Chief Benson Ezike & Ors. V. Chief Alphonsus Egbuaba (2007)
LawGlobal-Hub Lead Judgment Report
SAULAWA, J.C.A.
This is an appeal against the decision of the High Court of Imo State, holden at Orlu Judicial Division on 05/5/98, coram S. N. Nwachukwu, J. The judgment appeal against arose out of two consolidated suits namely: (i) HOR/18/93 and (ii) HOR/59/94, respectively. The first suit was instituted by the appellants, in a representative capacity, against the respondent. The second suit was filed by the respondent, likewise in a representative capacity, against the appellants.
As it would appear from the records of appeal, pleadings were filed and exchanged by the parties in both suits which were thereafter consolidated for trial. It is instructive that in the course of the trial, the respondent obtained the leave of the trial court to amend the statement of claim thereof in suit No. HOR/59/94, in consequence of which the appellants filed the joint amended statement of defence thereof. At the conclusion of the evidence and addresses of counsel, the learned trial Judge delivered judgment in favour of the respondent, thus:
“This court accepts the evidence and find a fact that the defendants are the owners in possession of the land in dispute. This court is equally satisfied that when the plaintiffs entered into the land to cultivate it or harvest the economic crops on the land, as given in evidence, they did so without the permission or licence of the defendants. These are indeed acts of trespass on the land by the plaintiffs. On the fact pleaded by the parties and the evidence adduced the judgment of this court is therefore entered for the defendants as follows:-
(1) The defendants are entitled to the statutory right of occupancy over the piece and parcel of land called Ala Ama Umuiroha at Ezinkwo village in Ihioma, Orlu L.G.A. and shown in survey plan No. DS2576/M304D/74 filed in this suit by the defendants.
(2) General damages N150.00 is awarded against the plaintiffs for trespass.
(3) The plaintiffs by themselves, their servants, agents and/or privies are perpetually restrained from further committing any acts of trespass on the said land or from disturbing the defendant rights of occupancy of the land.”
Not unnaturally, being dissatisfied with the judgment in question, the appellants filed this appeal upon two grounds of appeal. However, with the leave of the court, the appellants have filed 8 grounds of appeal, as amended.
It is rather instructive that parties have filed and exchanged their respective briefs of argument, which they adopted on 25/01/07 when the appeal came up last for hearing. The appellants had initially filed the brief thereof on 22/12/98 but which deemed properly filed and served on 23/02/2000. However, that brief was superceded by the appellants’ amended brief filed on 19/12/2000, but which as deemed properly filed and served on 24/4/2001. Thus, the earlier brief filed by the appellants is deemed abandoned and thus struck out.
It is evident from the record that the respondent had filed a brief of argument on 13/4/99 supposedly in response to the appellants first brief filed on the said 23/12/98. When the appeal came up for hearing on 25/01/07, the learned counsel to the respondent informed the court thus:
“Ahama: The respondent’s brief was regularized on 21/5/02, The respondent formulated 2 issue, We adopt the brief.”
The appellants have on their own part also filed a reply brief on 07/11/2001 to the respondent’s brief.
The appellants have formulated a total of six issues for determination in the brief thereof thus:
“1. Whether the learned trial Judge approached the evidence before him and the whole trial in a proper and satisfactory manner,
- Whether having regard to the learned trial Judge’s, approach to the evidence and the trial Judge he was justified in not giving the appellants judgment on their claim in suit No, HOR/18/93,
- Whether having regard to the evidence before and the state of the law the learned trial Judge was right in seeing the issue of pledge pleaded and proved by the appellant as “a hoax and mere figment of imagination,”
- Whether the learned trial Judge was right in ignoring exhibit “F” funded by the appellants and properly received in evidence.
- Whether on the pleadings and the evidence before the court below the appellants were entitled to judgment on their claim, in suit No, HOR/18/93,
- Whether in view of the learned trial Judge’s approach to the evidence and the trial he was right in giving the respondent judgment in his claim in suit No, HOR/59/94,”
On the other hand, two issues have been formulated in the respondent’s brief as follows:
“3.2 Whether the lower court property evaluated the evidence of the parties and made correct findings of fact.
3.3 Whether the lower court was right in entering judgment for the respondent in the consolidated suits.”
However, on 25/01/2007 when he adopted the two briefs, the learned counsel informed the court that he had abandoned the argument at paragraph 2, page 3 of the reply brief. The argument in question is accordingly hereby struck out.
The appellants issue No.1 is distilled from grounds 1, 5, 6 & 9 of the grounds of appeal. The argument thereon is proffered at page 13 – 28 of the appellants amended brief. The cases of Chief Adebayo Bashorun Olufosoye & Ors. v. Johnson O. Olorunfemi (1989) 1 NWLR (Pt. 95) 26 at 37; A. R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 SC 91, were cited and relied upon to the effect, inter alia, that a trial court has a duty to receive and evaluate all available relevant evidence and issues before it. That, it is the essence of justice that cases are decided on their merits. It’s however alleged on this issue, that the learned trial Judge has failed in discharging this onerous duty. Thus, instances were highlighted regarding the alleged lack of perception in attention and resultant inaccuracy and perverse evaluation and finding of fact, that allegedly characterized the judgment of the trial Court. See page 16-28 of the amended brief of the appellants. It is alleged, inter alia, that the learned trial Judge.
“Approached the matter as if the consolidation of the two suits resulted in a merger of the causes of action.”
It was however contended that consolidated suits retain their separate identities, save for the purpose of joint trial. Each case must be considered separately and separate judgment delivered thereupon. See Accra Perfumery Co. Ltd. v. Alan Radlay Thomas 12 WACA 160 at 160.
It was further contended that the learned trial Judge failed to deliver judgment in respect of suit No. HOR/18/93. See Black’s Law Dictionary, 6th Edition at page 84, for the definition of judgment and Ovenseri & Anor. v. Ojos Osagiede & Anar (1998) 61 LRCN 4584 at 4594-4595; (1998) 11 NWLR (Pt. 572) 1. References were also made upon the exhibits especially’ A’, ‘F’ ‘G’ & ‘H’ to the effect, inter alia, that the finding of fact by the learned trial Judge was not supported by the leanings and evidence adducted by parties.
Thus, the learned counsel to the appellant contended that:-
“(c) Having regard to the forgoing it is submitted that the learned trial Judge approached the evidence before him and the whole trial in a most improper and unsatisfactory manner. The answer to issue No. 1 ought to be in the negative.”
Issue No.2, is said to be predicated on ground 3 of the grounds of appeal. The argument thereupon is contained at pages 28-30 of the appellants’ amended brief. Reference was made to argument canvassed under issue No.1 above showing that the record of appeal is replete with ‘shortcoming and transgressions’ in relation to the evidence adduced. It is contended that the learned trial Judge was not justified in failing to give judgment in favour of the appellants in suit No. HOR/18/93. This judgment thus ought not be allowed to stand. See Olufosoye’s case (supra); Lawal v. Dawodu & Anor (1972) 8-9 SC 83 at 114-117: Egonu & Ors. v. Egonu & 3 Ors. (1978) 11-12 SC 111 at 129; Fashanu v. Adekoya (1974) 6 SC 83 at 9: Ozibe & Ors. v. Aigbe & Ors. (1977) 7 SC 1 at 10-11, respectively. It is urged that issue No.2 be accordingly answered in the negative.
Issue No.3 is predicated on ground No.4 of the grounds of appeal. The argument thereupon covers pages 30-35 of the brief. It is alleged, inter alia, that the learned trial Judge did not only fail to appraise and evaluate the evidence before him but that he failed consider it at all:-
Because he saw the pledge issue as “a hoax and a mere figment of imagination. He therefore did not consider the evidence on the issue of pledge … As already argued pledge is the main claim of the appellants to have refused to consider it was unfair to the appellants and can not be justified.
The court is thus urged to answer issue No.3 in the negative.
Issue No.4 is distilled from ground 2 of the grounds of appeal. The argument thereon is contained at pages 35-42 of the brief. The main thrust of the appellants’ argument on this issue is centred on exhibit F i.e. the record of proceedings of the Arbitration Panel (pages 276-290 of the record of appeal) pleaded by the appellants in suit No. HOR/18/98. on the one hand and exhibit H i.e. the record of proceedings of the Arbitration Panel tendered by the respondent on the other. Of course. references were also made to exhibit G i.e. the survey plan No. DS 25762/1M304D/94.
It is contended that exhibit F relates to the dispute between the parties and therefore relevant and entitled some consideration. That, the learned trial Judge was under a duty to make a finding thereupon. Exhibit H, on the other hand, was allegedly not pleaded by the respondent and thus ought not to have been admitted and relied upon. See Pascutto v. Adecentro (Nig.) Ltd. (1997) 11 NWLR (Pt. 529) 467; 489 and 491; Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 172-173. That, exhibit F, contrary to the holding of the learned trial Judge, has all the attributes of an estoppel. See Raphael Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385 at 406. The court is thus, urged to answer issue No.4 in the negative.
Issue No. 5, is distilled from ground 7 of the grounds of appeal. The argument thereon is at pages 42-48 of the brief. It is contended, inter alia, that the totality of the evidence weighed in favour of the appellants. That exhibit F was in their favour and would have been enough to warrant the learned trial Judge to give judgment for the appellant on their claim in suit No.HOR/18/98 in question. That, the issue of pledge on the pleadings, evidence and the law ought to have been resolved in favour of the appellants. And that, exhibit A clearly shows the land in dispute belongs to the appellants. See section 46 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990; Idundun v. Okumagba (1976) 9-10 SC 227 at 246250; Uzochukwu & Ors. v. Eri (1997) 51 LRCN 1792 at 1805-1806; (1997) 7 NWLR (Pt. 514) 535. Thus, the court is urged to answer issue No.5 in the affirmative.
Last but not the least is issue No.6, which is predicated upon ground 8 of the grounds of appeal. The argument thereon is covered at pages 49-54 of the appellants’ brief. The main thrust of this issue is centred on exhibit H and vis-a-vis exhibit F. It contended that exhibit H has no probative value. That, the learned trial Judge was wrong in giving judgment in favour of the respondent. That, the respondent’s claim in suit No.HOR/59/94 ought to have been dismissed. The court is thus urged to resolve issue No.6 against the respondent.
On the other hand, the respondent, as alluded to above, has formulated two issues in the brief thereof. The first issue raises the question as to whether the trial court properly evaluated the evidence of the parties and made correct findings of fact thereon. Thus issue is predicated on grounds 1, 6 and 9 of the grounds of appeal. It is contended, inter alia, that a court is not bound by the issues raised in counsel’s address. It can modify those issues to enable it determine the real issue in controversy between the parties. That, the trial court exercised that right in the instant case. That, the learned trial Judge did give due consideration to the issues so raised and determined them according to the pleadings and credible evidence. That, he resolved the issues against the appellants and accordingly entered judgment in favour of the respondent “without tying it to any of the suit”. See pages 241, line 24 and 242, line 5 of the record. That, the learned trial Judge did, as a matter of fact comply, substantially with the principles land down in the case of Olufosoye v. Odofin’s case (supra).
It was further contended that the parties tendered evidence of conflicting traditional history joining issue on possession of the land in dispute. Thus, the learned trial Judge was right in considering the issue of possession. See Kojo v. Bonsie (1957) 1 WLR 1223 at 1226- B 1227 per Lord Denning, MR. That, the learned trial Judge considered the issue of pledge and came to the conclusion that since the appellants could not establish their family title over the land in dispute, their ancestor could not have pledged same out under the principle of “Nemo dat quod non habet.”
On the issue of consolidation of the two suits – (i) HOR/18/93; and (ii) HOR/59/94, a reference was made to Order 34 rule 6 (1) of the High Court (Civil Procedure) Rules, 1988 of Imo State which provides thus:-
“Actions pending in the High Court may be consolidated by order of the court or a Judge in chambers where it appears that the issue are the same in all the action and can therefore be properly tried and determined at one and, the same time.”
See also Diab Nasr v. Complete Home Enterprises Nig. Ltd. (1977) 5 SC 1 at 11. It was conceded that the learned trial Judge was in error when he delivered a single judgment in the two consolidated suits. However, it was argued that not every error of a trial court must result in the impeachment of the decision thereof. That, it must be shown that the error occasioned a miscarriage of justice. See Udeze & Ors v. Chidebe & Ors. (1990) 1NWLR (Pt. 125) 141. It was argued that the error in the instant case did not occasion a miscarriage of justice. The Court is thus urged to so hold.
On the issue of want of attention and perverse evaluation of evidence and findings of fact, it was contended that the judgment did not detract from the main issue. It was however conceded that the two exhibits were marked as exhibit “F” and that the Ezinkwo record of Arbitration proceedings was admitted and marked as exhibit “H”. However, it was contended that the fact (still) remains that the parties were not misled by the record even when the trial court mistakenly referred to the two exhibits as “H” and “G”. That, the mistakes are mere slips which do not in any way effect the decision of the trial court.
On the issue of failure by the trial court to call in aid the provisions of section 46 of the Evidence Act, it is argued that this argument is untenable, as the presumption therein is a rebuttable one. That, in the circumstances of the case, section 46 of the Evidence Act cannot operate in favour of the appellants. See Uzochukwu v. Eri (1997) 51 LRCN 1972 at 1809: (1997) 7 NWLR (Pt. 514) 535.
On the issue of exhibit “F” and vis-a-vis the principle of estoppel, it was contended that the learned trial Judge was right in ignoring the said exhibit on the ground that it neither created an estoppel nor has it any binding force to be or probative value. The court was thus urged to hold the learned trial Judge properly evaluated the evidence and made correct findings of fact in the consolidated cases. It’s also urged to answer issue No.1 in the affirmative and accordingly dismiss grounds 1 – 6 and 9 of the grounds of appeal.
The second issue raises the question as to whether the trial court was right in entering judgment for the respondent in the consolidated suits. This issue is distilled from grounds 4, 7 and 8 of the grounds of appeal. It was contended that the appellants’ pleadings and evidence that the land in dispute was on a pledge to the respondent is consistence with their admission that the respondent is in possession of the land in question. That, by the undisputed possession of the land in dispute by the respondent raises a rebuttable presumption of ownership thereof under section 146 of the Evidence Act in favour of the respondent. See also Da Costa v. Ikomi (1968) 1 All NLR 394 at 399.
It was contended that there were some contradictions inherent in the evidence of PW1 as manifested at pages 122, lines 20-21; 128, line 10-11; and 128, lines 13-15, respectively. That parties are bound by their pleadings and that evidence which is at variance with the averment in the pleadings goes to no issue. See Uzochukwu v. Eri (supra) at 1811-1812, Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 at 446; Odukwe v. Ogunbiyi (1998) 60LRCN 4001 at 4021; (1998) 8 NWLR (Pt.561) 339; Lordye v. Ihyambe (1993) 3 NWLR (Pt. 280) 197 at 205-206, respectively.
It was further argued that to prove a pledge under customary law as in the instant case, the party alleging must prove inter alia:
(i) the parties to the pledge;
(ii) the pledged sum;
(iii) putting the pledged property into the possession of the pledgee;
(iv) the mode of redemption; and
(v) the witnesses to the pledge.
See Adjei v. Dabanka (1930) 1 WACA 63; Onyekwere v. Ezenwankwo (1977) 5 FCA 89 at 95; Akuchie v. Nwamadi (1992) 9 NWLR (Pt. 258) 214 at 226; Onyemaechi v. Nwaohamuo (1992) 9 NWLR (Pt.265) 372, respectively.
It was thus contended that in the absence of any evidence to establish the alleged pledge, the trial court was justified in treating same as “a hoax and mere figment of imagination”. That, the appellants having failed to discharge the burden cast upon them by section 146 of the Evidence Act (supra), the respondent was entitled to judgment. See Ezeudu & Ors. v. Obiagwu (1986) 2 NWLR (Pt.21) 208.
It was however, conceded that:
‘The lower court erred on the side of caution when it considered the traditional evidence and act of ownership and proved by the respondent and my view, that the respondent is the owner in possession of the land in dispute.”
On the whole, it was contended that the trial court was right in entering judgment for the respondent in the consolidated suits. The court is urged to answer issue two in the affirmative, dismiss grounds 4, 7 and 8, as well as the appeal in its entirety.
I have amply considered the nature and circumstances surrounding the appeal, the submissions of the learned counsel in the respective briefs of argument thereof, various authorities referred to therein, as well as the entirety of the record of appeal. It is a trite principle of law that issues formulated for determination either by the parties themselves or even by the court (in very exceptional cases) ought to be distilled from the grounds of appeal filed by the appellant. Thus, where an argument canvassed in an issue does not relate to any ground of appeal, such an argument goes to no issue and ought to be discountenanced. See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 110 paras. G-H and 111 paras. A-B; Anaedobe v. Ofodile (2001) FWLR (Pt. 45) 718 at 722 para. E-G; (2001) 5 NWLR (Pt.706) 365; Godwin v. C.A.C. (1998) 14 NWLR (Pt.584) 162.
Having accorded an ample consideration upon the briefs of argument of the parties and vis-a-vis the record of appeal as a whole, I have deemed it expedient to formulate the following issues for determination:
- Whether the learned trial Judge properly evaluated the evidence of the parties and made correct findings of fact upon the two consolidated suits: HOR/18/98 & HOR/59/94.
- Whether on the pleadings and evidence of the parties before the trial court, the appellants were entitled to judgment in the claim thereof in suit No. HOR/18/93.
- Whether on the pleadings and evidence before the trial court the learned trial Judge was right in giving judgment in favour of the respondent in respect of the claim thereof in suit No. HOR/59/94.
It is pertinent to reiterate that the issues formulated by the appellants are somewhat cumbersome. It may be reiterated that the rules of this court require that a brief of argument so filed by a party shall –
(a) Be a succinct statement of the argument thereof in the appeal
(b) Contain issues arising in the appeal.
See Dibiamiaka v. Osakwe (supra) at 110 paras. G-H; and 111 paras. A-B.
On Issue No.1:
This issue is distilled from grounds 1 – 6 and 9 of the grounds of appeal. Thus, the appellant’s issues 1-4 and the respondents issue No.1 are subsumed in this first issue. It may be recapitulated at this stage that the appellants’ claim in their suit No.HOR/18/93 is regarding a declaration of right of occupancy in respect of Ala Azu Okwo Ogwugwu Ezinkwo declaration on the basis that the said land was on a pledge to the respondent’s family and an order compelling the respondent to accept N2,000.00 as the redemption fee thereof.
On the other hand, the respondent’s claim in the suit No. HOR/59/94 was for a declaration of statutory right of occupancy over Ala Ama Umuroha and N2,000.00 damages for trespass and perpetual injunction. As alluded to above, the two suits were eventually consolidated. The parties filed and exchanged pleadings; adduced oral and documentary evidence. The two learned counsel filed and exchanged written addresses which they eventually adopted. The learned trial Judge in a considered judgment modified the issues formulated by the parties in their respective briefs and accordingly entered judgment in favour of the respondent without tying it specifically to any of the two suits in question. See pages 241 and 242 of the record.
The appellants have alleged in the brief thereof, as alluded to above, that the learned trial Judge failed to comply with the principles laid down in Olufosoye & Ors v. Olorunfemi & Ors. (supra) and Mogaji & Ors. v. Odofin & Ors. (supra). Instances of lack of perception, inattention and resultant in accuracy, perverse evaluation and findings of facts were give at pages 16-28 of the appellants’ brief.
It is trite that fairness of a trial is usually tested by the observance of the maxim: audi alteram partem. Every party must be accorded an opportunity of being heard. The aim of pleadings is therefore to give notice of the case to be met, so that the other party can adequately prepare his evidence and arguments upon the issues raised in the pleadings. It saves either party from being taken by surprise. See George v. Dominion Flour Mills Ltd. (1965) 1 All NLR 71; Emegokwue v. Okadigbo (1973) 4 SC 113; Bunge v. Gov. of Rivers State (2006) 12 NWLR (Pt. 995) 573 at 598-599 paragraphs H-B.
From the written address of the respondent (pages 192-200 of the record) and that of the appellants (pages 201-224 of the record), its rather evident that each party had therein formulated three divergent issues for determination by the trial court. The learned trial Judge however, at page 230 of the record, deemed it expedient to formulate only two issues for determination thus:
‘(i) Of the two party, who proved to own the land in dispute.
(ii) Was there the customary Ilulu Aturu transaction between the ancestors, of the parties.”
Contrary to the contention of the appellants, I do not see any thing wrong or in appropriate in the formulation of the two issues alluded to above. It is rather evident that the leaned trial Judge had tried to substantially cover (in the two issues in question) all the issues or points raised by the parties in their respective briefs. In the present circumstances, the learned trial Judge had the discretionary power to either adopt or modify the issues formulated by the parties.
I hold that the learned trial Judge had rightly exercised the discretionary power thereof in modifying the issues formulated by the parties in the respective briefs. See Dibiamaka v. Osakwe (supra) 110 at 111 paras. A-B; Guda v. Kitta (1991) 12NWLR (Pt. 629) 21.
I am unable to concede to the contention of the learned counsel to the appellants that the learned trial Judge has shown lack of perception and attention during the trial. I am also unable to appreciate, let alone accept, the view that his evaluation of evidence and findings of facts therein were perverse. It is appellants’ contention that the learnt trial Judge for instance, did not appreciate the fact that:
“Issue was joined on whether the respondent (defendant in the court below) was in possession of land in dispute by reason of a pledge between the ancestors of the respondent or otherwise.
The appellant did not sue in trespass and so possession was not the issue.” (See page 16 of the appellants brief).
However, contrary to the erroneous assertion of the appellants, it is rather obvious that issues have, as a mater of fact, been joined on the question of possession, pledge and trespass. See the pleadings of the parties contained in the (especially paragraphs 26, 28 and 35 and reliefs (b) and (c) and the joint amended of the respondent in suit No. HOR/59/94, in particular are to the effect, inter alia, thus:
“36. WHEREFORE: The plaintiff clams against the defendants jointly and severally as follows:
(a) …
(b) N200.00 general damages for trespass.
(c) Perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from committing any further trespass on the said land or disturbing plaintiffs right of occupancy over same.”
On the other hand, by paragraph 25 of their joint statement of defence, the appellants averred thus:
“25. The defendants deny that the plaintiff is entitled to any of the reliefs sought in paragraph 36 of the statement of claim …”
Evidence had been led on the above and other issues. So issues have been joined by the panics on the vexed question of trespass and vis-a-vis possession. The contention of the appellants to the contrary is thus no doubt preposterous. See Kojo v. Bonsie (supra) at 1226-1227.
On the issue of pledge:
The issue was raised in issue No.3 of the appellants’ brief.
According to the appellants:
“4.03: 1. The main claim put forward in suit No. HOR/18/93, by the appellants is for the redemption of the land in dispute…
Pledge was pleaded by the appellants in suit No.HOR/18/93 and was delivered by the respondent. So issue was joined on this…
…In the instant case … the learned trial Judge not only failed to appraise and evaluate the evidence before him. He failed to consider it all because he saw the pledge issue as ‘a hoax and a mere figment of imagination’.
He therefore did not consider the evidence on the issue of pledge.”
The learned trial Judge at pages 238 and 239 of the record came to the conclusion, inter alia, thus:
In the final analysis, this court finds as a fact that the plaintiffs have failed to establish their title to the land in dispute.
They therefore are not in possession. The next issue calling for determination is if there was an (Ilulu Aturu) transaction between Oledibe Umujiure and Okam Nwabu for which the land was pledged. It is the considered view of this court, that if the plaintiffs can not establish their family title to the land in dispute, their ancestor Okam Nwabu could not in law have pledged the land to the family of the defendants for any reason. A man has not possession of that, the origin of which he can not prove. He can not give what he had not. The pledge story is a hoax and mere figment of imagination.
It was the contention of the learned counsel to the respondent that the learned trial Judge had found that prior to the dispute, the respondent and before him is ancestor had been in possession of the land in dispute for as long as fifty to sixty years. That, the appellants having failed to discharge the burden cast upon them by section 146 of the Evidence Act i.e. to prove a better title and pledge upon the land in dispute, the respondent was, without more entitled to judgment. See Ezeudu & Ors. v. Obiagwu (1986) 2 NWLR (Pt. 21) 208. I think, I cannot agree more with that submission. It is a well established principle of law that, to prove the allegation of a pledge (of a land) under customary law as in the present case, the party alleging must prove, that the pledge took place in the presence of witnesses; the parties to the pledge; the pledge sum; putting the pledgee into possession; and the mode of redemption of the pledged property. See Akuchie v. Nwamadi (1992) 8 NWLR (Pt. 257) 214 at 226; Onyekwere v. Ezenwankwo (1977) 5 FCA 89-95; Onyemaechi v. Nwaohamuo (1992) 9 NWLR (Pt. 265) 372; Adjei v. Dabanka (1930) 1WACA 63.
It is pertinent to allude to the provisions of section 146 of the Evidence Act which are to the following effect-
“146. When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” See also Da Costa v. Ikomi (1968) 1 All NLR 394 at 399 per Lewis, JSC thus:
“Possession may under S. 145 of the Evidence Act (now S.146 as amended) give a presumption of ownership … but it does not do more and can not stand when another proves a good title.”
Thus, the appellants having failed to prove the allegation of pledge and vis-a-vis possession of the disputed land, I am of the view that the learned trial Judge was light in coming to the conclusion that:
“In the final analysis, this court find as fact, that the plaintiffs’ (appellants) have failed to establish their title to the land in dispute.”
I am satisfied that, in view of the painstaking analysis of the evidence and finding of facts by the learned trial Judge alluded to above, the appellants’ allegation that the learned trial Judge did not appreciate the issues before him, especially regarding the pledge in question, is most undoubtedly preposterous. It is evident from the record that the appellants simply have failed to discharge onus placed there upon under section 146 of the Evidence Act.
On the issue of Exhibit ‘F’ and vis-a-vis Exhibit ‘H’:
It is instructive that both exhibits ‘F’ and ‘H’ were each tendered by the appellants as the consequences of the arbitrations by the two respective parties. The finding of the arbitration in exhibit ‘F’ is to the effect that the appellants were the owners of the land in dispute and that the respondent should thus accept N2,000.00 (as redemption) for the “Ilulu Aturu” transaction or alternatively give an oath to the appellants to swear and take back their land. See pages 143 lines 17-27 of the record regarding the evidence of the PW3, Nze Joseph Duruekpu, who claimed to be one of the arbitrators, and 289, lines 3-1. The PW3 however admitted at page 143 paras. 14-22 of the record thus:-
The defendant denied that there was (Ilulu Aturu) transaction between his father and the father of the plaintiffs. It is not true that the defendant did not accept our decision. In exhibit F we decided in the alternative that the defendant should give oath to the plaintiffs. It was after a year that I heard that the defendant rejected the N2,000.00 we decide he should be given. The plaintiff has not taken any oath for the defendant.
Contrariwise, in exhibit ‘H’ the arbitrators awarded the land in dispute to the respondent and commended that the respondent should lake oath for the appellants. See pages 293-294 of the record. As it would from the record, exhibit ‘F’ was dated 13/02/93. while exhibit ‘H’ was dated 15/12/92 respectively. See pages 290. lines 13-15 and 291, line 9 of the record. It is rather obvious from the record that exhibit ‘H’ was first in time. It is also in record that during address, both counsel had contended in the trial court that both exhibits ‘F’ and ‘H’ were inconclusive and none of them could thus create estoppel.
The appellants have alleged that the learned trial Judge ignored exhibit ‘F’ because it was not capable of operating as an estoppel. However, it was the contention of the appellants that exhibit ‘F’ had all the attributes of an estoppel. See Raphael Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; 406. The court is thus urged to hold that exhibit ‘F’ is capable of operating as estoppel. I have deemed it expedient to reiterate that a customary (native) arbitration panel is not, strictly speaking, a court with judicial powers as envisaged under section 6 of the Constitution of the Federal Republic of Nigeria, 1999. However, it is a fundamental principle of law that a decision of such a customary arbitration panel, if accepted by the parties concerned, can create an estoppel by way of res judicata. See Chief Kweku Assampong v. Kwekwu Amuaku & Ors. (1932) 1 WACA 192; Ezulumeri Ghaeri & Anor v. Adinnu Akabeze & Ors. (1992) 7 LRCN (Pt. 163) and Akpan v. Gtong (1996) 44 LRCN (44) 2169: (1996) 10 NWLR (Pt. 476) 108; Agu v. Ikewibe (1991) 3 LRCN 686; (1991) 3 NWLR (Pt. 180) 385; respectively.
As alluded to above, exhibit ‘H’ was first in time. Thus, it was rather preposterous for the appellants to have resorted to the second arbitration which allegedly resulted in exhibit ‘F’. Both exhibits ‘F’ and ‘H’ were inconclusive and thus could not in law operate as an estoppel per rem judicata. Thus, the learned trial Judge was right in discountenancing the said exhibit ‘F’ on the ground that it neither created an estoppel nor has it got any binding force to be of probative value.
In view of the above postulations therefore, my answer to issue No. 1 is no doubt in the affirmative. And I so hold. Issue No.2:
This issue is distilled from ground 7 of the grounds of appeal. The issue raises the question as to whether on the pleadings and evidence of all parties before the trial court, the appellants were entitled to judgment as per the claim thereof in suit No. HOR/18/93. It is the contention of the appellants that:-
“4.05:3. The totality of the evidence weighed in favour of the appellants exhibit “F” was in their favour and without much would have been enough to give the appellants judgment on their claim in suit No. HOR/18/93.”
However, the contention of the respondent was that the learned trial Judge properly evaluated the evidence and made correct findings of fact thereon. I think I cannot agree more with that contention. It’s pertinent to reiterate that the issue regarding exhibit ‘F’ has been painstakingly adumbrated upon under issue No.1 above. There is no doubt that the learned trial Judge has extensively if not exhaustively, determined the issue of whether or not the appellants have proved their case against the respondent. It was the finding of the learned trial Judge, at pages 238 of the record, that:-
“In the final analysis, this court find as a fact, that the plaintiffs have failed to establish their title to the land in dispute.”
While at pages 240 and 241 of the record, the learned trial Judge again held thus:-
“This court has noted the evidence of the 3rd PW regarding the Ilulu Aturu custom. It is very unfortunate to state that his evidence on this issue contradicted the evidence of the 1st PW. It is either he is deliberately lying or unable to recite what he was told to say in court. It could equally mean that the Ilulu Aturu transaction did not take place as this court earlier expressed.”
It is not in doubt that the above findings of the learned trial Judge at pages 238 and 240 of the record were regarding cross-action in suit No. HOR/18/93 filed by the appellants against the respondent. It is rather obvious that the appellants having failed to prove their claim, they were not entitled to judgment in their favour in respect of the claim thereof in suit No. HOR/18/93.
However, the above finding notwithstanding, there is every reason to believe that the learned trial Judge was obviously in error when he failed to specifically dismiss the appellants’ claim in the suit No. HOR/18/93 in question.
It may be pertinent at this stage to explore the nature, rules and practice governing consolidation of cases in the Nigerian judicial system. Consolidation of cases is no doubt a veritable and indispensable element in rules of procedure in the Nigerian judicial system. The term ‘consolidation’, as a noun, has been defined as:-
“The court ordered unification of two or actions involving the same patties and issues, into a single action resulting in a single judgment of sometime, in separate judgments.”
See Black’s Law Dictionary, 7th Edition, 1999 at page 304.
Thus, the term ‘consolidation of actions’ may simply be defined as a process whereby two or more actions pending in the same Court are by order of Court joined and tried at the same time. The actions even tough separate and distinct, are nonetheless tried simultaneously in the same proceeding. Essentially, it’s a joinder of two or more actions for trial in a single proceeding. See Civil Procedure in Nigeria 1990 by Fidelis Nwadialo, SAN, at page 485 A. See also Order 34 rule (1) of the High Court (Civil Procedure) Rules, 1988 of Imo State, as amended thus:
“6(1) Actions in the High court may be consolidated by order of the court or a Judge in chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time.”
One general and fundamental principle of consolidation of action is that although the actions consolidate are tried and determined together in the same proceeding, each remains a separate and distinct action and a separate judgment given thereto at the end of the joint or common trial. Thus, the distinctiveness of the actions so consolidated does not render the evidence tendered in one suit ipso facto an evidence in the other. See Dugbo & Ors. v. Kporoaro & Ors. (1958) WRNLR 73.
The main objective of consolidating actions is to save time and costs. See the Supreme Court decision in Diab Nasr v. Complete Home Enterprises (Nig.) Lid. (1977) 5 SC 1 at 11; Lediju v. Odulaja (1943) 17 NLR 15; (1959) WLR 190.
As alluded to above, it is trite that where actions or suits are consolidated, each retains its separate and distinct existence nonetheless. Thus, at the conclusion of the common or joint proceedings, a separate judgment should be given in respect of each suit or action. The trial court should not therefore determine one suit and ignore the other. This basic principle forms the bedrock of the decision of the Supreme Court in Diab Nasr’s case (supra). In that case, the trial court ordered for the consolidation of two suits, one a petition for winding up a company, and the second. An Originating summons proceedings relating to the same company. In the course of the healing of the (two) consolidated suits, a motion was filed in the petition for the winding up of the company. In consequence of which the learned trial Judge struck out the petition but however leaving the originating summons untried. Not surprisingly, the Supreme Court held inter alia, on appeal that the learned trial Judge was wrong when he prematurely struck out the petition. That, there ought to have been a determination on the merit in the two consolidated suits after issues should have been properly joined. That, once two cases are consolidated, it behoves upon the trial court to determine them as a single matter at one hearing.
In another Supreme Court’s decision in Attah & Ors. v. Nnacho & Ors. (1965) NMLR 28, two suits were consolidated by the trial court. However, in one of the consolidated suits, pleadings had not yet been completed when hearing therein commenced. At the healing, the appellants neither asked for a stay of proceeding to enable them file their statement therein, nor for judgment in default of pleading. Nonetheless, the appellant took part throughout the entire hearing. At the conclusion of the proceedings, the trial Judge gave judgment against the appellants in the first suit but said nothing about the second suit in which pleadings were uncompleted.
On appeal, the Supreme Court held inter alia, per Idigbe J.S.C at 30-31 thus:-
“As already observed, the parties in this appeal took every active part through out the trial without raising any objection, and it is our view that it can not in those circumstances be seriously argued that miscarriage of justice occurred, or that the procedure adopted by the learned trial Judge was in error of law.”
In the instant case, it’s not in doubt, unlike in Diab Nasr’s case (supra), that the learned trial Judge has painstakingly considered the pleadings and viva voce evidence of the parties in the two consolidated suits – HOR/18/93 and HOR/59/94 in question. He has determined the issues therein and made specific and distinct findings on the two consolidate suits in question. The findings of the learned trial Judge as allude to above on suit No. HOR/18/93 could be found at pages 238 lines 20-23 and 241, lines 3-6 of the record thus:-
In the final analysis, this court finds as a fact, that the plaintiffs (appellants) have failed to establish their title to the land in dispute. They therefore are not in possession.
On the findings of this court above, there is no difficulty at coming to the conclusion that the plaintiffs have not proved that the defendants (respondent) trespassed into the land in dispute. (Brackets mine for an emphasis).
Thus, having made the above findings, it is most inevitable that the resultant fate of the appellants suit No. HOR/8/98 ought to have been that of dismissal. The learned trial Judge was thus in error when he failed to specifically pronounce for the dismissal of the said suit.
However, the above postulation notwithstanding, it is a fundamental principle that it is not every error committed by a court in the course of trial of a proceeding that necessarily results in the setting aside or impeachment of the decision thereof. It must be shown, for the avoidance of doubt, that such an error has occasioned a miscarriage of justice. See Udeze & Ors. v. Chidebe & Ors. (1990) 1 NWLR (Pt.125) 141.
In the present case, I have amply, albeit most critically, considered the fact that the learned trial Judge has analysed the pleadings and painstakingly evaluated the evidence adduced by the parties in the two consolidated suits and came to the conclusion, rightly in my view, that the appellants have failed to prove their case against the respondent.
Thus, what remained to have been done by the learned trial Judge was simply to have a formal pronouncement of declaration dismissing the appellants’ suit in question. It may be reiterated at this stage that the general principle enunciated in Akra Perfumery Co. Ltd. v. Alan Radlay Thomas (supra) cited and relied upon by the appellants is no doubt still a good law. However, its trite that each case must be decided on is own merit.
See Attah v. Nnacho (1965) NMLR 28.
In the instant case, it is rather obvious that the learned trial Judge appreciated the fact that he was dealing with consolidated suits critically, albeit dispassionately received the pleadings of the parties and evaluated the evidenced adduced before him and made findings, rightly in my view there upon. Hence, there is every reason to make me hold that the failure of the learned trial Judge to deliver a separate judgment in the two consolidated suits has not in any way occasioned a miscarriage of justice.
Thus, in the light of the above reasoning, my answer to issue No.2 is most undoubtedly in the negative. And I so hold.
On the Issue No.3:
This issue is predicated on ground 8 of the grounds of appeal. It raises the question of whether on the pleadings and evidence before the trial court, the learned trial Judge was right in passing judgment in favour of the respondent in respect of the claim thereof in suit No.HOR/59/94.
There is no doubt that having answer issue No.2 above in the negative; the answer to the issue No.3 is most undoubtedly in the affirmative. In the course of determining the 1st and 2nd issues above, have alluded to various instances in which the learned trial Judge painstakingly reviewed and evaluated pleadings and evidence adduced by both parties and made findings there upon. I have no doubt in my mind that in view of the nature and circumstances surrounding the two consolidated suits in question, the learned trial Judge was right in his findings that the appellant have failed to prove their case and that the respondent had proved his case. It was the finding of the trial court at page 238 of the record that:-
“On careful appraisal of the pleading and evidence of the plaintiffs on this issue this court is not satisfied that the plaintiffs have proved their acts of possession reason given earlier in this judgment. The court rather accepts the version of the evidence of the defendants that they were in absolute possession until the plaintiffs began to lay claim over the land now in dispute.”
It was also the finding of the trial court at page 241 of the record that:
“In paragraphs 22 and 24 of the statement of claim of the plaintiffs and in their evidence in court, they admitted having entered into the land in dispute in 1990 and 1992 and at other diverse occasions to farm on the land and harvest economic tress. In suit No. HOR/59/94, the defendant in paragraph 36(1) of their statement of claim, claimed N200.00 general damages for trespass. The defendants gave evidence in support of their claim of trespass against the plaintiffs. This court accepts the evidence and find as a fact that the defendants are the owners in possession of the land in dispute.”
It is trite principle that where a plaintiff fails to prove title to the land in dispute, as in the instant case, the defendant’s possession raises in the circumstance a presumption which the plaintiffs can not rebut. Thus, simply put, an act of possession may be a sufficient presumption of ownership. However, the presumption ceases once a good and better title is duly proved. See Da Costa v. Ikomi (1968) NMLR 294; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101 at 112 -113: (1972) 2 SC 1; Akuchie v. Nwamadi (1992) NWLR (Pt.257) 214 at 227 paragraphs C-D.
I am of the considered view that the learned trial Judge has properly reviewed and evaluated the pleadings and evidence adduced by the parties before him and made appropriate findings thereupon. And it is a well settled principle of law that findings that are predicated on credible evidence will not be disturbed, unless in very extreme exceptional circumstances. Such exceptional circumstances are cases in which the findings are shown to be wrong, perverse and not supported by evidence. See Newbreed Organisation Ltd. v. Erhomosele (2006) 1JNSC 1 at 36 paragraphs E-G; (2006) 5 NWLR (pt. 974) 499: Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1; Nkado v. Obiano (1997) 5 NWLR (Pt. 503) 31; Lawal v. Dawodu (1972) 1 All NLR 270; Patrick Ogbu Ors. v. Fidelis Ani (1994) 7 NWLR (Pt.355) 128; and Coker v. Oguntola (1985) 2 NWLR (Pt.5) 87, respectively.
In the instant case, the relief sought by the appellants, as contained at page 298 of the record, is to the following effect:
“4. Relief sought:
To set aside the judgment, enter judgment in favour of the appellants, and to dismiss the cross action of the respondent in suit No. HOR/59/94 in the court below.”
In view of the above, its an after thought for the appellants learned counsel to allege, as he did, that the procedure adopted by the learned trial Judge was null and void, and at the same time urge on this court to give, judgment in favour thereof. It’s trite that he who comes to equity must do equity. It is so obvious that the learned trial Judge was right in entering judgment in favour of the respondent in suit No.HOR/59/94 against the appellants. My answer to issue No.3, is thus most inevitably in the affirmative. And I so hold.
Hence, in the light of the above postulations and vis-a-vis the circumstances surrounding the case as a whole, I have no hesitation whatsoever in coming to the most inevitable conclusion that the instant appeal lacks any substantial merit and it ought to thus be dismissed.
Consequently, the appeal is hereby dismissed by me. The claim of the appellants in suit No. HOR/18/93 is hereby dismissed. The decision of the trial court entering judgment in favour of the respondent regarding suit No.HOR/59/94 is accordingly hereby affirmed.
I make no order as to costs.
Other Citations: (2007)LCN/2600(CA)
