Practice and Procedure 3

• Pages: 1849-2726

1849

Possession of land Paras. 3960-3963

PRACTISE AND PROCEDURE 3

(370) POSSESSION OF LAND

3960. Can title to land be proved by acts of possession?

“This argument is based solely on the fact that the trial Customary Court called an

independent witness, the circumstances of which I have already narrated. I think the

submission that evidence of traditional history was led is erroneous. What was led by

either side was evidence of possession which is one of the ways of asserting title to

land and is regarded as separate from and independent of claim of title based on

traditional history: see Idundun v. Okunmagba (1976) 9-10 S.C. 227; Balogun v.

Akanji (1988) 1 N.W.L.R. (Pt.70) 301.” - Per Uwaifo, J.S.C. in Onwuama v.

Ezeokoli Suit No. S.C. 172/1996; (2002) 5 N.W.L.R. (Pt. 760) 353 at 366.

3961. How to resolve conflicting claims to possession of land.

“The law is clear, as in the instant case, that where two persons made conflicting

claims to possession of land, the law ascribes possession to the person that can prove

better title to the land. See Patrick Ogbu & 4 Ors. v. Fidelis Ani & 4 Ors. (1994)

7 N.W.L.R. (Pt. 355) 128 at pp. 131-133; Amakor v. Obiefuna (1974) 3 S.C. 67.” -

Per Orah, J.C.A. in Audu v. Ndubusi Suit No. CA/J/10/92; (1997) 3 N.W.L.R. (Pt.

493) 306 at 314.

3962. Summary procedure for recovery of possession of land.

“It is emphasised at the onset that the question whether the summary procedure for

recovery of possession of land designed for special occasions and sanctioned by

Rules of the Supreme Court in England is appropriate in this case is adverted to but

need not be determined at this stage. It suffices to note that by Order 113 of the

R.S.C. such proceedings are brought by originating summons and that by rule 3

thereof: - “The plaintiff shall file in support of the originating summons an affidavit

stating: - (a) his interest in the land; (b) the circumstances in which the land has been

occupied without license or consent and in which his claim to possession arises and;

(c) where the summons is in Form No. 11A, that he has taken all reasonable steps

(describing them) to identify the persons occupying the land who are not named in

the summons.” - Per Ayoola, J.C.A. in Ogunbiyi v. Mustapha Suit No. CA/L/300/

55; (1996) 4 N.W.L.R. (Pt. 442) 337 at 344 - 345.

(371) PRACTICE DIRECTION

3963. Limitation of the power of the president of the Court of Appeal to

make rules on practice direction.

“I seem to agree with the contention of the learned counsel for the respondent that

the president of the Court has no power to make rules of Court regulating application

for leave to appeal to the Supreme Court from the decision of this Court.” - Per

Ogwuegbu, J.C.A. in Salami v. Gbodolu Suit No. CA/I/61/88; (1990) 3 N.W.L.R.

(Pt. 141) 765 at 771.

Paras. 3964 Vol. 17 Pt. III: PRACTICE AND PROCEDURE 3 1850

3964. Practice Direction.

(1) “Now, I consider it pertinent to define “practice direction” which may be defined

as a direction given by the appropriate authority stating the way and manner a par-

ticular rule of Court should be complied with, observed or obeyed. In all the common

law jurisdictions there has always been an authority vested with the power to issue

such directions. Thus the appeal committee of the procedure of the House of Lords

in England issues directions on matters relating to the procedure of the House: see

Procedure Direction (1970) 3 All E.R. 70 and (1971) 2 All E.R. 736.”- Per Bello,

J.S.C., in University of Lagos and Anor. v. Aigoro Suit No. S.C. 32/1954; (1984)

15 N.S.C.C 745 at 770.

(2) “Practice Directions” have been defined by Osborn’s Concise Law Dictionary,

7th Edition, to mean statement by the judiciary, usually noted in the law reports, in-

tended to guide the Courts and the legal profession on matters of practice and proce-

dure. Though practice directions do not have statutory authority which statutory rules

have, they represent the view of the Judges of the Court issuing them on particular

matters of practice and procedure - see paragraph 909 of Halsbury’s Laws of En-

gland, 4th Edition, Volume 10.

Hence parties and counsel cannot afford to ignore practice directions and if

they do so, it will be at their peril. The same cannot be said of Court subordinate to

the Supreme Court since the practice directions are not likely to apply to them di-

rectly.Whilst the practice directions in question, in this case, do not bind or apply to

the Court of Appeal, they nevertheless represent the views of the Justices of the

Supreme Court and do influence their decisions in appropriate cases. Such decisions

once given are, by the doctrine of staredecisis binding on all the Courts which are

subordinate to the Supreme Court, including the Court of Appeal.”- Per Uwais, J.S.C.

in N.A.A. v. Okoro Suit No. S.C. 97/1989; (1995) 7 S.C.N.J. 1 at 13; (1995) 6

N.W.L.R. (Pt. 403) 510 at 522.

(3) “The power to issue the practice directions, in my view, is included in the power

to make rules regularising the practice and procedure in the Supreme Court Prac-

tice Directions do not have the authority of rules of Court although they are instruc-

tions in aid of the practice in Court. They cannot by themselves overrule Court deci-

sions. Turning to the 4 grounds of unconstitutionality given by the learned counsel for

the appellant, I find myself unable to agree with counsel that they are valid grounds

for declaring the practice direction 1982 ultra vires, unconstitutional, null and void of

no effect Paragraph 5 of the practice direction does not direct the Justices of the

Supreme Court to the manner in which they should exercise judicial discretion con-

ferred on them by law. The wordings are clear and simple and in their natural mean-

ing, the Practice Direction does not direct the Justices of the Supreme Court in re-

spect of any matter.

On the contrary, it directs litigants and their counsel to keep to the times and

period prescribed by the Rules. Secondly, it does not overrule or purport to overrule,

reverse or nullify the effect of previous decision of Court. Granting extension of time

is in the absolute discretion of the Court in applications properly before it.

1851 Practice direction Paras. 3964-3967

In matters requiring the exercise of the discretion of the Court, each applica-

tion is considered in the light of its own peculiar facts and no one interlocutory order

in such applications is precedent for another one. See Jenkins v.Bushby (1891) 1

Ch. 484 at 495; Odusote v. Odusote (1971) 1 All N.L.R. 219 at 222. The Chief

Justice of Nigeria has not, with or without the concurrence of a majority of or all the

justices, attempted by the practice direction or proceeded by the practice direction to

overrule, reverse or nullify previous decisions of the Supreme Court. Such a meaning

cannot by any stretch of imagination be read into any of the six paragraphs of the

Practice Directions.”- Per Obaseki, J.S.C. in University of Lagos and Anor. v.

Aigoro Suit No. S.C. 32/1984; (1984) 15 N.S.C.C. 745 at 763-764.

(4) “Thus practice and direction although separately and independently defined, when

juxtaposed, a practice direction may be said to be concerned with the rules indicating

the manner in which applications in an interlocutory proceedings in Court shall be

dealt with or regulated and the provision of guidelines as to what should be done.

Simply put it concerns and regulates the manner a particular rule of Court shall be

complied with or adhered to.”- Per Karibi- Whyte, J.S.C. in University of Lagos

and Anor. v. Aigoro Suit No. S.C. 32/1984; (1984) 15 N.S.C.C. 745 at 770.

(372) PRE-ACTION NOTICE

3965. Conditions precedent to bringing a suit must be complied with.

“The intendment of Section 83(2) of the Act is to prevent the institution of any Court

process against the corporation unless it has received in advance written notice of

three months before the commencement of the process. I am of the view that what-

ever form the Court process takes, once there is a claim for a remedy against a

corporation by an applicant who complains that his right has been invaded or violated

the applicant must seek for such remedy within the purview of Section 83(2) of the

Act. The appellant admitted that three months notice was not given to the Corpora-

tion, consequently the application was incompetent and invalid.” – Per Kolawole,

J.C.A. in Nigeria Cement Co. Ltd. v. N.R.C. Suit No. CA/E/153/88; (1992) 1 N.W.L.R.

(Pt. 220) 747 at 761.

3966. Constitutional right of access to Court is not taken away by pre-action

notice.

“In any event, it is my considered view that pre-action notices do not take away the

Constitutional right of access to the Courts from the litigant. It only provides the

procedure to be followed when you desire to seek redress in the Courts. It does not,

in any way, take away the right of access to the Court in appropriate cases.” - Per

Onnoghen, J.C.A. in Aro v. Lagos Island L.G.C. Suit No. CA/L/243/97; (2002) 4

N.W.L.R. (Pt. 757) 385 at 421.

3967. Constitutionality of pre-action notice.

(1) “The Constitution has vested the Courts with the powers for the determination of

any question as to the civil rights and obligations between government or authority

and any person in Nigeria - See S.6(6)(b). Accordingly, where the determination of