CAN A JUDGE LOSE JURISDICTION TO SIT ON A MATTER BY MERE FACT OF HIS TRANSFER TO ANOTHER JUDICIAL DIVISION OF THE SAME STATE?

CASE TITLE: IGBE v. ILOM & ORS (2020) LPELR-49601(CA)

JUDGMENT DATE: 5^TH MAY, 2020

PRACTICE AREA: LAND LAW

LEAD JUDGE: HAMMA AKAWU BARKA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Land Law.

FACTS

This is an appeal against the decision of the High Court of Cross-River State.

The appellant’s case as claimant before the High Court deducible from the statement of claim filed relates to a parcel of land allegedly founded by the claimant’s great grandfather Ugbeshe Atabi and his brother Mgbado Atabi several years ago. Claimant averred that his late mother Chief Madam Margaret Akayilfop inherited the land, founded upon the judgment of the High Court of Eastern Nigeria in the case with No. E/38A/62. He averred also that his mother remained in constructive possession up to the year 1954 – 1962 when one Akpotu Akaki trespassed on to the land, wherefore his mother was declared owner of the disputed land in the earlier stated. He further averred that his mother caused the land to be surveyed and a leasehold agreement with No. SES/CAL/SDR/1704/74-75 delineated on survey plan No. IN/1617 and dated 20th March 1972 was executed in her favour. He goes further to averred that his mother developed part of the land by building houses thereon, and also rented part of the land to artisans of various trade. He averred still that sometimes in the year 2016, a perimeter fence was erected cutting the claimant’s land into two. That Government constructed a road dividing the claimant’s land into two, necessitating the claimant’s mother through the claimant to resurvey the portion lying on the other side of the road used by the artisans in his name, the survey plan done is with No. NLS/CR/250/88. He then averred that sometimes on the 24th and 25th of September, 2016, the 1st and 2nd defendants forcibly encroached on 400.331 sq. meters of the claimant’s land planted beacons and building a perimeter fence thereby laying claim to the ownership thereof. That all efforts made to stop the defendants encroaching on the land were to no avail. Claimant also averred that in the year 2011 the claimant sued one Mrs Martina Opue and Stephen Oniga in suit No. HJ/40/2011, where a survey plan of the school signed by U. W. Obot, the surveyor General dated the 6th of March 1980 was filed on behalf of the defendants.

The 1st and 2nd defendants filed a joint statement of defence on the 31st day of October 2016, admitting paragraphs 1, 2 and 3 only of the statement of claim, while denying the entirety of the claimants claim. The defendants averred that as agents of the state, they ought not to have been sued in their private capacity and that all they did was to show government officials and the contractors around the land for the purpose of erecting the fence. That the claimant was not entitled to the reliefs sought as the survey plan conducted by the claimant is tainted with fraud. They denied entering claimant’s mothers land, stating that the surveyor who drew the composite plan for the claimant never visited the land at all. The defendants insisted that they did not trespass on to the claimant mothers land at all and thereby urged the Court to strike out the claimants’ suit at the pre-trial stage for being incompetent, and gold-digging. Issues having been joined, the case proceeded to a protracted trial. The claimant called four witnesses at the hearing of the case, while the 1st and 2nd defendants gave evidence in their defence. A total of ten exhibits, including nine tendered by the claimant, while the defendants tendered one exhibit. At the close of the hearing, written addresses were ordered, filed and adopted, thus setting down the stage for judgment. On the 18th of May, 2018, the Court delivered the vexed judgment to the effect that claimant failed to prove his case, and thereby dismissed same. Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court considered the issues for determination raised by the Appellant but succinctly paraphrased by the Respondent as follows:

1. Whether from the printed records, there is anything to show that the Learned Trial Judge, Honourable Justice Elias O. Abua had been transferred from Ogoja Judicial Division as at the 18th of May, 2018 thus divesting him of the authority/power to sit on the said 18th May 2018 and deliver judgment hereof? And if yes, whether the appellant has suffered any miscarriage of justice in the circumstance.
2. Whether from the totality of this case, the judgment of the learned trial judge can rightly be said to be against the weight of evidence.

iii. Whether the learned trial Judge was biased when he struck out the appellant’s amended processes filed on 9th October 2017.

DECISION/HELD

On the whole, the Court found no merit in the appeal and accordingly dismissed it.

RATIOS:

• APPEAL- FORMULATION OF ISSUE(S) FOR DETERMINATION: Principles governing formulation of issues for determination in an appeal
• EVIDENCE- WEIGHT OF EVIDENCE: Position of the law when judgment is attacked on the ground of being against the weight of evidence
• EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in civil cases
• EVIDENCE- EVALUATION OF EVIDENCE: Duty of trial judge to evaluate evidence and the procedure for evaluation of evidence; circumstance(s) in which the Court of Appeal will/will not interfere with evaluation by trial Court
• JUDGMENT AND ORDER- SETTING ASIDE JUDGMENT/ORDER: Duty placed on an appellant seeking to set aside a judgment based on improper evaluation of evidence
• LAND LAW- IDENTITY OF LAND: Duty of a Claimant to prove identity of land; Effect of failure to do same
• PRACTICE AND PROCEDURE- TRANSFER OF A JUDGE: Whether a judge loses jurisdiction to sit on a matter by the mere fact of his transfer to another judicial division of the same State
• PRACTICE AND PROCEDURE- AMENDMENT OF COURT PROCESSES/PLEADINGS: When does an amendment take effect; effect of filing a process outside the time stipulated by the rules