CITEC INT'L ESTATES LTD v. YUSUF & ANOR

CITATION: (2016) LPELR-40207(CA)

In the Court of AppealIn the Abuja Judicial Division

Holden at Abuja

ON FRIDAY, 18TH MARCH, 2016Suit No: CA/A/630/2012

Before Their Lordships:

ABDU ABOKI Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of AppealMOHAMMED MUSTAPHA Justice, Court of Appeal

BetweenCITEC INTERNATIONAL ESTATES LTD - Appellant(s)

And1. KOLAWOLE AKANBI YUSUF(Suing through his attorney Starcase Ventures Limited)2. THE HON. MINISTER FEDERAL CAPITAL TERRITORYADMINISTRATION

- Respondent(s)

RATIO DECIDENDI

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1 PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OFWRIT OF SUMMONS : Procedure for issuance of writ underthe Federal Capital Territory High Court Rules"Order 4 Rule 1(1) of the Civil Procedure Rules of the HighCourt of the Federal Capital Territory requires that:"A writ of summons shall be issued by a registrar, or otherofficer of Court empowered to issue the summons…”Rule 15 requires that a writ is issued when signed on by aregistrar or other officer of Court duly authorized to sign thewrit…”These rules of Court are all clear testaments to the relevanceand importance of a writ, and the procedure of issuance ofsame; ..."Per MUSTAPHA, J.C.A. (Pp. 8-9, Paras. E-A) - read incontext

2 PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OFWRIT OF SUMMONS : Effect of unsigned or irregularlyendorsed writ of summons"This Court had cause to earlier hold that errors or acts ofomissions arising from the non-signing or irregularly endorsedwrits or summons are mere procedural irregularities which donot affect the jurisdiction of the Court; See SHUAIBU v.MUAZU (2007) 7 NWLR (Pt.1033) 271.In S.I.V. LTD V. AFRO SHELTERS LTD (2010) 1 NWLR Part 1175at 209 it was held:''…the fact that the registrar did not sign in the column meantfor registrar but nevertheless had the writ stampedundefended under his signature…shows and attests that allthat is necessary the plaintiff had done, any omission is thatof the Court or its registry and the penalty cannot be visitedupon an innocent plaintiff. Therefore, any irregularity as thaterror or omission of the registrar does not render the writ anullity since the legal presumption of regularity under Section150 of the Evidence Act would be activated in favour of theplaintiff…”Per MUSTAPHA, J.C.A. (P. 10, Paras. A-E) - read incontext

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3 PRACTICE AND PROCEDURE - ISSUANCE/SERVICE OFWRIT OF SUMMONS : Need to avoid technicalities whileapplying rules of Court"It may sound cliche but it is trite that justice is no justicewhen it is only so technically, substantial justice on the otherhand is timeless, and necessitates the acceptance of thetruism that the rules of Court are made for the Court and notthe Court for the rules.The Supreme Court had this scenario in mind when it heldthat:“It is settled that rules of Court or rules of procedure aremade for the convenience and orderly hearing of cases inCourt. They are made to help the cause of justice and aid theCourt. They are as such not to be regarded or treated asmasters of the Court. Therefore the Court in applying therules which are merely its aids should not be slavish to thesaid rules but should give away more regards to the interestof justice. Thus where the interest of justice requires theCourt should liberal in its application observance orcompliance of the rules of Court" - See UTC (NIG) LTD V.PAMOTEI (1989) 2 NWLR (PT.84) 508 AND SHELL PETROLEUMDEVELOPMENT V. AGBARA & ORS; the Supreme Court wentfurther to hold in SPDC & ORS V. AGBARA & ORS (2015)LPELR – 25987-SC that:''It is settled law that a Court of law will not allow theprovision of an enactment to be read in such a way to denyaccess to Court by citizens. Thus, it is not the intention of thelaw to deny any litigant access to justice. A rule of Courtsstands to guide the Court in the conduct of its business and Imust not hold as a “mistress” but as a hand maid. See:ONWUCHEKA V. NDIC (2002) 5 NWLR (PT.760) 371 at 393:CHRISDOM IND. CO. LTD V. AIB LTD (2002) 8 NWLR (Pt.768)152 at 178 C – D; UTC NIG. LTD V. PAMOTEI (1989) 2 NWLR(Pt.103) 244 at 296; CHIME V. CHIME (2001) 3 NWLR (Pt.701)527 AT 553.” per Muhammad, J.S.C."Per MUSTAPHA, J.C.A.(Pp. 10-12, Paras. E-B) - read in context

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4 ACTION - LOCUS STANDI: Meaning and nature of locusstandi"Having gone through the submissions of learned counsel onboth sides of the divide it is very important from the onset tonote that going by settled judicial authorities, the term “locusstandi” in its generic sense denotes legal capacity on the partof a litigant to institute proceedings in a Court of law; theterm fundamentally focuses on the party seeking to get hiscomplaint heard before a Court; see OLORIODE V. OYESI(1984) 5 S.C. 1 and PROF YESUFU V. GOV. EDO STATE & ORS(2001) 13 NWLR part 731 at 511."Per MUSTAPHA, J.C.A. (P.18, Paras. D-F) - read in context

5 APPEAL - APPEAL TO COURT OF APPEAL: Whether appealon points not raised at trial Court can lie to Court of Appeal"That being so this Court of Appeal will not entertain anypoint on which no issue was joined or evidence led at the trialCourt or any point which was not canvassed in the LowerCourt because the Court of Appeal is not a Court of trial; seeMOGAJI V. CADBURY NIGERIA LTD (1985) 7 SC 59; ..."PerMUSTAPHA, J.C.A. (P. 20, Paras. A-B) - read in context

6 EVIDENCE - EVIDENCE ON UNPLEADED FACTS: Effect ofevidence on unpleaded facts elicited during cross-examination"... evidence obtained in cross examination but on facts notpleaded is inadmissible, put differently, evidence elicited incross examination is inadmissible in as much as it is notsupported by the pleading of either party, see PUNCHNIGERIA LTD V. ENYINA [2001] 17 NWLR (Pt.741) 228.That is to say, evidence extracted under cross examination,as was the case at trial, but which was not pleaded, and uponwhich no issue has been joined and canvassed, goes to issue;see OKOKO V. DAKOLO (2006) 14 NWLR part 1000 at401."Per MUSTAPHA, J.C.A. (P. 20, Paras. B-E) - read incontext

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7 EVIDENCE - ASSESSMENT OF CREDIBILITY OFWITNESS(ES): Whether a trial Court is better positioned toassess credibility of witnesses"In any event the trial Court who saw the witness in the boxand observed his demeanour is better positioned to assesshis credibility on that account; it is for this reason that theSupreme Court had this to say in IGE v. AKOJU (1994) 4 NWLR(Part 340) at 535:“While it is true that demeanour of a witness may not be aguide to the truth, the conclusions of a trial judge on how awitness behaved in the box should not be l ightlydisregarded.” PER OLATAWURA, J.S.C."Per MUSTAPHA, J.C.A.(P. 21, Paras. A-C) - read in context

8 EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF:Statutory provision as to whether he who asserts must prove"Section 131 Evidence Act:-“(1) Whoever desires any Court to give judgment as to anylegal right or liability dependent on the existence of factswhich he asserts must prove that those facts exists.(2) When a person is bound to prove the existence of any factit is said that the burden of proof lies on that person.”PerMUSTAPHA, J.C.A. (Pp. 21-22, Paras. F-A) - read in context

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9 EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF:Statutory provision as to who has burden of proof in civilcases"Section 132 Evidence Act:-“The burden of proof in a suit or proceeding lies on thatperson who would fail if no evidence at all were given oneither side.”Section 133(1) & (2) Evidence Act:-''(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom thejudgment of the Court would be given if no evidence wereproduced on either side, regard being had to anypresumption that may arise on the pleadings.(2) If the party referred to in Subsection (1) of this sectionadduces evidence which ought reasonably to satisfy the Courtthat the fact sought to be proved is established, the burdenlies on the party against whom Judgment would be given if nomore evidence were adduced, and so on successively, untilall the issues in the pleadings have been dealt with"PerMUSTAPHA, J.C.A. (P. 22, Paras. A-F) - read in context

10 ACTION - CLAIM FOR TRESPASS/INJUNCTION:Requirement for successful claim for trespass"All that is needed to succeed in an action for trespass isexclusive possession or right to exclusive possession; andonce a person is liable for trespass, he is liable to paydamages regardless of whether or not actual damage wasdone; see ADESANYA V. OTUEWU (1993) 1 NWLR (Pt.270)414, ANYABUNSI V. UGWENZE (1995) 6 NWLR (Pt.401)255."Per MUSTAPHA, J.C.A. (P. 23, Paras. A-B) - read incontext

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MOHAMMED MUSTAPHA, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the

judgment of the High Court of the FCT, of the 25th

September, 2012, sitting in Abuja, presided by Hon. Justice

Salisu Garba.

The 1st respondent as plaintiff sought the following reliefs:

"1. An Order of perpetual Injunction restraining the

defendants, their servants, agents and/or privies howsoever

so described, from stopping, or interfering in any manner

whatsoever, with the plaintiffs development, quiet

enjoyment and peaceful possession of the res, consisting of

Plot 2415 Cadastral Zone CO6 of Nbora Layout, Federal

Capital Territory, Abuja.

2. The sum of N20,000,000.00 as damages for the loss

incurred by the Plaintiff as a result of the Defendant�s

action

3. General damages n the sum of N10,000,000.00

4. The cost of this suit including plaintiffs counsel fees."

The appellant filed a preliminary objection challenging the

jurisdiction of the trial Court to entertain the action on the

ground that the writ of summons was not properly issued;

and the Court in a ruling delivered on the 26th of October,

2011 dismissed

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the objections as mere irregularities and proceeded to

entertain the suit.

The 1st respondent called a sole witness who testified as

PW1 and tendered and had admitted 4 Exhibits, A, A1, B

and C: the appellant also called a sole witness who testified

as DW1, tendered and had admitted 4 Exhibits D, E, F, and

G; the 2nd respondent also called a sole witness who

testified as DW2.

Dissatisfied with the judgment of the trial Court the

appellant appealed by a notice of appeal filed on the 3rd of

October, 2012 on 8 grounds without the particulars as

follows:

GROUND ONE:

The learned trial judge erred in law and thereby occasioned

miscarriage of justice to the Appellant when having held

that it is the contention of the 1st Defendant��s counsel

that this Court should hold that PW1 and DW2 are not

witness of truth on the ground that there (sic) were evasive

and that there were contractions in the cause (sic) of their

testimonies the Lower Court then found that:

"...However, I find it difficult to come to term with the

1st Defendant��s counsel that the Defense witnesses

are not witnesses of truth, on the ground that

nowhere

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in the submission was the 1st Defendant able to show

instances where there was material contraction in the

evidence of the witnesses. The law is clear that the

credibility of a witness can only be impeached on the

ground set out in Section 233... Evident Act to wit...

From the proceedings of this Court neither the PW1

nor DW2 fell into any of the above categories;

accordingly I hold that the PW1 and DW2 are

witnesses of truth.�

GROUND TWO:

The learned trial Judge erred in law and thereby

occasioned miscarriage of justice to the Appellant when it

was held at pages 16 to 17 of the Lower Court��s Judgment

that:

"I must state clearly here that Exhibit B, the Power of

Attorney was not tendered and admitted in evidence

in these proceedings for the purpose of proof of

transfer of title to Staircase Ventures Limited; the

title to the res has at all material times resided on the

plaintiff . The law is settled that where an

unregistered but registrable instrument is admitted

in evidence, on other purpose than as proof of title, it

is valid.

It is obvious from the contents of Exhibit B, it did not

alienate the plaintiff��s Right of

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Occupancy rather it merely appointed the attorney to

represent the plaintiff and in his name do all things

as are outlined therein.

From the foregoing I hold the firm view that the

Plaintiff has the locus standi to institute this action,

since it is an elementary law that Power of Attorney

do not confer title, therefore it will amount to judicial

suicide for Staircase Ventures Limited to sue in its

name

GROUND THREE:

The learned trial Judge erred in law and thereby

occasioned miscarriage of justice to the Appellant when it

was held at Page 18 of the Courts judgment that:

"Exhibit E is a photocopy of a Development Lease

Agreement; it also did not grant any title to the 1st

Defendant over the res.

Exhibit F is a photocopy of Court process filed in suit

No.FCT/HC/CV/1176/2008; it is a term of settlement

between the Defendants; the plaintiff is not a party to

it. Furthermore, it is doubtless to state that for all

intend and purpose the said Exhibit is a public

document...thought it was wrongly admitted in the

cause of proceeding, however this Court hold it a duty

to expunge same from its record,

In the light of the above

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Exhibit F is hereby expunged for failing to meet the

requirement of Section 104... Evidence Act."

When none of Exhibits D, E, F, and/or G was improperly in

evidence in the entire circumstances of the suit at the

Lower Court.

GROUND FOUR:

The learned trial Judge erred in law occasioned and

thereby miscarriage of justice to the Appellant when it was

held at page 19 of the Lower Court�s judgment that:

"...More fundamentally there is no evidence

whatsoever before this Court to show that the

disputed plot 2415 was within the parcel of land

measuring 225.355 Hectares at Mbora District

described in the Development Agreement Exhibit E".

GROUND FIVE:

The learned trial judge erred in law and therefore

occasioned miscarriage of justice to the Appellant when it

was held at pages 20-21 of the Lower Court�s judgment

that:

��Judgment is entered in favour of the plaintiff

against the Defendant as follows:

1. The Defendant� servant, agent and/or privies

however, with the plaintiff�s development, quiet

enjoyment and peaceful possession of the res,

consisting of Plot 2415 Cadastral Zone C06 of Mbora

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Layout, Federal Capital Territory, Abuja.

2. The sum of N500,000.00 is awarded as general

damages against the 1st Defendant for trespass��.

GROUND SIX:

The learned trial Judge erred in law and thereby

occasioned miscarriage of justice to the Appellant when the

Lower Court in the totality of its decision gave judgment to

the 1st Respondent (as plaintiff) against the Appellant (as

1st Defendant) against the weight of evidence.

GROUND SEVEN:

The learned trial judge erred in law and thereby occasioned

a miscarriage of justice to the Appellant when he failed to

dismiss Suit No.FCT/HC/CV/6013/2011 on the ground that

the failure to date and sign/issue the Writ of Summons by

the Registrar or Official of the Lower Court was a mere

irregularity capable or being waived and thereby assumed

jurisdiction to determine the suit.

GROUND EIGHT:

The learned trial judge erred in law and thereby occasioned

a miscarriage of justice to the Appellant when he

determined Suit No.FCT/HC/CV/6013/2011 in the entire

circumstances before the Lower Court.

From these grounds of appeal two issues each were

formulated for the appellant and the

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1st respondent, and one for the 2nd respondent; for thepurpose of brevity and clarity this appeal will be decidedon essential a slight modification of the issues asformulated by the parties, they are as follows:"1. Whether the trial Court was right in holding thatthe failure to sign and or date the writ of summonswas a mere irregularity, which did not deprive theCourt of jurisdiction.2. Whether the trial Court was right to holding that1st irregularity established superior title to the landin dispute."

Issue One:Whether the trial Court was right to hold that thefailure to sign and or date the writ of summons was amere irregularity, which did not deprive the Court ofjurisdiction.

It is submitted for the appellant that the trial Courtacted in error in failing to strike out the suit for beingincompetent, having commenced by an unsigned andundated writ of summons; learned counsel referred theCourt to Order 4 Rules 1(1) and 15 of the Rules ofCourt.

That rules of Court enjoy constitutional flavour, andtherefore ought to be obeyed; learned counsel referredthe Court to KALU V ODILLI & 4 ORS (1992) 5 NWLRpart 240 at

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130 and AIKI v. IDOWU (2006) 9 NWLR part 984 at 47.

Learned counsel further submitted that a plaintiff who has

filed an undated and therefore invalid statement of claim

and certificate of pre-action cannot hide under the

inadvertence of the Court’s registrar to excuse his

omission.

It is submitted for the 1st respondent in response that the

contention that the writ of summons and statement of claim

were unsigned is misleading because the writ was not only

dated 20th June 2011 but was endorsed by the registry for

a filing fee of N3,750, while the statement of claim was

duly dated and signed; he referred the Court to pages 4 to

7.

That failure of the registry to sign the writ does not

invalidate same; he referred the Court to S. I. V. LTD V.

AFRO-SHELTERS LTD (2010) 1 NWLR (Pt.1175) at 209

and S.C.C. NIG. LTD V. ELEMADU (2005) 7 NWLR

(Pt.923) at 80.

Order 4 Rule 1(1) of the Civil Procedure Rules of the

High Court of the Federal Capital Territory requires

that:

"A writ of summons shall be issued by a registrar, or other

officer of Court empowered to issue the summons…”

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Rule 15 requires that a writ is issued when

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signed on by a registrar or other officer of Court duly

authorized to sign the writ…”

These rules of Court are all clear testaments to the

relevance and importance of a writ, and the procedure of

issuance of same; the question that now arises is whether

the writ was unsigned and undated as contended, and if so

what is the effect of that on the jurisdiction of the trial

Court.

The writ of summons is on pages 1 to 3 of the record of

proceedings filed on the 5th of December 2012; the writ is

dated 20th day of June, 2011 but was not signed by the

registrar; the statement of claim is equally dated 20th day

of June, 2011, and signed by one Okwudili Anozie, of 3rd

Floor Wema Bank Building, Central Area Abuja, as

plaintiffs’ solicitor.

The registrar of the trial Court should have signed the writ

of summons as required, but having failed to do so, the non

signing does not in the considered opinion of this Court

constitute gross disobedience as would deprive the trial

Court of the necessary jurisdiction to hear and determine

the suit, contrary to the contention of learned counsel for

the appellant; this is more so as the plaintiff has done all

that is required and expected of him, and the said writ was

dated, and assessed by the registry.

Furthermore the statement of claim was not only dated but

also signed by the plaintiff’s counsel contrary to the

position presented by learned counsel for the appellant.

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This Court had cause to earlier hold that errors or acts of

omissions arising from the non-signing or irregularly

endorsed writs or summons are mere procedural

irregularities which do not affect the jurisdiction of the

Court; See SHUAIBU v. MUAZU (2007) 7 NWLR (Pt.1033)

271.

In S.I.V. LTD V. AFRO SHELTERS LTD (2010) 1 NWLR

Part 1175 at 209 it was held:

''…the fact that the registrar did not sign in the column

meant for registrar but nevertheless had the writ stamped

undefended under his signature…shows and attests that all

that is necessary the plaintiff had done, any omission is that

of the Court or its registry and the penalty cannot be

visited upon an innocent plaintiff. Therefore, any

irregularity as that error or omission of the registrar does

not render the writ a nullity since the legal presumption of

regularity under Section 150 of the Evidence Act would

be activated in favour of the plaintiff…”

It may sound cliche but it is trite that justice is no justice

when it is only so technically, substantial justice on the

other hand is timeless, and necessitates the acceptance of

the truism that the rules of Court are

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made for the Court and not the Court for the rules.

The Supreme Court had this scenario in mind when it held

that:

“It is settled that rules of Court or rules of procedure are

made for the convenience and orderly hearing of cases in

Court. They are made to help the cause of justice and aid

the Court. They are as such not to be regarded or treated

as masters of the Court. Therefore the Court in applying

the rules which are merely its aids should not be slavish to

the said rules but should give away more regards to the

interest of justice. Thus where the interest of justice

requires the Court should liberal in its application

observance or compliance of the rules of Court" - See UTC

(NIG) LTD V. PAMOTEI (1989) 2 NWLR (PT.84) 508 AND

SHELL PETROLEUM DEVELOPMENT V. AGBARA &

ORS; the Supreme Court went further to hold in SPDC &

ORS V. AGBARA & ORS (2015) LPELR – 25987-SC that:

''It is settled law that a Court of law will not allow the

provision of an enactment to be read in such a way to deny

access to Court by citizens. Thus, it is not the intention of

the law to deny any litigant access to justice. A rule of

Courts stands to guide the Court in

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the conduct of its business and I must not hold as a

“mistress” but as a hand maid. See: ONWUCHEKA V.

NDIC (2002) 5 NWLR (PT.760) 371 at 393: CHRISDOM

IND. CO. LTD V. AIB LTD (2002) 8 NWLR (Pt.768) 152 at

178 C – D; UTC NIG. LTD V. PAMOTEI (1989) 2 NWLR

(Pt.103) 244 at 296; CHIME V. CHIME (2001) 3 NWLR

(Pt.701) 527 AT 553.” per Muhammad, J.S.C.

It is therefore the considered opinion of this Court that the

trial Court acted correctly when it refused to strike out the

suit incompetence, especially in view of the fact also that

the writ of summons was not only dated but endorsed, see

pages 1 – 3; while the statement of claim was signed and

dated, see pages 4 – 7 of the record of proceedings;

contrary to the contention of learned counsel for the

appellant.

Accordingly this issue is resolve in favour of the

respondents, against the appellant.

Issue Two:

Whether the trial Court was right in holding that 1st

respondent established superior title to the land in

dispute.

It is submitted for the appellant that the Lower Court failed

to properly evaluate the evidence and material placed

before it, and thereby

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arrived at a wrong conclusion, when it grantedinjunctiverelief and damages In favour of the 1st respondent, asplaintiff.

Because the evidence adduced at the trial demonstratesclearly the 1st respondent lacked locus standi toinstitute the suit; and because the plaintiff suppressedmaterial facts in order or mislead the trial Court.

That the trial Court ought to have seen the contradictionin the testimonies of PWS 1 and 2 he referred the Courtto IKUEPENIKAN V. STATE (2011) 1 NWLR part 1229at 449 and UGBANI V. STATE (2003) 4 NWLR part 809at 61.

That the trial Court ignored the admission of the“attorney” of the plaintiff to the effect that the plaintiffhad sold the land; he urged this Court to interfere withthe finding of the Lower Court and referred it to MINILODGE LTD & ANOR V. NGEI & ANOR (2009) 7NWLR part 1173 at 254.Learned counsel further submitted that the relationshipbetween the plaintiff and Staircase Ventures was thatvendor and purchaser of land but facts relating to thesale were concealed, especially as the way the suit wasinstituted was tainted with fraud; thus the plaintifflacked

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the locus to institute the suit because he had alienated his

interest in the res to Staircase Ventures; he referred the

Court to ONWUDINWE v. FED. REP. OF NIG. (2006) 10

NWLR (Pt.988) at 382.

That the trial Court ought to have dismissed the plaintiff’s

case, instead it made out a case for him which he didn’t

make; he referred the Court to OSULU V OSULU & 6

ORS (2003) 11 NWLR part 832 at 608.

Learned counsel further submitted that where in action for

trespass a defendant claims to be the owner of a disputed

land titled is put in issue, and in order to succeed, the

plaintiff must show better title; he referred the Court to

OKOKO v. DAKOKO (2006) 14 NWLR (Pt.1004) at 401.

That the trial Court failed to properly evaluate

the evidence before it, particularly as DW1 was never

cross-examined, and the Court did not find his evidence

incredible; he referred the Court to OZIEGBU

ENGINEERING COMPANY LTD V. IWUAMADI (2009)

16 NWLR part 1166 at 44.

Learned counsel further submitted that the judgment of the

Court was against the weight of evidence as the 1st

respondent did not make any valid case for an order of

injunction, because he who

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comes to equity must come with clean hands and the

concealment meant dirty hands; learned counsel referred

the Court to UNIVERSAL TRUST BANK LTD & ORS

V.DOLMETSCH PHARMACY NIG. LTD (2002) 8 NWLR

Part 770.

That the 1st respondent did not establish exclusive

possession or title as would entitle him to an award of

general damages against the appellant for trespass, he

referred the Court to ASEIMO & 2 ORS V. ABRAHAM &

ORS (1994) 8 NWLR part 341 at 191 and SKYE BANK

PLC V AKINPELU (2010) 9 NWLR Part 1198 at 179.

It is further submitted while referring to LAGGA V.

SARHUNA & ANR (2008) 16 NWLR part 114 at 427 that

the Court should exercise its powers under Section 15 of

the Court of Appeal Act in allowing this appeal.

In response it is submitted for the 1st respondent that there

was no alienation of the land in dispute by the 1st

respondent as contended because there was no

conveyance, and the question of buying and selling of the

property was never pleaded and so go to no issue; he

referred the Court to OLUFOSOYE V. FAKOREDE (1993)

1 NWLR part 272 at 764.

That the testimony of PW1 did not contradict Exhibit B,

which states that

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the Power of Attorney was given for valuable consideration;

and also that no evidence may be announced to derogate

from the documentary evidenced, he referred the Court to

Section 128 (1) of the Evidence Act and INWELEGBU

V. EZEANI (1999) 12 NWLR part 630 at 277

Learned counsel further submitted that the 1st respondent

had locus standi to institute the suit as it had vested

interest in the disputed land by Virtue of Exhibit A; Exhibit

B by which the attorney instituted the action was never

challenged at the Lower Court.

That also the 1st respondent having proved his case the

trial Court was right to shift the burden of proof to the

appellant to prove its defense of ownership; and Exhibits D,

E, F and G tendered in proof by the appellant are neither

grants nor instruments of title nor deeds.

It is submitted for the 2nd respondent that the 1st

respondent in proof of its of claim title tendered the Right

of Occupancy to the plot in dispute, and a legal search

report in respect of the same plot to establish its claim to

title, and all these were affirmed by the 2nd respondent.

That also the failure of the appellant to call the subpoenaed

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witness shows that his testimony would have been adverse

to their claim; and also that the contention that DW2 is not

a witness of truth should be discountenanced because the

credibility of a witness is tested only by knowledge of the

facts, integrity, disinterest and whether the evidence is

contradictory; he referred the Court to KWARA V.

INNOCENT (2009) 1 NWLR (PT.1121) page 231.

Learned counsel further submitted that the trial Court is in

a better position to assess the credibility of a witness than

the appellate Court; he referred the Court; he referred the

Court to MIYAKI V. STATE (2008) 15 NWLR part 1109

page 217.

It is submitted for the appellant in reply to the 1st

respondent that the appellant was in possession and

presumptive was the owner even thought the two of them

were claiming against each other and could not have both

been in possession at the same time; learned counsel

referred the Court to ORIORIO & 14 ORS V. OSAIN & 2

ORS (2012) 16 NWLR part 1327 at 560.

That also the rejection of Exhibit D, E, F, and G caused a

substantial miscarriage of justice to the appellant, in the

sense that if they had been admitted the and not

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expunged, the decision of the Court would have been infavour of the appellant; he referred the Court toIGIEHON & 2 ORS V. OMOREGIE & ANR (1993) 2NWLR part 276 at 398.

In reply to the 2nd respondent the appellant whileadopting the submissions in response to the 1strespondent referred the Court to ATANDA V. ILLIASU(2013) 6 NWLR part 1351 at 529, OGUANU & 2 ORS V.CHIEGBOKA (2013) 6 NWLR and AGAGU V.DAWODU (1990) 7 NWLR part 160 at 56 and arguedthat there is no suggestion that Exhibit E is inadmissibleas it was appropriately marked in accordance withSection 104 and 146 of the Evidence Act 2011.

Having gone through the submissions of learned counselon both sides of the divide it is very important from theonset to note that going by settled judicial authorities,the term “locus standi” in its generic sense denotes legalcapacity on the part of a litigant to institute proceedingsin a Court of law; the term fundamentally focuses on theparty seeking to get his complaint heard before a Court;see OLORIODE V. OYESI (1984) 5 S.C. 1 and PROFYESUFU V. GOV. EDO STATE & ORS (2001) 13NWLR part 731 at 511.Now even if

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this Court were to believe hook line and sinker the

argument that the attorney of the 1st respondent, Starcase

Ventures Limited ‘bought’ the land in dispute, thus

depriving the 1st respondent locus standi to institute the

suit at the lower alienation, by reason of Section 22 of the

Land Use Act, for the simple reason that the law

anticipates the consent of the Minister of the Federal

Capital Territory for alienation to take effect.

That being so the disputed land could not then have been

alienated to Starcase Ventures Limited, in the true sense of

the word, regardless of the testimony of PW1, to deprive

the 1st respondent locus standi in the suit before the trial

Court.

The point to note here is that in the absence of alienation

there is no conveyance, and without conveyance legal title

still remains with the vendor.

This Court cannot also help but agree with learned counsel

for the 1st respondent that it does appear from the

pleadings, the only ground on which the parties joined

issues was on the ownership of the disputed land, but

surely not on the relationship between the 1st respondent

and Starcase Ventures Limited, in whose

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favour the 1st respondent executed the irrevocable Power

of Attorney, i.e. Exhibit B.

That being so this Court of Appeal will not entertain any

point on which no issue was joined or evidence led at the

trial Court or any point which was not canvassed in the

Lower Court because the Court of Appeal is not a Court of

trial; see MOGAJI V. CADBURY NIGERIA LTD (1985) 7

SC 59;

evidence obtained in cross examination but on facts not

pleaded is inadmissible, put differently, evidence elicited in

cross examination is inadmissible in as much as it is not

supported by the pleading of either party, see PUNCH

NIGERIA LTD V. ENYINA [2001] 17 NWLR (Pt.741) 228.

That is to say, evidence extracted under cross examination,

as was the case at trial, but which was not pleaded, and

upon which no issue has been joined and canvassed, goes

to issue; see OKOKO V. DAKOLO (2006) 14 NWLR part

1000 at 401.

On the question of whether the PW1 was a witness of truth

or not as argued, his evidence in Chief and cross

examination is on pages 403 to 408 of the record of appeal;

and nothing there shows that the witness contradicted

himself, the trial Court was right when it also

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held so.

In any event the trial Court who saw the witness in the box

and observed his demeanour is better positioned to assess

his credibility on that account; it is for this reason that the

Supreme Court had this to say in IGE v. AKOJU (1994) 4

NWLR (Part 340) at 535:

“While it is true that demeanour of a witness may not

be a guide to the truth, the conclusions of a trial

judge on how a witness behaved in the box should not

be lightly disregarded.” PER OLATAWURA, J.S.C.

This clearly applies to DW2 in this case, the veracity of

who’s evidence was equally questioned by learned counsel

for the appellant.

On burden of proof it is the considered opinion of this Court

that the appellant who claimed ownership of the disputed

land against the 1st respondent’s claim for trespass before

the burden that shifted to him after the 1st respondent had

established its legal right of ownership by reason of Exhibit

A1, A2 and C.

Section 131, 132 and 133 of the Evidence Act

respectively state as follows:

Section 131 Evidence Act:-

“(1) Whoever desires any Court to give judgment as to any

legal right or liability

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dependent on the existence of facts which he assertsmust prove that those facts exists.(2) When a person is bound to prove the existence of anyfact it is said that the burden of proof lies on thatperson.”

Section 132 Evidence Act:-“The burden of proof in a suit or proceeding lies on thatperson who would fail if no evidence at all were given oneither side.”Section 133(1) & (2) Evidence Act:-''(1) In civil cases the burden of first proving existence ornon-existence of a fact lies on the party against whomthe judgment of the Court would be given if no evidencewere produced on either side, regard being had to anypresumption that may arise on the pleadings.(2) If the party referred to in Subsection (1) of thissection adduces evidence which ought reasonably tosatisfy the Court that the fact sought to be proved isestablished, the burden lies on the party against whomJudgment would be given if no more evidence wereadduced, and so on successively, until all the issues inthe pleadings have been dealt with"

The 1st respondent having established his claim, thetrial Court was right when it shifted the

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burden of proof at page 452 of the record of proceedings to

the appellant, to prove its defense of ownership of the

disputed land.

All that is needed to succeed in an action for trespass is

exclusive possession or right to exclusive possession; and

once a person is liable for trespass, he is liable to pay

damages regardless of whether or not actual damage was

done; see ADESANYA V. OTUEWU (1993) 1 NWLR

(Pt.270) 414, ANYABUNSI V. UGWENZE (1995) 6 NWLR

(Pt.401) 255.

On the whole this Court is satisfied that the trial Court

unquestionably evaluated the evidence before it, and

ascribed probative value to same, its findings are not

perverse, as such this Court finds neither need nor

necessity to substitute its findings for that of the trial

Court; accordingly this issue too is resolved in favour of the

respondents, against the appellant.

Having resolved both the issues for determination in this

case in favour of the respondet, against the appellant, this

appeal fails, and it is hereby dismissed for lack of merit; the

decision of the trial Court is hereby affirmed.

Cost of N20,000 is awarded against the appellant, in

favour of the 1st

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respondent only.

ABDU ABOKI, J.C.A.: I agree.

JOSEPH EYO EKANEM, J.C.A.: I read in advance thejudgment which has just been delivered by my learnedbrother, Mohammed Mustapha, JCA. I agree with thereasoning and conclusion therein. I also dismiss the appealand affirm the judgment of the trial Court. I abide by theorder as to costs made in the lead judgment.

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