David Mbani V. Mbiabe Bosi & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

A.O. EJIWUNMI, JSC

In suit No.BHC/2/77 the appellant for himself and as representing the Ndakaa family, took out a writ of summons against the defendants/ respondents at the Port Harcourt Division of the Rivers State High Court Following the Order for pleadings, parties filed and exchanged their pleadings. By paragraph 15 of the appellant’s Statement of Claim, the appellant claimed against the respondents jointly and severally for- “(1) A declaration of title to the said land known as “Lueboghi” situate at Lusue Sogho, in Bori Local Government Area; and (2) A perpetual injunction restraining the defendant, her agents or servants from claiming or selling the land in dispute and the 2nd, 3rd and 4th defendants from entering or in any way interfering with the plaintiff’s ownership of the said land.” The facts leading to this action may be put thus: The appellant and the respondents are both natives of Lusue Sogho. The piece of land in dispute forms part of the land that the plaintiff’s ancestor, Berekara Ngaa, had acquired by original occupation. He exercised such acts of ownership as farming on and giving portions of it to needy settlers who arrived the area later than he did. It is his claim that one of such settlers was Agoo Bosi, an ancestor of the 1st respondent who emigrated from nearby village of Kaani. The grant made to the said ancestor of the 1st respondent was on the condition that the grant would revert back to the appellant should the grantee decide to PAGE| 2 leave the land. It is further claimed by the appellant that sometime in or about 1976, the 1st respondent sold part of the disputed land granted to him to the 2nd respondent. And sometime in 1977, the 1st respondent sold another portion of the disputed land to the 2nd respondent. All these transactions took place, according to the appellant, without his consent. However appellant claimed that following each of these transactions, he reported same to the Chief and Elders of Lusue Sogho. Sequel to his reports, he claimed that with the consent of the parties who in accordance with their customary method of investigating title to land, consulted the Chief Juju Priest at Bianu. The priest upon consulting his oracle revealed to them that the land belonged to the family of the appellant. Therefore, the appellant had to commence this action to stem the activities of the 1st respondent in respect of the disputed land. On the other hand, it is the case of the 1st respondent that she is the owner of the disputed land by original acquisition as it was founded many centuries ago by her ancestor named Beeanaa. That the land eventually devolved down to her according to Khana native law and custom. She admitted selling part of the land to the 3rd respondent Furthermore, she admitted that the oracle was consulted as claimed by the appellant but with regard to the claim of the appellant that the oracle revealed that the land belonged to his family, it is the claim of the 1st respondent that the revelation of the oracle was that the land belonged to her family and it had never belonged to the appellant. On the basis of the evidence led at the trial Court, the learned trial judge rejected in his judgment the appellant’s evidence in support of the traditional evidence he rested his case upon. Judgment was therefore given in favour of the respondent. As the appellant was not satisfied with that decision of the trial Court, he appealed to the Court below, and as he also lost his appeal in that Court, he has further appealed to this Court. In this Court, two grounds of appeal were filed to challenge the judgment of the Court below. And in accordance with the Rules of the Court, briefs were filed and exchanged between the parties. It is interesting to note that in their respective briefs, only one issue was raised by both parties for the determination of the appeal. As the issues so framed are similar in terms, I will however consider the merits of this appeal upon the issue as framed for the appellant in his brief. It reads:- “Whether the Court below was right by confirming the decision of the trial judge in this suit? Or whether the decision of the trial court was properly confirmed by the court below?”. For the basis of his argument in the appellant’s brief, learned counsel for the appellant proceeded to raise a question as to whether the Court below was correct by upholding the judgment of the trial Court. He then responded to his own question by submitting that the Court below was wrong. In his view therefore, the Court below misconstrued the judgment of the trial Court and referred to the judgment reached thereon thus and I quote: “without equivocation, the trial court after meandering through the plethora of available evidence did not outrightly reject the appellants’ evidence in relation to the grant of the land by the ancestor of the appellants to that of the respon-dents.’

For his part, learned counsel for the appellant, after referring to a portion of the judgment of the trial Court, contends that what the trial Court found are:- “(i) That there was an actual grant by the ancestors of the appellants to the ancestors of the respondents. (ii) That it was not a conditional grant, (iii) That no consideration was offered by the respondents for the said grant.” To him, the above which he refers to as plausible deductions from that part of the judgment, then submits that the Court below cannot be correct in holding that the trial judge did not find as a fact any grant by the appellant in favour of the respondents. It is also the submission of appellant’s counsel that in view of the inconsistencies in the findings of whether the grant to the respondents was a conditional or an absolute grant and the inconsistency of the trial Court with regard to the evaluation of the evidence led before the court below should not have upheld the judgment of the trial Court. Moreso, where the trial judge rejected the traditional evidence of the appellant in one breadth, and later turned round to hold that the same traditional history was not challenged. It is also his contention that the judgment of the trial Court was based on intuition and at the whim of the judge, the Court below should not have upheld that judgment of the trial Court. For this proposition, he cited the case of Sagay V. Sajore (2000) 77 LRCN 1110 at 1114 & 1123. The first point taken for the respondents in the respondents brief by their learned counsel is that the learned counsel for the appellants clearly read out of its context that part of the judgment of the trial Court pertaining to whether a grant or conditional grant was made or not made by the appellant in favour of the respondents. He then submitted that reading passages of a judgment out of its context rather than reading them together to achieve the desired harmony has been held to be improper. See Sob Akaighe V. Idama (1964) All NLR (Reprint) p. 317 & 322. Learned counsel for the respondents then submits that had the learned counsel for the appellant read the passage fully as expected of counsel, he would have seen that the learned trial judge properly identified the issues joined by the parties, and properly resolved the questions raised before him in favour of the respondents. And that the Court below has the right to have upheld the judgment of the trial Court. Also the learned counsel for the respondents, argued that the trial Court considered properly the questions relating to the traditional evidence led by the parties, before resolving that aspect of the dispute between the parties. It is also argued for the respondents that it was not open to the appellants to complain in this appeal about inconsistencies in the judgment, when no grounds of appeal were filed in nor issues raised in that regard. It is therefore his contention that the argument of the appellant thereon be discountenanced. In support of his several submissions, he made reference to the following cases. Adesanoye V. Adewole (2000) 9 NWLR (Pt.671) 127 at 144 (C-D); Garba V. State (2000) 6 NWLR (Pt.661) 378 at 386 (A-F); Honika Sawmill (Nig) Ltd V. Hoff (1994) 2 NWLR (Pt.326) 252 at 262 (A-D); Kojo II V. Bosie (1957) 1 WLR 1223; Bob Akaigbe V. Idama (1964) All NLR (Reprint) 317 at 322. And he concluded his submissions by urging that the appeal be dismissed. PAGE| 4 Now, a very careful reading of the arguments of counsel particularly that of the appellants has revealed that the thrust of the arguments for the appellant is clearly a repetition of the argument advanced before the Court below and which that Court found to be lacking in merit. In the course of his argument in this appeal, it was argued for the appellant that the Court below was wrong in accepting the finding of the trial Court that the appellant failed to establish that his ancestors made a grant of the land to the ancestor of the 1st respondent. The criticism of the appellant in this regard is that the Court below did not sufficiently advert to what appears to be the prevarications of the trial Court on the evidence led before it. In order to determine whether the contention of the appellant has merit, I deem it necessary to refer first to the conclusion reached by the trial Court on the law and evidence at p.98 of the Record. This reads:- “Several legal authorities were cited in this case. I had read them and these cases do not apply in the instant cases in view of my findings of fact and the decision reached. Had the plaintiff proved ownership and that the grant was made as he alleged his family did, and the conduct of the defendants shown as he did then this claim could well had been one of forfeiture of the grant. By asking for a declaration of ownership simpliciter and not owner in reversion of the disputed area, one takes the view that plaintiff wants to eject them through the back door. The injunction asked will then be to restrain them from entering the portion they were granted to live. But this is not the case in this case. On the whole, I hold that the plaintiff had not proved his case on the balance of probabilities that his family is the owner of the land in dispute. The traditional history of the defendants and the facts that they are in possession of the land and the findings of the Chiefs and the oracle and positive acts of ownership displayed by them had titled the scale in favour of the defendants. I thus hold that the plaintiff has not proved the case and the reliefs sought cannot be granted. I therefore, dismiss the case of the plaintiff with cost in favour of the defendants.” It is patent from a careful reading of that passage that the view of learned counsel for the appellant on the judgment of the trial Court cannot be right. Let me now refer to the judgment of the Court below at pages 182 – 183 of the Record of Proceedings where that Court said thus:- “A careful reading of the entire portions of the judgment I have reproduced, especially those parts highlighted, shows that the Judge’s ultimate conclusion on the first issue identified by him, and with which we are presently concerned, was that the plaintiff/appellant had failed to establish that his ancestor made a grant of the land to the ancestor of the 1st defendant. He came to this conclusion by examining the evidence proffered by the plaintiff in this regard, especially where the plaintiff, as PW1, testified that the 1st defendant’s ancestor and the 4th defendant migrated from Kaani. He held this to be in conflict with the averment in paragraph 2 of the statement of claim that the defen-dants were natives of Luusue Sogho. He reasoned that if their ancestors had migrated from Kaani to settle in Luusue Sogho they could not be described as natives of the latter place. For this reason he held the evidence of the plaintiff that the defendant’s ancestors were emigrants from Kaani to have gone to no issue and discountenanced it. As he saw no other evidence outside that of the plaintiff that the ancestors of the defendants emigrated from Kaani, he held that the fact had not been proved. He then accepted the averment in paragraph 2 of the statement of claim that the defendants were natives of Luusue Sogho. (See the concluding parag-raphs of the first quotation from the judgment). It was his conclusion also that even if the evidence before him could be taken PAGE| 5 as establishing a grant, the nature of it, as disclosed by the evidence, could not have been said to be a conditional one as alleged by the appellant but an outright gift, with no right of reversion.” Having read that passage of the judgment quoted above, it is manifest that the learned counsel for the appellant clearly failed to make any valid point against the judgment of the Court below upholding the judgment of the trial Court. The Court below, apart from clearly reviewing the relevant evidence came to the right conclusion that the appellant did not establish their primary claim that the ancestor of the appellant. David Mbani granted the land in dispute to the ancestors of the 1st respondent. In the course of that judgment, the Court below rightly observed that while the appellant in their pleadings pleaded that the respondents were natives of Luusue Sogho, the appellant as PW1, in the course of his evidence testified that the 1st respondent’s ancestor and the 4th respondent had migrated from Kaani to settle in Luusue Sogho. As that evidence of the 1st P.W, a pivotal witness for the appellant should have been expunged from the Records on the principle that a party will only be permitted to call evidence to support his pleadings, evidence which was deliberately or through evidence adduced which is contrary to his pleadings must be expunged when considering the case. See The National Investment & Properties Co, Ltd. V. The Thompson Organization Ltd. & Ors (1969) N.M.L.R. 99. While it is clear that the evidence of P.W.4 was not expunged, it is manifest that such evidence led contrary to his pleadings cannot but affect the credibility of the 1st P.W. It is also necessary to advert to the principle settled by a long line of cases that the duty lies on the plaintiff seeking for a declaration of title to land to lead such evidence as would lead a Court to make that declaration in his favour. In this regard also, the appellants bearing in mind the settled principle that there are five ways of establishing the ownership of land by any of the following five ways viz: (a) By traditional evidence. (b) By acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that they are true owners. (c) By acts of long possession and enjoyment of the land in dispute. (d) By the production of documents of title which must be authenticated. (e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent land would in addition be the owner of the land in dispute. See Idundun V. Okumagba (1976) 9-10 SC 227, (2001) 6 SCM, 186; (1976) 1 NMLR 200; Omoregie V. Idugienwanye (1985) 2 NWLR 41 at 54 – 59; Piaro V. Tenalo (1976) 12 SC 31 at 37 and Achiakpa V. Nditka (2001) FWLR (Pt.71) 1804 SCM 16 page 282, (2001) 11 SCM 16 As I had previously observed above, the learned trial judge duly considered whether he proved his claim as pleaded upon the evidence before it. Apart from the conflict in the evidence of the 1st P.W. and the pleadings noted above, the trial Court also found that PW3, Mmama Ngbogbnra lied in his testimony with regard to what he claimed he did concerning the oracle he allegedly consulted for the parties to discover the true owner of the disputed land. The court below upheld that finding and PAGE| 6 the appellant has not in this appeal showed in his argument that the Court below was wrong to have upheld that finding of the trial Court. In any event, it must be borne in mind that this Court will not interfere with the concurrent findings of fact made by the trial Court and the Court of Appeal unless such findings are perverse or are not supported by the evidence or are reached as a result of a wrong application of evidence of any principle of substantive law or procedure. See Enang V. Adu (1981) 11-12 SC 25; Nwadike V. Ibekwe (1987) 4 NWLR (Pt.67) 718; Igwego V. Ezeuga (1992) 6 NWLR (Pt.249) 561; Afegbai V. Attorney General Edo State (2001) FWLR (Pt. 69) 1352; (2001) 14 NWLR (Pt. 733) 425; (2001) 11 SCM 48; Arabambi V. Advance Beverages Ind. Ltd (2006) ALL FWLR 581. It is thus clear from the above authorities that the appellant bears the duty of persuading this Court to interfere with the concurrent findings of the Lower Court and the trial Court. However, from what I have said above, it is my humble view that the appellant has not discharged that burden. It follows that this appeal has to be dismissed as it lacks merit I therefore dismiss it accordingly, and affirm the judgment of the Court below. As costs follow the event, the respondents are awarded costs in the sum of N10,000.00.

PC. 329/2001