Gabriel Iwuoha V Nigerian Postal Services Ltd (2003)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, JSC
Umuduru Postal Agency is the subject matter of this litigation. It is the hub on which the litigation rests. The appellants representing the Umuelemai Community, Mbano were the plaintiffs in the High Court and respondents in the Court of Appeal. The 1st defendant, the Nigerian Postal Services Limited, is the 1st respondent in this appeal. It was the 1st defendant in the High Court. Although 1st respondent filed statement of defence and entered appearance through counsel in the High Court, it did not take any active part. As it is, it has not filed any brief in this court; so too in the Court of Appeal. The 2nd defendant, representing Umuduru Community is the 2nd respondent in this court. He was the appellant in the Court of Appeal. And so the litigation is between the appellants and the 2nd respondent. Which is more of a litigation between Umuelemai and Umuduru.
The Mbano League built a Sub-Postal Office on a land donated by the appellants’ community. The Nigerian Postal Services Limited, the apparently dormant 1st respondent, transferred the postal agency called Umuduru Postal Agency into a new building, but retained the old name of Umuduru, thereby naming the sub-post office Umuduru Sub-Post Office.
As indicated above, the building into which the Sub-Post Office was relocated was built by the Mbano League on land donated by the Appellant’s Community. Umuduru and Umuelemai are two different towns in different clans in Mbano but situate adjacent to each other.
The Umuelemai Community did not like the transfer of the postal agency to the new building in Umuduru. They protested to the Nigeria Postal Services Limited. The protest was against the use of the name Umuduru for a facility situate in Umuelemai on land donated by Umuelemai. The Nigeria Postal Services Limited upheld the protest and by a
letter, Exhibit B, directed the Umuduru Postal Agent to find an alternative accommodation for the Postal Agency. The directive in Exhibit B was not complied with. The appellants filed an action in the High Court seeking for two declaratory reliefs and one injunctive relief.
The learned trial Judge entered judgment in favour of the appellant and made the orders sought save relief 16(c) of the Statement of Claim. In the final order, the Judge involved himself in some advisory role. He said in his judgment as follows:
“(1) The land on which the Sub-Post Office called Umuduru Post Office is situated in Umuelemai land in Umuelemai town or Autonomous Community.
(2) It is wrongful to open and operate a Sub-Post Office in Umuelemai (which incidentally) is the capital of Isiala Mbano Local Government with the name Umuduru since Umuduru is different from Umuelemai.
“I shall not make the order prayed for in 16(c) of the Statement of Claim in the manner it is couched. The Court hereby advises NIPOST in the interest of peace and true fact of the case having regards to Umuelemai being the capital or Head Quarters of Isiala Mbano Local Government to designate the Sub-Post Office by the correct and appropriate name it should bear which is Umuelemai Sub-Post Office.”
Dissatisfied with the judgment, the 2nd respondent, Jonathan Kezie, appealed to the Court of Appeal. The Court of Appeal set aside the judgment of the learned trial Judge and dismissed the appellants suit. Delivering the judgment of the Court of Appeal, Kastina-Alu, JCA (as he then was) said in the penultimate and last paragraphs at page 257 of the Record:
“I have sufficiently shown that the plaintiff did not prove that the parcel of land from where the departmental post office of the 1st Defendant operates is or was over Umuelemai land. The trial court misconceived the issues for determination before it and thus disabled itself from evaluating the evidence. Also the trial court drew conclusions from facts not given in evidence. Moreover the relief of renaming the institution can only be done by administrative fiat and not by a court of law.
In the result this appeal succeeds and is allowed. Accordingly I set aside the judgment of the court below.”
Dissatisfied, the Umuelemai Community, represented by the appellants have come to this court. Briefs were filed and duly exchanged. The appellants formulated the following issues for determination:
ISSUE NO.1
Where the reversal by the Court of Appeal of the trial court’s finding that the sub-post office was situated in Umuelemai was proper considering the preponderance of properly proved and admitted evidence on record.
ISSUE NO.2
Whether the application by the Court of Appeal of Exhibit K in this judgment was proper and sustenable(sic).
ISSUE NO.3
Whether the Court of Appeal did not misdirect itself on the case of the parties before it, and the onus of proof.
ISSUE NO.4
Whether the 2nd respondent’s allegation of grant of land to the British by Umuduru in 1902 was conceded by the appellants, and thus not in issue at the trial.
ISSUE NO.5
Whether the issue of statutory and indigenous Umuduru and Umuelemai was raised suo motu in the trial by the trial judge.
ISSUE NO.6
Whether the Court of Appeal’s judgment in favour of the 2nd respondent was not inconsistent with the same court’s finding that the 2nd respondent’s case was that the land in dispute was donated by Umuduru to the government outright.
ISSUE NO.7
Assuming, without conceding, that there was a land dispute between the appellants and 2nd respondent’s community, Umuduru, whether there was not enough evidence to have sustained a finding in favour of appellant.”
The 2nd respondent formulated the following issues for determination:
“(1) Was the court below right in re-evaluating the evidence rendered in the court of trial and coming to a different conclusion?
(2) Was there any fault in the re-evaluation which occasioned a miscarriage of justice?”
Learned Senior Advocate of the appellants, Chief Ahamba, called the attention of the court to what he regarded as typographical error at page 81 of the Record. He urged the court to correct the typographical error at page 81 by changing Exhibit G on that page to Exhibit F as contained at page 149. There is no objection from counsel to the 2nd respondent. That apart, it is clear from the record that the document is wrongly named Exhibit G in the light of the content at page 149. I hold that the agreement between Uchendu and Aladuka is Exhibit F and not Exhibit G as at page 81.
Learned Senior Advocate, Chief Ahamba, adopted an unsual method in arguing the issues in his brief. He did not take the issues serially in their numerical order but in some inelegant order. For instance, he argued the issues in the following order: Issues 4, 5, and 1, 2 and 6 together, and 3. He did not argue Issue No.7. He must have forgotten the issue apparently in the course of picking the issues randomly. It is also possible that he decided to abandon Issue No. 7. But he should have told the court during oral argument.
This court will welcome innovations of, or from counsel in areas where the rules of court are silent or not very clear, but such innovations should be good and elegant. While I concede that Order 6 of the Supreme Court Rules, 1990, as amended, does not provide that issues must be argued in a numerical or alphabetical order, that has always been the practice. This is the first brief that I have come across where that general good practice has not been followed. It is clear to me that counsel intentionally adopted the method. I say so because he had the opportunity to renumber his issues after finishing the brief to reflect the order he argued the issues. The arrangement does not detract from the merits of the
case presented in the brief. I will now take the arguments in the brief in the order learned Senior Advocate has taken the issues, beginning from Issue No.4.
On Issue No.4, learned Senior Advocate submitted that the Court of Appeal was in error when it held that the alleged grant or donation of the land to the British Government was not in issue as the appellants were deemed to have admitted that fact. He called the attention of the court to the appellants amended statement of claim at pages 73 to 78, the 2nd respondent’s statement of defence at pages 30 to 38, and submitted that a reply to an averment in a statement of defence is only necessary if such averment has not been taken care of by the averments of fact in the statement of claim. He referred to Order 25 Rule 6 of Imo State High Court (Civil Procedure) Rules, 1988 and the cases of Ogunleye V. Oni (1990) 2 NWLR (Pt. 135) 145: Alao V. ACB Ltd. (1998) 3 NWLR (Pt. 542) 365 at 370 and Dapob V. Kolo (1993) 9 NWLR (Pt. 317) 254 at 270. He submitted that a counter averment of acts of ownership or possession is not so peculiar and different from existing issues as to require a reply. To counsel, the 2nd respondent had a duty to prove the alleged grant as pleaded.
On issue 5, learned Senior Advocate submitted that the conclusion of the Court of Appeal is inconsistent with what was put before the court in the printed record. He claimed that the words “statutory” and “indigenous” were introduced into the pleading by Mr. Anyamene (SAN), during cross-examination of PW5. In the light of the distinction introduced by Mr. Anyamene, the trial judge was therefore entitled to apply the same distinction to Umuduru and the Court of Appeal was wrong by faulting his doing so, counsel argued. He urged the court to take judicial notice of the composition of statutory Orlu, vide section 79(1) of the Evidence Act. He also called the attention of the court to the Divisional Administrative Edict of 1971.
It was the submission of learned Senior Advocate that when the learned trial Judge made reference to statutory or indigenous Umuduru, he was not conjecturing but was dealing with an issue that was before him by pleading and evidence, both oral and documentary, and by statutes. To counsel, the Court of appeal was in error when it held that statutory and indigenous status for Umuduru was nowhere mentioned throughout the trial. As the erroneous conclusion was one of the reasons for the Court of Appeal allowing the appeal, he urged the court to resolve Issue No.5 in the negative and allow ground ten.
On issues Nos. 1.2 and 6, learned Senior Advocate submitted that the Court of Appeal was wrong in holding that the conclusion of the trial Judge that the Sub-Post office was situate in Umuelemai was perverse. Citing Overseas Construction Ltd. V. Creek Ent. Ltd. (1985) 2 NWLR (Pt. 13) 407 and State V. Aibangbee (1988) 3 NWLR (Pt.84) 458 at 578, learned Senior Advocate submitted that both by pleading and evidence, the fact of the location was very conclusively established enough to support the finding of the High Court which was reversed by the Court of Appeal.
It was the contention of learned Senior Advocate that there was no proper traverse of the averment that several Umuduru indigenes residing on land around the Sub-Post Office were tenants of Umuelemai people and that the land upon which the Sub-Post Office building was erected was donated by Umuelemai people of Mbano League. He referred the court to paragraphs 5(a)-(i) of the Amended Statement of Claim and to the 2nd respondent’s traverse in paragraphs 16, 17, 20, 22 and 27 of the Statement of Defence.
Counsel argued that based on the authority of Akintola V. Solano (1986) 2 NWLR (Pt. 24) 598 at 623, the learned trial Judge would have acted properly if he had rested on the above pleadings alone to find that the location of the Sub-Post office building was in Umuelemai, but he did not do so in the light of the supportive evidence. He referred to Exhibits A, B, C, D, E, F, G, H, J, K and Q and the evidence of PW1, PW4, DW1, DW2 and DW4. He cited
Nwaboku V. Ottih (1961) All NLR 487; Dapob V. Kolo (1993) 9 NWLR (Pt. 317) 254; Ibekwe V. Nwadike (1987) 4 NWLR (Pt. 67) 718 at 741; Ezendu V. Ibiagwu (1986) 2 NWLR (Pt. 21) 208 at 209; Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 182 at 208; Overseas Construction Ltd. V. Creek Nigeria Ltd. (Supra); Ogbechie V. Onochie (1986) 2 NWLR (Pt. 23) 484 at 492; Balogun V. Labaran (1985) 3 NWLR (Pt. 80) 60 at 84; Alade V. Alemuloke (1988) 1 NWLR (Pt. 69) 207 at 216; Onyemaechi V. Nwohamuo. (1992) 9 NWLR (Pt. 265) 372 at 383 to 384; MCC V. Azubuike (1990) 3 NWLR (Pt. 136) 74; Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 144 at 160; Attorney General Oyo State V. Fairlakes Hotel (No. 2) (1989) 5 NWLR (Pt. 121) 255 at 237 and Atuyeye V. Ashamu (1987) NWLR (Pt. 49) 267.
On Issue No. 3, learned Senior Advocate submitted that the statement of the Court of Appeal at pages 241 and 255 on the ownership of the land in dispute vis-à-vis proof and the plan respectively, were a complete departure from the case of the appellants as presented before the court by the pleadings and the evidence. He pointed out that the appellants, both in pleading and evidence, presented a case of non-communal ownership of land in that the claim was for a declaration that the Sub-Post Office Building to which Umuduru Postal Agency had been transferred with the name retained, was in fact in another town, Umuelemai. He referred to answers to cross-examination of PW5 at page 90 of the Record and submitted that nowhere did the witness say that there was such a plan or that such land was ceded.
Learned Senior Advocate submitted that since the misdirections of the Court of Appeal affected the final conclusion of the court, the misdirections occasioned a miscarriage of justice. He urged the court to allow the appeal.
Learned Senior Advocate for the 2nd respondent, Mr. Anyamene appear to have argued the two issues he formulated together. He submitted that the Court of appeal was right in re-evaluating the evidence given in the trial court. He cited Atolagbe V. Shorun (1985) 4 SC
(Pt. 1) 150 at 285. He contended that the learned trial Judge was wrong when he held that there was no land dispute, as such, between Umuelemai Community and Umuduru. Referring to the relief claimed, learned Senior Advocate wondered why the trial Judge came to the conclusion that the resolution of the relief would not affect ownership of land. He quoted extracts from the proceedings at page 5 and 6 and dealt with Exhibit K, the survey plan.
Learned Senior Advocate contended that the evidential value of the survey plan was lost on the trial court but the court below placed proper evaluation on the exhibit having regard to the purpose for which it was tendered. Being evidence, the plan ought not to be pleaded under the rules, contrary to the contention of the appellants that the evidence went to no issue as it was not pleaded, learned Senior Advocate argued. He pointed out that the Umuelemai people by their own evidence conceded that the land where the sub-Post Office Building is located was from those earlier times called Umuduru land.
Learned Senior Advocate submitted that the complaint of the appellant in question 6 that judgment of the court below was inconsistent with its finding, that the 2nd respondent’s case was that the land in dispute was donated by Umuduru to the British Government outright, was based on the misconception of one of the issues raised in the trial court.
Citing the case of Ukwa V. Awka Local Council (1965) 1 All NLR 349, learned Senior Advocate submitted that when land dedicated for a particular purpose of public use ceases to be used for that purpose title reverts to the original grantors. He claimed that since the government had abandoned effective use of the land donated by Umuduru in 1902 for the public of administration, the Umuduru grantors are entitled to resume their ownership of the abandoned land and assert original title thereto.
On the contention of the appellants that they donated the plot of land housing the Sub-Post Office to the Mbano League on the term that any postal institution to be erected thereon shall be described by the name Mbano and therefore the court below ought to have found that it was Umuelamai land, learned Senior Advocate called the attention of the court to paragraph 24 of their statement of defence that Ebenezer Ekejiuba a native of Umudru lived on the said plot which was confirmed by the third witness for the plaintiffs.
On the complaint in Issue No 3 that the court below did not apply the proper law on onus of proof, learned Senior Advocate submitted that the law is as old as the hills that the onus is on the party claiming ownership of land in dispute to show the court clearly the area of land to which his claim relates. He referred the court to Baruwa V. Ogunshola 4 WACA159. Counsel quoted the evidence of what he referred to as the star witness of the appellants at pages 10 and 11 of his brief.
On the issue of statutory and indigenous Umuduru, learned Senior Advocate called the attention of the Court to the last sentence of paragraph 5.02B on page 9 of the appellants’ brief, which confirmed that the point was indeed not raised but that it was a conjecture which the trial court was entitled to make. He pointed out by way of illustration that although Lagos, the former capital of Nigeria and Abuja, the current capital comprise lands owned by communities within their geographical limits, this fact did not prevent the said communities answering their respective names like Yaba, Surulere, Agege in the case of Lagos and Wuse, Garki, Maitama in the case of Abuja.
Dealing with the evidence of DW1, Chief J.B. Kezie, that the traditional ruler gave the land in the name of Umuduru to the British Government, learned Senior Advocate argued that it was wrong to take such evidence as an admission against interest. He contended that the evidence given by the witness was not an admission that Umuelemai owned the land where the Sub-Post Office is located.
Pointing out that learned Senior Advocate for the appellants did not argue Issues No. 7, counsel submitted that this court should regard the issue as abandoned. He urged the court to dismiss the appeal.
In his Reply Brief, learned Senior Advocate submitted that Issue No. 1 in the 2nd respondent ‘s brief does not arise out of the grounds filed by the appellants before this court and that Issue No.2 is not exhaustive of all the issues arising out of the fourteen grounds of appeal. Referring to Idika V. Erisi (supra), learned Senior Advocate urged the court to strike out Issue No 1.
On Exhibit K, learned Senior Advocate contended that since the specific finding of the trial court was not made a ground of appeal by the respondents as appellants before the Court of Appeal, that court could not have relied on the Exhibit in the way it did without any Appeal against the specific conclusion of the trial court. Since the 2nd respondent did not show that he appealed against the conclusion, the contention in the appellants’ brief is therefore not responded to, counsel argued. Learned Senior Advocate submitted in the alternative that the submissions of the 2nd respondent on Exhibit K are not tenable. He urged that court to look at Exhibit K and to note that it depicts an area west of the confluence as Umuelemai.
The submission on behalf of the 2nd respondent in paragraph 13 of the brief at page 7 is a total misrepresentation of fact on record, learned Senior Advocate submitted. He referred the court to the evidence of PW1 and contended that the 2nd respondent’s brief very clearly confused between taking of land which is forceful with grant which connotes voluntary relinquishment.
On the argument in paragraph 1/4 at page 8 of the 2nd respondent’s brief that the appellants have no locus standi to institute the suit in the first place because land was individually owned in Umuelemai, learned Senior Advocate submitted that the issue is not available to the 2nd respondent as it was not a ground in the Court of Appeal and no leave was sought and obtained to argue the point before this court. Secondly, the argument is not referable to any issue in any of the briefs before this court, counsel argued. He urged the court to discountenance the argument. Counsel maintained that the appellants had locus standi to institute the action.
Learned Senior Advocate claimed that the White Paper on the Emembolu Enquiry had conclusively adjudged the land on which the headquarters was situated to be Umuelemai land. As there was no evidence that Umuduru challenged the decision in the White Paper, the trial court was justified to have taken into consideration when it decided that the Sub-Post Office Building was situate in Umuelemai, counsel contended. To learned Senior Advocate, the argument on reversion and the case of Ukwa V. Awka Local Government (1965) 1 ALL NLR 349 do not arise at all.
It was the submission of learned Senior Advocate that the evidence quoted in paragraph 21, page 12 of the 2nd respondents’ brief is clearly against the 2nd respondent and that it was not quoted out of context. He contended that DW1 contradicted himself.
On Issue No 2 of the 2nd respondent’s brief, learned Senior Advocate submitted that there was fault in the re-evaluation by the Court of Appeal, fault which occasioned a miscarriage of justice. The fault was that the Court of Appeal failed to put into consideration the totality
of the facts upon which the trial court rested its decision. He urged the court once again to allow the appeal.
The appellants formulated fourteen grounds of appeal and seven issues for determination. I did not initially intend to comment on the proliferation of the grounds and issues but since learned Senior Advocate has made it an issue by attacking the two issues formulated by the 2nd respondent, I should deal with the large number of grounds and issues.
I ask: what have fourteen grounds and seven issues got to do in this not complicated appeal? It is not my understanding of the law that every alleged wrong by the trial court or Court of Appeal must be a ground of appeal. Ground of appeal, in my opinion, should be based only in respect of the live issues or the issues in controversy in the appeal. A ground of appeal is the complaint of the appellant on the judgment of the lower court.
While I concede the fact that counsel knows his case better than any person, I, must say, with the greatest respect, that I do not see the place for seven issues in this appeal. An issue is that which, if decided in favour of the appellant, will in itself give a right to the relief sought in the appeal. In an appeal, it is not every fact in dispute or every ground of appeal which raises an issue for determination. An issue in an appeal must be a proposition of law or fact, so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court.
Prolixity of issues formulated is not a merit as it is more likely to obscure the core issues to be determined. Multiplicity of issues tend to reduce most of them to trifles. Issues formulated must have the content and character of issues and should be based on substantial law or fact rather than on numerous trifling slips.
Appeals are not won on large number or quantity of grounds of appeal and issues. On the contrary, appeals are won on the quality of the content of grounds of appeal and issues. In a
good number of cases where counsel argue a number of issues together, such issues are prolix and they proliferate to the extent that one or two of the issues should have done the work of all the issues argued together.
In the appellants’ brief, learned Senor Advocate argued issues 1,2 and 6 together. I need not say more except to point out that learned Senor Advocate would appear to see no more reason to argue Issue No. 7. This could have reduced the issues to six. If the appellants had all the time in the world to formulated fourteen grounds and seven issues, the 2nd respondent who seems not to have equal time should, in my opinion, not be blamed for not formulating equal number of issues. The objection is not meritorious. It is dismissed.
I now take the specific complaint of the appellants in their Reply Brief. The first complaint is that Issue No 1 in the 2nd respondent’s brief should be struck out as it does not arise out of the grounds filed by the appellants. It is elementary law that issues for determination must be formulated from the grounds of appeal, whether the issues arise from the appellant’s brief or the respondent’s brief. See Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ehot V. The State (1993) 4 NWLR (Pt. 290) 644; Din V. African Newspapers of Nigeria Ltd. (1990) 3 NWLR (Pt. 139) 392; Idika V. Erisi (1988) 2 NWLR (Pt. 78) 563; Madumere V. Okafor (1996) 4 NWLR (Pt. 445) 637.
I have carefully examined the fourteen grounds of appeal and I am of the view that most of them complained about the re-evaluation of the evidence by the Court of Appeal. Accordingly, I do not see my way clear in striking out Issue No. 1 of the 2nd respondent’s brief since that issue deals with re-evaluation of the evidence given in the trial court by the Court of Appeal.
I entirely agree with Senor Advocate for the appellants that issue No. 2 does not cover all the issues arising out of the fourteen grounds of appeal. I do not think a respondent is under a legal duty to formulate issues in his brief to cover all the grounds of appeal. Respondent is at liberty to formulate issues in the way he understands the live issues in the appeal, with a bias for his client’s case.
I do not see anything wrong with the two issue drafted for determination by learned Senior Advocate for the 2nd respondent. If anything, the two issues are craftly, dexterously and elegantly formulated and they cover essentially all the live issues in this appeal.
So much of this appeal dovetails on the re-evaluation of the evidence of witnesses by the Court of Appeal. Quite a number of the seven issues for determination by the appellants and the two issues for determination by the 2nd respondent, deal with the re-evaluation of the evidence of witnesses by the Court of appeal.
Let me take first Issue No. 1 in the appellants brief. The learned trial Judge held that the sub-post office was situate in Umuelemai. He got assistance from the following conclusions he reached at page 143 of the Records:
“Now in this case, the court has been able to observe that the issue as to whether some people from Umuduru bought land from the vicinity or thereabout of the sub-post office from Umuelemai people was not challenged or debunked. That some houses very close to the sub-post office belonging to some people said to be of Umuelemai was not denied, that Umuelemai said to be stronger elements normally take share of what is due to them in the Osu Clan gathering before the supposedly over Lord Umuduru, was not denied, that the witnesses of the Defendants were completely discredited and that DW3 Keneth Ekwelem from Agbaja has infact no business being there as a witness as he knows next to nothing
PAGE| 16
about the issue having not lived near the Post Office but owns a land that is a kilometer away”.
Dealing with the location of postal agency, the Court of Appeal, per Kastina Alu, JCA (as he then was) painstakingly made the point at page 250 of the Record and I quote him in extenso:
“When this witness was then told that contiguous area was the one granted to the colonial government in 1902 he realised the gravity of his admissions and understandably sought to make a “U” turn by introducing for the first time that the British Government took a place near Nwokoci stream in Umuduru but they later transferred to Umuelemai and continued to retain the name Umuduru such as Umuduru Native Court.
It would appear that this witness forgot that he had earlier stated that the postal agency which was moved into the building the subject matter of this suit, was in Umuduru land thus conceding that the Native Court building which housed the postal agency was in Umuduru land. It was this native court building which was subsequently converted to a Magistrate’s Court with the postal agency still operating from a room therein”.
The conclusion of the Court of Appeal is vindicated by the evidence of the 1st plaintiff under cross-examination. In an answer to a question that the building in which the post office is housed is not built in Umuelemai, witness said “No”. This is clearly an admission against interest and the Court of Appeal was entitled to reject the findings of the trial judge. I entirely agree with the Court of Appeal that the witness tried to make a “U” turn by introducing for the first time that the British Government “took a place near Nwokochi stream in Umuduru but they later transferred to Umuelemai and continued to retain the name Umuduru such as Umuduru Native Court”.
Skilful advocates have a way of making witness contradict himself and when the witness is already caught in the web, he cannot get out of it. The 1st plaintiff, the star witness, was such a witness. He admitted under cross-examination that the building in which the post office is housed is not built by Umuelemai. And he is from Umuelemai. That is what counsel for the 2nd defendant needed and he got what he needed. Any other story designed to repair that evidence was no longer available to the appellants. That, in essence, is the point made by the Court of Appeal.
So much quarrel is on Exhibit K. Learned Senior Advocate faulted the Court of Appeal for “heavily” relying on an exhibit that the trial judge made a finding that it was not a document of grant. I shall take the exhibit in some sequence in the Record.
The learned trial Judge, while evaluating the evidential or probative value of the evidence, said at page 138 of the Record;
“I have carefully looked at Exhibit K which appears to be a sketch drawing of the military camp. It does not demarcate the area that is specifically Umuduru in it even though Umuduru Station is the name. No one can rely on such document to show the extent of land that is Umuduru and that belonging to other neighbouring villages. The exhibit does not show the extent of the land taken by the Military people then. Besides there is no key to any feature. It is not a document intended to show the area of land ceded, donated or taking(sic) by the Government but rather an attempt to show various military dispositions within the encampment in Umuduru station so called.”
The exhibit featured in the judgment of the Court of Appeal first on page 242 when the court in summarizing the evidence of the 2nd defendant, said;
“It was said that the 2nd defendant testifying on behalf of Umuduru showed the extent of the land comprised in the grant by tendering a sketch of the area made by the British Administrative Officers at the time which was admitted in evidence without objection and marked Exhibit K… Also DW2 Nze Justin Ozurumba Aguguo the 2nd defendant’s surveyors testified that the area shown in Exhibit K coincided with the area verged yellow in Exhibit N.”
SC. 87/1999
