Chief Victor Woluchem And Ors V. Chief Simon Gudi And Ors (1981)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

The appellants (who were plaintiffs in the High Court) in 1966 filed a suit in the Port Harcourt Judicial Division of the High Court of Eastern Nigeria against the respondents (defendants in the said High Court) claiming as follows:-

“(1)  A declaration that the Plaintiffs are the owners and are entitled to the possession, occupation and full user of all that piece or parcel of land known as and called “Ozugboko” land situate in the Port Harcourt Province South of a Government acquisition known as the “Trans-Amadi Industrial Layout.”

(2)    500 damages for trespass in that in and during the month of March 1966 and continuing, the defendants broke and entered upon the said Ozugboko land and caused and continue to cause damage on the same by destroying several economic trees thereon and desecrating plaintiffs’91 ancestral juju therein.

(3)    An injunction perpetually restraining the defendants, their agents, servants and/or other representatives from further interference with plaintiffs’ right, title, possession and interest in and over the said “Ozugboko” land.”

Pleadings were ordered, filed and duly delivered. I shall in the course of this judgment set down only those parts of the pleadings as are relevant to the fairly narrow issues to be decided in this appeal. Both parties filed and delivered plans of the land in dispute. At the trial before Allagoa, J., (as he then was), both parties gave evidence and called several witnesses in support of their respective case. The trial Judge made substantial findings of fact mostly in favour of the plaintiffs. In a reserved judgment delivered on 22nd September, 1975, the learned trial Judge gave judgment in favour of the plaintiffs (appellants in this court) as per their claim. The defendants appealed to the Federal Court of Appeal, Enugu Judicial Division. Before that court, 5 grounds of appeal were originally filed but only 2 were argued – a main ground on an issue of law and the general ground. As these 2 grounds substantially dealt with the same issues as are being raised before us in this appeal, I hereby set them down. In ground 1 the appellants in the Federal Court of Appeal (and respondents in this court) complained as follows:-

“1. The learned trial Judge erred in law when after holding as follows:-

‘As was submitted by Mr. Dappa, taking the plaintiffs’ case as it stands alone there is room for saying that their case, having regard to their pleadings and the evidence led in support of their case, will not warrant a declaration made in their favour’ he failed to dismiss the plaintiffs’ claim.

Particulars of Error

(i)     The learned trial Judge failed to consider and decide upon the plaintiffs’ title first, before considering that of the defendants.

(ii)    The plaintiffs can only succeed on the strength (if any) of their own case and not on the weakness of the defendants’.

(iii)   In the premises the plaintiffs’ claim ought to have been dismissed…..

5. Judgment is against the weight of evidence”

On the first ground they relied on two decisions of this court: Aromire v. Awoyemi (1972) 1 All NLR 101 and Godwin Egwuh v. Duro Ogunkehin S.C. 529/1969 decided on 28/2/69. Under the omnibus ground, learned counsel for the appellants in the Federal Court of Appeal, Chief Bayo Kehinde, SAN., who incidentally is their counsel in the appeal in this court, also raised specific points on law and facts. One of these points was his complaint that:

(1)    The land in dispute did not belong exclusively to the plaintiffs who are of the Elekohia family. He relied on the following piece of evidence obtained in the course of the cross-examination and re-examination respectively of P.W.2.

“Part of Orogbum and Oroworokwo as a whole have family land in the area in dispute. The present area in dispute belongs to the people of Elekohia, Oroworokwo and part of Orogbum. This is because we all come from one ancestor Rebisi and all these communities are joint owners of the land Ozugboko. Oroworokwo was the 2nd son of Rebisi” “The land is owned communally by us and the people of Orogbum and Oroworokwo”

The Federal Court of Appeal (hereinafter known as the Court of Appeal) accepted the arguments in support of these grounds and in a reserved judgment (Anyah, JCA., (as he then was), Phil-Ebosie and Kazeem, JJCA.) allowed the appeal and set aside the judgment of the High Court. On the first ground of appeal before them, their Lordships observed:

“We have also carefully considered all the principles laid down and accept the law as propounded by the Supreme Court in the cases referred to. But the big question posed in Ground 1 is: did the learned Judge  consider the case of the plaintiffs up to the point where he satisfied himself that a prima facie case was established by preponderance of evidence or otherwise before considering the defence In answer to this question we are clearly of the view that the consideration of the case by the learned Judge in his judgment began at p.60 of the record of appeal under the  heading “Summary” and that it was the defence case that he first considered. This course, in our view, was erroneous in law. What the learned Judge did in his judgment before the “summary” was merely a repetition of the evidence of the various witnesses who testified on either side. Moreover, he seemed to have taken the view that there were admissions by the appellants and weaknesses in their case which buttressed the respondent’s case. We take a contrary view because on the evidence before him there was no justification for him to come to the conclusion he reached.  We find the argument in support of ground 1 substantial and this ground succeeds.”

And in accepting the second main ground argued before them their Lordships concluded:

“In this case, however, several distinct communities each of which has several families such as Elekohia are involved. It seems, therefore, to us on the authority of Dada’s case (supra) that Elekohia alone is not entitled to judgment for a declaration of title to the land in dispute, it not being an exclusive owner to the said land in dispute. We consider the point made by Chief Kehinde well taken.”

The appellants thereupon appealed to this court. The issues raised in this appeal, as indicated earlier, are broadly the two issues argued and decided at the Court of Appeal – whether the trial Judge was right in his approach and consideration of the evidence in relation to the claim before him i.e. whether he considered and weighed the case of both sides on the imaginary scale Secondly, whether the appellants were entitled to a declaration of title in their favour it being contended that they are not exclusive owners.
Learned counsel for the appellants, Mr. Lardner, SAN., formulated his additional grounds of Appeal (which he argued before us) in relation to those issues. The grounds state:

“(1)  The Federal Court of Appeal erred in law in permitting argument to be addressed to it that the land in dispute was communal land and did not belong exclusively to the plaintiffs who are of the Elekohia family. Alternatively, the Federal Court of Appeal erred in law in upholding the submission of learned counsel for the defendants of want of exclusive ownership by the plaintiffs and allowing the appeal on that ground.

PARTICULARS

(i)     The evidence given by  P.W.2 about communal ownership was irrelevant and inadmissible in the determination of this case, communal ownership not being an issue on the pleadings throughout the case.

(ii)    The defendants did not apply to amend their Statement of Defence by raising in the alternative an appropriate plea if they wished to use and rely on the evidence touching communal ownership and giving evidence and full explanation thereon.

(iii)   The evidence extracted from P.W.2 on the question of communal ownership was too imprecise to go by.

(iv)   As the question of communal ownership was not pleaded any submissions on it ought to have been made the subject of a separate ground  of appeal giving full particulars of misdirection including the reasons why the Court of Appeal should entertain the ground of appeal.

2.     The Federal Court of Appeal misdirected itself in law and on the facts in its application of the decisions in Aromire & Ors v. Awoyemi (1972) 1 All NLR Pt. 1 101 and S.C. 529/69 Egwuh v. Ogunkehin to the judgment of the High Court and thereby came to a wrong decision in setting aside the said judgment in favour of the plaintiffs and dismissing their case.
PARTICULARS OF ERROR

(i)     The Federal Court of Appeal held, relying on the above authorities, that the learned trial Judge ought to have first considered the plaintiffs’ case and been “satisfied that the respondents (i.e. the plaintiffs) had proved their case by preponderance of evidence” (pp. 100 – 101 R/A) before going on to consider the defendants’ case when, on the authority of A. R. Mogaji & Ors v. Madam Rabiatu Odofin & Ors 1978 4 S.C. 91 explaining above cases, that was precisely what it was wrong in law to do and that was what the learned trial Judge did not do.

(ii)    The learned trial Judge put the case for the plaintiffs and the case for the defendants on an imaginary scale and proceeded to consider what probative weight to give to the material evidence and to make necessary findings of fact.

3.     The Federal Court of Appeal erred in law and on the facts in setting aside some of the findings of fact of the learned trial Judge and allowing the appeal on that ground when

(i)     There was ample evidence in support of such findings of fact.
(ii)    In his determination of the said facts there was no misdirection in law and/or on the evidence by the learned trial Judge
(iii)   The Federal Court of Appeal failed to give any or due consideration and weight to the unchallenged material facts in evidence in support of the claim as well as other material facts not disturbed by it.”

As briefly as they can be conveniently set down, the learned counsel for the appellants in support of these grounds both in argument before us and in his brief submitted as follows:-

(1)    That the Federal Court of Appeal misunderstood and misapplied the decisions in Aromire v. Awoyemi and Egwuh v. Ogunkehin.

(2)    That where evidence has been adduced by the defence, consideration of the case on the preponderance of evidence pre-supposes consideration of the case of both sides.

(3)    That relying on Mogaji’s case what the trial Judge has to do is to consider the totality of the evidence led before him in order to decide which has and which has no weight and that this was precisely what the learned trial Judge did in the instant case.

(4)    That after putting the cases of both sides on the imaginary scale (to decide relative weight) judges do differ on the manner in which they approach their consideration of the evidence. Some may look at the weight of evidence of the plaintiffs, others at the weight of evidence of defendants, but at the end of the day the question is still which party’s case has more weight.

(5)    That as regards that part of his judgment where the learned trial Judge after dealing with the statement of claim and weighing the evidence stated – “Summary – As was submitted by Mr. Dappa………” this was no more than a surmise and the learned trial Judge was stating Mr. Dappa’s words.

(6)    That unless there was a gross misdirection or that the Judge in appraising the facts made mistakes, the Court of Appeal ought not to have opened the question of facts and drawn its own inferences. The Court of Appeal should not have set aside the findings of fact of the trial Judge.

(7)    That evidence of communal ownership ought not to have been taken by the Court of Appeal.

Learned counsel for the Respondents, Chief Bayo Kehinde, SAN., adopting the same arguments as in the Court of Appeal submitted:

(1)    That the words “As submitted by Mr. Dappa……..” (set down infra) was a finding by the trial Judge and that the trial Judge should have dismissed the plaintiffs’ case.

(2)    That the words “But putting the case side by side…….” was a breach of the rule that the plaintiff should succeed on the strength of his case and that the trial Judge went on looking for weaknesses in the case of the defendants to enable him change his mind. He relied on the case of Kodilinye v. Odu 2 WACA 336 at 337 – 338.

(3)    That what Mogaji’s case did was to explain and support Aromire’s and Egwuh’s decisions by confirming that if the trial Judge found that the plaintiffs’ case was patently bad, he ought to dismiss it.

(4)    That the plaintiffs should not have got a declaration. Submits that the parties on record were shown to be more than those stated to be plaintiffs. He relied on Dada v. Ogunremi (1967) NMLR 181 at 184.

Beginning with ground 2 of the additional grounds of appeal argued in this court, it seems to me that the proper procedure or approach in considering the evidence is first that the trial Judge ought to start (against the background of the issues between the parties) by considering the evidence  led by the plaintiff and then proceed to consider that led by the defendants. Unless the evidence led by the plaintiffs is so patently unsatisfactory, in which case he does not have to consider the case of the defence at all, he will take the evidence led by both sides and put it in that imaginary scale, weigh it and decide upon the preponderance of credible evidence which has more weight. If the Judge decides the issue after considering the evidence led by the plaintiffs and before proceeding to examine the evidence led by the defence he would clearly be in error. He would have prejudged the issues before he ever considers the case of the defence. His decision must be based on his consideration of the totality of the evidence put before him.
This procedure was set down in extenso in the judgment of this court (per Fatayi-Williams, JSC.,  as he then was) in A. R. Mogaji & Ors and Madam Rabiatu Odofin & Ors (1978) 3 S.C. 9. In that case, the learned trial Judge had observed: (and with all respect, almost as the Court of Appeal observed in this appeal)

“Before a consideration of the title of the defendants can be considered at all, on the strength of the authorities, the plaintiffs’ title must first be considered and decided upon. See the case of Aromire & Ors. v. Awoyemi (1972) All NLR 101. So I propose to examine first the case of the plaintiffs.”

The learned trial Judge in that case in fact considered the case of the plaintiffs and made findings of facts before he proceeded to consider the case for the defendants. He had therefore clearly considered, believed and accepted the plaintiffs’ case before considering that of the defendants. This court ordered a new trial. At page 93 et seq it observed as follows on the procedure the learned Judge ought to have followed:

“In other words, the totality of 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 a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that 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.”
and later the court concluded:

“In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale: he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of  witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore in determining which is heavier, the Judge will naturally have regard to the following:-

(a) whether the evidence is admissible;

(b) whether it is relevant;

(c) whether it is credible;

(d) whether it is conclusive and

(e) whether it is more probable than that given by the other party.

Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.”

These views were recently endorsed by this court in Magnus Eweka v. Bello S.C. 90/1979 unreported, and delivered on 30th January, 1981, (per Kayode Eso, JSC.).  Mogaji and Eweka were both cases of declaration of title to land as is the instant suit. It seems to me that there is no approach to the consideration of the evidence peculiar to declaration of title suits and so different from the general outlines set down above. It has been settled law for many years now that in a suit for declaration of title the onus of proof lies on the plaintiff and he must succeed on the strength of his case and not on the weakness of the defendant’s case Kodilinye v. Odu 2 WACA 336 at 337 – 338; Obisanya v. Nwoko &Anor. (1974) 6 S.C. 69.

This burden of proof on the plaintiff does not discharge the trial Judge from his duty to consider the evidence of both the plaintiff and the defendant and ascribe relative weight to each of them. All it means is that at the weighing of the evidence of both sides, the plaintiff should succeed because the evidence in his favour tips the balance in that imaginary scale. He should have led more credible and admissible evidence to secure a declaration in his favour.  His success must not be because the defence has offered weak evidence. In considering the weight of the plaintiff’s case, the trial Judge will be entitled to take into account those weaknesses in the defence case which tend to strengthen the plaintiff’s case. He will also add to the weight of the plaintiff’s case those parts of the defendant’s case that support his case or such evidence in the defendants’ on which the plaintiff is entitled to rely. (See Akunwata Nwagbogu v. Chief M. O. Ibeziako (1972) Vol. 2 Part 1 ECSLR 335 at 338;  Akinola & Anor v. Oluwo & Ors (1962) 1 All NLR pt. 2 224, 227.
.
This court in Mogaji’s case (supra) had expressed similar views when it said at p. 94:

“Incidentally, in deciding which evidence has more weight than the other, a trial Judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions.”

In the light of the views of this court stated above on the issue of a judge’s approach to consideration of the evidence before him, I cannot see where the trial Judge in the instant case can be faulted. In fact, I am inclined to agree with learned counsel for the appellants that the trial Judge’s approach to the evidence was impeccable. He started by setting out briefly the case of both sides. He then proceeded to the portion of the judgment headed Summary and to which I shall return. The learned trial Judge, prefacing his remarks with “But putting their case side by side with the Defendants’ case the following facts emerge in the form of a mosaic” went on to examine the case of both sides on each of the issues raised before him; he made specific findings of fact and commented on the credibility of the parties and their witnesses. That this was his approach to the evidence is confirmed by that portion of his judgment where he stated:

“In my view therefore on a proper evaluation of the evidence led by both parties having regard to the admissions made by the Defendants the plaintiffs have discharged the burden which Section 145 of the Evidence Law lays upon (them). Section 145 of the Evidence Law says:

‘When the question is whether any person is owner of anything of which he is shown to be in possession the burden of proving he is not the owner is on the person who affirms that he is not the owner’

In this regard there is a distinction to be made between a defence which is unsatisfactory as was found by Madarikan, J. in the case of Oladeinde & Ors. v. Oduwale (1962) All NLR p. 42 cited by Mr. Dappa and a defence which helps to support the case of the plaintiff. That distinction was pointed out by Unsworth, FJ., in the case of Akinola & Anor v. F. Olowu & 2 Ors. (1962) 1 All NLR 224 at p. 227” (Underlining mine).

On the credibility of the defendants’ (respondents) witnesses who had testified that it was the ancestors of the defendants who gave their own ancestors land on which they settled, he had this to say:
“Mr. Dappa has rightly drawn attention to the facts that the plaintiffs have averred that apart from the Defendants they also settled some other people on the land but have not called them, but that instead Defendants have called someone from Okuru and Fimie. At the same time he has asked the court to dismiss the evidence of Chief Eke. If so these witnesses have told the court they are people from Okrika and that the name Abuloma means in Okrika a settlement added to their admission that the land in dispute is called Ozugboko which I have been told is an Ikwerre word for a fertile land, the question is whether they were telling me the truth when they said they were told it was the Defendants who put them on the land in dispute. In considering this question I have also taken into account the answer of 1st Defendant to the question whether or not the people of Amadi and Somiari Villages support them in saying that they were the original settlers of the land in dispute”

The learned trial Judge concluded his  review of the evidence in this manner:

“Applying that principle (i.e. the principle enunciated by Lord Haldane in Amadu Tijani v. Secretary Southern Nigeria 1921 AC p. 399 at 404) in this case which is not very different from the facts in that case, I find that having regard to the geography of the land which is surrounded on the West and South by other lands of the plaintiffs which fact the Defendants contrary to paragraph 6 of that Statement of Defence now admit added to the fact that they have received compensation for the vast area in the North which the defendants are now belatedly challenging that it was the plaintiffs who are a simple and unsophisticated community as owners of the land in dispute called Ozugboko who allowed the Defendants ancestors who are from Okrika to settle in the area verged yellow for purpose of fishing and also allowed them to erect a church and school for their convenience. I do not believe the testimony of 1st Defendant when he swore that the people of Abuloma first settled in Rainbow town because if so he should know the extent of the land of their former settlements; nor do I believe the evidence of his witness who says it was the defendants who gave them land.”
Civil suits are decided on the balance of probabilities, on the preponderance of evidence which, as learned counsel for the appellants has rightly submitted, presupposes a consideration of the evidence led by both sides.
. There is no doubt that learned counsel for the respondent would not have complained of the approach of the learned trial Judge to the consideration of the evidence, nor would the court of Appeal have taken the stand they did take if there had not been such a misconception of the meaning of the words coming under the heading, Summary in the trial Judge’s judgment. For ease of reference I shall set it down. He said:

“This case is a most interesting one both the facts and the law. As was submitted by Mr. Dappa taking the Plaintiffs’ case as it stands alone there is room for saying that their case having regard to their pleadings and the evidence led in support of their case will not warrant a declaration made in their favour.”

On a close look at what the learned trial Judge had said before and immediately after these comments, (most of which has already been set down in this judgment) it seems quite clear to me that the learned Judge was merely repeating the substance of Mr. Dappa’s submissions but perhaps putting it in his own words. He was in effect saying that though that was Mr. Dappa’s submission he was bound to consider the case of the parties side by side and that was what he proceeded to do. In the alternative, even if the words were not Mr. Dappa’s but the learned trial Judge’s, emphasis must be laid on the words stands alone. He could not have considered the evidence of the plaintiffs alone and decided the suit on it. That would be wrong unless that evidence was so patently unsatisfactory that no tribunal could make use of it. That was clearly not the situation here judging from the case of both sides which the learned trial Judge had weighed up to the point of the “Summary”. With all respect to their Lordships of the Court of Appeal, it cannot be said that the weighing of evidence of both sides started with “Summary. Nor is it correct to say that after “Summary” it was the case of the Defendants that the learned trial Judge considered. He considered the evidence of both parties side by side. To take two passages immediately after “Summary” the learned trial Judge said:

“What is more whereas the plaintiffs assert positively that it is their ancestor Mgbada who allowed the ancestor of the Defendants to establish a fishing settlement to  a defined area near the Okpoken River the Defendants who say their ancestor is Obuloma are not able to say where he came from.”

and later in the same page:
“Although the Defendants admit that the Plaintiffs have been paid compensation for the area which they claim is their own old settlement and which they farm Mr. Dappa submits that this is not conclusive evidence that the Plaintiffs own that area because they were not aware of the payment and have instituted action.”

The learned Justices of the Court of Appeal also found fault with the approach of the learned Judge to the evidence because they were persuaded by two passages in 2 decisions of this court cited to them by learned counsel. The first was Aromire v. Awoyemi (1972) 1 All NLR. pt. 1 101 where the Supreme Court at pages 112 and 113 held that: “On the strength of the authorities the plaintiff’s title must first be considered and decided upon before a consideration for the title of the defendants’ case”: and the second was Godwin Egwuh v. Buro Ogunkehin S.C. 529/66 decided on 28th February, 1969, where the same court had directed thus:

“A consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing prima facie, that she had a title to the land.”
Based on the principles of these two cases the Court of Appeal had posed the question stated earlier in this judgment:
“Did the learned Judge consider the case of the plaintiffs up to the point where he satisfied himself that a prima facie case was established by preponderance of evidence or otherwise before considering the defence”

The answer they gave was in the negative. They held that it was the case of the defendants that the learned trial Judge considered. I agree with the submission of learned counsel for the appellants that the Court of Appeal misapplied the decisions in Aromire and Egwuh. As was explained in Mogaji’s case supra, both Aromire and Egwuh were not cases of declaration of title. The suit in Aromire’s case was for trespass, recovery of possession and injunction. Either side had to show a better title than the other in order to be entitled to possession. In Egwuh’s case the plaintiff had to show that she had a better title than the defendant who was in possession at the time when the suit was instituted. That principle of considering the case of the plaintiff and deciding upon it  before considering the case of the defence is precisely what this court has said ought not to be done. I think ground 2 of the Additional grounds must succeed.

As to ground 1, the Appellants complain that the Court of Appeal ought not to have permitted argument on the issue of communal ownership or set aside the judgment of the learned trial Judge on the ground that Elekohia did not have exclusive ownership. The matter of communal ownership of the land in dispute by Elekohia, people of Orogbum and Oroworokwo only arose in the evidence under cross- examination of the plaintiffs’ 2nd witness A. Akarolo. Mr. Akarolo said:

“Elekohia is a town composed of Orolasu, Oro-Ada and Oro-Odiri villages. Part of Orogbum and Oroworokwo as a whole have family land in the area in dispute. The present area in dispute belongs to the people of Elekohia, Oroworokwo and part of Orogbum. This is because we all come from one ancestor Rebisi and all these communities are joint owners of the land Ozugboko, Oroworokwo and the 2nd son of Rebisi”

To put this piece of evidence in its proper perspective, it is necessary to examine briefly the evidence of this witness in chief and in re-examination. During examination in chief he had testified as follows:

“I know the land in dispute, it is called Ozugboko land and is situate on Elekohia Rebisi Diobu. The land belongs to the people of Elekohia …..
The people of Elekohia have been the owners of this land in dispute from time immemorial through our ancestors.”

In re-examination he re-stated that

“the land is owned communally by us and the people of Orogbum and Oroworokwo.”

The learned trial Judge, as I think he was entitled to do, completely ignored this piece of evidence in his judgment. The Court of Appeal on the other hand held that:

“It seems, therefore, to us on the authority of Dada’s case (supra) that Elekohia alone is not entitled to judgment for a declaration of title to the land in dispute, it not being an exclusive owner to the said land in dispute”

That the question of non-exclusive ownership in Elekohia or communal ownership was never an issue between the parties can be seen by a reference to the relevant portions of the pleadings. In paragraphs 1 and 4 of their statement of claim the plaintiffs (appellants herein) pleaded as follows:-

“(1)  The plaintiffs are the people of Elekohia in Diobu and they sue for themselves, for and on behalf of the said Elekohia Diobu people…..

(4)    The parcel of land known as Ozugboko has been the property of the plaintiffs from time immemorial. It is part of the land founded by the plaintiffs’ ancestor Rebisi and which descended from generation to generation to the plaintiffs.”
The reply of the Defendants (respondents herein) was as follows:-

“(1)  The Defendants admit that the plaintiffs are people of Elekohia Diobu, but are not in  a position to admit or deny the rest of the averments in paragraphs 1 of the Statement of Claim….

(4)    Paragraphs 4 and 5 of the statement of claim are denied. There is no area of land called Ozugboko, but there is on it a portion called Ejemuke, which was settled upon by members of the Mgbo House, part of the defendant’s people, who have on it a shrine for their juju called Edo…….”

It can therefore be seen that neither party found it necessary to mention the people of Orogbum and Oroworokwo. Whether the  plaintiffs were exclusive owners or not was not an issue between the parties on the pleadings. The issue was which of the two parties owned the land in dispute the identity of which was known to both sides. The plaintiffs did not in their evidence-in-chief lead evidence connecting these two communities. It is also significant to observe that after extracting the admissions from Akorolo, the defendants made no further use of it until it was used in the submission by learned counsel. It was not even made a substantive ground of appeal. Learned counsel for the respondents argued it before the Court of Appeal under the general ground – i.e. weight of evidence.

I do not think that this piece of evidence extracted in cross-examination ought to have affected the declaration which the learned trial Judge granted to the Appellants. The admissions by Akorolo did not detract from the case of the plaintiffs which is that they are owners of the land in dispute as against the defendants. Those admissions amount to no more than that they (the plaintiffs) and some other members of the wider family of Rebisi own the land in dispute.

I agree with the submission of learned counsel for the Appellants that the Court of Appeal ought not to have entertained argument on this issue or made any use of that extracted evidence. It is settled law that evidence in respect of matters not pleaded really go to no issue at the trial and the trial court should not allow such evidence to be given. Chief Aboh Ogboda v. Daniel Adulagba (1971) 1 All NLR 68..
It is also trite law that parties are bound by their pleadings and any evidence which is at variance with the averments in the pleadings goes to no issue and should be disregarded by the court. The court should concern  itself only with evidence on those matters which have been included in the pleadings. See Emegokwue and Okadigbo (1973) 4 S.C. 113 at 117; George & Ors v. Dominion Flour Mills Ltd. (1963) 1 ANLR 71 at 77; African Continental Seaways Ltd. v. Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at p. 248 and National Investment Co. Ltd. v. Thompson Organisation (1969) NMLR 104. I had already stated in this judgment that the respondents made little use of that part of the evidence of Akorolo set down earlier. The use of that evidence as the basis for the challenge of the declaration of title given in favour of the appellants was indeed almost like an afterthought. The defendants in the trial court gave evidence after A. Akorolo and other plaintiffs had given their own evidence but did not use that piece of evidence. Indeed, they could not have used it since they were not prepared to concede ownership of the land to Orogbum, Oroworokwo or any other community for that matter. I agree therefore with learned counsel for the appellants’ submission that if a party extracts in the course of cross-examination evidence which if accepted could decide the issue between the parties then if he wishes to use it he should first amend his pleadings. (See the decision of this court in Slee Transport Ltd. v. Oladipo Oluwasegun and Anor (1973) ECSLR Vol. 3 pt. II 1176.) In that case a police witness for the plaintiff had admitted during cross-examination that there were no skid marks at the scene of accident but the plaintiff’s driver during his evidence-in-chief had said that there were skid marks. No mention of skid marks however was made in the pleadings of the parties. The Western State Court of Appeal held that the learned trial Judge did not resolve this conflict of evidence. Commenting on this, Sowemimo JSC., said at p. 1183,

“The presence or absence of a skid mark was not an issue before the learned trial Judge and indeed the appellants who called the policeman as a witness did not ask him about any skid mark because it was not pleaded nor made part of their case. It was the counsel for the respondent who raised the matter under cross-examination. If the counsel for the respondent thought that the matter of a skid mark was relevant and material to the issue of negligence it was for him to plead it and lead evidence on it.”

The learned counsel for the respondent both in the Court of Appeal and before us relied on the case of Dada v. Ogunremi (1967) NMLR 181 at p. 184 for his contention that the parties were shown to be more than those said to be plaintiffs and that the plaintiffs (i.e. appellants) ought not to have been granted a declaration of title to the land in dispute. He relies on that part of the judgment where this court stated at page 184:

“With respect, we observe that although the evidence before the Judge may establish that the Orangun of Illa was the owner of the land, that evidence does not support a claim of the people of Ede as being the absolute owners of the land. It may be as found by the Judge that the Ede people are a section within the community of Illa people but so far as the evidence goes their claim to absolute interests in the land was not established. Rather such evidence as was accepted confirms the ownership of the land by Orangun of Illa. It is therefore wrong to grant the plaintiffs a Declaration of Title as claimed by them to the land in dispute and the Judgment on that claim for the plaintiffs must be reversed.”  (Underlining mine.)

With respect to the learned counsel to the respondents, this case certainly does not support his contention. It is not on all fours with the instant case. In the Dada case the people of Ede had claimed declaration of title of absolute ownership of the land in dispute but they themselves acknowledged the overlordship of the Orangun of Illa. Besides, the oral evidence led and which was accepted by the trial court established that the Orangun of Illa was the owner of the land in dispute. In such circumstances it was clearly wrong for the trial court to grant them the declaration they sought. This court rightly set it aside, but taking into account the fact that Ede was part of the Illa community, entered a non-suit. That is not the situation in the instant case. The appellants herein claimed for a declaration of title of the land in dispute in favour of the people of Elekohia Diobu. Evidence as accepted by the trial court was to the effect that they were the owners of the land. Even if the evidence of Akorolo could be used it could have only amounted to their owning it with some other persons in the wider family of Rebisi. As the trial Judge found (based on the abundant evidence before him) that appellants are the owners of the land in dispute, I considered whether this was a proper case to amend the title of the suit to include the people of Orogbum and Oroworokwo as was done by the West African Court of Appeal in Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo of Aufoega Akukome (1941) 7 WACA 164 and by this court recently in Madam I. Arase v. Peter U. Arase S.C. 60/1980 unreported, delivered on 8th May, 1981, but I do not think it is. This is because of the view I have formed about that part of the evidence of Akorolo mentioned earlier, and more so because those cases really dealt with suits which were instituted in a personal capacity but in which the appeal court found it necessary to amend the evidence having disclosed that they were really suits which ought to have been instituted in a representative capacity or as in Arase’s case, that the matter in issue was owned by a class including the party in whose favour judgment was given.

It is, in my view, rather a proper case to apply the principle accepted by the West African Court of Appeal in Chief Ayomano and Edwin Omarin v. Olu Ginuwa II (1943) 9 WACA 85.
I would therefore leave it to the successful party, the people of Elekohia and their relations of Orogbum and Oroworokwo to sort out their joint interests (if any) inter partes. This ground of appeal also succeeds.
Finally, the appellants in ground 3 of the additional grounds of appeal have contended that the learned Justices of the Court of Appeal ought not to have opened the findings of facts made by the learned trial Judge and drawn their own inferences. The learned trial Judge made substantial findings of fact based on the evidence before him. As instances of this, he found that the land in dispute is called Ozugboko. It is pertinent to mention that issue had been joined by the parties as to the name of the land in dispute as was clearly shown by paragraph 4 of the statement of claim and defence respectively (set down earlier in this judgment). The respondents in the trial court further denied that the name of the land in dispute was Ozugboko but this was admitted by their witnesses. Besides, the name they gave to the land in dispute was not even mentioned in the plan they tendered at the trial. The learned trial Judge also made findings on the question of tribute, and on the issue of Government acquisition of the land in dispute. The respondents had claimed that they did not know that the land in dispute was acquired by Government and the learned trial Judge, rightly in my view, found it strange that they did not know of the acquisition of a piece of land on which they claim they had been farming. In paragraph 5 of their statement of claim, the appellants (as plaintiffs) pleaded as follows:-

“(5)  The plaintiffs had been exercising maximum acts of ownership over the parcel of land by farming on it, fishing in the waters in and around it, harvesting and making use of economic trees on it and showing parts of it to strangers for farming and for other purposes.”

In their defence, the respondents (defendants) denied this in paragraph 4 of their Statement of Defence claiming instead that the land in dispute was part of their farmland. In the course of the trial, 1st Defendant (1st respondent herein) admitted under cross-examination that the appellants farmed on the land in dispute although he claimed that his people gave them permission to do so. It was therefore a proper finding for the learned trial Judge to hold as he did, that before the dispute it was the respondents who visited the appellants annually to swear oath of fidelity.

The principles under which an appeal court would interfere with the findings of a lower court have been laid down by several authorities of this court and court in common law jurisdictions. It is now settled law that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court. See Folorunsho v. Adeyemi (1975) NMLR 128 CAW; A. M. Akinloye v. Bello Eyiyola & Ors. 1968 NMLR 92 at page 95; Balogun v. Agboola (1974) 10 S.C. 111. That of course does not mean that an appellate court is completely shut out. Certainly not, for if it were so the appeal itself would be pointless. The interference must, however, be in accordance with the principles that have been laid down over the years. If the judgment of the trial court can be demonstrated to be affected or full of material inconsistences and inaccuracies or if the trial Judge has failed to appreciate the weight or bearing of circumstances admitted or proved or has gone completely wrong, the Court of Appeal will interfere. Also if the trial court takes a decision which is clearly perverse it will be open to the Court of Appeal to set aside such a decision. See Lucy Onowan & Anor v. J. J. I. Iserhien (1976) NMLR 263 at 265; See also Nabham v. Nabham (1967) NMLR 192. These principles are based on sound common sense. The learned trial Judge has the singular advantage of seeing and observing the witnesses. He watches their demeanor, candour or partisanship; their integrity, manners etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the Appellate Court. All it has is the printed evidence, it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which the learned trial Judge has made based on such evidence that is available before him. Edmund Davies, LJ., in Breen v. Amalgamated Engineering Union (now Amalgamated Engineering and Foundry Workers Union) & Ors. (1971) 1 All ER 1148 at page 1161 quoted with approval a dictum of Lord Sumner in Steamship Hontestroom (owners) v. Steamship Cagaporack (Owners) 1927 A.C. 37 where the learned law Lord said:

“What then is the real effect on the hearing in a Court of Appeal of the fact that the trial Judge saw and heard the witnesses I think it has been somewhat lost sight of. Of courts, there is jurisdiction to retry the case on the short hand note, including in such retrial the appreciation of the  relative values of the witnesses……… It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at merely on the result of their own view of the possibilities of the  case……….. If his estimate of the man forms any substantial part of his reasons for his judgment the trial Judge’s conclusions of fact should be left alone” (Underlining mine).
The House of Lords in Watt (or Thomas v. Thomas) (1947) 1 All ER 582 formulated the principles under which an appellate court intervenes in the following words, which I respectfully adopt:

“Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the Judge’s conclusions. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court either because the reasons given by the trial Judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

In the instant case, there was no justification for the matter becoming at large as the Court of Appeal made it. After an extensive review of parts of the evidence, they held that the learned trial Judge misunderstood the evidence of Chief Eke, a witness for the appellants, who he had believed as a witness of truth. They rejected the learned trial Judge’s findings on the issues of tribute and compensation. They even frowned at the conclusion of the learned trial Judge that he did not believe the 1st Respondent’s testimony that his people first settled in Rainbow town when the learned trial Judge  had the opportunity which the appeal court did not have of watching the demeanour of this witness. The findings of the Court of Appeal were all arrived at by re-evaluating the evidence given at the trial on each of these issues. In fact, in the concluding part of their judgment they held that “the learned judge’s findings of facts was not supported by the evidence led at the trial.”

The learned trial Judge, in my view, made full use of his having seen the witnesses. He assessed their credibility and I am satisfied that on the evidence before him he was entitled to disbelieve the 1st Respondent and his witnesses as he did. I can see no gross misdirection of which he can be accused nor any clear mistakes he made in his conclusions based on his evaluation of the evidance. As I said earlier in this judgment, his approach to the evidence before him was thorough and fair. There was moreover abundant evidence to justify the findings of fact he made. In the circumstances the Court of Appeal, with all respect, erred in re-opening the question of facts in the manner it did and virtually rejecting all the findings made by the learned trial Judge. This ground of appeal also succeeds. The result is that this appeal must succeed and it is hereby allowed. The judgment of the Federal Court of Appeal, Enugu Judicial Division dated 22nd May, 1978 with any order as to costs is hereby set aside. The judgment of the Port Harcourt High Court dated 22nd September, 1975 is hereby restored and that shall be the judgment of that court. I would award costs to the Appellants which I assess at N200 in the Federal Court of Appeal and N300 in this court.

A. G. IRIKEFE, J.S.C.: I have had the privilege of reading in draft the judgment just read by my learned brother, NNAMANI, JSC., and I would also allow this appeal for the reasons stated in the said judgment. Whether a court of trial begins with the evaluation of the evidence of the defendant before evaluating that of the plaintiff in the process of recording the judgment in any given case, is clearly a matter of choice. What is important is that, it must be clear from the transcript of the entire case that the court considered all the evidence produced at the trial and having placed such evidence on an imaginary scale, the balance of admissible and credible evidence tilted towards the plaintiff, who in such circumstances, would be entitled to succeed. If it tilted towards the defendant, he should succeed and the action would be dismissed. This is what is meant by saying that in a civil case, the party who succeeds, must do so on a preponderance of evidence. I agree that this was not the type of case in which the Court of Appeal should have interferred with the findings of fact made by the court of trial.

This action which was tried by Allagoa, J., (as he then was) was a straight contest for title between the Elekohia – Diobu people of IKWERRE CLAN and the Abuloma people of OKRIKA CLAN. Each party claimed to have been the original founder of the land and to have permitted the other party who came later in point of time, to settle on its present homestead without the requirement as to payment of rent or tribute. This was some centuries ago as the learned trial Judge found. At the end of the day, the trial court accepted the evidence of the appellants and rejected that of the respondents. The land is expansive and the appellants did not appear to be quarrelling with the way the respondents made use of the land or creeks save the small area shown on the appellants plan Exhibit “A” and hatched in pink. This area is shown hatched in yellow on the respondents’ plan Exhibit “D”.

As to the above, the learned trial Judge found as follows:-

“On the issue of trespass, it is not denied that the defendants have cleared an area for Palm estate. It is shown on their plan as covering 26 acres of land. In view of my finding it was clear act of trespass for defendants to have done so without any reference to the plaintiffs. They must consider themselves lucky in view of the nature of their defence that the plaintiffs have not asked for forfeiture of the area they now occupy. I will award the plaintiffs general damages of N500 and restrain them from entering the area of the plantation verged pink on the plaintiffs plan Exhibit “A” to do any manner of work unless with the express permission of the plaintiffs.”
I also agree with the order as to costs.

M. BELLO, J.S.C.: I have had the advantage of reading in advance the judgment delivered by my learned brother Nnamani, JSC. I entirely agree and I have nothing further to add.

C. IDIGBE, J.S.C.: I also had the advantage of reading earlier the judgment just delivered by my learned brother, Nnamani, JSC., and I would also allow this appeal for the reasons stated in that judgment. I would gratefully adopt the narrative of the salient facts set out in the judgment of Nnamani, JSC., for the purpose of the little observations I wish to make in this appeal. It seems to me that the decision of this court in Mogaji v. Rabiatu Odofin (1978) 4 S.C. 91 has been misunderstood. What this court said in that case on the procedure to be followed in assessing the evidence of rival parties (per Fatayi-Williams, JSC., – as he then was) is intended to be taken as a guide to trial courts. Judges, naturally, must differ in the procedure and manner in which they approach their consideration of the entire evidence in any given case; some may prefer to begin with a consideration of the entire evidence led for the defence because they find it more convenient to do so; others may prefer to begin with a consideration of the plaintiff’s case. Whichever course is adopted, what is necessary is that they must always bear in mind that the plaintiff has to succeed, on a preponderance of evidence, on the strength of his own case not on the weakness of the defence; sometimes however, the weakness of the case for the defence tends to strengthen the case for the plaintiff. The principal question, at the end of the day, is which party’s case, on a preponderance of credible evidence, has more  weight It must always be remembered that it is the trial Judge that has to decide on the evidence which is credible; and this brings me to the next observation that I wish to make.
There are very strict limitations on the power of the Court of Appeal to set aside or reverse the decision of the trial Judge on issues of fact. These have been well set out by Baggaly, J.A. long ago in The Glannibanta (1876) 1 P.D. 283 at 287 and also by Lord Sumner in The Hontestroom (owners of ) (1927) AC 37. I need not repeat them here; but suffice it to say that when, as here, the decision of the trial Judge is based mainly and substantially on his assessment of the quality and credibility of witnesses who testified before him, a Court of Appeal “must in order to reverse,  not merely entertain doubts whether the decision below is right, but be convinced that it is wrong” (see Lord Kingsdown in The Julia (1860) 14 Moo P. CC 210 at 235). (Underlining by me for emphasis.) That certainly, was not the case in the appeal in hand; nor could the Federal Court of Appeal have rightly been convinced that the learned trial Judge was wrong in the view he took of the evidence of the principal witness for the plaintiff – Chief Jonathan Wokoagbara Eke (P.W.2) – whom he was satisfied was credible; and the observations of that court (The Federal Court of Appeal) that Chief Eke proved that “tributes were paid to the appellants” (Respondents herein) – an aspect on which that court found fault with the findings of the learned trial Judge – is, in fact, not borne out, or supported by the recorded evidence of that witness (P.W.2).
As I said earlier the main reason why, in the absence of an error of law the decision of the trial court calls for the utmost respect is that it is the decision of the trial Judge who had seen and heard the witnesses on both sides and the rival parties as well. The degree and respect to be accorded to the decision of the trial court obviously will vary from case to case according as conclusions have to be reached as to credibility of witnesses, or based on their demeanour. In the present case, as the record shows, not only do such conclusions exist but they are, in my view, compelling. I have therefore come to the conclusion, with all due respect to their Lordships of the Federal Court of Appeal, that they are wrong on this occasion to have reversed the decision of Allagoa J., (as he then was).

This appeal is allowed and I agree with all the orders proposed in the judgment of my learned brother, Nnamani, JSC.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment just read by my learned brother, Nnamani, JSC. I agree with the judgment and I have nothing to add.

Accordingly, I too will allow the appeal by restoring the judgment of the High Court, Port Harcourt and set aside the decision of the Federal Court of Appeal. I will also award costs as assessed in
the judgment of my learned brother, Nnamani, JSC.

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Other Citation: (1981) LCN/2126(SC)