JACOB BANKOLE & 2 others v 1. AMODU TIJANI DADA & 3 others (CA/I/3/98) [2002] NGCA 1 (9 July 2002)

In The Court of Appeal

(Ibadan Judicial Division)

On Tuesday, the 9th day of July, 2002

Suit No: CA/I/3/98


Before Their Lordships



....... Justice, Court of Appeal


....... Justice, Court of Appeal


....... Justice, Court of Appeal











(for themselves and on behalf of IKOTUN and MATORI Families of IYESI, OTA)














WORDS AND PHRASES - "JUSTICIABLE": Definition of the term "justiciable"



"Justiciable was defined and held in Elendu v. Ekwoaba's case (supra):- "(12) ON MEANING OF JUSTICIABLE means a controversy or matter in which a present and fixed claim or right is asserted against one who has an interest in contesting it, rights must be declared upon State of facts that may or may not arise in future. A question that may properly come before a tribunal for decision. Courts will only consider a "justiciable" controversy, as distinguished from a hypothetical difference or dispute or one that is academic or moot. Term refers to real and substantial controversy which is appropriate for judicial determination as distinguished from dispute or difference of contingent hypothetical or abstract character. (13) No formula generally applicable has been provided by legislation. However, no clear answer can possibly be given which would suit all cases and be certain not to exclude persons who should be let into the Court. The Judges have therefore been careful not to tie hands by an exhaustive definition of locus standi. They proffered a general, vague and flexible expression which leaves them with a wide discretion. They require the plaintiff to have an interest or more accurately sufficient interest in the proceedings." Applying the above to the instant appeal, respondent established that there were justiciable issues and dispute between the parties' failure to produce the power of attorney was as to success or failure at the trial which did not deny respondent the locus standi. Oloriode v. Oyebi (1984) 5 SC 1, (1984) 1 SCNJR 390; Owodunni v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) page 315 SC" Per ONALAJA, J.C.A. (Pp. 42-43, paras. A-B) - read in context






ACTION - ACTION IN A REPRESENTATIVE CAPACITY: Whether leave of Court is required where a plaintiff(s) institute action in a representative capacity



"On representative action at page 135 COMMENTARIES FROM THE BENCH PART II on the topic PARTIES TO CIVIL ACTION by ONALAJA, JCA it was stated as follows:- "Where a plaintiff or plaintiffs institute action in a representative capacity, there is the school of thought that the leave of the court is required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim. But where the plaintiff requires that the action be binding on the defendant in a representative capacity then the leave of the court is required to sue the defendant in a representative capacity. This is without prejudice to the fact that the capacity still has to be pleaded in the statement of claim." Per ONALAJA, J.C.A. (P. 41, paras. C-G) - read in context






EVIDENCE - ADMISSION: What is an admission



"Section 20 Evidence Act provided that:- "An admission is a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and in the circumstances hereinafter mentioned. Section 21(1) Evidence Act- Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorised by him to make them, are admissions. (2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made, while the party making them held that character." The value of an admission depends on the circumstances under which it was made. It is the duty of the trial court to decide the issue and to give due weight to the alleged admission and explanatory facts or circumstances, Nll Abossey Oka II v. Nll Ayika II (1946) 12 WACA 31; Joe Iga & Ors. v. Ezekiel Amakiri & Or. (1976) 11 SC 1 at 11." Per ONALAJA, J.C.A. (P. 65, paras. A-F) - read in context






LAND LAW - DECLARATION TO RIGHT OF OCCUPANCY: Ways of establishing declaration to right of occupancy; how to reconcile a conflict of traditional history with respect to declaration to right of occupancy



"As stated in the case of D.O. Idundun v. D.E. Okumagba (1976) 1 NMLR 200 at 210, (1976) 9-10 SC 227, that there are five ways to establish grant of declaration to right of occupancy with liberty that establishment of one out of the five ways was sufficient one method was by traditional evidence and that where there was established conflict of evidence in the evidence of the parties the rule in Kojo II v. Bonsie (1957) 1 WLR 1223 Privy Council shall apply as under: "Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case, demeanour is little guide to this truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable." Ogbuokwelu v. Umeanafunkwa (1994) 4 NWLR (Pt. 341) page 676 at 694; Mr. Taiwo Iloru Ogun v. Mr. Moliki Akinyelu & Two Ors. (for themselves and on behalf of Osata Adasin family of Ijana Quarters Otta, Ogun State) (1999) 10 NWLR (Pt. 624) at 695, 697-698 CA; Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) page 92 CA." Per ONALAJA, J.C.A. (Pp. 70-71, paras. F-D) - read in context






LAND LAW - DECLARATORY AND INJUNCTIVE ORDERS AND DAMAGES FOR TRESPASS ON LAND: Principle guiding grant or refusal of declaratory and injunctive orders and damages for trespass on land and the exception thereof



"As respondent claimed declaratory and injunctive orders and damages for trespass as per paragraph 30 of the further amended statement of claim supra and to reiterate that appellant did not set up a counter-claim. It is trite law that the burden placed on respondent are as provided in Sections 135, 136 and 137 Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, judicially interpreted that a plaintiff/respondent, who seeks declaration and injunctive orders must succeed on the strength of his own case and not the weakness of the defendant/appellant's case and to grant or refuse the reliefs the court must act judicially and judiciously Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) page 704; Coblah v. Obeke (1951) 12 WACA 294; Kodilinye v. Odu (1935) 2 WACA 336 at 337 PC; Gankon v. Ugochukwu Chemical Industries (1993) 6 NWLR (Pt. 297) page 55; Bello v. Eweka (1981) 1 SC 101; Ayoola v. Odofin (1984) 11 SC 72; Moses Okhuarobo & 2 Ors. v. Chief Asenogun Eghareven (2002) 9 NWLR (Pt.771) page 29 at 47, 48, 53 and 83 SC. The exception to the above rule is that, where the facts in defendant's case supports the facts in plaintiff's case, the later can use the aspect of defendant's case that supports its case to establish plaintiff's case. Where the defendant has not set up a counter-claim the burden on such defendant is just to defend no more no less. Akinola v. Oluwo (1962) 1 SCNLR 352, (1962) WRNLR 133 SC; Omosule Olisa (for himself and on behalf of Amologunde Family of Ipele) v. Chief Olowodara Asojo (for himself and on behalf of Ubara Family of Ipele (2002) 1 NWLR (Pt. 747 page 13 at 30; Oshobajo v. Dada (1999) 12 NWLR (Pt. 629) page 10." Per ONALAJA, J.C.A. (Pp. 74-75, paras. D-D) - read in context






COURT - DISCRETION OF A TRIAL JUDGE: Principle to guide the Trial Judge on exercise of judicial discretion of granting or refusing application for amendment; when such exercise of discretion can be interfered with by an Appellate Court



"For the appellate court to interfere with the exercise of the judicial discretion the appellate court must be satisfied that the decision was not judicially and judiciously made which has led to miscarriage of justice - Odusote v. Odusote (1971) 1 ANLR 219; CMI Trading Services Ltd. v. Yuriy (1998) 11 NWLR (Pt. 573) at 284. A proper appraisal of the facts that led to the grants of the various amendments showed that the learned trial Judge exercised his judicial discretion when respondent did not oppose many of the amendments in the trial court. In the Appeal Court, appellant cannot be heard to oppose in the Appeal Court the amendment which were granted in accordance with the rules of court. Adeleke v. Awoliyi (1962) 1 SCNLR page 401; Akaneme v. Ozoemana (1993) 2 NWLR (Pt.275) 345 at 275 at 348. The application for amendment after the address of appellant's counsel was strenuously opposed by appellant after the Judge dutifully assessed the proposed amendments, were granted without injustice to appellant. Akinsanya v. Ajeri (1997) 12 NWLR (Pt. 531) at 99, 108, as where a party can be compensated in costs. The issue be resolved in favour of respondent as the amendments were granted without injustice to appellant. Order 26 rules 1,2 and 3 High Court (Civil Procedure) Rules vested the trial Judge with judicial discretion to grant or refuse prayer for amendment of pleadings the judicial exercise must be entertained judicially and judiciously. The principle to guide the trial Judge on grant or refusal of amendment was the celebrated case of Cropper v. Smith (1884) CHD 700 at 710 wherein the basic principle was stated that leave to amend would be granted for the purpose of determining in the existing suit the real question or questions in controversy between the parties. "It is well established principle that the object of the court is to decide the rights of the parties and not to punish them for mistake they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which, if not fraudulent or intended to over reach, the court ought not to correct if it can be done without injustice to the other party." Applied and followed in A. U. Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt. 1) page 409 SC; Bello Adeleke v. Falade Awoliyi & Anor. (1962) 1 All NLR 260 at 262; Alsthom S.A v. Saraki (2000) 14 NWLR (Pt. 687) page 415 SC; Oguntimehin v. Gubere (1964) 1 All NLR 176 at 179, (1964) NMLR 55 SC; Union Bank of Nigeria Plc. v. Mr. David Dafiaga (2000) 1 NWLR (Pt. 640) page 175 at 187 CA; Ita v. Dadzie (2000) 4 NWLR (Pt. 652) page 168 CA." Although, the Order 26 aforesaid says that leave to amend may be granted "at any stage of the proceedings before judgment." It is very important to make an application for amendment as soon as the defect in the proceedings is known or detected, for if the application is unreasonably delayed it may be refused. The usual practice is for trial courts to grant applications to amend at any stage of the proceedings, if injustice will not thereby, be caused to either party James v. Smith (1891) 1 CH 384. In Alawode Ajao & Others v. Salimonu Ajao Awososan Unreported Ibadan Civil Suit No. 1/90/63 per Eso, J (as he then was) the plaintiffs' claim was for damages for trespass to land and for injunction. After the case for the plaintiff had been closed and the defendant had called eight witnesses and their learned counsel had addressed the court, the plaintiff then applied to add additional claim for declaration of title to land. The learned Judge granted the amendment basing it on the case of Tildesley v. Harper (1876) 7 CHD 403 that where the respondent to the application can be compensated in costs, the amendment may be granted, so plaintiff's amendment was granted and then proceeded to address the court. As to the stage of trial and amendment being exercise of discretion, the exercise of discretion is not a precedent for another exercise of discretion if accepted as a precedent there is therefore no exercise of discretion, each exercise of discretion shall turn out on the peculiar facts and circumstances of each case Odusote v. Odusote (supra). In Chief O.N. Okafor v. Ikeanyi & 3 Ors. (1979) 3 & 4 SC 99, was a case of an amendment sought in the lower court in a case of libel and damages. The parties completed their cases after calling witnesses and addresses of learned Counsel after which the learned trial Judge adjourned for judgment. On the morning of the day for delivery of judgment, plaintiff brought an application to amend his writ and statement of claim. The learned trial Judge refused the application for amendment on the ground that he had already written his judgment and turned down the application. On appeal in the Supreme Court, the learned trial Judge was blamed and that he should have entertained the application for amendment. The Supreme Court granted the application for amendment. As stated above in Odusote v. Odusote's case supra, let me reiterate that in exercise of discretion a previous case is not a precedent for a subsequent case as the exercise of the discretion shall be based on the peculiar facts of each case. Chief Ojah v. Chief Eyo Ogboni (1976) 4 SC 69. The complaint of appellant in his issue 4 of issues for determination in appellant's brief was against the exercise of judicial discretion of granting many amendments of respondent's pleading most especially after address by appellants learned counsel. The attitude of the appellate court towards exercise of discretion by the lower court is well settled. That except upon grounds of law an appellate court will not reverse a discretionary order of a trial Judge or Court merely because it would have exercised the discretion differently. But if on other grounds the order will result to injustice being done or if the discretion was wrongly exercised or that due weight was not given to relevant or unproved matter, the order may be reversed. In the instant case after careful consideration of the complaints on the several grants of amendments and a critical examination for the grants it has not been shown that there has been a wrongful exercise of the discretion by the learned trial Judge as an appellate court. I see no legal basis, grounds or justification to interfere with the exercise of judicial discretion by the lower court in granting the amendment of pleadings, the attack by appellant against the exercise of judicial discretion by the trial court lacks merit, the issue 4 in appellant's brief is hereby, resolved against the appellant. Guda v. Kitta (1999) 12 NWLR (Pt. 629) page 21 CA; Alsthom S.A v. Saraki (2000) 14 NWLR (Pt.687) page 415 SC." Per ONALAJA, J.C.A. (Pp. 51-55, paras. C-F) - read in context






EVIDENCE - EVALUATION OF EVIDENCE: Duty of the Trial Judge in evaluation and ascription of weight to the evidence before him



"It is trite law that evaluation and ascription of weight to the evidence is the primary function and duty of the trial Judge. In assessing evidence and ascribing weight the learned trial Judge is enjoined to set up an imaginary scale under the rule in Mogaji v. Odofin (1978) 3 - 4 SC 91 at 98 the complaint of appellant that the learned trial Judge did not set up the imaginary scale was justifiable thereby being exercise of judicial discretion to grant or refuse the declaratory and injunctive orders was not properly exercised by the learned trial Judge by granting the claims of respondent on wrongful exercise of his judicial discretion Bello v. Eweka (supra); Woluchem v. Gudi (1981) 5 SC 291; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) page 127 Court of Appeal." Per ONALAJA, J.C.A. (P. 81, paras. C-G) - read in context






EVIDENCE - EVIDENCE GIVEN IN A PREVIOUS CASE: Effect of evidence given in a previous case



"Applying the cases of Ayinde v. Salawu (1989) 3 NWLR (Pt.109) page 297 at 315; Alade v. Aborisade (1960) 5 FSC 167 at 172-173; Owonyin v. Omotosho (1961) 1 All NLR 304 at 308; Ariku v. Ajiwogbo (1962) 1 All NLR 629 at 631-2 all pointed to the rule that evidence given in a previous case can never be accepted as evidence by the court trying a later case, except under Section 34(1) Evidence Act, which was not applied by the learned trial Judge. Having not complied with Section 34 Evidence Act, exhibit A was inadmissible notwithstanding its admissibility without objection by appellant. As exhibit A was inadmissible this court has power to expunge it from the record of appeal as a trial court was only allowed to admit admissible evidence, so this court should expunge exhibit A as decided in Ariku v. Ajiwogbo (supra)." Per ONALAJA, J.C.A. (Pp. 57-58, paras. E-A) - read in context






EVIDENCE - EVIDENCE IN PREVIOUS PROCEEDINGS IN A LATTER CASE: Use of evidence in previous proceedings in a later case



"The Court of Appeal in Sunday Njoku & Two Ors. (for themselves and as representing Umuebule (Community in Ikwerre Etche L.G. Area) v. Nwogbo Elechi & 3 Ors. v. Jacob Dikibo & 3 Ors. (for themselves and as representing the people of Okrika in Umuebule) in Ikwere/Etchi L.G. Area) (1998) 1 NWLR (Pt. 534) page 496 at 518 held on the use of evidence in previous proceedings in a later case:- "15. Evidence given in a previous case can never be accepted as evidence by the court trying a later case, except where Section 34 of the Evidence Act applies. However, evidence given in an earlier case by persons who also testify in a later case, may be used for cross-examination as to credit but it is of no higher value than that. In the instant case, the use to which the trial court made use of the evidence of the 1st appellant in the previous case was erroneous and gross enough to vitiate the judgment (Alade v. Aborishade (1960) SCNLR 398; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) page 248; Ariku v. Ajiwogbo (1962) SCNLR 369 referred to.) (16) The Court of Appeal is loathe and generally shall not disturb the finding of fact of trial court unless such finding is perverse or arrived at by misapplication or misunderstanding of the law Ebba v. Ogodo (1984) 1 SCNLR 372; Oro v. Falade (1995) 5 NWLR (Pt. 396) page 385 SC". See further, L.B. Folarin v. Oyewole Durojaiye (1988) 1 NWLR (Pt.70) page 351 at 354; Akanbi v. Alatede (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) page 125 CA; Ojeme v. Ojeme (2000) 13 NWLR (Pt. 685) page 606 CA; Bayol v. Ahemba (1999) 10 NWLR (Pt. 623) page 381 SC." Per ONALAJA, J.C.A. (Pp. 61-62, paras. B-C) - read in context






JUDGMENT AND ORDER - INORDINATE DELAY OF JUDGMENT: Effect of inordinate delay of trial/judgment



"On the issue of inordinate delay, my guide is the judgment of the Supreme Court in R. Ariori & Ors. v. Muraina B.O. Elemo & Others (1983) 1 SCNLR page 1, (1983) 1 SC 15 based on the facts that plaintiff/respondents filed an action against defendants/appellants in the Lagos State High Court on 15th Oct. 1960. After all the preliminaries which were interlaced with numerous adjournments, trial began on the 18th November, 1964, and was concluded on the 18th July, 1974, when the case was adjourned by the trial Judge for judgment sine die. Several months later on 3rd October, 1975, judgment was delivered so it took 15 months after completion of the addresses before judgment was delivered. On appeal, one of the complaints was that the learned trial Judge took a long time after the conclusion of the case before, he delivered judgment and by this reason he was not in a position to appreciate issues involved in the case in its proper focus or remember his own impressions of the twenty witnesses who gave evidence. The Court of Appeal accepted the complaint and proceeded to evaluate the evidence instead of sending the case for retrial. The complaint of inordinate delay of trial is denial of justice, following the adage that justice delayed is a denial of justice, so also rushed or hush, hush judgment is a denial of justice. The mischief of inordinate delay of trial has been cured under the 1979 Constitution of Nigeria section 258 now section 294(1) 1999 Constitution that:- "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 within seven days of delivery thereof. (5) As soon as possible, after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of subsection (1) of this section the person presiding at the sitting of the court shall send a report on the case to the chairman of the National Judicial Council, who shall keep the Council informed of such section as the Council may deem fit." Michawel Nworie v. The A.-G., Ogun Stare (2002) 8 NWLR (Pt. 770) page 559 CA. Non-compliance with section 294(1) of 1999 Constitution is frowned at and deprecated by the National Judicial Council which takes disciplinary action against the erring judicial officer." Per ONALAJA, J.C.A. (Pp. 72-73, paras. A-F) - read in context






COURT - JURISDICTION: Whether when the issue of locus standi coupled with issue of jurisdiction raises a question as to the competence of an action, it must be considered first; when a Court is competent



"Once the issue of LOCUS STANDI being a threshold question coupled with issue of jurisdiction raised the matter of the competence of the action as this goes to the root of the action it must be considered first before any other issue in Gabriel Madukolu & Other (for themselves and on behalf of the UMUONALA FAMILY) v. Johnson Nkemdilim (1962) 2 SCNLR 341 the Supreme Court stated and was held at page 348 as follows:- "I shall make some observations on jurisdiction and the competence of a court. Put briefly a court is competent when:- (1) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and (2) the subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication." Akande v. Alagbe (2000) 15 NWLR (Pt. 690) page 353 SC; Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) page 116 SC." Per ONALAJA, J.C.A. (Pp. 37-38, paras. G-F) - read in context






ACTION - LOCUS STANDI: What is locus standi; guidelines for determining whether a person has locus standi or not



"In Lawrence Elendu & Anor. v. Felix Ekwoaba & Ors. (1995) 3 NWLR (Pt. 386) at pages 704, 740, 741 and 742, it was held that the term locus standi denotes legal capacity to institute proceedings in a court of law Adesanya v. President, Federal Republic of Nigeria (1981) 2 NCLR 358 referred to and applied. The principles governing determination of existence of locus standi was stated in A.-G. Kaduna State v. Hassan (1985) 3 NWLR (Pt. 8) page 483 SC as follows:- "In determining whether a person has locus standi or not the following factors are guidelines:- (a) For a person to have locus standi in an action, he must be able to show that his civil rights and obligations have been or are in danger of being infringed; (b) The fact that a person may not succeed in an action does not have anything to do with whether or not he has a standing to bring that action; (c) Whether a person's civil rights and obligations have been affected depends on the particular facts of the case; (d) The courts should not give an unduly restrictive interpretation to the expression locus standi. There are two tests used in determining the locus standi of a person namely:- (a) the action must be justifiable (b) there must be a dispute between the parties." In 'K' Line Inc. v. K.R. Int. (Nig) Ltd. (1993) 5 NWLR (Pt.292) page 159 at 176 judicial meaning of locus standi - "the legal right of a party to an action to be heard in a litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever, including the provisions of any existing law." It is trite law and common ground between the parties as stated in appellants' brief and respondent's brief that, the determinant factor in our civil process were the writ of summons and the statement of claim." Per ONALAJA, J.C.A. (Pp. 38-40, paras. F-B) -read in context






ACTION - PLEADINGS: Effect of pleadings on parties and the Court



"It is axiomatic that both the court and the parties are bound by their pleadings." Per ONALAJA, J.C.A. (Pp. 64-65, paras. G-A) - read in context

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