Sembe and Others v Pitti (CA/YL/47/2014) [2016] NGCA 40 (2 May 2016)

JUDGMENT
(DELIVERED BY SAIDU TANKO HUSAINI, JCA)
The Respondent as Plaintiff at the High court of Justice, Taraba State instituted action by way of the Writ of Summons taken out and filed on the 24th June, 2011. By his Statement of claim filed on 5th august, 2011, he claimed all the reliefs listed at paragraph 34 (a)- (e), that is to say: (a) an order for declaration of title to the land in dispute, (b) an order of declaration that the defendants are trespassers on the Plaintiffs lands by their  acts of entry, cultivating and planting on same; (c) an order of perpetual injunction restraining the defendants by themselves, their privies or any person lying (sic) claim on the land in dispute from further acts of trespass; (d) the sum of N500, 000. 00 as general damages against the defendants for trespass; (e) Cost of filing and prosecution. 

Defendants denied this claim before the trial Court. They are the appellants in this court. At the commencement of hearing at the trial high Court the respondent led evidence of 4 (four) witnesses and closed his case having tendered 2 (two) documents which the trial court admitted and marked Exhibit P1 and P2. The Appellants similarly led evidence in defence and closed their case after calling 4 (four) witnesses on 23rd March, 2013.

From the pleadings and evidence on record in this case on appeal, the land in dispute forms part of the large expanse of land originally allocated to the then Emir of Muri, Alhaji Abba Tukur by the 1st Appellant’s Uncle Mashinbeg Kalla who at that time was the Village Head of Wuro Sembe where the land in dispute is also located. Mashinbeg Kalla had sought the approval of the various land owners in the village before allocating their land to the Emir who put the land to use by cultivating it for a few years before his death. With the demise of Alh. Abba Tukur, the man by name called Alhaji Abubakar Ibrahim (Sarkin Ayuka) began to lay claim to that same large expanse of land including the piece of land in dispute in this current case. The claim of Alhaji Abubakar Ibrahim led to the suit being instituted against him at the High Court of Taraba State by the original land owners numbering 22(twenty two) of them vide Suit No. TRSJ/1/97 in which Judgment was given in their favour at Taraba State High Court on the 21st June, 2001. Mading Ajiya is one of the beneficiaries in the said Judgment. He is the 5th Plaintiff in Suit No. TRSJ/1/97.

Dissatisfied with the outcome of the decision or Judgment in Suit NO. TRSJ/1/97 the defendant i.e Alhaji Abubakar Ibrahim lodged appeal to this Court against that Judgment. But by a twist of events, the appeal was withdrawn by reason of the parties to that appeal reaching an amicable settlement wherein a memorandum of settlement was prepared and endorsed by parties on both sides. 

The case of the respondent in the instant case on appeal, is that he is the beneficiary of the Judgment in Suit No. TRSJ/1/97 through one Mading Ajiya who was the 5th Plaintiff in that case. He claimed that he is the rightful owner of the portion of the land declared to Mading Ajiya. He claimed that the portion of land declared for Mading Ajiya was given to him by his (respondent) father

The case for the  appellant on the other hand is that the land in dispute belongs to the 1st Appellant who came by that land through inheritance and that the land forms part of the land declared to him i.e the 1st appellant as the 1st Plaintiff in Suit No. TRSJ/1/97.

At the close of evidence of parties on both sides the trial court took an inspection visit to the locus in quo on the 23rd March, 2013 as evidenced by the proceedings at pages 133 – 138 of the record of appeal and thereafter the court reserved Judgment to the 14/6/13 after taking counsels’ final addresses on 22/5/2013. On the 15/11/2013 when the trial Court finally delivered Judgment, it found for the Plaintiff, now respondent. 

Not satisfied with the Judgment of the trial High Court, the defendants lodged an appeal to this Court, initially on 2 (two) grounds vide the Notice of Appeal dated and filed on the 13/2/2014 as per the record of appeal at pages 165 – 167. But with the addition of 8 (Eight) Grounds filed with leave of Court first sought and obtained on 29/6/2015 bring 10 (Ten) the total number of the Grounds of Appeal. All the Grounds are subsumed in the amended Notice of Appeal which by order court was deemed as having been properly filed and served on the 29/6/2015. This Court at the same sitting further granted the request made by the appellant, to join one Salihu Umar Kachalla as the 4th Appellant vide the Motion on Notice filed on the 23/5/2015.

The appeal came up on the 4/2/2016 for hearing. Briefs of argument had been filed and exchanged. Counsel for appellants in his brief of argument formulated 4 (four) issues for determination as adopted by the Respondent in his own brief of argument. Issues formulated are:

1.    Whether having regard to the provisions of Section 294 (1) of the 1999 Constitution as amended, the Judgment of the trial court delivered well over three months is not a nullity. (Arising from grounds 10).
2.    Whether the learned trial was right in law to have placed reliance in his judgment on pleadings that were no longer valid before him. (Ground 3 and 4).

3.    Whether regard being had to the pleadings and evidence before the trial court. The learned trial judge was right to have declared title to the disputed land in favour of the respondents. (Arising from grounds 1, 2, 5, 6, 8 and 9).

4.    Whether the learned trial judge was right in law to have ignored the evidence and addresses of counsel before him in arriving at his decision. (Arising from ground 7).

Learned counsel at the hearing adopted their respective briefs of argument including Appellant’s Reply brief filed on the 7/1/2016 but deemed only properly filed on 4/2/2016. Mr. Iorkumbur, learned  counsel for the appellants urged us to allow this appeal and set aside the decision of the trial Court. Mr. Ieave, learned counsel for the respondent who opposed the appeal urged us to resolve all four issues and arguments canvassed thereto in favour of the respondent and dismiss the appeal. 
In relation to the Reply brief of the Appellants learned respondent’s counsel urged us to ignore same. He says the reply brief was uncalled for in so far as new or fresh issues were not raised by the respondent in his brief of argument

This submission coming from Respondent’s counsel brings to mind the question of the relevance, function and purpose for which a reply brief is meant to serve and when it becomes necessary for Appellants generally to file a Reply brief. 

The authorities I have come across are to my mind at par  and unanimous on this point as to when it is necessary to file a Reply brief. The function of a reply brief is to refute the new argument canvassed in the respondents brief which require a Reply by the appellant. Where a respondent’s brief raises issues or points of law not covered in the appellant’s brief, an appellant ought  to file a reply brief but must specify the new points of law arising from the respondent’s brief of argument which necessitated a Reply brief. See: Ojiogu Vs. Ojiogu (2010) 9 NWLR (Pt. 1198)1 (SC); Lange Vs. FBS PLC(2010) 6 NWLR (Pt. 1189) 1 (SC); Mini Lodge Ltd Vs. Ngel (2009) 18 NWLR (Pt. 173) 254;  Edjenode V. Ikene (2001) SCNJ 184; Okonji Vs. Njokanman (1999) 12 SCNJ 259.    

Going by the principles enunciated and as stated in the cases cited above can it be said it was necessary for the Appellants to file a reply brief as they did? Are there new issues or new points of law raised in the respondent’s brief of argument to call for the response as the Appellants, did in their reply brief, relative to issues 1, 2, 3 and 4 at pages 1 – 8? That is the question. I have taken a close study of the respondent’s brief of argument and I form the opinion that some new points or issues not previously raised in the Appellant’s brief of argument but now raised by the respondent in his brief deserve a corresponding response in terms of the Reply brief of the Appellant. Same is in order. Having said that I will now proceed to consider arguments proffered by counsel relative to those issues as identified by them for determination. 

Issue No. 1

Whether having regard to the provisions of Section 294 (1) of the 1999 Constitution as amended, the Judgment of the trial Court delivered well over three months is not a nullity (Arising from grounds 10).

Learned counsel for the appellant has argued in his brief that the Judgment delivered at the trial court on 15/11/2013 well over 90 days since the final address on 22/5/2013 was a nullity, in that the delivery of the Judgment contravened Section 294 (1) of Constitution of Federal republic of Nigeria (as amended) and there was no reason given for the delay in the delivery of that Judgment. He argued further that the appellants suffered a great miscarriage of justice due to the delay in the delivery of Judgment in that at the time Judgment was delivered the trial Judge had virtually forgotten everything that transpired during trial citing in his brief the case of:  SPDC Nig. Ltd Vs. Ekwems (2008) All FWLR (Pt. 438) 292 312 para C – D and Section 294 (5) of Constitution of the Federal Republic of Nigeria (1999).

Learned appellants’ counsel referred us to aspects of the record of Judgment and argued that the trial Court misdirected itself on the facts, one of which is the holding that the appellants introduced a mercenary to pose as “a Mading Ajiya” at the locus In quo.  He argued that the wrong view held by the court below that a wrong person was introduced as Mading Ajiya is attributable to undue delay on the part of the trial Court in the delivery of Judgment wherein the court lost all accounts of facts placed before it at trial and this he said has occasioned a miscarriage of Justice. Learned counsel urged us therefore to allow the appeal on this issue.

Arguing per contra in his Brief at pages 3 – 7 the respondent contended that a Judgment of Court is not a nullity per se on account of same being delivered outside 90 days as stipulated under Section 294 (1) of the (1999) Constitution of the Federal Republic of Nigeria, 1999 in view of Section 294 (5) of the same Constitution hence, emphasis is not on time lapse between the date of final address of parties and the date of Judgment in issue, but for the Appellant to prove that by that lapse in time he has suffered a miscarriage of justice. He cited and relied on Ayinke Stores Ltd V. Adebogon (2013) All FWLR (Pt. 682) 179 at 1811 para 13 – 0; Jev vs. Dolo (2012) All FWLR (Pt.641) 1528 paras A – B; ACB Ltd V. Ajugwo (2012) All FWLR (Pt. 607) 677, 717 para C – D. Counsel’s further argument is  that the person who appeared as Dw4 in the record of appeal is not a witness of truth, whom the court can believe as such the court below was justified in making the remark it did at pages 160 and 163 of the record of appeal. He argued finally that the late delivery of Judgment by the trial Court notwithstanding, the appellant has not in any way suffered any miscarriage of Justice as to warrant the Judgment delivered at the trial court being nullified.

OPINION
Section 294 (1) and (5) of Constitution of the Federal Republic of Nigeria 1999 (as amended) relied upon by learned counsel on both sides provide as follows:-

“294 – (1) Every court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all parties to the cause or determined with the dully authenticated copies of the decision within seven days of the delivery thereof.
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(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provision of Sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal  or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
A provision similar to Section 294 (1) though not in pari material, is Section 258 (1) of the Constitution of the Federal Republic of Nigeria 1979 under which it was held that a Judgment of a Court established by the 1979 Constitution delivered outside three months period in contravention of Section 158 (1) of the defunct Constitution was null and void. See:  Sodipo V. Lewmukenen (1985) 2 NWLR (Pt. 8) 547; where the apex court held: 

“It is necessary to emphasize that Section 258 (1) has set down a mandatory three months within which a Judge must deliver the Judgment. Even if it was only one day beyond the  three months when he delivers the Judgment, that Judgment will be null and void”

See further Ifezue V. Livinus Mbadugha (1984) 5 SC 79; Paul Odi V. Gbaniji Osafile Appeal No. SC/144/1983 decided on 11th January, 1985. The two decisions referred to above are decisions based pn the interpretation of Section 258 (1) of the 1979 Constitution. With the coming into force of the Constitution of the Federal Republic of Nigeria 1999 on 29th day of May 1999 all existing legal order gave way to the new Constitution and indeed Section 294 (5) now have binding force on all authorities and persons throughout the Federal Republic of Nigeria with effect from that date. Consequently decisions such as Sodipo V. Lewmukenen (Supra) and Ifegwu V. Mbadugha (supra) can no longer be seen as good reference points or materials in matters regarding the interpretation of Section 294 (1) (5) of the 1999 Constitution of Federal Republic of Nigeria (as amended). It follows therefore that the late delivery of Judgment outside the time limit set under Section 294 (1) of 1999 Constitution will not lead to that Judgment being nullified without more to it. This is where sub-section 5 of Section 294 of the 1999 Constitution comes in.

So, talking about what Section 294 (1) (5) of the 1999 Constitution and all it is about, brings to mind such decisions as in Ogundele V.Fasa (1999) 9 SC 4 or (1999) 12NWLR (Pt. 632) 662; Mohegbami Vs. Amos Ajaji (2011) LPE LR – 450 (CA); Didia Maka V. Osakwe & Ors (1999) 3 NWLR (Pt. 107); Anyashu Vs. Agazie (2006) 5 NWLR (Pt. 973) 260; Onyewuke V. Modu Sule (2011) LPELR – 9084 (CA). It has been held in all those cases that non-delivery of judgment within 90 days does not perse render such a Judgment or decision invalid, null and void. It can only be treated as a nullity where an appellate Court in the exercise of its appellate jurisdiction over such decision is satisfied that the party complaining of non-compliance with the provision of Section 294 (1) (5) read together has suffered miscarriage of justice resulting from the delay in the delivery of Judgment. See: Ogundele V. Fasu (supra).

There is a consensus of opinion between counsel on both sides in their respective briefs of argument that the Judgment, now the subject of appeal to this court was delivered outside the time limit specified by the Constitution of Federal Republic of Nigeria, 1999. Indeed a look into the record of appeal at pages 157 – 158 indicate that parties or their counsel had not only filed and exchanged written addresses but adopted same at the sitting of the court on the 22nd May, 2013 and the court thereafter reserved Judgment to the 14/6/2013 for delivery. This did not hold. When eventually the court delivered Judgment on the 15th November, 2013 as appears at pages 159 – 164 of the record, it is/was clearly outside the mandatory 90 days period stipulated in the Constitution of Federal Republic of Nigeria, 1999.

There is thus, a failure of compliance on the side of the trial Court with the mandatory provisions of the Constitution. The delivery of Judgment by Court outside the Constitutional time limit is to say the least reprehensible such should not be encouraged. It is an affront against the letters and spirit of the Constitution. However the delay to render Judgment at the time it should will lead to that Judgment being declared a nullity only in circumstances where miscarriage of justice has been occasioned. The duty is on the person or party complaining of undue delay to establish that by reason of the delay the Judgment has negatively impacted on him to bring his case within the purview of Section 294 (1) (5) of the Constitution of Federal Republic of Nigeria, 1999. It is for him to prove that by reason of the delay a miscarriage of Justice was occasioned. 

What constitutes a miscarriage of Justice as a concept is hydra headed and it varies from case to case depending on the particular facts of each case. See: Ogunlayo Vs. Adeleja (2009)6 – 7 SC (pt. 111) 91, 127. For instance the Privy Council in the case of Devi Vs. Roy (1946) A.C 508 has held with reference to the meaning and concept of “miscarriage of Justice” that it is:

“Such a departure from the rule which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all”

In Onagoruwa V. The State (1993) 7 NWLR (Pt. 303) 49, the apex Court held that:
“Miscarriage of Justice means failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or misappropriated. 
It is an ill-conduct on the part of the court, which amounts to injustice.”

On the meaning of the concept of “Miscarriage of Justice”, see further the decision: Ojo V. Anibere (2004) 5 SC (pt. 1) 1; Okonkwo Vs. Udo (1997) 8 NWLR (Pt. 519) 16; Irolo V. Uka (2002) 7 SC (Pt. 11) 77; Gbadamosi vs. Dairo (2007) 1 SC (Pt. 11) 151, 171; Pam Vs Mohammed (2008) 5 – 6 SC (pt.1) 83 and, Oguntayo v. Adelaja (Supra) (2009) All FWLR (Pt. 495) 1661.

In Molegbemi V. Amos Ajayi (2011) LPELR – 450 (CA) it was held that:
“In determining whether a party has suffered a miscarriage of Justice as a result of delay in the delivery of Judgment between the conclusion of trial and the delivery of Judgment, the emphasis is not on the length of time simpliciter, but on the effect the delay produced in the mind of Court. Thus if the Court’s evaluation of evidence bears mark of freshness and its findings of fact are supported by credible evidence, its Judgment, will not be set aside: See: Dichia & ors V. Osakwe & Ors (1999) 3 NWLR (Pt. 107) 101; Egwu V. Egwu (supra) (505-506; Auyafulu V. Agazie (2006) 5 NWLR (Pt. 973) P. 260” Per Tsammani JCA 

In the judgment appealed against, the trial court made certain observations or remarks at pages 162 – 163 of the record. Learned counsel for the appellant in his brief has referred to those comments and reproduced them at pages 8-9 of his brief of argument. He considers those remarks as being prejudicial to the interest of the Appellants in that the same did occasion a miscarriage of justice, arising from the undue delay in the delivery of Judgment. He argued that the trial Court had lost grips of the facts in the case. 

I think it is necessary at this point to refer to those remarks or findings of the trial  court as made at page 163 of the record and in doing so relate it to facts and evidence on record to fathom out whether indeed the Judgment or aspects of it were borne out of facts and evidence on record.
At page 163 of the record, the trial Court held thus:-
“As if that was not enough the defendants introduced at the locus a Mading Ajiya that was living quite outside the dispute land with due respect to him the said Mading Ajiya the defendants introduces at the locus appeared more as a mercenary himself by the defendants.”

The proceedings at the locus In quo were held on the 23rd March, 2013. The person identified as Dw4 took part in the proceedings at the locus In quo. This is what he said on that occasion as it appears at page 135 of the record thus:-
“Dw4 – I told the Court than my land in Exhibit p1 is by River Lamurde but after the Fadama before the river.
I told the court that I am the son of the 5th Plaintiff in Exhibit P1.”
Speaking further under Cross examination, the witness stated thus:-

The land my father litigated on in Exhibit P1 is his land he was not given the land by the 1st defendant.
I am not now residing on the land I am only farming on the land.”
Dw4 on record is by name DANIEL Mading Ajiya. See page 128 – 129 of the record. He is the son of Madding Ajiya, the 5th Plaintiff in Exhibit P1. The witness speaking at the locus confirmed that the land litigated upon by his father in exhibit P1 belong to his father. Although he no longer reside on the land he still cultivate and farm on his father’s land. This land, said the Dw 4 was not given to his father by the 1st defendant.

Had there been proper evaluation of evidence of witness on record and in particular evidence of Dw4, the trial court ought not to have come to the conclusion as it did that the defendants (appellants) introduced a mercenary who posed as “a Mading Ajiya” during the visit to the locus in quo. Dw4 did not present himself as “Madding Ajiya” but as the son of Mading Ajiya, who nonetheless still farm on the land of his father, a point or issue which the trial Court also overlooked in its comments or remarks. The defendants (appellants) or Dw4 himself could not have introduced anybody to appear at the locus as Mading Ajiya knowing fully well that Mading Ajiya was already dead, a fact which the appellants also pleaded at paragraph 15 of the amended Statement of defence before the trial Court.

Also worthy of mention is the trial court’s failure to make any categorical statement or findings identifying the land to which the claim relates. The respondent by his claim at the trial Court had sought for an order for declaration of title in his favour and injunction against the appellants as defendants for trespass. Evidence put forward in support of his claim relates to the farmland declared for Mading Aiya the 5th Plaintiff in Exhibit P1. The 1st appellant was by the same Exhibit P1 declared the owner of his own portion of land.

So, which land does the claim relate? Is the land declared for the 1st Appellant by Exhibit P1, the same land  declared for the 5th plaintiff in Exhibit P1 or are they distinct and separate farmlnds. This point needs some clarification because the Respondent as the Plaintiff at the trial Court seem to have muddled up issues as to which land his claim actually relate to. It is for the Court of trial to clarify the issue. In relation to his land Dw4 indicated in this matter that the land held by his father, the 5th Plaintiff in Exhibit P1 belong to his father and that his father did not acquire it from the 1st appellant herein or through the father of the respondent. See the Statement on Oath of Dw4. See further the Statement on Oath of Dw1 at page 83 – 85 his evidence is at pages 120 – 122 of the record; with all the scenario presented as above it is expected of the court below to make a finding and identify the actual land in dispute in this case on appeal. This failure of the trial court to make a finding identifying the land in dispute is in my view not unconnected with the long delay in the delivery of Judgment, the trial court having lost grips of the facts and evidence led in the case. It is my view therefore that in circumstances such as this it is wrong to enter Judgment in terms of a declaratory order where the identity of the land is unknown.

I am not unaware of the of the question raised by the respondent in his brief of argument touching on the credibility of the evidence of defence witness No. 4 in his brief of argument at pages 5 – 7. The issue of credibility in the evidence of Dw4 as it relates to the person of Mading Ajiya and Mading Sozzah being one and the same person is totally not connected with the Constitutional issue raised by the appellant in his brief of argument as Issue No. 1. I should for this reason discountenance this argument of the respondent as proffered in his brief of argument and resolve issue no 1 in favour of the Appellant and against the respondent.

Having resolved issue 1 in the affirmative, i.e the delivery of Judgment by a Court outside the 90 days period allowed by the Constitution, under Section 294 (1) (5) of the 1999 Constitution, automatically disposes all other questions or issues earmarked for determination in this appeal. If however I am wrong in coming to that conclusion, I will proceed to address Issue Nos. 2, 3 and 4. 

Issue No. 2 raised in the appellant brief of argument and canvassed by counsel on both sides in their respective briefs is on the question whether the learned trial was right in law to have placed reliance in his judgment on pleadings that were no longer valid before him. This issue has been distilled out of grounds 3 and 4 of the amended Notice of appeal.

Learned counsel for the appellant in addressing this question first alluded to the joint Statement of defence filed on the 30th September, 2011, is found at pages 68 – 71 of the printed record and argued that by dint of leave granted at the trial Court on the 20/3/2012 at pages 56 – 97 of the record, the said joint Statement of defence has been amended in terms of the amended joint Statement of defence at pages 78 – 81 of the printed record. learned appellants’ counsel argued that the previous or original joint Statement of defence having been amended, it was wrong for the Court below to still rely and act on that document or process as reliance on the erstwhile joint Statement of defence of the appellant was to his detriment and this according to learned counsel has occasioned a miscarriage of Justice, citing and relying on the case of Olaniran Vs. Adebayo (2008) All FWLR (Pt. 410) 767. 779; Attanda Vs H. Saffedine Transport Ltd. (2008) All FWLR (Pt. 401) 985, 993; Jatau V. Ahmed 1 SCNJ 382, 390 – 391. He urged us to allow the appeal on this issue.

For the respondent or his counsel this fact about the amendment to the original statement of defence is not in dispute. Also not in dispute is the fact of reliance being placed on paragraph 24 of the original joint Statement of defence by the Court. Learned counsel however argued that paragraph 24 of the original joint Statement of defence was retained by the appellants at paragraph 22 of the amended joint statement of defence and by  reason of which the facts as presented by defence still remain the same and that the trial court was right to hold as it did at page 161 lines 3 – 10 of the record.

Learned respondent’s counsel argued further and submitted that a court is at liberty to make reference to the old or original document not withstanding that it has been amended and he relied on Agbahomovo Vs. Eduyegbe (1999) 2 SCNJ 94, 102. Such reliance on the original process or document according to the learned respondent’s counsel did not imply that a miscarriage of justice was occasioned.

OPINION
Parties and their counsel are all agreed that the appellants as defendants at the trial court had cause to amend their joint Statement of defence by leave granted at that Court on the 24th March, 2012 in terms of the amended joint Statement of defence at pages 68 – 71 of the record of appeal. 

It has long been settled that once pleadings are amended, the amended document takes retrospective effect and it relates back to the date the original document was made or filed. See: Salami V. Oke (1987) NWLR (Pt. 63) 1 or (1987) 9 – 10 SC 43. Olamiran V. Adebayo (Supra). What stood before the amendment is no longer material before the Court and no longer defines the issues to be tried although the Court granting the order for amendment could make reference to the original document so far as it is in existence. What the court cannot do is act on that original pleading. The apex Court in Agbahomoro V. Eduyagbe (1999) 2 SC 79, 91 held thus:

“There can be no doubt that once pleadings are duly amended by the order of Court, what stood before amendment is no longer material before the court and no longer defines the issues to be tried before the court. See Warner v. Sampson (1959) 1 Q.B. 297. This, however, is as far as this proposition of law goes. It does not and has not laid down any such principle that an original pleadings which has been duly amended by an order of court automatically ceases to exist for all purposes and must be deemed to have expunged or struck out of the proceedings. The clear principle of law established is that such original pleading which has been duly amended is no longer material before the court in the sense that it no longer determines or defines the live issues to be tried before the court, not that it no longer exist. It does certainly exist and is before the court. It is however totally immaterial in the determination of the issues to be tried in the proceedings. It thus cannot be considered as the basis of one’s case in any action. Nor a court of law rely on any such original pleading which has been duly amended as the basis for its Judgment in the suit. The issues to be tried will depend on the state of the final or amended pleadings.”

In the current case on appeal the trial Court did not only make reference to the former or the original pleadings of the appellants, the court relied on the said pleading and acted on it to the detriment of the appellants. While  acting on paragraph 24 of the original or former joint Statement of defence the Court below made the following observations at pages 160 – 161 of the record thus:

“Honestly this court was alarmed by these assertions of the Defendants that the plaintiff before it in this case, who is resting his tales in Suit No. TRSJ/1/97 had by the foregoing assertions of the defendants, had taken if indeed the assertions by the defendant are correct on adverse stance against the fill he now claims in this case in Suit No. TRSJ/1/97. The point being made by this court herein is that if the plaintiff had indeed been a witness for Alh. Abubakar Ibrahim as asserted then the plaintiff had by doing so, conceded title to the land in dispute in Suit No.TRSJ/1/97 to Alh. Abubakar. And since Alh. Abubakar was unsuccessful in that case it will therefore follow that the plaintiff equally cultivate the same case as Alh. Abubakar. It will amount to travesty of notice for the plaintiff who had taken such steps as alleged in the assertions of the defendant to turn around and want to assert his own title to a portion of the land that he had in Suit No. TRSJ/1/79 conceeded title thereof to Alh. Abubakar.

Upon the alarm that the assertions of the defendant brought to bear on this court curiously went on an examination of the records of Suit No. TRSJ/1/79 Regrettably the examination by this court reveals that the assertions of the defendant in paragraph 24 were before them and gross mis-representation of the truth. That is to say the plaintiff in this case never testified as a witness in Suit No. TRSJ/1/79 for Alh. Abubakar Ibrahim

This court is bewildered that the defendant will go this far to mis-present facts ”
Those remarks or findings made at the Court below is sequel to the averments contained at paragraph 24 of the old or former Joint Statement of defence which the appellants no longer depend on.

Learned counsel for the respondent has argued in his brief that the reference and reliance placed by the trial court on paragraph 24 of the original Joint Statement of defence has no negative effect considering that the appellants have retained those same averments (i.e paragraph 24) in the new amended Statement of defence at paragraph 22 and as such facts constituting defence case still remained the same. I consider this submission of respondent’s counsel as unlikely. This is far from the truth. We need to take another look at the two averments so a