Daniel Dibiamaka & Ors. V. Prince O. Osakwe & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This was a three-cornered fight between the plaintiffs who sued for themselves and on behalf of and as representing the people of Umuonai Quarters of Akwukwu. The original named plaintiffs were Crawford K. Anyekonwu, Michael Onyekwena and Daniel Dibiamaka.

With the deaths of the 1st and 2nd named plaintiffs an application for their substitution was made. The result is the present named plaintiffs. There were also similar necessary consequential substitutions among the ranks of the defendants resulting in the present named defendants.

Originally two suits were filed in the Asaba Judicial Division of the Bendel State High Court, namely, Suits No. A/81/67 and No. A/18/71. By an order of the trial High Court made on the 16th November, 1973, these two suits were consolidated as follows:-

The plaintiffs in Suit No. A/18/67 became the plaintiffs in the consolidated action while the plaintiffs in A/18/71 became the 1st Set of defendants and the defendants in the older Suit No. 1/18/67 became the 2nd Set of defendants.

With the creation of the Ogwashi-Uku Judicial Division carved out of the old Asaba Judicial Division, the two consolidated suits were transferred thereto and re-numbered O/28/75 and O/29/75.

The Claim of the plaintiffs against the two sets of defendants was for:

i) A Declaration of Title to a piece and parcel of land situate in Umuonai Village Akwukwu known as and called “Mbugudu Azuiyi” land.

(ii) 400 Pounds damages for trespass upon the said land by entering the said land 2 years ago and destroying vegetation and economic crops and taking gravel thereof.

(iii) Perpetual Injunction restraining the defendants by themselves, servants or agents or otherwise from continuing or repeating the said wrongful claim.

The 1st set of defendants as plaintiffs in A/18/71 claimed in their own action against the plaintiffs in A/18/67 as follows:-

1. Declaration of title to the piece and parcel of land known and called Mgbadudu-Azuno.
2. Injunction restraining the defendants, their agents and assigns etc. From further trespass.
3. Forfeiture of customary tenancy for having asserted ownership and for other acts within mentioned.
4. N500 for trespass in that as from the end of 1969 December the defendants continued to hold over after the plaintiffs have given them (defendants) 2 (two) years notices to quit and remove the agricultural crops. They further broke into the land in 1970 and farmed thereon.

Pleadings were ordered, filed and duly exchanged. After due trial on relevant evidence, Moje Bare, J., made the following significant and far-reaching findings of fact:-

“1. Looking at the two plans Exhibits A and B and considering the evidence before me, particularly that of the defendants” surveyor, D.W.1. I am satisfied that the parties refer to the same parcel of land hatched PINK in the two plans -(see p.117 of the record of proceedings).

2. It is submitted that trespass and forfeiture for breach of customary tenancy are two different causes of action. In my view, they claimed for trespass and so the 1st and 2nd defendants are not entitled to add to their Statement of Claim a new cause of action different from the one mentioned in their writ without amending the writ – (see p.129 of the record of proceedings).
3. I must say right away that the evidence of traditional history adduced by the Plaintiffs as to how their ancestors came upon the land in dispute has been most unconvincing; the evidence as to acts of possession is not exclusive in that the plaintiff testified that in the past, farmers from Ukumaga Illah, Ogbe-Obi and Umuonai crossed their respective boundaries freely to farm and without quarrel- (see pp.131/132 of the record).
4. I reject EX.A and the evidence of the plaintiffs that a parcel of land immediately adjoining the land in dispute to the South and South-West is the land of Umuonai and I find as a fact that plaintiffs’ quarter lies beyond to the South and West of Olie Market. I accept EX.B and the evidence of 1st and 2nd defendants and their witnesses that the parcel of land adjoining the land in dispute on the South is the land of 1st and 2nd defendants and that the parcel of land east of the land in dispute belongs to 1st defendant’s quarter. I also accept the evidence of the 4th defendant … that it was the 1st and 2nd defendants who put them on the land now known as Aninwaelo. I also believe the unchallenged evidence of 3rd and 5th defendants that they no longer pay tributes in respect of their user of the land in dispute (see p.133 of the record).
5. I believe and find as a fact that 3rd to 5th defendants have been on the land for upwards of 70 years and that they have established farms and settlements thereon without let or hindrance from the plaintiffs. I find as a fact that 3rd to 5th defendants were no trespassers on the land in dispute at the material time of this action (see p.133 of the record).
6. Suit 98/29 fought by Crawford Kachikwu & 2 ors. for and on behalf of Umuonai quarters and Prince O. Osakwe & 4 ors. Representing Aninwaelo town near Akwukwu tendered as Ex.C appears to have concluded the issue of the rights of Aninwaelo people over the land in dispute between the plaintiffs and 1st and 2nd defendants on the one side and the 3rd to 5th defendants on the other side (see p.133 lines 23-25).
7. I believe and find as a fact that the 1st and 2nd defendants are in possession of the land surrounding the land in dispute with the exception of Ukala-Okpuno and Ukumaga Illah. (see p.134 lines 26 to 32).
8. I accept as more plausible the traditional evidence of the 1st and 2nd defendants in respect of their ownership of the land in dispute.

In view of all the findings made above, the learned trial Judge then held at p.135 lines 1-9:-

“In conclusion, having held that the plaintiffs are not in exclusive possession and having found as a fact that 3rd to 5th defendants were put on the land in dispute by the 1st and 2nd defendants, plaintiffs’ action must fail in its entirety. The plaintiffs’ claim for Declaration of Title….for N800.00 damages for acts of trespass on the said land, and for an order of injunction … are hereby dismissed.” On Claim A/18/71 now O/29/75, the learned trial Judge observed:-“1st and 2nd defendants have claimed against the plaintiffs a Declaration of Title, N10,000.00 damages for trespass, Injunction and Forfeiture.”

The learned trial Judge earlier on discounted the Claim for Forfeiture as wrongly pleaded in the Statement of Claim. On the other claims, the learned trial Judge held at p.135 of the records:-

“On the showing of the defendants themselves (1st and 2nd defendants) the plaintiffs were permitted to farm on the land in dispute… no plans were filed to show that the plaintiffs have exceeded the area in respect of which they were allowed to carry on their farming operations within the land in dispute ….”

After considering the whole evidence adduced on both sides, the learned trial Judge came to the conclusion that:-

1.”I hold in the circumstances that the plaintiffs are not trespassers on the land… In my view they are bare licencees…The claim against the plaintiffs for trespass is therefore mis-conceived and is accordingly dismissed (p.135 lines 30-38).

2. I hereby declare in favour of the 1st and 2nd defendants i.e. the people of Ogbe-Obi and Umuekeke quarters of Akwukwu the title under customary law over Ngbugudu Azunor land… delineated and hatched PINK in defendants’ Survey Plan No.ED. 1/69 Ex.S in this Suit.
3. The claim of 1st and 2nd defendants for an order of Injunction against the plaintiffs is refused.”

On the whole, the plaintiffs’ case was dismissed in its entirety.

Having lost in the Court of first instance, the plaintiffs then appealed to the Court of Appeal, Benin Division, coram Ete, Agbaje and Okagbue, JJ.C.A. In a lead judgment per Okagbue,J.C.A. (to which Eteand Agbaje, JJ .C.A. concurred), the Court of Appeal dismissed the plaintiffs/appellants’ appeal describing same as being without merit”. The Court of Appeal instead affirmed the judgment of the trial Court. This then means that the various and far-reaching findings of fact made by the learned trial Judge were all affirmed by the Court of Appeal. We now have the concurrent findings of two Courts on the facts. And it is the policy of this Court not to disturb such findings unless it is shown that either they were perverse or that there was a substantial error either in substantive or procedural law which if uncorrected will lead to miscarriage of justice.

The plaintiffs having failed in the two lower Courts, have now appealed to this Court apparently unmindful of the policy of this Court on concurrent findings especially in a case like this, that rests almost wholly on the facts. Briefs are usually required by the Rules. The Supreme Court Rules 1985 Order 6, deals with “Filing of Briefs”. Times without number this Court has emphasised the necessity of filing good Briefs. No counsel can file a good Brief who does not even understand his case or who cannot properly appreciate the reasons for the decision. A good Brief is thus a reflection of counsel’s acquaintance and appreciation of the case for or against his side. In Engineering Enterprise of Niger Contractor Co. of Nigeria v. The A.G. of Kaduna State (1987) 2 N.W.L.R. (Pt.57) 381, this Court went out of its way to instruct counsel on the format and substance of a good Brief and my noble learned brother, Eso, J.S.C., pointed out at p.396:-

“The Rules require that the Brief so filed by a party-

(a) shall be a succinct statement of his argument in the appeal;

(b) shall contain issues arising in the appeal.”

We have also decided that those issues will not be allowed to stray outside the ambit of the grounds filed but will reflect and substantiate those grounds. Issues for Determination mean more than a reproduction of the Grounds of Appeal. Arguments on those Issues need not be arguments of the grounds seriatim as two or more grounds of appeal may raise Just one solitary Issue.

A good Brief inevitably attracts, holds and captures the attention and interest of the Judge and is fitting wedge to drive conviction into the mind. A bad Brief is a great dis-service to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across. The Briefs filed in this appeal on both sides left much, very much to be desired. They neither followed the form nor the substance of the requirements of Order 6 Rules 5, 6 and 7. Good Briefs attract, shoddy Briefs repel.

In the appellants’ Amended Brief under Issues for Determination were the Notice of Appeal filed, the various motions filed to argue points of law not raised in the Court below, Amended Grounds of Appeal whose Particulars were fully set out in 3 pages of the Brief. After this came what was headed Argument. And what was it that was argued Definitely not Issues but Grounds of Appeal. All these made the Brief rather boring, tedious and disgusting. The most intriguing part of the appellants’ Amended Brief was the Conclusion where it was stated inter alia as follows:-

“We have endeavoured in this brief to show that, on the basis of the credible and admissible evidence adduced at the trial………the appellants are entitled to judgment”.

I set out in some details the findings of the learned trial Judge. He rejected the traditional evidence of the plaintiffs which he described “as most unconvincing”.

He rejected EX.A which tried to show that the plaintiffs were owners of adjoining land. He accepted EX.B which made the defendants the owners of the said adjoining land. He disbelieved the plaintiffs’ evidence relating to the second set of defendants…..Rather he accepted the evidence of the defence that the 3rd to the 5th defendants – the 2nd set of defendants were put on the land by the 1st and 2nd defendants. The learned trial Judge found that Ex.C, the judgment in Suit No. 98/29 “concluded the issue” against the plaintiffs. He believed the 1st and 2nd defendants and disbelieved the plaintiffs’ evidence of their traditional history and on acts of possession which he found was not exclusive to the plaintiffs but were done promiscuously by all the parties to this dispute. In view of all that I stated above, the conclusion as shown at p.29 of the appellants’ Brief becomes an insult to logic and common-sense. Nobody can conclude from the learned trial judge’s findings of fact that the land in dispute belongs to the plaintiffs/appellants. No wonder Eso, J.S.C., opined in Engineering Enterprises v. A.G. Kaduna State (supra) “Sometime in the course of writing a brief learned counsel involved in a case sees the futility of his course”. A good brief should serve as a compass, guiding counsel along the right path and showing him where and when he sails off course. The over-worked case of Mogaji v. Odofin (1978) 4 S.C. 91 will not even allow evidence that was rejected by the trial Court to be put in a scale of justice. As learned counsel for the respondent contended in the Court below “there was no evidence led on the side of the appellants which could be put on their own scale.”

The respondents’ Brief framed only one Issue for Determination, namely:-

(1) Have the appellants on the strength of their case, been denied justice by the trial Court and the Court of Appeal

The appellants in their own Brief after wasting time and effort in discussing their Grounds of Appeal and their Particulars of those Grounds in 3 pages finally ended thus:-

“From the analysis of the Grounds of Appeal it is submitted that the primary issues for determination in this appeal are:-

The Brief then set out 6 Issues. It should have been apparent to learned counsel that his 3 pages analysis of Grounds of Appeal was absolutely unnecessary. That Issues formulated should not travel outside the Grounds of Appeal filed is conceded. But that does not imply nor does it necessitate a detailed analysis of those grounds. That is a completely futile and unnecessary exercise. Now the issues painfully distilled from learned counsel’s analysis of his Grounds of Appeal are as follows:-

I will set out each and deal with it at once:

(1) On the totality of the evidence were the Plaintiffs entitled to judgment

My answer is a positive and unhesitatingly No. The plaintiffs’ evidence of traditional history was described as totally unconvincing and then discarded. In contra-distinction, the learned trial Judge described the 1st and 2nd defendants’ traditional evidence as more plausible. He then accepted same for he believed the 1st and 2nd defendants. He therefore found that the 1st and 2nd defendants were owners of the land in dispute. The learned trial Judge also found that the plaintiffs were not in exclusive possession. In other words and to use, the oft quoted dictum in Ekpo v Ita XI N.L.R. 68, the learned trial Judge is saying that traditional evidence having failed, the plaintiffs have not proved acts of possession extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners….” The findings of the learned trial Judge were well in accord with the principles of law decided in Abinabina v Enyimadu 12 W.A.C.A. 171at p.174 and Kojo v Ronsie (1957) 1W.L.R. 1223.The appellants thus fail on Issue No.1.

Issue No.2 as framed is as follows:-

“Issue No.2 – Since the 2nd Set of defendants did not lead evidence in support of the claim in their pleadings that they owned the land in dispute (and in fact they contradicted it) was the learned trial Judge right in dismissing the appellants’ claim against them since all the evidence which tended to show that the land in dispute belonged to the 1st Set of defendants was inadmissible”

I must confess that I do not understand what evidence was inadmissible. It certainly will not be the evidence of those (the 2nd Set of defendants) who it was alleged did not give evidence. Be that as it may, the learned trial Judge found that the land in dispute between the plaintiffs on one side and the two sets of defendants on the other was one and the same land. He then also found that this land belongs to the 1st Set of defendants. Further he accepted the evidence of the 4th defendant that it was the 1st Set of defendants that put the 2nd Set of defendants on the land in dispute. The position then is that radical title to the land resided in the 1st set of defendants and not either in the plaintiffs or the 2nd set of defendants. Obviously the plaintiffs and the 1st Set of defendants whose claims are adverse cannot be both owners of the same land in dispute. Once the 1st Set of defendants are declared to be radical owners of the land in dispute, there is nothing on which to posit a declaration of title in favour of the plaintiffs even against the 2nd Set of defendants in and over the self same land. The plaintiffs/appellants again fail on this issue.

I will now consider Issue No.3 which has been formulated thus:-

Did the failure of the learned trial Judge to weigh the two sets of evidence on an imaginary scale before reaching his conclusions, offend against the rule in Mogaji v. Odofin and did the Court of Appeal correctly interpret the rule in Mogaji v Odofin having regard to the decision in Woluchem v Gudi

Before discussing the above issue, I must hasten to correct any erroneous impression that Mogaji v Odofin or Woluchem v Gudi established any Rule of law. Neither did. But the decision in each established certain Principles to guide the Court in future decisions where the facts are same or similar. Woluchem v Gudi (1981) 5 S.C. 291 at p.295 merely re-stated the principles governing or that should guide an appellate Court asked to reverse, or faced with the task of reversing, the findings of fact of the trial Court. In this case, the Court of Appeal did not reverse the findings of Moje Bare, J. so Woluchem’s case supra does not come in here for discussion at all.

I now come to the Principles formulated in Mogaji v Odofin (1978) 4 F S.C. 91. Mogaji v Odofin (supra) merely emphasised the point that, although civil cases are won on a preponderance of evidence yet it has to be a preponderance of admissible, relevant and credible evidence; evidence that is conclusive and that commands such probability that is in keeping with the surrounding circumstances of the case in hand. I will here repeat what I said in Onwuka v Ediala (1989) 1 N.W.L.R. (Pt.96) 182 at pp.208/209:-

“This scale though imaginary is still the scale of justice and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as probative essence of the evidence. If any evidence is disbelieved then such evidence has no probative value and should not therefore go into the imaginary scale.”

When evidence is improbable, it can easily be dismissed as untrue as probability has always been the surest road to the shrine of truth and justice. The balance of probability will thus reflect also the balance of truth. When this happens, it then becomes the balance of justice. In this case, the learned trial Judge believed the first Set of defendants and disbelieved the plaintiffs. Having done that, there was not much he could put in the imaginary scale in the plaintiffs’ favour. And that is why the trial Judge made the various and far-reaching finding of fact against the plaintiffs. I will therefore decide Issue No.3 against the plaintiffs/appellants. The learned trial Judge did apply the principles of the decision in Mogaji v Odofin (supra) and the Court of Appeal was right in upholding the judgment of Moje Bare, J.

Issue No.4 states -“Was Section 45 of the Evidence Law applicable on the facts of the case” Finding No.4 as recorded earlier on in this judgment dealt with the ownership of an adjoining land immediately to the South and South-West of the land in dispute. The learned trial Judge rejected the evidence that that area belongs to the plaintiffs. He accepted the evidence that that parcel of land really belongs to the 1st Set of defendants. With this finding, Section 45 of the Evidence Law comes in to aid the 1st Set of defendants and to defeat the claims of ownership of the plaintiff/appellants to the land in dispute. I will again resolve Issue No.4 against the plaintiffs/appellants.

Issue No.5 – “Whether the land in dispute as shown in EX.A is the same land as shown in EX.B” is easily answered by reproducing what the learned trial Judge said at p.117 of the record which I earlier on in this judgment set down as his Finding No.1 viz:-

“Looking at the two plans Exhibits A and B and considering the evidence before me particularly that of the defendants’ surveyor, D.W.1, I am satisfied that the parties refer to the same parcel of land hatched PINK in the two plans, notwithstanding that the two plans are of different scales”.

This disposes of Issue No.5 which I again decide against the plaintiffs/appellants.

The final Issue – Issue No.6 is as follows -“(1) Did the inordinate delay of 9 months between the close of the trial and the delivery of judgment render the judgment voidable, and could the Court, in the interest of Justice, avoid the judgment of the trial Court and that of the Court of Appeal which confirmed it” Another question arises – And replace it with what Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge. Section 258(1) of the 1979 Constitution which previously emphasised the period of 3 months has been amended by adding a sub-section 4 which provides:-

“S.258-(4) – A decision of a Court shall not be set aside or treated as a nullity solely on the ground of noncompliance with the provisions of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non compliance has suffered a miscarriage of justice by reason thereof” – (See Constitution on Suspension and Modification) (Amendment) Decree No.17 of 1985).

The learned trial Judge was effectively in charge all the time. He was dominus litis magnus. His evaluation of the evidence bears the mark of freshness which dismisses the argument that he has forgotten the impressions made on him by the witnesses. His findings of fact were all supported by available credible evidence. Why should this Court now interfere I see no reason for such interference. Again I will decide Issue No.6 against the appellants.

In the final result, the plaintiffs/appellants raised 6 Issues for Determination. On each Issue they scored Zero. Six times 0 is 0. The appeal is therefore dismissed as lacking substance. The judgment of the two Courts below are affirmed and confirmed. I will award N500.00 costs to the defendants/respondents.

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SC.136/1985