Fugbara John & Ors V. Sir Uche Amaechi & Ors (2016)
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PETER OLABISI IGE, J.C.A.
This appeal is against the judgment of the Abia State High Court contained in the judgment of Honourable Justice K. O. Wosu delivered in Suit No. HU/21/2011 on the 25th day of September, 2013.
The 1st set of Respondents as claimants in the Lower Court had by their Writ of Summons issued out of the said Court on 25th February 2011 claimed against the Appellants and the 2nd set of Respondents the following reliefs:
?1. A declaration that the Claimants are entitled to the right of occupancy of a piece or parcel of land situate and lying in an area of land traditionally known as and called ?Ovoro Umuofoukwu? in Umuofoukwu Dikenta Ekenobizi Umuopra in Umuahia South L.G.A. Abia State Nigeria within the jurisdiction of the Court with an annual rental value of N10.00.
2. The sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) being damages for trespass into the aforesaid piece or parcel of land in the possession and occupation of the Claimant.
3. An injunction permanently restraining the Defendants, their servants, agents, and/or
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their workmen from trespassing into the said piece or parcel of land or interfering with it in any manner whatsoever.?
?The Appellants as 1st Sets of Defendants Counter Claimed against the 1st and 2nd Respondents who were the Claimants in the Lower Court as follows:
?COUNTER ? CLAIM
The 1st ? 3rd defendants hereby counter-claim against the claimant as follows:
(a) A Declaration that the 1st to 3rd defendants are entitled to the Statutory Right of Occupancy of the piece or parcel of land traditionally known as and called ?OVORO NGODO? Verged Red in the Survey Plan No. LD/MGZ004/2011 filed with the Statement of Defence which is situating at Ngodo Village, Ehume Umuopara in Umuahia South L.G.A. Abia State of Nigeria within the jurisdiction of this Court.
(b) The sum of ONE MILLION (N1,000,000.00) being general damages for trespass into the aforesaid piece or parcel of land which is in the peaceable possession and occupation of the 1st ? 3rd defendants.
(c) An injunction permanently restraining the claimants, their servants, agents, and/or workmen from further trespassing to the said piece or
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parcel of land or interfering with it in any manner whatsoever.
The defendants shall at the hearing rely on the averments in the Statement of Defence in establishing or proving the Counter ? Claim.?
At the end or close of pleadings the matter proceeded to hearing and after the addresses of Learned Counsel to the parties, the Learned trial Judge delivered a considered judgment and concluded as follows:
?The visit of the Court to the locus and the observations in the light of features all the parties showed the Court support the features as pleaded and given in evidence by the claimants. Ahi is a Stream with a Concrete Bridge. A Stream is a small narrow river whereas a river is a large amount of fresh water flowing continuously in a long line across land according to BBC English Dictionary. In other words, Ahi is a small river. It follows that Ahi may be called a river or a stream. Therefore DW1 and DW3 of the 1st set of defendants gave false testimony over a matter within the knowledge when they said under cross-examination, that there is no bridge over Ahi River or stream whereas there is one. DW2 of the 1st set of defendants
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also gave false testimony when he said under cross-examination that person can walk past Ahi River whereas the Court?s visit to the locus shows otherwise because there is a concrete bridge across the stream or river. I found too that the said river is the natural boundary between the claimants and the 1st set of defendants who I found reside on the other side of the bridge along the road from Umuahia Owerri Tarred Road/Umuopara secondary school. DW4 of the 1st set of defendants said inter alia that his people do not have common boundary with the land in dispute. He also named four persons including DW3 who own land in the land in dispute contrary to their pleading that the said land is commonly owned. I hold that these witnesses including the (DW3, and the 3rd defendants on record) are star witnesses for the 1st set of defendants. Their evidence under cross-examination as highlighted above leaves no room to ascribe any credibility to them in respect of issues before the Court. See DAGGASH V. BULAMA (2004) 14 NWLR PT. 892, 144, & ODIVE V. OBOR (1974) 1 SC 2.
DW7, Chief Chibuike Iheme and DW8 Elder P. E. Biko both of the 2nd set of defendants
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admitted that the 2nd set of defendants were not paid compensation by NNPC over the land in dispute. These piece of evidence supports the case of the claimants.
In the final result, from the foregoing, I find and hold that on the preponderance of evidence and balance of probabilities, the claimants have proved that they have better title to the land in dispute much more than the defendants. When the Claimants evidence on acts of possession and ownership is placed on an imaginary scale, I am satisfied the claimants have adduced a more probable and more credible evidence over the above the two sets of defendants in this case. In other words, the scale tilts in favour of the claimants.
This suit therefore succeeds. Judgment is hereby entered in favour of the claimants against the 1st & 2nd set of defendants as per reliefs claimed except with respect to their 2nd relief on damages for trespass which is hereby fixed at N200,000.00 (Two Hundred Thousand Naira) only.
The Counter-Claim of the 1st set of defendants fails, it is hereby dismissed.?
The Appellants were aggrieved by the said judgment and they filed a Notice of Appeal dated 1st
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November, 2013 on 4th November, 2013 wherein they raised twelve grounds of appeal against the judgment. The Appellant later abandoned the said Notice of Appeal for another one dated 25th day of November, 2013 and filed on 26th day of November, 2014 containing fourteen (14) grounds which without their particulars are as follows:
?GROUND ONE: – ERROR IN LAW
The Learned Trial Judge erred in law when he declared the 2001 judgment of the Customary Court of Umuopara Abia State dated 5th April, 2001 in Suit No. CC/UO/26/97 (which was admitted in evidence as Exhibit ?J?.) null and void.
GROUND TWO: – ERROR IN LAW
The Learned Trial Judge erred in law when he held that the Appellants did not give a probable and conclusive evidence of root of title.
GROUND THREE
The judgment is against the weight of evidence.
GROUND FOUR:- ERROR IN LAW
The Learned Trial Judge erred in law when he admitted and relied on Exhibit ?C? and held that it is evidence that the Respondents were paid compensation by NNPC.
GROUND FIVE:- ERROR IN LAW
The Learned Trial Judge erred in law when he held that Exhibits
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?B? and ?B1?, ?C? and ?J? are all evidence of numerous acts of possession and ownership over the land in dispute by the Respondents.
GROUND SIX:- ERROR IN LAW
The Learned Trial Judge erred in law when he held that Ahi Stream is the boundary between the Appellants and the Respondents and thereby awarded the land in dispute to the Respondent.
GROUND SEVEN:- ERROR IN LAW
The Learned Trial Judge erred in law in awarding an excessive and punitive cost of N200,000.00 (Two Hundred Thousand Naira) against the Appellants.
GROUND EIGHT:- ERROR IN LAW
The Learned Trial Judge erred in law when he failed to make correct use of the observations of what he saw at the locus.
GROUND NINE:- ERROR IN LAW
The Learned Trial Judge erred in law by failing to draw the correct conclusions from the evidence on record when he held that the Respondents (Claimants) proved the better title over the land in dispute against the Appellants.
GROUND TEN: – ERROR IN LAW
The Learned Trial Judge erred in law when he held that the Respondents proved better acts of possession over the land.
GROUND
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ELEVEN:- ERROR IN LAW
The Learned Trial Judge erred in law when he failed to evaluate the entire evidence on record to verify if the Respondents as the claimants had built a strong case in their own right to warrant weighing their case against the case of the Appellants.
GROUND TWELVE:- ERROR IN LAW
The Learned Trial Judge erred in law when he placed premium on whether ?Ahi? is a river or stream or whether or not there is a bridge across it as the basis for deciding against the Appellants.
GROUND THIRTEEN: – ERROR IN LAW
The Learned Trial Judge erred in law when he held that:-
?I found too that the said river is the natural boundary between the claimants and the 1st set of defendants who I found reside on the other side of the bridge along the road from Umuahia Owerri Tarred Road/Umuopara Secondary School. DW4 of the 1st set of defendants said inter alia that his People do not have common boundary with the land in dispute. He also named four persons including DW3 who own land in the land in dispute contrary to their pleadings that the said land is commonly owned.?
GROUND FOURTEEN:- ERROR IN LAW<br< p=””
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The Learned Trial Judge erred in law when he held that:-
?I hold that these witnesses including the (DW3 and the 3rd defendants on record) are star witnesses for the 1st set of defendants. Their evidence under cross-examination, as highlighted above, leaves no room to ascribe credibility to them in respect of issue before the Court. See: DAGGASH VS. BULAMA (2004) 14 NWLR (Pt. 892) 144 & ODIVE VS. OBOR (1974) 1 SC 2.?
The Appellants? Amended Brief of Argument dated 4th day of February, 2016, was filed on 5th day of February, 2016 while the 1st set of Respondents? Brief of Argument dated 22nd day of February, 2016 was filed on the same date.
?The Brief of Argument of the 2nd set of Respondent dated 17th day of February, 2016, was filed on the same date. On the 10th day of March, 2016 the Appellants filed Appellants? Reply Brief to the Brief of Argument of 1st sets of Respondents. It is dated 29th day of February, 2016. The Appellant also on the same day filed Appellants? Reply Brief to the Brief of Argument of the 2nd set of Respondent. It is dated 18th day of February, 2016. The appeal was heard on 14th
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day of April, 2016 when the Learned Counsel to the parties adopted their respective Brief(s) of Arguments.
The Learned Senior Counsel to the Appellants D. C. DENWIGWE Esq., SAN nominated seven issues for determination viz:
?(i) Whether the Learned Trial Judge was right when he nullified and voided that judgment of the Customary Court dated 5th April, 2001 in Suit No. CC/UO/26/97 which was admitted in evidence at the trial as Exhibit ?J?. (Ground 1).
(ii) Whether the Learned Trial Judge rightly acted on the document ? Exhibit ?C? as proof of payment of compensation by NNPC to the Respondent for the land in dispute? (Ground 4).
(iii) Whether the Learned Trial Judge rightly acted on the documents ? Exhibits ?B?, ?B1?, ?C? and ?J? as evidence of numerous acts of possession over the land by the Respondents? (Grounds 5 and 9).
(iv) Whether the Learned Trial Judge was right when he held that Ahi Stream or River is the boundary between the Appellants and the Respondents? (Grounds 6 and 13).
(v) Whether the Learned Trial Judge was right when he
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failed to evaluate the evidence of the Respondent (as the Claimants) and determine if they made out a strong case of title to the land in dispute to warrant shifting the burden to the Appellants to prove their own case? (Ground 11).
(vi) Whether the final judgment of the Trial Court against the Appellants and in favour of the Respondents is justified by the evidence on record? (Grounds 2, 3, 8, 10, 12 and 14).
(vii) Whether the award of the sum of N200,000.00 (Two Hundred Naira) as cost against the Appellants is justified? (Ground 7).?
The Learned Counsel to the 1st set of Respondents C. N. Nwokorie Esq. distilled Seven Issues which are a reharsh of the Issues formulated by the Appellants. The 2nd sets of Respondents adopted the Seven Issues raised for determination by the Appellants.
The appeal can be determined or resolved on the Issues formulated by the Appellants.
ISSUE 1
Whether the Learned Trial Judge was right when he nullified and voided that judgment of the Customary Court dated 5th April, 2001 in Suit No. CC/OU/26/97 which was admitted in evidence at the trial as Exhibit ?J?. (Ground 1).
?The
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Learned Senior Counsel to the Appellants referred to the reliefs claimed by the 1st set of Respondent before the Lower Court and stated there was no relief therein or a prayer seeking for the nullification of the judgment of the Customary Court tendered as Exhibit ?J?. That what was pleaded in paragraph 25 of the 1st set of Respondent Statement of Claim was that previous litigation over the land between the parties at the Customary Court were inconclusive and did not result in any judgment.
That a judgment of a Court remains valid until set aside by a competent Court. Reliance was placed on the cases of:
1. NWORA V. NWABUEZE (2011) 17 NWLR (PART 1277 699 at 719 E ? H.
2. AKINFOLARIN VS. AKINOLA (1994) 3 NWLR (PT. 335) 659 at 679 B and 677 F.
3. NIDOCCO VS. GBAJABIAMILA (2013) 14 NWLR (PART 1374) 350 at 374 D ? E.
He submitted that the Learned trial Judge cannot sit in an appeal over judgment of the Customary Court in Suit CC/OU/26/97. That the only Court with appellate Jurisdiction over Customary Courts in Abia State is customary Court of Appeal of Abia State relying on BUNGE V. GOV. RIVERS STATE (2006)
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12 NWLR (PART 995) 573 at 628 ? 629 H ? A.
That it was at the trial that futile attempts were made by Respondents in Suit HU/44/2011 to set aside the judgment of Customary Court. That Exhibit ?J? was tendered by DW2 and Respondents did not cross-examine Appellants? witnesses on the said Exhibit ?J?. That a judgment cannot be set aside on the basis of a cursory reference to it in a Reply to the Statement of Defence or through address of Counsel. That the basis for the nullification of the said judgment Exhibit ?J? is that the land situates in an Urban Area. That there was no instrument of designation of Urban Area tendered before the Court to verify the cadastral or Survey data of areas of land which fall within any designated urban area. That the designation must be first pleaded and proved before its effect becomes a question of Law. That trial Judge cannot surmise or presume the necessary evidence and proof. That the Order nullifying the exhibit was gratuitously made as no relief was sought for it. He relied the cases of:
1. EKPEYONG V. NYONG (1975) VOL. 9 NSCC 28.
2. AKINYANJU VS. UNILORIN
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(2005) 7 NWLR (Pt. 923) 87 at 114 D ? H.
3. NIDOCCO LTD. VS. GBAJABIAMILA Supra 396 ? 394 H ? A.
That the institution of that Suit and the judgment at the Customary Court favour the Appellants as according to them, it is an act of possession adverse to the Respondents Claim over the land. That the trial Judge wrongly held instead that it is an act of possession by Respondents against the Appellants. Relied on pages 311, and 320 ? 322 of the record. That the decision of the trial Court occasioned a miscarriage of justice. He relied on the cases of:
1. APATA V. OLANLOKUN (2013) 17 NWLR (PART 1383) 221 at 243 A – B.
2. CHINWENDU VS. MBAMALI (1979?817) NSCC (Vol. 12) 127 at 138.
He urged the Court to resolve Issue 1 in favour of the Appellants.
?In response to the above submissions, the Learned Counsel to the 1st set of Respondent referred to page 33 of the record where the Appellants pleaded the judgment tendered as Exhibit ?J? and the REPLY TO STATEMENT OF DEFENCE OF 1ST ? 3RD DEFENDANTS AND DEFENCE TO COUNTER- CLAIM paragraph 21 thereof where issues were joined concerning the
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jurisdiction of the Customary Court that gave the judgment and validity of the said judgment.
That the Appellants tendered the proceedings and judgment of the Customary Court as Exhibit ?J? and ?J1? respectively. That the Counsel to the parties addressed the trial Court on whether the Defendants plea of estoppel against the Claimants based on the judgment in Suit CC/UO/26/97 Exhibit ?J? is sustainable in this case. That one of the basic requirements for a successful plea of rejudicata is that the adjudication in the previous case must have been given by a Court of competent jurisdiction. That the trial Judge considered the issue of Res Judicata raised by the Appellants as 1st Defendant in pages 321 ? 322 of his Judgment.
?That the Respondents in this appeal and the Appellants agreed that the land in dispute is situate in Umuahia South Local Government Area of Abia State which the said designation of Urban Area Order designated as an Urban Area. He also relied on paragraph 4 of the Appellants Statement of Defence. That the said Urban Areas Order is a Gazettee Notice which content is not proved by tendering but
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by bringing it to the attention of the Court.
That the Respondents cited the case to the trial Court. He also relied on the finding of trial Court that Exhibit ?J? is an act of possession on the part of the Claimants. He urged the Court to resolve Issue 1 in favour of the 1st set of Respondents.
The Learned Counsel to the 2nd set of Respondents Emmanuel E. Ukaegbu Esq., agreed with the contention of the 1st set of Respondents that the judgment of the Customary Court is a nullity because a Customary Court has no jurisdiction over land that is subject of Statutory Right of Occupancy.
According to Emmanuel E. Ukaegbu Esq., the invalidity of such a judgment as Exhibit ?J? does not have to be challenged in Suit but can be shown to be a nullity whenever such judgment becomes an issue. He relied on the case of ZANGINA VS. COMMISSIONER FOR WORKS BORNO STATE (2001) 9 NWLR (PT. 718) 460 where according to him the Supreme Court held that where evidence of lack of jurisdiction is adduced against a judgment which has not been appealed against but relied upon as a defence to an action, like Res Judicata, the Court can pronounce on the
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validity of the judgment. That being a nullity it cannot constitute an acts of possession in favour of the 1st set of Respondent. Subject to that he urged the Court to decide Issue 1 against the Appellants.
Now in paragraph 33 of the Statement of Defence and Counter-Claim of the Appellants they pleaded as follows:
?In further reply to paragraph 25 of the Statement of Claim, the 1st ? 3rd Defendants state that in 1941 they got judgment against the Claimant over the same land in dispute at the Customary Court Nkwoegwu. Also on 5th April, 2001, the 1st ? 3rd defendants got judgment against the Claimant at Customary Court Umuopara in Suit Number CC/UO/26/97. The judgment CC/UO/26/97 is hereby pleaded.?
In their Reply to the Statement of Defence and Defence to Counter ? Claim of the 1st ? 3rd Defendants, the 1st set of Respondents pleaded in paragraph 21 thereof of thus:
?The averments in paragraphs 33 and 34 of the Statement of Defence are mere fabrication. The judgment in CE/UO/26/97 is invalid having been given by a Court that lacked jurisdiction to hear the case, as the land in dispute in respect of
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which the judgment was given is situate in Umuahia South L.G.A. Abia State which is a place designated as an Urban Area by the Urban Area Designation Law of Abia State. The said judgment is not worth the paper on which it was written, and I urge this Court at the hearing to disregard the said judgment in evaluation of facts in this case. The Claimants have filed Suit No. HU/44/2011 for a declaratory relief against the said judgment and an Order that it be set aside.?
The implication of the two sets of pleadings is that the Appellants were relying on the judgment in CC/UO/26/97 as constituting Res Judicata against the 1st set of Respondents. Where there is a plea of res judicata by a defendant and it succeeds, the jurisdiction of the Court is ousted the issues relating to the subject matter having been finally decided in a previous suit before a Court of competent jurisdiction. In other words where a matter in dispute has been decided between parties to an action in an earlier proceedings none of the parties can under any guise relitigate the matter or issues already decided previously in a later action. The current action will be terminated in
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limine where it is proved or shown to have been previously adjudicated upon by a Court of competent jurisdiction. The rational behind it is that you cannot vex your opponent or adversary twice on the same subject matter as there must be an end to litigation. It deprives the Court of jurisdiction.
See:
SALAWU YOYE VS. LAWANI OLUBODE & ORS. (1974) 10 SC 209 221 ? 223 where DAN IBEKWE, JSC., said:
?The plea of res judicata, therefore robs the Court of its jurisdiction to allow parties re-litigate the same issues again, and this explains why, in practice, the plea has always been used only as a defence. It is a formidable weapon which may be pleaded in the Statement of Defence or in the Plaintiffs Reply to the Statement of Defence, should the need arise.
But, by its very nature, res judicata should have no place in a Statement of Claim. It is unreasonable for the Plaintiff to embody in his own action the plea of res judicata. In our view, such a course of action would lead to absurdity. Indeed, it is unthinkable that the very Plaintiff who invokes the jurisdiction of the Court should afterwards turn round to plead that the same
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Court has no jurisdiction to hear the claim.?
The Defendants now Appellants were/are under a bounden duty to prove or establish all the relevant conditions for the sustenance of plea of res judicata against the Respondents. The conditions and ingredients of Res judica that must be cumulatively proved:
See: 1. JIMOH & ORS. VS. MALAM K. AKANDE & ANOR.(2009) 5 NWLR (Pt. 1135) 549 at 577 F ? H to 578 A ? C per CHUKWUMA ? ENEH, JSC who said:
?The pre-conditions for its application are settled as a party relying on it has to show inter alia:
(1) That the identity of the parties and/or their privies in the previous case and the present case are the same.
(2) The issues and subject matter i.e. identity of cause of action) litigated upon in the previous case and the present cases are the same.
(3) There must be a valid judgment of a Court of competent jurisdiction on the point of subject matter.
(4) If the action concerns land (as here) there must be evidence that the land in the previous case is the same as in the present case.
Each of these requirements must be proved and it is not a
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matter to be drawn by inferences. Once any of the requirements is not proved, the defence of res judicata may be at large and is inapplicable.?
2. ATTORNEY ? GENERAL OF NASARAWA STATE VS. ATTORNEY-GENERAL OF PLATEAU STATE (2012) 10 NWLR (PART 1309) 419 at 465 C ? F per ADEKEYE, JSC who said:
?For the plea to succeed, a party relying on it must establish the following facts:-
(a) That the parties or their privies involved in both the previous and the proceedings in which the plea is raised are the same.
(b) That the claim or issue in dispute in both proceedings are the same.
(c) That the res or the subject matter of the litigation in the two cases is the same.
(d) That the decision relied upon to support the plea is valid, subsisting and final.
(e) That the Court that gave the previous decision relied upon to sustain the plea was a Court of competent jurisdiction.
The burden is on the party who sets up the defence of estoppel per rem judicatam to establish the above pre-conditions conclusively ? Balogun v. Ode (2007) 4 NWLR (Pt. 1023) pg. 1. Dagaci of Dere v. Dagaci of Ebuwa (2006) 7 NWLR
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(Pt. 979) pg. 382.?
?The Appellants did not file any Reply or Rejoinder to the Defence to Counter-Claim which is an independent action, to show that a Customary Court in Abia State can entertain the Suit CC/UO/26/97 or that the land in dispute is not in Urban Area making the High Court of a State the only Court that can entertain any Claim relating to land situate in an Urban Area of the State.
See: JOSIAH AYODELE ADETAYO & ORS. VS. KUNLE ADEMOLA & ORS. (2010) 6 SCM 1at 17A ? 1 to 18 A ? B per MAHMUD MOHAMMED, JSC who said:
?While Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of Statutory Right of Occupancy, Section 41 redefines the jurisdiction of the Courts referred to therein so as to ensure that Courts, such as the Customary Courts in Southern States of this Country which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of land, have their jurisdiction limited as stated therein. In other words while the State High Court has exclusive jurisdiction over lands in Urban Areas by virtue
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of Section 39(1) of the Land Use Act, that Court shares jurisdiction with only the Area Courts and Customary Courts or other Courts of equivalent jurisdiction by virtue of both the jurisdiction of the State High Court under Section 272 of the 1999 Constitution and the jurisdiction conferred on the Area Courts and Customary Courts by virtue of Section 41 of the Act. As there is nothing in these Section 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or mattes. I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.?
The Appellants even though fully aware in advance that the judgment being relied upon for plea of res judicata was being challenged on the ground that it was a nullity having been delivered without jurisdication did not prove the validity of the Customary Court?s Judgment.
?It must be noted that the Appellants having pleaded the judgment of the Customary Court as res judicata, they have directly put in issue the validity of the judgment of the Customary Court.<br< p=””
</br<
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See: Sections 49 and 53 the Evidence Act 2004 which provide:
?49. The existence of any judgment, Order or decree which by Law prevents any Court taking cognizance of a Suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit to hold such trial.
53. Any party to a Suit or other proceeding may show that any Judgment, Order or decree which is relevant under Section 49, 50 or 51 of this Act and which has been proved by adverse party was delivered by a Court without jurisdiction, or was obtained by fraud or collusion.?
Similar provisions have been enacted in Sections 59 and 64 of the Evidence Act 2011.
The Appellants did not dispute the fact that the land in dispute is in Urban Area. I am of the view that the Learned trial Judge was/is right in treating the judgment of the Customary Court Exhibit ?J? as a nullity. See (1) ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BABANGIDA ALIU & OTHERS (2010) 11 SCM 69 at 93 E per ONNOGHEN, JSC who said:
?It is trite that jurisdiction is very fundamental to adjudication and that where a Court lacks the
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competence to hear and determine a matter but proceeds to do so, an appellate Court is duty bound to nullify a decision resulting therefrom.?
Issue 1 is resolved against the Appellants.
ISSUE 2
WHETHER THE LEARNED TRIAL JUDGE RIGHTLY ACTED ON THE DOCUMENT ? EXHIBIT ?C? AS PROOF OF PAYMENT OF COMPENSATION BY NNPC TO THE RESPONDENT FOR THE LAND IN DISPUTE? (GROUND 4).
The Learned Senior Counsel stated that Exhibit ?C? is a Power of Attorney granted to one HALI INVESTMENT AND PROPERTY COMPANY LTD. by ?T. A. UWAHEMODO & 5 ORS. OF DIKENTA OVORO UMUFOUKWU KWUANO UMUOPARA UMUAHIA L.G.A.?
That the donee did not testify at the trial. That the land to which Exhibit ?C? relates is not stated on the face of the document. That the Survey Plan recited in the Exhibit was not pleaded and was not reflected in any composite Survey Plan at the trial and neither was it tied to the land in dispute. That the names of the donors in Exhibit ?C? is not the name of any of the Respondents (Claimants) in this case. That the name pleaded by the Claimants is UMUOFOUKWU DIKENTA IN
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EKENOBIZI UMUOPARA IN UMUAHIA SOUTH L.G.A. ABIA.
That the land claimed was described as OVORO UMUOFOUKWU. That there is nothing in the pleadings or evidence on record to justify any inference by the Court that:
?Dikenta Ovoro Umuofoukwu in Ikwuano Umuopara? is the same as Umuofoukwu Dikenta in Ekenobizi Umuopara? in Umuahia South L.G.A.?
That no such finding was made by the Learned trial Judge and that the Claim of Claimants on Exhibit ?C? was disputed by the Appellants in their leadings. That no evidence was led from NNPC to show that NNPC ever paid any compensation to the Respondents at all let alone for the land dispute. The Learned Counsel urged this Court to decide Issue 2 in favour of Appellants. On Issue 2 concerning Exhibit ?C? and payment of compensation, 2nd set of Respondents contended Exhibit ?C? has no relevance to the suit on appeal. That there is nothing to show that 1st set of Respondents donated the Power of Attorney Exhibit ?C?.
?In response to the submission under Issue 2, the Learned Counsel for Respondents (1st set) stated that the Appellants pleaded
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that compensation was paid to them by NNPC for a pipe that passed through the land in dispute in paragraph 34 of the Statement of Defence. That the 1st set of Respondents in their Reply and Defence to Counter-Claim paragraph 7 (a) pleaded that the compensation mentioned by Appellants was actually paid to 1st set of Respondents by NNPC. That Additional Written Statement on Oath was made by 1st Respondent and documents by which the compensation was paid by NNPC was front- loaded.
That the Appellants did not take the advantage provided by ORDER 33 Rule 1(1) of Abia State High Court (Civil Procedure) Rules 2011 to file a rejoinder to plead the perceived inadequacy in the documents front-loaded by Claimant concerning the compensation paid to Claimants. That the criticisms of the Appellants with regard to exhibit ?C? amounts to allegation of forgery against the Respondents and that the Appellants did not give any particulars of the falsity of Exhibit ?C?. That they embark on their attack only in their address. He relied on the finding of the trial Judge on Exhibit ?C?. That the Appellants did not produce any evidence of
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receipt of compensation from the NNPC. That having asserted it in the affirmative in their pleadings the Appellants were bound to prove it. He relied on the case of ADEGOKE V. ADIBI (1992) 6 SCNJ 136 at 148. He urged this Court to resolve Issue No. 2 in favour of 1st set of Respondents.
It is trite that when there is an attack on the judgment of trial Court on whether the trial Court properly assess and evaluate the documentary evidence tendered before it, this appellate Court can intervene and examine the documentary evidence in order to discern whether the document(s) was/were properly put into use or ought to have been discountenanced by the trial Court as lacking in probative value.
See (1) CHIEF NYA EDIM EKONG VS. CHIEF ASUQUO E. OTOP & ORS. (2014) 11 NWLR (PART 1419) 549 at 573 F ? H per OKORO, JSC who said:
?It is trite that documents tendered before a Court at the trial of a case is part and parcel of the evidence to be considered in the determination of issues before the Court. Such documents usually referred to as exhibits are subject to scrutiny and to be tested for credibility and weight by the trial Court where the
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trial Court fails to examine documents tendered before it, an appellate Court is in a good position to evaluate such Exhibits. See Ayeni v. Dada (1978) 3 SC 35; Bamgboye v. Olanrewaju (1991) 22 NSCC (Pt. 1) 501. (1991) 4 NWLR (Pt. 184) 132. I think since Exhibit ?C? was tendered before the trial Court and was part of the record of appeal before the Court below, the Justices of that Court were eminently qualified to draw such inferences as they found fit and proper so to do.?
(2) U.T.C. NIGERIA PLC VS. ALHAJI ABDULWAHAB LAWAL (2014) 5 NWLR (PART 1400) 221 at 238 E ? F per MNTAKA ? COMMASSIE, JSC who said:
?the Court below rightly held that ?where the evidence to be appraised are documentary evidence, because the exercise does not hinge on the credibility of witnesses and assessed only by trial Court, the Appeal Court would lawfully intervene, re-appraise the relevant evidence with a view to checking the injustice, the perverse decision of the trial Court would have caused the Appellant.?
I have examined the pleadings of the parties in this appeal and I found that the Appellants pleaded NNPC
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compensation in paragraph 34 of their Defence and counter Claim. The 1st set of Respondents joined issue with them and tendered Exhibit ?C? wherein there is evidence of compensation to the 1st set of Respondents together with Survey Plan as Exhibit ?D? tendered without any objections from Appellants and 2nd set of Respondents. There was no cross examination on the perceived anomalies on Exhibit ?C? by the Appellants of any of the 1st set of Respondents.
?The law is settled that in both civil and criminal cases objection to admissibility or relevancy of oral and documentary evidence must be properly taken or raised at the point of giving the evidence or the tendering of the documentary evidence. Where as in this Case Exhibit ?C? was tendered without any objection from Appellants or their Counsel, it is too late in the day to start complaining of the documentary evidence without objection. The trial Court was right in according to Exhibit ?C? probative value and weight in arriving at its decision. The Appellant who are now contending that the document has no relation with 1st set of Respondents had
30
opportunity to file a reply or Rejoinder to 1st set of Respondents? pleading in their Reply and Defence to counter claim. They did not show any evidence of their own receipt or payment to them by NNPC and the weight of evidence is against the Appellants regarding payment of compensation to 1st set of Respondents by NNPC. They cannot contend the contrary in this appeal. See CHIEF BRUNA ETIM & ORS V. CHIEF OKON UDO EKPO & ANOR (1983) NSCC 86 at 95 ? 96 per ANIAGOLU, JSC.
All the submissions made on Exhibit ?C? are clearly misplaced. The finding of the trial Judge on the exhibit cannot be faulted. The said document actually supported the pleaded case of the 1st set of respondents that they were paid compensation by NNPC for NNPC pipe that passed through the land in dispute. Issue 2 is resolved against the Appellants.
ISSUE 3
Whether the Learned trial Judge rightly acted on the documents Exhibits ?B? ?B1, ?C? and ?J? as evidence of numerous acts of possession over the plan by the 1st set of Respondents (Grounds 5 and 9).
?The Appellants? Learned Senior Counsel
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adopted all arguments already canvassed on Exhibits ?C? and ?J?. That Exhibit ?J? fell in favour of Appellants as acts of possession against the Respondents.
On Exhibits ?B? AND ?B? which are receipts for radio announcements, the learned Senior Counsel to Appellants submitted they do not contain the of the announcement. That they are documents that arose as a result of the planting of Survey beacons on the land by persons other than Respondents.
That Exhibits ?B? and ?B1? were documents generated when litigation was within the contemplation of Respondents. That to that extent they are statutorily inadmissible to prove anything in this case. Reliance was placed on the Case of ONU VS IDU (2006) 12 NWLR (PART 995) 657 at 677 F ? G. That the trial Judge put exhibits in question into a wrong use. He urged the Court to decide the issue in favour of the Appellants.
?The second set of Respondents adopted his arguments on Exhibits ?J? and ?C? and further submitted that it was correct to submit that Exhibits ?B? and
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?B1? were made while proceeding was anticipated and such the documents were inadmissible. That the trial Judge was wrong in using them as acts of possession for 1st set of Respondents and that it occasioned miscarriage of justice on 2nd set of Respondents who did not counter claim.
Responding to the above submissions, the Learned Counsel to 1st set of Respondents relied on paragraphs 21, 22 23 and 24 of the Statement of Claim as the reason for Exhibits ?B? and ?B1? due to the planting of Survey beacons on the land in dispute. That the exhibits were not made in anticipation of any suit. He relied on the Case of OLADELE V. TRUSTEES OF ECWA (2001) 2 NWLR (Pt. 1230) 1 at 28 per Denton ? West who said that erection of beacons is an act of trespass. That Exhibits ?B? and ?B1? came into being merely in pursuance of their ownership and possession over the land in dispute.
?The documents Exhibits ?B? and ?B1? were tendered at the trial without objection from the Appellants. The appellants are now contending that the documents are inadmissible pursuant to Section 83 (3) of
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the Evidence Act 2011. The Section provides:
?83(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.?
Sub-Sections 3 and 4 of Section 96 of the Evidence Act LFN 1990 was extensively considered by the Supreme in case of NBC PLC VS. CHIEF UZOMA UBANI (2014) 4 NWLR (PART 1398) 421 at 460 C-A to 451 A-D per CHUKWUMA H-ENEH, JSC who held:
?What has emerged from a combined reading of the foregoing provisions of Sub-sections 3 and 4 of Section 91 of the Evidence Act, 1990 is that a document which is prepared or authenticated by a person interested in the outcome of a matter before the trial Court that is, when the proceedings are pending or anticipated and which document is intended to be used and relied on by the person and indeed has been so used or relied on to establish a fact in issue in the pending matter, albeit in the outcome of the case, is clearly inadmissible ? meaning that it must be rejected as inadmissible evidence. There is much
34
good sense grounding this principle of law as there is also no gainsaying that for a party to a suit to indulge in such exercises is self serving as it is capable of gross abuse to the advantage of the maker. Besides, a maker?s interest in such circumstances negates the principle of fair hearing, a constitutional principle which is basic for a pure adjudication of a matter before the Court; clearly, such interest distorts the evenness of the level playing ground, the Court always attempts to provide for both parties to litigation in the interest of justice. Such interest can be financial as is being alleged in this case and a comparable offence in this regard is the offence of champerty which is a bargain wherefore a party in a suit is assisted by another person with a view to sharing the proceeds of the suit. The instant Exhibits ?E?, ?F? & ?G? in the con of this matter have been prepared by one Mr. Ephraim Obot of C. Y. Obi Builders otherwise known as their maker but he has not been showed to have any financial or other tainted interest in the outcome of this case and so the instant documents
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i. e. Exhibits ?E?, ?F? & ?G? cannot come within the ambit or be caught under Section 91(3) (supra). In other words, these exhibits being legal evidence have been rightly admitted in evidence by the trial Court. It is even moreso here when the defendant/appellant has not at the trial objected to their admissibility and so the defendant/appellant cannot now be heard albeit belatedly to urge against their admissibility howbeit by having them expunged from the record. The trial Court again relying on the instant exhibits as admissible evidence in proving the instant special damages, if I may repeat, rightly admitted them and acted on them as requiring no further proof. See: Chukwuura Akunne v. Matthais Ekwuno & Ors. (1952) 14 WACA 59 and Usman v. Owoeye (supra). The two Lower Courts have rightly acted and relied on the said documents.
Furthermore, this Court has had cause to scrutinize the provisions of Section 91(3) of the Evidence Act in the case of Muhammed v. Kayode (1997) 11 NWLR (Pt. 530) 584 where as in this case estimates for the repairs of an accidented vehicle and the receipts for the purchase of the
36
spare parts supplied to the plaintiff during the pendency of the suit by his mechanic and the spare parts dealer have been held as not having offended Section 91(3) as both the mechanic and the spare dealer have not been caught as interested parties in the case within the purview of Section 91(3) (supra).?
The receipts Exhibits ?B? and ?B1? are evidence that the 1st set of Respondents took steps to protect their interests in the land in dispute. The receipts do not fall within the category of documents excluded from civil proceedings by Section 83(3) of the Evidence Act 2011. The Appellants are even here estopped from challenging the admissibility of the said Exhibits having failed to object to them at the trial.
?I also adopt my reasoning and conclusions under issues 1 and 2 to hold that the Learned trial Judge properly and lawfully in accordance with the provisions of the Evidence Act admitted documents marked Exhibits ?B?, ?B1?, ?C? and the use to which he put those exhibits in finding in favour of the 1st set of Respondents and the Learned trial Judge was also right in treating
37
Exhibit ?J? the judgment relied upon by Appellants as a nullity.
Issue 3 is hereby resolved in favour of the 1st set of Respondents against the Appellants.
ISSUE No.4
Whether the learned trial Judge was right when he held that Ahi Stream or River is the boundary between the Appellants and the Respondents? (Ground 6 and 13).
The Learned Senior Counsel to the Appellants adopted his submissions under issues 1-3 and particularly on the issue of pouring of libation by Appellants? Osuagwu Ahaiwe for the building project. That Appellant?s averments in paragraph 34 of their pleadings were not traversed and were not controverted through cross examination. That the learned trial Judge relied on the evidence of DW4 for findings which are complained of in this issue. That the findings of the learned trial Judge did not flow from the evidence of DW4. That the evidence of DW3 is evidence of acts of possession over the land by the Appellants. That if DW3 lives within the land then he could not have common boundary with Appellants or himself. The Learned Silk urged this Court to decide issue 4 in Appellants favour.
?In response,
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the Learned Counsel to the 1st set of Respondents informed the Court that the position of Ahi River/Stream is significant in proving ownership of the land in dispute and that the 1st set of Respondents and Appellants pleaded it and averred that the natural boundary between the 1st set of Respondents and Appellants is a River known and called Ahi i. e. River. He relied on page 4 of the record paragraph 12 of the Statement of Claim.
That the Appellants joined issue with 1st set of Respondents in paragraph 15 of their Defence but failed to plead any object or thing as the boundary between the 1st set of Respondents? Community and the Appellants community notwithstanding that Ahi River/Stream is natural boundary between the said two communities according to 1st set of Respondents. That there is abundant evidence to support the position of Respondents. He relied on the evidence of DW5 under cross examination admitting that the boundary between 1st set of Respondents and Appellants is Ahi River. This is on page 105 of the record according to 1st set of Respondents.
?The Learned Counsel to the 1st set of Respondents also relied on the visit to locus in
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quo by the learned trial Judge and the findings of the Learned trial Judge in his judgment on page 322 of the record.
That DW5 in his witness statement on Oath paragraphs 4, 5 and 6 thereby had stated that Ahi is a Stream and not a River and that it is within OVORO NGODO land of the 1st set of Defendants (Appellants). That under cross-examination on page 102 of the record, DW4 said he did not know Ahi River and what he (DW4) knew was that they call AKWA MIRI. That the Appellants failed to include the witness Statement on Oath of DW4 into the record of appeal making it necessary for 1st set of Respondent to compile Additional Record to include DW4?s witness statement on Oath. That the said DW4 and other witnesses called by Appellants were not consistent in their evidence and they gave unreliable evidence on the position of Ahi River/Stream to the land in dispute. He relied on the case of EZEMBA V. IBENEME (2004) 40 WRN 1 at 27 per EDOZIE JSC to the effect that a witness who has given on Oath two material inconsistent evidence is not entitled to Honour of credibility. That the conclusion reached by the trial Judge on the credibility of Appellants
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witnesses to wit DW1, 2, 3 and 4 is apposite:
On their part, the 2nd set of Respondents through their Learned Counsel Emmanuel E. Ukaegbu Esq., stated that the three parties to the suit filed dispute Survey Plans which among other features clearly showed the course of Ahi River or Stream. That the survey plan of the 1st and 2nd sets of Respondents showed Ahi Stream as constituting the boundary between the appellants and the land in dispute belonging to 2nd set of Respondents and other lands belonging to 1st set of Respondents. That the Learned trial Judge visited the locus in quo where he saw things for himself including the fact that a bridge runs across Ahi River and Respondents live on the other side of it. He submitted that the Lower Court was right from the evidence to conclude that Ahi River or stream forms the natural boundary between the Appellants and the two sets of Respondents.
In the two Reply Briefs filed by Appellants they maintained their arguments as contended in the main Brief.
By the Rules of pleadings, any allegation made by a party whether affirmative or negative forms essential part of the party?s case and the proof of
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such allegation lies squarely on the party making the assertion and by Section 135 ? 137 of the Evidence Act on onus and standard of proof will then come into play. Each side has the duty to support his or her assertions with credible and positive evidence. The onus or burden of proof is not static. It oscillates between the Plaintiff/Claimant and the Defendant.
Therefore before arriving at a decision in any cause or matter, the duty to be performed by the parties are well defined by the Evidence Act and the Rules of the relevant Court. The parties have the bounden duties to call believable evidence in support of their pleadings. Thereafter the trial Court will assess and evaluate the pieces of evidence led along with the various submissions of learned counsel to the parties. This the trial Court will do by placing the oral and documentary evidence given before the trial Court by the parties on an imaginary scale in order to determine the winner or which of the parties to believe. See the Case of ALIYU BALOGUN VS. ALHAJI SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 per Late Legal Giant and Eminent jurist, OPUTA, JSC of blessed memory who had this
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to say:
?Also when pleadings have been filed the onus is on the Plaintiff to prove the averments in his Statement of Claim and on Defendant to prove what he averred in his Statement of Defence Proof by preponderance of evidence simply means that the evidence adduced by the Plaintiff should be put on one side of the scale mentioned in ODOFIN & ORS VS. MOGAJI & ORS (1978) 5 ILRN 212 and the evidence adduced by the Defendant put on the other side of that scale and weighed together to see which side preponderates.” See also MOGAJI VS. ODOFIN (1978) NSCC 275 at 277-278 per Late Eminent Jurist FATAYI WILLIAMS JSC later CJN.
The Appellate Court will not interfere with performance of that duty of the trial Court save in exceptional circumstances See:
?1. CHIEF SAIPEREMOR PREYE AMAREMOR VS. THE STATE (2014) 7 SCM 1 at 20 F ? G.
2. MRS. LOIS CHITURU UKEJE & ANOR. VS. MIS. GLADYS ADA UKEJE (2014) 11 NWLR (PART 1418) 384 at 405H where RHODES ? VIVOUR, JSC said:
?It is well settled that it is the duty of the trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their
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credibility and ascribe probative value.?
Thus where the findings of facts made by a trial Judge is supported by credible evidence on record, such findings will not be tampered with the Appellate Court. The findings of a trial Court can only be torpedoed only in the following circumstances viz:
1. Where the trial Judge failed to make proper use of his opportunity of seeing, hearing and observing the witnesses.
2. Where he failed to exercise his discretion properly or judicially.
3. Where the trial Judge drew wrong conclusion from the accepted evidence or formed an erroneous view thereon.
4. Where the findings or evidence are perverse.
See: (1) NEWMAN OLODO & ORS. VS. CHIEF BURTON M. JOSAIH & ORS. (2010) 12 SCM 157 at 182 A- B per ADEKEY, JSC.
(2) VAB PETROLEUM INC. VS MR. MIK MOMAH (2013) 14 NWLR (PART 1374) 284 at 318 E ? H where I.T. MUHAMMED, JSC said:
?The trite position of the Law is that where the Court of Appeal wrongly disturbed any finding of fact of a trial Court, the Supreme Court will not hesitate in restoring that finding. See Board of Customs and Exercise V. Barau (1982)s 10 SC 48
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Finally on this issue, I may have to reiterate the function of an appellate Court on question of facts. It is mainly limited to seeking whether or not there was evidence before the trial Court upon which its decision on facts was based, whether it wrongly accepted or rejected any evidence tendered at the trial whether evidence called by either party to the conflict was put on either of the imaginary scale and weighed one against the other. In other words, whether the trial Court properly evaluated the evidence, whether the trial Court correctly approached the assessment of the evidence before it and whether the evidence properly admitted was sufficient to support the decision upon the inference drawn there from. This is the only way and procedure open to on appellate Court in the consideration of an appeal brought before it.?
I believe it is of utmost importance to recall here again the findings of the learned trial Judge against the witnesses of the Appellants concerning Ahi Stream or River which the Learned trial Judge found is the boundary between the Appellants and the Respondents. The Learned trial Judge found on page 323 of the record of appeal
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as follows:
?The visit of the Court to the locus and the observations in the light of features all the parties showed the Court support the features as pleaded and given in evidence by the claimants. Ahi is a stream with a concrete bridge. A stream is a small narrow river whereas a river is a large amount of fresh water flowing continuously in a long line across land according to BBC English Dictionary. In other words, Ahi is a small river. It follows that Ahi may be called a river or a stream. Therefore DW1 and DW3 of the 1st set of defendants gave false testimony over a matter within the knowledge when they said under cross-examination, that there is no bridge over Ahi river or stream whereas there is one. DW2 of the 1st set of defendants also gave false testimony when he said under cross-examination that person can walk past Ahi river whereas the Court?s visit to the locus shows otherwise because there is a concrete bridge across the stream or river. I found too that the said river is the natural boundary between the claimants and the 1st set of defendants who I found reside on the other side of the bridge along the road from Umuahia
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Owerri Tarred Road/Umuopara Secondary School. DW4 of the 1st set of defendants said inter alia that his people do not have common boundary with the land in dispute contrary to their pleading that the said land is commonly owned. I hold that these witnesses including the (DW3, and the 3rd defendants on record) are star witnesses for the 1st set of defendants. Their evidence under cross-examination as highlighted above leaves no room to ascribe any credibility to them in respect of issues before the Court. See DAGGASH V. BULAMA (2004) 14 NWLR PT. 892, 144, & ODIVE V. OBOR (1974) 1 SC 2.?
The Appellants had led evidence which was accepted by the trial as establishing the boundary pleaded by the Appellants. I have carefully gone through the pieces of evidence given by the said witness in the record of appeal and the additional record of appeal complied by the 1st set of Respondents and I found that the Learned trial Judge made accurate and correct assessment of the evidence given by the appellants witnesses about the boundary between Appellants and the 1st and 2nd set of Respondents.
?The Learned trial Judge captured all the material
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contradictions and lies in the evidence of the Appellants about Ahi River or Stream when he went to the locus in quo. It is not enough to say the trial Judge was wrong, the Appellants has the onerous duty of bringing out clearly the blunders or errors committed by the trial Judge in the assessment of the oral evidence or misuse of documentary evidence. The Appellants failed to draw out of the record, the material evidence given by DW3 and DW4 and the fault of the trial Judge who watched them gave evidence and observed their demeanour. The trial Judge correctly reflected the evidence of DW4. The first question that was asked of DW4 under cross examination and answer are the following.
?Q. Do you know Ahi River?
?A. I do not know Ahi River, what I know is they call AWARAMIRI sic?
This answer alone is contrary to the appellants pleading who in paragraph 15 of their Defence stated that Ahi is a Stream and not River that runs through Ngodo till it joins Imo River and that it is not the natural boundary between Ekenobizi Community and Ehume Community. That Ahi Stream is in Ehume.
?The Appellants contended that paragraph 34 of the
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statement of Defence was not traversed. That is not correct. On pages 72 ? 73 of the record, paragraphs 21 and 22 of the 1st set of Respondents Reply and Defence to counter claim denied paragraph 34 of the Appellants? Statement of Defence. I am of the firm view that the learned trial Judge was/is right in his holding that Ahi River/Steam is the boundary between Appellants and the Respondents.
Issue 4 is resolved against the Appellants.
I will take Issues 5 and 6 together.
ISSUES 5 AND 6
5. Whether the Learned trial Judge was right when he failed to 1st evaluate the evidence of Respondents (as Claimants) and determine if they made out a strong case of title to the land in dispute to warrant shifting the burden to the Appellants to prove their own case? (Ground 11).
6. Whether the final judgment of the trial Court against the Appellants and in favour of the Respondents is justified by evidence on record? (Grounds 2, 3, 8, 10, 12 and 14).
The Learned Counsel to the Appellants under Issue 5 submitted that the burden rests on the Claimants for title which they claim over land to succeed on the strength of their own case and
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where they fail to establish a prima facie case they cannot hope to rely on any weakness of the defence relying on the cases of:
1. ADEYERI V. OKOBI (1997) 6 NWLR (Pt. 510) 534 at 547 B ? C.
2. AYANWALE V. ODUSAMI (2011) 18 NWLR (Pt. 1278) 328 at 331 E ? G.
3. TUKURU V. SABI (2013) 10 NWLR (Pt. 1363) 442 at 460.
That the Claimant must prove:
(i) The identity of the land.
(ii) Consistent and reliable evidence of root of title and
(iii) Reliable evidence of acts of possession such as should justify an inference that the Claimant owns the land.
That in this case, the Learned trial Judge found that the Claimants did not present a satisfactory evidence of their root of title on pages 319 ? 320 pages record. That the witnesses of the Respondents CW1, CW2, CW3, CW4, CW5 contradicted themselves and gave evidence that is contrary to Respondents pleaded case. He relied on pages 70 ? 73 and 77 ? 90 of the record. That the case of Respondents is too weak to stand on its own legs and that the trial Judge has a duty to so pronounce but instead, according to Appellants, the Learned trial Judge proceeded as
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if onus or burden was on Appellants to disprove the Respondents? Case. That this occasioned a miscarriage of justice.
In his submission under Issue 6, the Learned Silk for the Appellants adopted all submission already made in Appellants Brief. The Learned Silk contended that the need for Appellants to prove their title arises only if the Respondents established a strong case. He placed reliance on the cases of: TUKURU VS. SABI (2013) 10 NWLR (Pt. 1363) 442 at 460 B ? D. AYANWALE VS. ODUSAMI Supra.
That the Learned trial Judge relied on the fact that HRH Eze Uwanaemodu attracted building on the land in dispute to tilt the case in favour of the Respondents without due regard to the fact that it was Late Osuagwu Ahaiwe of the Appellants that poured the libation to signify the commencement of the Building. That the Respondents pleaded that the person that pours the libation constitutes acts of ownership by the Appellants of the land in dispute. He relied on the case of OHIAERI V. AKABEZE (1992) 2 NWLR (PART 221) ?. At 29 A ? B (sic).
?That since the Claimants traditional history fails in this case then any purported acts of
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possession over the land by them becomes irrelevant and should not be considered in granting a declaration. He relied on the cases of:
1. NKADO VS. OBIANO (1997) 5 NWLR (Pt. 503) 31 at 54 ? 55.
2. ONWUGBUFOR VS. OKOYO (1996) 1 NWLR (Pt. 424) 252.
3. AKINLOYE VS. EYIYOLA (1968) NMLR 92 and 4 KOJO VS. BONSIE (1957) 1 WLR 1223.
?That the Learned trial Judge rejected the traditional history of Respondents. That the premium placed on whether ?Ahi? is a stream or a river is not justified. That the definition offered by the trial Jude support the view that it is not a fundamental fact in the case to justify that decision in the face of other material facts which Learned Senior Counsel to Appellants said he had already identified in his Brief. That the trial Judge did not find that no one can walk across the Ahi. That the evidence on record is that there is a concrete culvert across Ahi. That the castigation of DW3 by the Lower Court is not justified by the totality of pleadings and evidence on record. That the Learned trial Judge did not also advert to Exhibit ?J?., a judgment which the Learned Silk said
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favoured the Appellants. That there was a miscarriage of justice as the Lower Court held in error that Appellants did not prove a consistent and reliable root of title. That Appellants pleaded and proved that the land was deforested by Appellants ancestor ?NGODO?.
He urged this Court to find in favour of Appellants under Issue 6.
Responding under Issue 5, the Learned Counsel to the 1st set of Respondents started off by stating that all the Appellants are saying is that the trial Judge misplaced the burden of proof against them in the evaluation of evidence. He submitted that the trial Judge complied with the principle of evaluation of evidence as laid down in Oguanuhu V. Chugboka (2003) 25 WRN 11 at 126. He also submitted that the evaluation of the Traditional History of the land in dispute by the parties in this case is correct and proper. He also relied on the findings of the Learned trial Judge on page 319 and 320 of the record on the matters relating to evidence of traditional history. That the principles in the case of NKADO V. OBIANO (1997) 5 SCM 33 at 53 supports the views held by the trial Judge. That all the perceived
53
inadequacies in Appellants Case are not correct.
That Respondents pleaded the boundary of the land in paragraph 19 of the Statement of Claim and not paragraph 9 as stated by Learned Silk to Appellants. That Respondents are entitled to lead evidence on facts pleaded by Appellants. That there are no discrepancies or contradictions in the evidence of Respondents.
On the implication of Appellants Counter-Claim and onus of proof in this case, the Learned Counsel to 1st set of Respondents stated that the trial Judge meticulously observed the principle on onus by proof and evaluation of evidence on page 318 of the record.
On Issue 6, the Learned Counsel to the 1st set of Respondents stated that the position of ?Ahi? Stream/River in the land in dispute in this case and the evaluation of the evidence of the traditional land in dispute in this case were raised by Appellants under Issues No. 4 and 5. He adopts his submissions on them as his argument under Issue 6.
?He made further submission and stated that the Respondents proved that libation at the commencement of the uncompleted buildings on the land in dispute was poured by Ogubike Nwosu
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of the Respondents Community. That the Appellants made selective use in respect of pouring of Libation. That evidence of CW4 and CW6 showed the trial Judge was right on the Issue. That the Appellants did not prove any act of possession over the land in dispute and that the identity of the land in dispute was not in Issue.
In his own response, the Learned Counsel to the 2nd sets of Respondents strongly submitted that since the Claimants/1st set of Respondents failed in their evidence of traditional history which trial Court treated as unreliable, that should have been the end of the road for the 1st set of Respondents.
The Learned Counsel to 2nd set of Respondents also hit the Appellants/Counter Claimant in the same vein. That the trial Judge also held that the evidence of traditional history put forward by Appellants was unreliable, inconclusive and improbable. He postulated that since the Counter ? Claim is a separate action on its own, it must be proved as a distinct action.
He relied on the Case of AKANDE VS. ALAGBE (2000) 15 NWLR (Pt. 690) 352. That the Lower Court ought to have dismissed the Counter ? Claim of Appellants and
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allowed 2nd sets of Respondents to remain on the land. That both Claim and Counter-Claim should have been dismissed by Lower Court.
On Issue 6, the 2nd set of Respondents also submitted that since both Appellants and 1st set of Respondents failed to prove their traditional histories on which they based their respective Claim, the Lower Court was in serious error to have resorted to Rule in KOJO V. BOSIE (1957) 1 WLR 1223. He concluded that the judgment of trial Court was not justified. He urged this Court to set aside the judgment.
Now contrary to the submission of the Appellant that the trial Judge found claimants traditional history to be contradictory and unreliable, the case of 1st set of Respondents ought to fail instead of the trial Judge placing burden of proof on them as if they were the Claimants, what the trial Judge actually found is that the traditional evidence adduced by Claimants and the two sets of Respondents are inconclusive.
?The Appellants erroneously believe that there was no onus on them to proof anything until the 1st set of Respondents established a prima facie case strong enough to warrant calling upon them to adduced
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evidence that will show the 1st set of Respondents did not prove their title forgetting that they (Appellants) are Claimants in their own right claiming title to the land in dispute. They are in the same category as 1st set of Respondents in terms of burden and standard of proof as to who owns the land. As a matter of fact, the Appellants having put forward a Counter – Claim they have a duty also to show a better title over the 1st set of Respondents.
What then is the position of the law consequent upon the findings of the trial Judge that the traditional evidence of parties were inconclusive?
I will call in aid the Case of NWANKWO OGUANUH & ORS VS. DR. EMMANUEL D. CHIEGBOKA (2013) 3 SCM 146 at 158 B-D where GALADIMA, JSC held as follows:
?MOST IMPORTANTLY, in the claim for a declaration of title to land as in this case, the onus is on the Plaintiff to prove his case. In doing this, he relied on the strength of his case and not on the weakness of the adverse party?s case. It is only where evidence of traditional history is inconclusive to establish Plaintiff?s title that the traditional history must be tested by reference
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to the fact in recent years as established by evidence. However, there is nothing wrong for Plaintiff to take advantage of evidence adduced by the defence which tends to establish the Plaintiff?s title.?
The Learned Senior Counsel to the Appellants strongly submitted that there was no reason for the Learned trial Judge to have recourse to the Rule in KOJO V. BOSIE (1957) 1 WLR 1223.
I believe it is necessary here to bring to the fore the rule in KOJO V. BONSIE Supra in order to decipher whether the Appellants are justified in their attack against the Court below for invoking the rule. The Rule was neatly and succinctly reenacted recently by the apex Court in the case of ALHAJI FATAI ALANI MATANMI & ORS VS. VICTORIA DADA & ANOR (2013) 4 SCM 120 at 130 ? E by FABIYI, JSC, who said:
?What then is the Rule in KOJO II V. BONSIE? The Rule which has stood the test of time for quite some time now is that where traditional evidence proffered by the parties are inconclusive, the Court is enjoined to take into consideration facts in recent times given by the parties in order to determine which of the traditional evidence is
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more probable. To resort to the rule, the traditional evidence of the parties must be capable of being believed but that since the two are competing, a Court cannot prefer one to the other, Rather, it is enjoined to look out for further facts in recent times to see which of the traditional history is more probable.?
In the earlier Case of CHIEF SAMUSIDEEN AFOLABI AYORINDE & ORS. VS. CHIEF HASSAN SOGUNRO & ORS. (2012) 7 SCM 77 at 90 G-91 A-B BODE RHODES ? VIVOUR, JSC explained the rule in this way:
?The onus is on the plaintiff to establish his title to the land and this he does by proving acts of ownership extending over a sufficient length of time. He relies on the strength of his case and not on the weakness of the adverse party?s case.
It is only where evidence of tradition history is inconclusive to establish plaintiffs title that traditional history must be tested by reference to the facts in ? recent years as established by evidence.
In the case of Kojo II V. Bonsie & Anor 1957 1 WLR P. 1223 the Privy Council explained the position in these words;
The dispute was all as to the traditional
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history which had been handed down by word of mouth from their forefathers, In this regard it must be recognized that in the course of transmission from generation to generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago, where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be in their belief, in such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.
This is the Rule in Kojo II v. BONSIE Supra, and it has been followed repeatedly in our Court. See Ekpo V. Ita II NLR P. 68; Okiji V. Adejobi 1960 SFSC P. 44; Jegede V. Gbajumo 1974 10 SC P. 183.?
The Learned trial Judge was therefore right in having recourse to the Rule in KOJO V. BONSIE Supra.
There are numerous pieces of evidence and materials placed before the Court couple with the visits of the trial Court to the locus in quo justifying the
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recourse to the said Rule and believing the 1st set of Respondents? Case.
The printed record also show the necessary evidence to find that recent acts of ownership and possession by the 1st set of Respondents to support the findings of the trial Judge in their favour to the effect that 1st set of Respondents were/are in exclusive possession of the land in dispute and that they proved better title to the land much more than the appellants,
On pouring of libation, the finding of the trial Judge is unassailable. All the reasons given by the trial Judge on pages 320 ? 321 of the record of appeal are borne out of the printed record. The trial Judge cannot be faulted in her decision in favour of the 1st set of Respondents and in his finding dismissing the Appellant?s Counter Claim. Where as in this appeal the trial Court had reached right decision, the reason given for it is immaterial. It suffices if the pieces of evidence on record justify the finding.
See (1) ALHAJI SANDA NDAYAKO & ORS. VS. ALHAJI HALIRU DANTORO & ORS (2004) 13 NWLR (PART 889) 187 at 220 B – C where B – C where EDOZIE, JSC said:
?An
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appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but reasons are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the Appellate Court will interfere.?
(2) DAIRO VS. U.B.N PLC (2007) 16 NWLR (PART 1059) 99 at 161, A decision of the Supreme Court where OGBUAGU, JSC., said:
?It is now firmly settled that where a decision of a Court is right, the reason given for so holding is immaterial.?
Issues 5 and 6 are hereby resolved against the Appellants.
ISSUE 7
Whether the award of the sum of N200,000.00 (Two Hundred Thousand Naira) as cost against the Appellants is justified.
The Appellants argued that though discretionary costs must be based on sound principles. The award must not be excessive or punitive relying on the Case of IDAM VS. MENE (2009) 17 NWLR (PART 1169) 74 at 87 ? 88 F ? N, 88 C ? D. That the record did not disclose any act of Appellants other than the exercise of their constitutional right
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to defend the suit to warrant the award. That no loss was disclosed by the Respondents to show what they suffered. Reliance was placed on OLUSANYA VS. OSINLEYE (2013) 7 NWLR (PART 1367) 148 at 170. He urged that Issue 3 be decided in favour of appellants and that the appeal be allowed for reasons already exposed in the Brief:
Responding under Issue 7, the Learned Counsel to the 1st sets of Respondents stated that no cost was awarded against the Appellants by trial Court rather the trial Court awarded N200,000.00 damages for trespass against Defendants. That the ground of appeal did not emanate from the judgment of the Lower Court. He prayed that it should be struck out.
That if it is found that the ground is proper then he submitted that the general damages awarded was a proper exercise of Lower Court?s discretion. He cited the case of UAC (NIG) LTD. V. SOBODU (2007) 6 NWLR (PART 1030) 368 at 392 per ADAMU, JCA.
He finally urged this Court to dismiss the appeal.
?Emmanuel E. Ukaegbu Esq., for 2nd sets of Respondents contended that the costs awarded is punitive and should be set aside. He urged the Court to set aside the judgment of
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the Lower Court and dismiss the Claims of the 1st set of Respondents as Claimants at the Lower Court.
I have already reproduced the fourteen grounds of appeal wherefrom seven Issues were distilled. I like to say that ground seven of the Notice of Appeal in this appeal which says:
?The Learned Trial Judge erred in law in awarding an excessive and punitive cost of N200,000.00 (Two Hundred Thousand Naira) against the Appellants.?
is totally strange and has no root in the judgment appealled against. The Learned trial Judge ended the judgment thus:
?No Order as to costs as the Claimants Counsel did not apply for any.?
Ground 7 contained in the Notice of Appeal is incompetent and liable to be struck out. See: CHIEF JAMES OLONADE & ANOR. VS. H. B. SOWEMIMO (2014) 9 SCM 106 at 117 I to 118 A per M. D. MUHAMMED, JSC, who said:
?It is settled principle of Law that a ground of appeal must arise, flow or relate to the judgment of the Court appealed from. Any complaint that does not flow from the decision appealed against cannot legitimately be entertained by this Court.?
?The same is true in this
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Court. Ground 7 of the Notice of Appeal dated the 25th day of November, 2013 filed on 26th day of November, 2013 and Issue distilled therefrom are hereby struck out.
Consequently the Appellants appeal is quite unmeritorious. The appellants appeal is hereby dismissed in its entirety.
The judgment of ABIA STATE HIGH COURT contained in the judgment of Honourable Justice K. O. Wosu delivered on the 25th September, 2013 is HEREBY AFFIRMED.
The Appellants shall pay cost of N50,000.00 (Fifty Thousand Naira) to the 1st set of Respondents. Appellants shall also pay costs of N30,000.00 (Thirty Thousand Naira) to the 2nd set of Respondents.
Other Citations: (2016)LCN/8909(CA)
