Okamgba Okamgba V. Ifegwu Urum Eke (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the decision of the High Court of Abia State, Coram, I.F. Ogbuagu, J., (as he then was) in Suit No.A/500/93 delivered on 21/06/2000.The Appellant was the defendant in the court below while the Respondent was the Plaintiff.
In his amended statement of claim, the Respondent as Plaintiff in the Court below claimed the following reliefs:
“(a) (i) A declaration that the Plaintiff is entitled to the Customary or Statutory Right of Occupancy of that certain piece or parcel of land known as and called 95 Ikot Ekpene Road, Ogbor Hill, Aba in the Aba North Local Government Area of Abia State with the building situate thereon, within the jurisdiction of this Honourable Court;
(ii) A declaration that the power of Attorney dated 31st day of December. 1990 and registered as No. 10 at page 10 in Volume 603 of the Lands Registry in the office at Owerri, now Urnuahia is null and void and of no effect whatsoever;
(b) An order of this Honourable Court for the delivery up (sic) of the Power of Attorney pleaded in a(ii) above for cancellation;
(c) N250,000.00 damages for the acts of, trespass committed by the Defendant on the said 95 Ikot Ekpene Road, Ogbor Hill, Aba;
(d) Perpetual injunction restraining the Defendant by himself, his servants, agents, privies, assigns or otherwise from committing further acts of trespass on the said 95, Ikot Ekpene Road, Ogbor Hill, Aba and/or alienating same in any manner whatsoever”
The facts of the case as can be gleaned from the record of the trial Court are that: The Respondent’s case is that the land in dispute known as Amaurom or No. 95 Ikot Elepene Road, Aba, was the properly of Messrs James Wogu, P.E. Akpu and John Nwagbara all of Ogbor Village Aba by inheritance. By a Deed of Lease dated 06/11/56, the said Messrs James Wogu, P. E. Akpu and John Nwagbara conveyed the land in dispute to one M.A. Nwakanma who in turn granted a sub-lease to one F. O. Ahukanna, who granted a Power of Attorney to the Respondent. It is also the Respondent’s case that the Appellant’s father, Okechukwu Okamgba was a tenant of F. O. Ahukanna anri that he paid rent to F.O. Ahukanna. The Respondent further alleged that it was after the Respondent commenced a suit in the Magistrates Court for the recovery of possession of the land in dispute that the Appellant’s father produced a power of Attorney, dated 31/12/90. The suit in the Magistrates Court however ended in the Respondent’s favour and execution was levied. The Appellant’s father purportedly regained possession by force and let out the remaining portion to tenants.
The case of the Appellant is a total denial of the Respondent’s claim. According to the Appellant, the land in dispute was originally owned by Umuegege family of Ogbor Village. The Appellant further alleged that while James Wogu was from Umuegege family, P.E. Akpu and John Nwagbara were from Umunwankwo and Iziukwu families and that the three families do not own land in common. The Appellant admitted paying rent to F. O. Ahukanna but that it was to enable F.O. Ahukanna recover the money he lent to M. A. Nwakanma who was an Okene (Grandson) to Umuegege family.
The case proceeded to hearing with both sides calling witnesses in respect of the positions taken by each. Documents were also tendered by both sides. The said hearing commenced on the 30th November, 1995 with Respondent as Plaintiff testifying as PW1. Three witnesses including PW 1 testified for the Respondent, who closed his case on 23rd October, 2007.
Four witnesses, on the other hand, testified for the Appellant. The defence, needless to say opened their case on 20th April, 1998 and closed same with the evidence of DW4 on the 18th of January, 2000. A total of fourteen (14) Exhibits were tendered. Thirteen (13) were admitted in evidence while one (1) was marked “Rejected”.
On the 18th January, 2000, with consent of both learned Counsel for the parties, written addresses/submissions were ordered to be filed by the lower Court. Later the said written addresses were adopted by the learned Counsel. In a well considered judgment, delivered on 26/06/2000, the learned trial Judge held thus:
“In the final or end result, on a calm view of the pleading of the parties, the evidence before the Court including the Exhibits and the written addresses/submissions of both learned Counsel for the parties the Court is satisfied that the Plaintiff has proved his case to the satisfaction of the Court preponderance of evidence before it and is therefore, entitled to judgment.”
Judgment was therefore entered in favour of the Respondent as Plaintiff as per or in terms of his claims in paragraph 26(a) (i) (ii) (b) and (d). As to the counter claim of the Appellant as Defendant, the trial Court further held thus:
“On a calm view of the pleadings, the evidence in court including the exhibits and the written addresses/submissions of both learned Counsel for the parties, the Court finds as a fact and holds that, the Defendant has failed woefully to prove or establish the same to the satisfaction of the Court. It lacks any merit. It fails and it is hereby and accordingly dismissed.”
Aggrieved by the decisions of the lower Court as adumbrated (supra), the Appellant, expectedly approached this Court and filed an omnibus ground of appeal dated 21st day of June, 2000. On the 21st of April, 2008, with leave of this Court, the Appellant filed five additional grounds of appeal and sought the following reliefs:
“i. The Defendant/Appellant seeks that the decision and orders of 21/06/2000 of the High Court of Abia State in suit No. A/500/93 be set aside and the Plaintiff’s claim be dismissed.
ii. The Defendant/Appellant seeks that the Court of Appeal enters judgment in favour of the Appellant in terms of the counter-claim”
In compliance with the rules of this Court, the parties duly filed and exchanged briefs of argument. The Appellant’s amended brief of argument was deemed properly filed and served by an order of this court granted on 21/04/08. The Respondent’s brief dated 24h day of April, 2008 was filed the same date.
It is pertinent to observe at this juncture that the Appellant in a brief settled by N.N. Ikeocha Esq. formulated three issues for determination from the said five grounds of appeal to wit:
“i. Whether the learned trial Judge properly evaluated the evidence adduced in this suit before arriving at his conclusions ((Ground 1).
ii. Whether the learned trial Judge was justified when he held that the Power of Attorney relied upon by the Defendant was a forgery Ground (2).
- Whether the documents relied upon by the Plaintiff were sufficient to entitle him to a declaration of title (Grounds 3, 4 and 5)
For his part, in a brief settled by Frank A. Chukuka Esq., the Respondent’s Counsel identified two identical issues, (1 & 2) formulated by the Appellant’s counsel as the issues calling for determination in this appeal and they are hereunder reproduced as follows:
“(1) Whether the trial Judge properly evaluated the oral and documentary evidence adduced at the trial to warrant granting of respondent’s reliefs by the trial Court.
(2) Whether the learned trial Judge was right when he held that the Power of Attorney Exhibit ‘L’ relied upon by the Appellant is a forgery.”
On the 19th day of January, 2009 when the appeal came before us for hearing, learned Counsel for the parties, in accordance with the rules of the Court adopted their briefs of argument. The brief of argument of the Appellant was deemed filed by the order of this Court on 21/04/08. Learned Counsel did not proffer argument in an amplification of the said brief. He urged us to allow the appeal. Learned Counsel for the Respondent adopted his brief dated and filed on 24/04/08. He too did not proffer any oral argument. He urged us to dismiss the appeal for lacking in merit.
Issue No. 1 is whether the learned trial Judge properly evaluated the evidence adduced in this suit before arriving at the conclusions. This issue is distilled from ground 1 of the grounds of appeal.
In arguing this issue, learned counsel quoted in extensor, the decision of the apex Court in the case of Mogaji v. Odofin (1975) 4 SC p. 91 and submitted that in arriving at the decision in this suit, the learned trial Judge did not properly apply the rule in the Mogaji v. Odofin (supra). This is so, learned Counsel further submitted because the learned trial Judge failed to consider the various pieces of evidence in favour of the Appellant.
Learned counsel referred to the evidence of DW1 and DW3 both members of Umuegege family who testified that P.E. Akpu and John Nwagbara were not members of Umuegege family. This piece of evidence, learned counsel argued was supported by the only independent witness called by the Respondent – the PW3 who is also a member of the Umuegege family. It is the contention of the learned Counsel that if P.E. Akpu and John Nwagbara were not of the same family with James Wogu, it follows that the three could not own land in common by virtue of inheritance. They could therefore not pass a valid title to M.A. Nwakanma.
It is the contention of the learned Counsel that the learned trial Judge failed to consider the effect of Nwaga custom to the effect that an Okene cannot alienate the land of his maternal relations allotted to him for residence. Learned Counsel is of the view that the learned trial Judge gave undue attention to the piece of evidence that the Appellant’s father paid rent to F. O. Ahukanna but failed to consider the circumstances under which the rent was paid.
It is also the contention of the learned Counsel that the trial Judge was more concerned with what he considered to be weaknesses in the Appellant’s case instead of considering the strength of the Respondent’s case. He relied on the case of Kodilinye v. Odu (1935) 2 WACA 336 at 337 – 338 per Webber C.J. The Respondent in this case, learned counsel further contended must rely on the strength of his own case and not on the weakness of the Appellant’s case. If all these pieces of evidence in favour of the Appellant were considered, learned Counsel went on, the learned trial Judge would have come to a different conclusion from the one he arrived at. We were urged to resolve issue No.1 in the negative
For his part, learned counsel for the Respondent contended that contrary to the submissions of the learned Counsel for the Appellant, the learned trial Judge copiously evaluated the oral and documentary evidence adduced at the trial and came to the right conclusion by granting the reliefs sought by the Respondent.
In the case of Mogaji v. Odofin (supra) the apex Court has set a standard for trial Courts on evaluation of evidence in the following terms:
“We think, there is a merit in the complaints of the Defendants/Appellants. When an Appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence adduced before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore, in deciding whether a certain set of facts given in evidence by one party, in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide it; if the law supports it bearing in mind the cause of action, he will then find for the Plaintiff. If not, the Plaintiff’s claim will be dismissed.”
The question to be asked from the onset is whether the learned trial Judge has put the two sets of facts on an imaginary scale and weighed one against the other before finding for the Respondent. To answer this question, needless to Say, recourse had to be made to what transpired at the lower Court inclusive the judgment delivered therein.
A good starting point of this exercise is page 90 of the record, where DW1 gave evidence on 02/07/98 inter-alia as follows:
“Nwakanma later told my late uncle James Wogu, who was my late father’s brother, that, he wanted a place to establish a clinic. Eze James Wogu showed and asked him to erect the building on the said (sic) of his mother’s brothers’ portion (sic) the said compound. He did erect a building thereon.
That building or bungalow is still there, it is the property now in dispute.”
The trial court whilst evaluating the above reproduced piece of evidence held thus:
“Again from the evidence, it is clear that the land where the building was erected was that of James Wogu and not that of the late father of DW1.”
Again, the trial Court at page 160 of the records, made findings of facts from the evidence adduced at the trial that DW1 admitted that the land where Mr. Nwakanma erected the property belonged to James Wogu. The court also believed PW2 that late James Wogu sold the land to Mr. Nwakanma. Hear the trial Court:
“Since DW1 swore that it was his late uncle James Wogu, who made the grant, then there is the inference that the sale to F.O. Ahukanna, was before witnesses which, is one of the essential ingredients required in valid sale under Customary Law.” (See page 161 of the records).
It is noteworthy to observe at this juncture that the trial Court made findings of facts from the evidence adduced at the trial that there is abundant evidence in favour of the Respondent that, the said Respondent, was in possession before the deceased in-law reposed the property. On page 167 of the records, the Court further held that since DW1 agreed or admitted that the land on which Mr. Nwakanma built belongs to his uncle Joel Wogu, there was evidence accepted by the Court that the properly of DW1’s father was shared among his children. Joel Wogu here needless to say should mean James Wogu. At page 168 of the records the Court held as follows:
“So if late James Wogu sold to F.O. Ahukanna, such a sale transaction was valid and subsit (sic) or subsisted.”
Let me pause a little at this juncture and consider some few decided authorities on evaluation of evidence. In the case of Okonkwo v Okonkwo (2004) 5 NWLR (Pt. 865) page 87 at page 118, paras E – H) this Court per Olagunju, JCA (of blessed memory) held thus:
“In evaluation of evidence, the fact that the relative weight put on the evidence of each, side was not expressly categorized or otherwise expressed by the trial Court does not imply that the evidence of the parties was not weighed. What determines the weight of evidence is the value, credibility, quality as well as the probative value of the evidence. The five factors that are considered in determining the probative value of evidence are:
(a) admissibility;
(b) relevancy;
(c) credibility;
(d) conclusiveness: and
(e) probability of the evidence by which the weight of evidence of both parties is determined.
In the instant case, the Appellants, having failed to discredit any particular piece of evidence based on any of the five factors, failed to establish their contention of non-evaluation of evidence by trial Court (Onwuka v Ediala (1939) 1 NWLR (Pt. 96) 182; Mogaji v Odofin (1978) 4 SC 91 referred to.) (p.188, paras E – H).”
Again, in the case of Fagbenro v Arobadi (2006) 7 NWLR (Pt.978) p. 172 at page 193, paras A – C, the apex Court per Kalgo, JSC held that:
“It is the primary responsibility of the trial Court, which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate Court, which neither heard the witnesses nor saw them observe their demeanours in the witness box.”
I am of the considered view that from the printed records of the trial Court as can be gleaned from some of the findings adumbrated (supra), the question posed a while ago must be answered in the affirmative. In other words the trial Court evaluated and considered the evidence adduced at the trial by both sides. This issue is therefore resolved in favour of the respondent and against the Appellant.
Issue No. 2 is whether the learned trial Judge was justified when he held that the Power of Attorney relied upon by the Defendant was a forgery. This issue is predicated on ground 2 of the grounds of appeal.
Learned counsel for the Appellant submitted that forgery being a serious crime the particulars thereof must be pleaded and strictly proved. It is the contention of the learned Counsel that the Respondent in his statement of claim did not plead forgery neither was any evidence led to prove same. Forgery, the learned Counsel further contended was therefore not an issue at the trial. The finding of the trial Court with regard to exhibit L was therefore not proper, learned Counsel further contended. A Judge, he further went on, should not base his decision on an issue not raised in the pleadings. He relied on the cases of Fabunmi v Agbe (1985) 1 NWLR (Pt,2) p.299 and Atolagbe v Shorun (1985) (Pt.2) p. 360.
Learned Counsel posited that, a trial Court is not to go on a wild goose chase to embark on an academic exercise in which all sorts of questions are discussed at will; without reference to the pleadings, to the issues and to the admissible, evidence. He relied on the case of Overseas Const. Ltd v Creek Ent. Ltd (1985) 3 NWLR (Pt. 13) 407 and Brown v Adebanjo (1986) 1 NWLR (Pt. 16) 382. We were urged to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent, on the other hand submitted that by virtue of the provisions of Section 108(1) of the Evidence Act, the trial court has the power to look at the said document and make pronouncement. He relied on the case of Adenle v Olude (2002) 18 NWLR (Pt. 799) Pt.413 at pages 430 – 431 paras H – E.
Learned Counsel urged us to disregard the Power of Attorney because it was made and registered after the deceased Defendant, has been served on the 24th January, 1991, with the notice to quit, tendered in the Court as Exhibit e. Furthermore learned Counsel contended that remarkably and significantly, DW4 is not even a witness to Exhibit L. The name of the man, who signed as a witness in Exhibit L, was not stated in evidence by DW1 or DW4 and he was not called as a witness. DW4 did not say he was present when Exhibit L was made or executed or that he signed same. See page 179 lines 20 – 24 of the records.
In the alternative, learned Counsel submitted that, the Power of Attorney admitted and marked as Exhibit L, is in admissible in evidence as the said document is a public document and under, Section 97 (2) of the Evidence Act, having been duly registered at the Lands Office in Umuahia, Abia State, only certified copy of the said document is admissible. He relied on the cases of Araka v. Egbue (2003) 17 NWLR (Pt. 848) p.7 and Onochie v. Odogwu (2006) 6 NWLR (Pt.975) p. 65. We were urged to resolve this issue in favour of the Respondent.
Let me begin considering this issue by examining the provision of Section 108(1) of the Evidence Act which provides as follows:
“108(1) In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose.”
The provisions of the reproduced Section of the Evidence Act are clear and unambiguous and need no aid for their interpretation. The learned Magistrate was perfectly right in examining the Power of Attorney the way he did and the lower Court was also right in upholding the finding of the learned Magistrate. The submission of the learned Counsel for the Appellant that forgery being a serious crime the particulars must be pleaded and proved strictly is of no moment in the light of the clear provision of section 108(1) of the Evidence Act reproduced above. The cases of Fabunmi v Agbe and Afolagbe v Shorun (supra) are not apposite with the facts of the case in hand.
That aside, the Power of Attorney being a public document, only a certified copy is admissible in evidence as canvassed by the learned Counsel for the Respondent. See Section 97(2)(c) of the Evidence Act and the cases of Araka v Egbue and Onochie v Odogwu (supra). But let me quickly say that I am not oblivious of the fact that wrongful admission of evidence per se may not necessarily effect the decision of a Court fatally unless the use of such evidence has brought about a miscarriage of justice. See the cases of Shittu v Fashawe (2005) 4 NWLR (Pt. 946) p. 671 at 692, paras C – F and Durosaro v Ayorinde (2005) 8 NWLR (Pt. 927) p.410 at p. 427, paras B – C. See also Section 227(1) (2) of the Evidence Act.
It is now settled that where inadmissible evidence is admitted, the trial Court or an appellate Court should expunge the evidence and consider if there is any remaining legal evidence to sustain the claim. If there is, the judgment will not be disturbed. Applying this scenario to the case in hand, I am tempted to say that based on what transpired in the Court below as can be gleaned from the printed records, the case of the Appellant was completely anchored on the said Power of Attorney which I have already held that is inadmissible in evidence. Once this document is expunged there will not be any legal evidence to support the claim of the Appellant. The said Power of Attorney being an admissible document is hereby expunged and that having been expunged, there is no legal evidence upon which the claim of the Appellant can be sustained.
This issue like the previous one is resolved in favour of the Respondent and against the Appellant.
Last but not the least issue for determination is issue No. 3. The said issue is whether the documents relied upon by the Plaintiff were sufficient to entitle him to a declaration of title. This issue, needless to say is distilled from grounds 3, 4 and 5 of the grounds of appeal.
Learned Counsel submitted that as decided by the apex Court in the case of Idundun v Okumagbu (1976) 9 – 10 SC p.227, there are five ways by which title or ownership of land can be proved. He listed them as follows:
“1. By traditional evidence
- By production of documents of title duly authenticated and executed.
- By acts of ownership extending over a sufficient length of time numerous and positive enough as to warrant the inference of true ownership.
- By acts of long possession and enjoyment of land.
- By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute.”
Learned Counsel contended that proof of only one of these five ways will be sufficient but it is clear from the statement of claim that the Respondent as Plaintiff in the lower Court relied on production of tile in proof of his case. It is his further contention that the document relied by the Respondent are in admissible in evidence being public documents only certified copies are admissible he opined. He relied on the cases of Adelaja v Alade (1992) 6 NWLR (Pt. 245) 116, Anatogu v Iweka II (1995) 8 NWLR (Pt. 415) 547 and Ipinlaiye II v Olutokun (1996) 6 NWLR (Pt. 453) p. 148.
It is the submission of the learned Counsel that Exhibit C which is Power of Attorney relied by the Respondent is not a document of title as envisaged by the case of Idundun v Okumagba (supra). Learned Counsel further submitted that even if Exhibit C is a document of title and the same is admissible in evidence, the Respondent still had a task to prove the root of title of the donors of Exhibit C. He reliied on the case of Otanma v. Youdubagha (2006) 2 NWLR (Pt. 964) 337. Learned counsel urged us to resolve this issue in their favour.
On the other hand, learned counsel for the Respondent submitted that, where inadmissible evidence is admitted, the trial court is under a duty to expunge same and rely on the remaining legal evidence adduced by a party to the action. It is the submission of the learned counsel that the Respondent gave credible evidence and proved his root of title, thus the case of Otanma v Youdubagha (supra) cited by the Appellant’s Counsel is not applicable to this appeal. We were urged to resolve this issue in favour of the Respondent.
It is instructive to state at this juncture that I have already held else where in this judgment that the admission of inadmissible evidence is not a ground for reversing a judgment of a trial Court. At the risk of repeating myself, all what is needed to be done is the expunging of the said inadmissible evidence and rely on the remaining legal evidence to see whether the action can be sustained. See Sittu v Fashawe, Durosaro v . Ayorinde (supra).
The question that must be asked and answered is, whether after the expunging of the inadmissible evidence for lack of certification, i.e. Exhibits A, B and C being public; documents, there is legal evidence remaining to sustain the case of the Plaintiff. It is noteworthy at this stage to pause and say that, to succeed in an action of title to land, a Plaintiff need not prove all the five ways for establishing a title. A Plaintiff can succeed if he proves even one of the ways. Needless to say it depends on the evidence he relies to prove his title or ownership.
A cursory look at the evidence adduced by the Respondent, one would not be left in ay doubt that the Respondent led unchallenged traditional evidence tracing his root of title from James Wogu to M. A. Nwakanma to F. O. Ahukanha and then to himself. In the circumstance, I am of the view that the trial Court rightly found that he proved his case on preponderance of evidence. See the case of Egwa v Egwa (2007) 1 NWLR (Pt. 1014) p.71 at pp. 87 – 88 paras H – D.
It is also on record that the Respondent pleaded and gave credible evidence of traditional history and proved same. He proved act of ownership, long possession and enjoyment of the said property, which were accepted by the trial Court. For his part, as can be gleaned from the records, the Appellant failed to discredit any particular piece of evidence based on any of the five factors enunciated in the case of Mogaji v Odofin and Okonkwo v Okonkwo (supra).
It is therefore instructive to state that the wrongful admission of the inadmissible evidence will not in any way effect the case of the Respondent for there is avalanche of legal evidence to sustain his case as adumbrated above. This being the case, this issue like the previous two issues is resolved in favour of the Respondent.
In the result, with all the three issues having been resolved in favour of the Respondent, this appeal fails and must be and it hereby dismissed for rack of merit. N30,000.00 costs are awarded in favour of the Respondent and against the Appellant.
Other Citations: (2009)LCN/3141(CA)
