Chief Okirinta Ugbala & Ors V. Awo Okorie & Ors (1975)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
In Suit No. HOW/73/71 commenced in the High Court of the East Central State sitting at Owerri, the plaintiffs, now appellants, claimed against the defendants, now respondents, jointly, severally, and in alternative, declaration of title to a piece of land called “Okwunta” which is situated at Ocham Na Dibia, Okporo, within the Owerri Judicial Division. They also asked for an injunction restraining the defendants, their servants and agents from further acts of trespass in the said land.
Pleadings were ordered and were duly delivered. At the hearing, the plaintiffs called fourteen witnesses to testify in support of the averments in their pleadings while the defendants called five witnesses. One of the witnesses called by the plaintiffs is Chief Okirinta Ugbala, the first plaintiff. He gave evidence as the fourteenth plaintiff’s witness and testified that the land in dispute is owned by his family.
He said the land is not in Okwunta land and that they never claimed that Okwunta land is on their own land. Under cross-examination, he admitted that he was one of the plaintiffs in a case which they brought against the defendants in the Magistrate’s Court and that he gave evidence in that case about three and a half years before the date of the present proceedings. He was cross-examined at length about what he said in his evidence in that case. Because of the complaint of the plaintiff in the appeal now before us about the use which the learned trial Judge made of his answers to these questions, we think it is desirable to reproduce the question and answers. They are as follows:
“PUT: The place you now call Okwunta was referred to by you as Okwu Okporo when you said before the magistrate that the St. Paul’s School, Agwusi Juju and Nnajiuba’s compound are in Okwu Okporo land for which the defendants do not pay rent.
ANS: If I said so it will only mean that I did not advert my mind to the point. I did not say so. Okwu is farmland and not the ancestral settlement.
PUT: Did you not tell the magistrate that Okwu means ancestral home and also as follows:-
‘There is Okwu Okporo, Okwu Ududu. These villages in their ancestral homes. The Okwu Okporo people live on the land in dispute’
ANS: I cannot recollect if, I did so. The ruins of the houses of defendants’ ancestors can be found on the land today. There is Nkoro when one goes from the land in dispute to our village. It is not the boundary between us and Okwu Okporo.
PUT: You told the magistrate that the Nkoro formed the boundary between you and the defendants
ANS: The Nkoro I meant in my evidence is the one between us and Ududu people and did not refer to any Nkoro as boundary between us and the defendants.”
The notes of the learned trial Judge after this cross-examination reads:-
“Evidence of the witness before the magistrate now sought to be tendered but only in regard to the points contradicting him now. No objection, tendered admitted and marked Exhibit D.” (The underlining is ours.)
After reviewing in detail the evidence adduced by both parties, the learned trial Judge observed as follows:-
“It is clear that the plaintiffs’ evidence of traditional history in its character and substance seems to beg the issue and carried little or no weight. There is nothing in the traditional history to show how the plaintiffs came to own the land in dispute, whether they acquired it as original settlers or founders, or by conquest or grant or purchase. The ownership was related to how they granted portions of the land in dispute or the whole of it to the defendants’ forbears. This is not traditional history of their title to the land and I will treat it as non-existent in this case and the plaintiffs will be left with the evidence of user.”
The learned trial Judge then considered the plaintiffs’ evidence of user and observed further as follows:-
“There is ample evidence of acts of ownership adduced by the plaintiffs which if accepted will in my opinion support the declaration of title which they seek. This consists of the occupation by their ancestors who built houses on it and lived there until they left the area and went back to their village homes when the latter became depopulated several years ago; there is also the grant of the land to the defendants’ ancestors who paid rent and tribute to them; added to this is the enjoyment of the economic fruits on the land as also the exercise of farming right. That constitutes plaintiffs’ evidence of user.”
The learned trial Judge then reviewed the defendants’ evidence in this respect as follows:-
“Against this evidence is that of the defendants which refute the plaintiffs’ assertions and make similar claims to the effect that they own the land in dispute as their ancient settlement where they have made their homes from the time of their ancestors and that they farm the land and enjoy the economic fruits in their own rights as owners.”
After stating that he was more impressed by the defendants’ case which he then proceeded to summarise in detail, the learned trial Judge observed:-
“It is curious that all the houses on the land belong to the defendants and not one of the plaintiffs’ people was interested in living on this land.”
He rejected the plaintiffs’ explanation that they left the land in dispute in order to increase the population of their own depopulated homestead. He observed that the defendants’ houses on the land in dispute were all erected with the knowledge of the plaintiffs but without any reference to them and that the plaintiffs neither disturbed them nor questioned them about the houses. He then dismissed the plaintiffs’ claim in its entirety after stating that –
“This attitude by the plaintiffs cannot be consistent with ownership of the area concerned being in plaintiffs’ people.”
Before he finally disposed of the case, the leaned trial Judge referred to the cross-examination of Chief Okirinta Ugbala (the first plaintiff) with respect to the testimony which he gave in an earlier case in the Magistrate’s Court. He gave his impression of the first plaintiff on this point as follows:-
“The 1st plaintiff was at great pains to wriggle from the commitments he made in Exhibit D during his After reviewing in detail the evidence adduced by both parties, the learned trial Judge observed as follows:-
“It is clear that the plaintiffs’ evidence of traditional history in its character and substance seems to beg the issue and carried little or no weight. There is nothing in the traditional history to show how the plaintiffs came to own the land in dispute, whether they acquired it as original settlers or founders, or by conquest or grant or purchase. The ownership was related to how they granted portions of the land in dispute or the whole of it to the defendants’ forbears. This is not traditional history of their title to the land and I will treat it as non-existent in this case and the plaintiffs will be left with the evidence of user.”
The learned trial Judge then considered the plaintiffs’ evidence of user and observed further as follows:-
“There is ample evidence of acts of ownership adduced by the plaintiffs which if accepted will in my opinion support the declaration of title which they seek. This consists of the occupation by their ancestors who built houses on it and lived there until they left the area and went back to their village homes when the latter became depopulated several years ago; there is also the grant of the land to the defendants’ ancestors who paid rent and tribute to them; added to this is the enjoyment of the economic fruits on the land as also the exercise of farming right. That constitutes plaintiffs’ evidence of user.”
The learned trial Judge then reviewed the defendants’ evidence in this respect as follows:-
“Against this evidence is that of the defendants which refute the plaintiffs’ assertions and make similar claims to the effect that they own the land in dispute as their ancient settlement where they have made their homes from the time of their ancestors and that they farm the land and enjoy the economic fruits in their own rights as owners.”
After stating that he was more impressed by the defendants’ case which he then proceeded to summarise in detail, the learned trial Judge observed:-
“It is curious that all the houses on the land belong to the defendants and not one of the plaintiffs’ people was interested in living on this land.”
He rejected the plaintiffs’ explanation that they left the land in dispute in order to increase the population of their own depopulated homestead. He observed that the defendants’ houses on the land in dispute were all erected with the knowledge of the plaintiffs but without any reference to them and that the plaintiffs neither disturbed them nor questioned them about the houses. He then dismissed the plaintiffs’ claim in its entirety after stating that –
“This attitude by the plaintiffs cannot be consistent with ownership of the area concerned being in plaintiffs’ people.”
Before he finally disposed of the case, the leaned trial Judge referred to the cross-examination of Chief Okirinta Ugbala (the first plaintiff) with respect to the testimony which he gave in an earlier case in the Magistrate’s Court. He gave his impression of the first plaintiff on this point as follows:-
“The 1st plaintiff was at great pains to wriggle from the commitments he made in Exhibit D during his Magistrate’s Court of Biafra holden at Orlu.” It is our view, however, that as none of the twelve states in the Federation of Nigeria bears the name of “Biafra”, the “Chief Magistrate’s Court of Biafra” could not have been legally in existence in 1969 in the East-Central State where Orlu (the venue of the trial) is located. Indeed, learned counsel for the defendants/respondents conceded that there is no Magistrate’s Court known as the “Magistrate’s Court of Biafra’. Therefore, the “Chief Magistrate’s Court of Biafra” is clearly an illegal court and that being the case, all the proceedings of the court, including the proceedings in Exhibit D, are null and void. It also follows that the evidence given by the 1st plaintiff in those proceedings are also null and void and should not have been used to discredit him as had been done in the case in hand.
Learned counsel for the defendants/respondents, in the course of his reply, referred us to the provisions of Section 198 of the Evidence Law of the East-Central State (Cap. 49) which read –
“198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parties of it which are to be used for the purpose of contradicting him.”
For this section to be applicable, the written statement, in our view, must have been reduced into writing in the manner provided by law or by a person or tribunal legally empowered to reduce it into writing. In the case in hand, the “Chief Magistrate’s Court of Biafra”, where the statement was recorded, never existed in law and its proceedings, as we have said before, are null and void. So also is the evidence reduced into writing in that court. In effect, there was no statement reduced into writing in respect of which the 1st plaintiff could have been cross-examined. In any case, it is doubtful whether the Evidence Law which, in view of section 1(2) thereof, only applies to “judicial proceedings in or before any court established in the East Central State”, can be invoked in respect of a non-existent court. For all these reasons, we do not think that learned counsel for the defendants/respondents can rely on Section 198 of the Evidence Law.
Be that as it may, what really matters in this appeal is whether, if the evidence given by the 1st plaintiff under cross-examination is expunged from the record of the present case, and we think it should be expunged, the learned trial Judge would still have come to the same conclusion. As we have pointed out earlier, the learned trial Judge, after considering the totality of the evidence adduced before him, not only rejected the evidence of the 1st plaintiff, but he also found –
“that the plaintiffs’ evidence of traditional history in its character and substance seems to beg the issue and carried little or no weight.”
With respect to the acts of ownership which the plaintiffs/appellants said they performed on the land, the learned trial judge found as follows:-
“I therefore do not believe that the plaintiffs granted any portion of the land in dispute to any of the defendants or their forbears for habitation or for any other purpose whatever. I am equally of the opinion that the plaintiffs’ people never lived on any portion of the land in dispute and never farmed on it or made use of the economic trees. I hold that the plaintiffs’ claim in this respect is false and that the evidence of the three principal witnesses namely P.W.1, P.W.3 and P.W.14 including that of their boundary witnesses is nothing but patent falsehood.” (The underlining is ours).
As we stated earlier, the plaintiffs/appellants, at the hearing in the court below, called fourteen witnesses including the 1st plaintiff who testified as the 14th P1/W. The defendants/respondents called only five witnesses. The learned trial Judge rejected the evidence of the plaintiffs/appellants’ witnesses in toto and found thereafter as follows:-
“I am by far more impressed by the defendants’ case which is quite short and precise…
I am satisfied on the evidence that the defendants’ forbears settled in this land many years ago without anybody’s permission but in their own right as owners of the land regardless of whether it was farmland or original settlement. That is irrelevant. The defendants have succeeded them and have continued to live there and to enjoy the land exclusively by farming it an d enjoying the economic fruits.
…
The defendants’ evidence of user is so numerous and positive and sufficiently long to warrant a declaration of title to the land in their favour if they had claimed for it.”
Generally, the mere admission of incompetent evidence, not essential to the result, is not a ground for allowing an appeal. The dominant question, we think, is the broad one of whether substantial justice had been done. In the case in hand, the question is whether, looking at the proceedings as a whole, and taking into account what has properly been proved, the conclusion arrived at by the learned trial Judge had been a just one.
The test is whether, on a fair consideration of the whole proceedings, we can hold that there is a probability that the improper admission of the proceedings in Exhibit D and the use made of portions of them by learned counsel for the defendants/respondents, turned the scale against the plaintiffs/appellants.
On the totality of the evidence which the learned trial Judge considered in great detail and meticulously, and which he thereafter accepted, we are unable to hold that the rejection of the testimony of the 1st plaintiff, resulting from the wrongful admission of portions of the proceedings in Exhibit D, has materially affected the result of the case.
Even if this evidence complained of is expunged from the record, we do not see how the learned trial Judge, and this court for that matter, could have come to any other conclusion. On the preponderance of evidence which he rightly accepted, we are clearly of the view that he was right in his conclusion that the plaintiffs/appellants have failed to prove their case.
The appeal therefore fails and it is dismissed with costs in favour of the defendants/respondents assessed at N148.
Other Citation: (1975) LCN/1993(SC)
