbadibo LG. (2016) 3 NWLR (Pt. 1498) 167; Ibrahim v. Lawal (2015) 17 NWLR (Pt. 1489) 490 Obande F. Ogbuinya, Understanding The Concept of Jurisdiction in the Nigerian Legal System (Enugu: Snaap press Ltd., 2008) pages: 173 – 183.
Ground one, the progenitor of the issue, quarrels with the jurisdiction of the lower Court to hear the respondents’ suit ab initio. To this end, the appellant is entitled ex debito justitiae to raise the ground and argue the issue without injuring the law. It flows that the application for leave to raise the issue, even though contemptuous of the acceptable procedure for making such specie of application, is ex abundant cautela. After all, the ancient maxim: abundantia cautela non nocet – great caution does not harm, first endorsed in Heydon’s case II Co. Rep. 5a at 6a, has received the imprimatur of our jurisprudence, see Turkur v. Government of Gongola State (1988) ALL NLR 49 1 (1988) 1 NWLR (Pt. 68) 39; FRN v. Dairo (2015) 6 NWLR (Pt. 1454) 141. In the result, the appellant’s failure to obtain leave of Court before raising the fresh issue of jurisdiction has not defiled the law. Accordingly, this Court is infused with the vires to determine the issue one on its merit.
Now, the appellant’s chief grievance is that the respondents’ action was statute – barred which drained the lower Court of the competence to hear it. By way of prefatory observations, where a Statute prescribes a time-bar within which an action should be commenced, such legislation bears the name of limitation law. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his action is usually declared as statute-barred. Thus a cause of action is statute-barred when no proceedings can be brought to enforce it because the period laid down by the limitation law has expired by passage of time, see Egbe v. Adefarasin (No.2) (supra); Nasir v. C.S.C., Kano State (2007) 5 NWLR (Pt. 1190) 253; Cotecna Int’l Ltd. v. Churchgate (Nig.) Ltd. (2010) 18 NWLR (Pt. 1225) 346.
The raison d’etre for limitation law are to ginger up aggrieved persons to be vigilant, to discourage cruel actions and to preserve the evidence by which a defendant will defend the action, see Aremo II v. Adekanye (2004) 13 NWLR (Pt.891) 572; Olagunju v. PHCN Plc. (2011) 10 NWLR (Pt. 1254) 113; Lafia L.G. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 943; Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Pt. 1329) 309; CBN v. Okojie (2015) 14 NWLR (Pt. 1479) 231.
The orthodox judicial formula to measure limitation legislation is simple. A Court is enjoined to examine the filed writ of summons or the originating process,
either of which will showcase when the cause of action was disclosed in it, with the period stipulated in the limitation statute within which to sue. If the date of filing in the matter is beyond the period allocated by the limitation law, then it is statute-barred. Conversely, if the time limit comes within that permitted by that law, then it is not statute-barred, see Woherem v. Emeruwa (2004) 13 NWLR (Pt. 890) 398; Aremo II v. Adekanya (supra); Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Williams v. Williams (2008) 10 NWLR (PT. 1095) 364; Hassan v. Aliyu (2010) 17 NWLR (Pt. 1223) 574.
The relevant portion of the provision of Section 6 (2) of the Limitation Law of Ondo State, upon which the appellant pegged his argument, reads.
6. (2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:
I have paid an expected visit to the record, the fulcrum of the appeal, especially at the residence of the respondents’ amended statement of claim wrapped between pages 3 – 6 of the lean supplementary record. I have perused the 31 – paragraph claim with the finery of a tooth comb.
Interestingly, it is obedient to clarify. In paragraph 10 of the claim, the respondents partly averred that: “…the plaintiffs (respondents) father was also personally granted land several years ago by the Oloka family then headed by Oloja Akinboye in accordance with the Yoruba Native Law and Custom where upon the plaintiffs’ father was shown the boundaries of the land in the presence of witnesses… libation poured with prayers and the plaintiffs’ father was put into possession of the land granted him”. (Italics mine: for emphasis).
To begin with, the law has endorsed a statement of claim as one of the barometer to be employed by the Court to gauge statute – bar/limitation law, see Ikine v. Edjerode (2001) 18 NWLR (PT. 745) 446; A.D.H. Ltd. v. A. T. Ltd. (2006) NWLR (Pt. 989) 635; Ladoja v. Ajimobi (2016) 10 NWLR (Pt. 1519) 87; B. B. Apugo & Sons Ltd. v. O. H. M. B. (supra); Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; Akpamabo – Okadigbo v. Chidi (No.2) (2015) 10 NWLR (Pt. 1466) 124; Sun Ins. (Nig.) Plc. V. U.E. C. C. Ltd. (2015) 11 NWLR (Pt. 1471) 576; CBN v. Okojie (supra). This averment is very crucial. It amply demonstrates that the disputed land, bequeathed to the respondents’ deceased father by Oloka family, was/is subject to customary holding, id est, Yoruba native law and custom. By virtue of Section 1 (2) of the selfsame Limitation Law of Ondo State:
“Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure or …inheritance of disposition of property on death.” This is exclusionary provision. It goes to signify that the doctrine of prescription, which, also, bears negative or extinctive prescription, is not applicable to customary proprietary right. This has been sanctioned by the case – law. In Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 at 501 the Supreme Court affirmed:
Moreover what is at play is a claim founded on customary land tenure to which Limitation Law does not apply to since a grant under customary law is a grant in perpetuity. I rely on the following judicial authorities: Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53 at 70; Mora v. Nwalusi (1962) 1 ALL NLR 82, (1962) 2 SCNLR 73; Muemue V. Gaji (2000) FWLR (Pt. 16) 2764 at 2781, (2001) 2 NWLR (Pt. 697) 289.
See, also, Odekilekun v. Hassan (supra). The decision, cocooned in these ex cathedra authorities, with respect, neutralises as well as exposes the poverty of the appellant’s dazzling argument that respondents’ action is trapped in the web of customary limitation law. The respondents’ late father’s title to the disputed land, which the respondents inherited, is not, in the least, amendable to the intractable vortex of statute – bar. Put differently, the law has, duly, excused it. In a word, the provision of Section 6 (2) of the Limitation Law of Ondo State, which the appellant tried to deploy to snuff life out of the respondents’ action, is, totally, inapplicable to the case. It follows, that the action was filed within the tenet and spirit of the said Limitation Law. I, therefore, decline the appellant’s enticing invitation to crucify and nullify the respondents’ action on the underserved altar of statute – bar for want of legal justification. In the end, I have no objection than to resolve issue one against the appellant and in favour of the respondents.
Having dispensed with issue one, I proceed to deal with issue two. The issue falls within a very narrow compass. It castigates the lower Court’s declaration that Exhibits C61 and C62 had no evidential value to support the appellant’s counter – claim. The appellant branded the finding as raising issue suo motu. Indisputably, the law, seriously, frowns on a Court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such untoward judicial exercise will impinge on the inviolable rights of parties to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended, see INEC v. Ogbadibo LG (supra); Gwede v. INEC (supra); Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316 Mabamijie v. Otto (2016) 13 NWLR (Pt. 1529) 171. However, it is not an inflexible rule. It admits of certain exceptions. The need for address by parties becomes unnecessary when: “(a) the issue relates to the Courts own jurisdiction; (b) both parties are/were not aware or ignore a Statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident.” see Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, JSC. See also, Aderibigbe v. Abidoye (2000) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C. (2010) 14 NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289.
I have subjected the 18 – page judgment of the lower Court, occupying pages 205 – 222 of the record, to a microscopic examination. My indepth study of it reveals that the lower Court, at pages 219 and 220 of the record, appraised the documentary evidence professed by the appellant. It must be stressed that the appellant’s defence and counter – claim were weaved on document evidence. I must, without much ado, place on record that the lower Court was firma terra in law when it evaluated those documentary evidence; particularly Exhibit C61 and C62 on which the appellants anchored his contention. Evaluation of evidence connotes weighing the evidence, both viva voce and documentary, in the context of the surrounding circumstances of a case. A finding of fact involves perception and evaluation of evidence, see Ogundalu v. Macjob (2015) 8 NWLR (pt. 1460) 96. Indubitably, the law gives it the nod to evaluate documentary evidence. In Fagunwa v. Adibi (2004) 17 NWLR (pt. 903) 544 at 567, Tobi, JSC, speaking the unanimous voice of the apex Court, incisively and decisively, intoned:
A trial Judge must consider relevant exhibits tendered before him along with oral evidence. He cannot take only the oral evidence and throw away document evidence which is the primary evidence under Section 94 (1) of the Evidence Act
While I concede to the learned trial Judge that the law does not foist on him the duty to consider all the exhibits tendered before him, he must consider relevant exhibits.
This magisterial pronouncement solidifies the respondents’ stance on this knotty point. The lower Court, merely, discharged the debt it owed the law when it evaluated those documentary evidence. I must observe, pronto, that if the lower Court had abdicated this bounden duty, this Court would have, on proper invitation, evaluated those documentary evidence. The reason is not far-fetched. The law, in order to expel injustice from adjudication, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (PT. 943) 634; Olagunjo v. Adesoye(2009) 9 NWLR (PT. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt. 1254) 135; Eyibo v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunji (2013) 7 NWLR (Pt. 1354) 522; CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; Ogundalu v. Macjob (supra) Onwazuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (pt. 1506) 529. It will amount to a judicial sacrilege for this Court to intervene in a juridical exercise that is not injudicious.
Besides, those documentary evidence formed the meat of the appellant’s documents of title to the disputed property. In the eyes of the law, a document of title does not automatically entitle a party, armed with it, to ownership of land. A party’s production and reliance on such an instrument, inevitably, carries with it the necessity for the Court to probe into some number of questions, namely, (i) Whether the document is genuine and valid; (ii) Whether it has been duly executed, stamped
and registered; (iii) Whether the grantor had the authority and capacity to make the grant; (iv) Whether the grantor had in fact what he purported to grant; and (v) Whether it has the effect claimed by its holder, see Akinduro v. Alaya (supra), Ramaine v. Romane (1992) 4 NWLR (Pt. 238) 650; Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181; Kyari v. Alkali (2001) 11 NWLR (pt. 724) 412; Jolasun v. Bamgboye (2010) 18 NWLR (pt. 1225) 285; Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328; Olaniyan v. Fatoki (2013) 17 NWLR (pt. 1384) 477. In total fidelity to the law, the lower Court married those exhibits with the five questions, invented by the law, in order to determine their validity. The judicial exercise conducted by the lower Court is not hostile to the law to warrant any interference by this Court.
Above all, a clinical examination of the record, clearly, discloses that the respondents, at pages 198 – 200 thereof, copiously, addressed the lower Court on the invalidity of those documentary evidence. It stems from the address, that the lower Court’s evaluation of the documents was not done in nubibus as canvassed by the appellant. This bald fact alone demolishes the appellant’s chastisement of the lower Court’s finding on them as done without input from the parties. In all, I refuse the unjustified supplication of the appellant to classify the lower Court’s assessment of those documents as raising issue suo motu which eroded the appellant’s right to fair hearing as enshrined in Section 36 (1) of the Constitution, as amended. In the end, I will not hesitate to resolve issue two against the appellant and in favour of the respondents.
On the whole, having resolved the two issues in favour of the appellant, the fate of the appeal is obvious. It is devoid any tinge of merit and deserves to be penalised with a dismissal. Accordingly, I dismiss the appeal. For the avoidance of doubt, I affirm the judgment of the lower Court, delivered on 27th May, 2014, wherein it granted the respondents’ claim and dismissed the appellant’s counter – claim. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the opportunity of reading in draft the leading judgment just rendered by my learned brother, Obande Festus Ogbuinya, JCA and I concur that the appeal has no merit and should be dismissed.
The Appellant’s grievance that no leave of Court was sought and granted before raising the issue of limitation of action at the trial Court was rightly discountenanced, as that challenge was one bordering on jurisdiction; as an action challenged on the ground of limitation law is, in effect, a challenge to jurisdiction; and this, may be raised without leave, even though it is a new issue of law that may not have been raised and determined at the trial.
Secondly, the statement of claim disclosing, as it were, that the subject of the claim is one relating to title to land held under customary tenure or inheritance or disposition of property on death, the limitation law of Ondo State, at Section 1 (2) thereof makes the challenge on the basis of limitation of action, as such, in – applicable as found and held in the leading judgment.
His Lordship, in the leading judgment had also examined the evidence led, vis-a-vis the Exhibits C61 and C62 and had come to the conclusion that the trial Court rightly evaluated those exhibits as it is by law enjoined to evaluate all relevant exhibits.
A consideration of the exhibits, re-enforced by the references and addresses of the parties was properly done and in furtherance of fair hearing.
The decision arrived thereon cannot be imperiled.
I, concur that the instant appeal should fail and the trial judgment be affirmed as rendered at the trial Court.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the benefit of reading in draft the judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA, JCA. His Lordship has exhaustively considered and meticulously resolved the issues in controversy in this appeal.
I concur with the reasoning and conclusions ably advanced therein.
Yomi Oshodi, Esq. with him, R. Alabi, Esq. and Miss I. Eshofonie) –For Appellant
A.F. Adejayan, Esq. –For Respondent