Inyaki Abe & Ors V. Iorhemba Akaajime (1989)
LawGlobal-Hub Lead Judgment Report
ADIO, J.C.A.
The claim of the respondent, who was the plaintiff in the Area Court, Nyamatsor, holden at Abwa, Benue State, was as follows:
“The plaintiff claims his area of farmland from you defendant.”
The evidence led in the trial Area Court by the respondent was that the land in dispute belonged to his forefathers and that he (respondent) used to accompany them to the farm land when he was young. He left the area when he grew up but left his elder brother, Achiaga Shie, in charge of the farm.
Subsequently, the appellants went to disturb his older brother on the farm and committed various acts of trespass there under the pretext that the farmland belonged to one Oramee Enze who purported to grant a portion of the aforesaid farmland to each of them. The allegation was that Oramee Enze had sued the elder brother of the respondent, Achiaga Shie, for the same farmland and won. The appellants, therefore, relied on the plea of res judicata. The trial Area Court considered the plea of res judicata and held that it could not apply as the land in respect of which Enze obtained judgment against Shie was different from the land in dispute in this case. The trial Area Court accepted, the evidence of the respondent and his witness and gave judgment for the respondent.
Dissatisfied with the judgment of the trial area court, the appellants appealed to the High Court, Gboko, Benue State. The Notice of Appeal is at page 1 of the record of proceedings. The grounds of appeal, without their particulars, were:-
“1. The trial Area Court erred in law in entertaining this case after the appellants had pleaded res judicata.
- The trial Area Court erred in law in refusing to accept as Exhibit the judgment of the Court of Appeal in Appeal No.FCA/K/56/81.
- The judgment is against the weight of evidence.”
It was common ground that the learned Counsel for the appellants abandoned grounds 1 and 2 of the grounds of appeal relating to the plea of res judicata. In the circumstance, the learned Counsel for both parties and the High Court ought to have realised that those aspects of the grounds of appeal should no longer be canvassed or considered in connection with the determination of the appeal. What, in fact, happened, as revealed by the record of proceedings was that the plea of res judicata was canvassed by the learned Counsel for both parties and was considered for the determination of the appeal by the High Court as if the grounds of appeal relating thereto had not been abandoned by the learned counsel for the appellants. The High Court, Gboko, held that the trial Area Court was right in rejecting the plea of res judicata. It also held that the Area Court was right in accepting the evidence of ownership led by the respondent and affirmed the decision of the trial Area Court declaring the respondent the owner of the land in dispute and awarding it to him. The appeal of the appellants to the High Court, Gboko, was dismissed by the court. Dissatisfied by the judgment of the High Court, Gboko, dismissing their aforesaid appeal, the appellants have now appealed to this court.
When the application for leave to appeal was made to this court, some of the proposed grounds of appeal related to the plea of res judicata which, as has been stated above, had been abandoned at the High Court. This court granted leave to appeal to this court, to the appellants. The grounds of appeal against the judgment of the High Court, Gboko, which are set out in the Notice of Appeal, at pages 52-56 of the record of proceedings, included grounds relating to plea of res judicata in the aforesaid proposed grounds of appeal in support of the application for leave to appeal mentioned above, I will deal later with the objection raised by the learned Counsel for the respondent to the aforesaid grounds of appeal. The grounds of appeal, without their particulars, are as follows:-
“(1) The Appellate High Court erred in law in holding that:-
‘The trial Area Court was right when it accepted the evidence tendered before it, acted upon it and declared the respondent the owner of the piece of land he claimed from the appellant:
(2) Having held that –
‘From the above passage of the judgment of the Court of Appeal, it is clear that the suit which originated from the Area Court Nyamatsor and which was finally determined by the Court of Appeal was Suit No.CV.34/79 and not Suit No.CV.58/79 which is in evidence as Exhibit ‘B’, The trial Area Court was therefore in error on this point when it related Exhibit ‘D’ to ‘B’, Indeed Exhibit ‘D’ was based on a judgment which was not brought to the attention of the trial court in this matter on appeal.’
the Appellate High Court erred in law in holding that –
‘The trial Area Court therefore found as a fact that the land the respondent was claiming was different from that which was the subject of the suit in Exhibits ‘A’ and ‘D’.
(3) That when the Appellate High Court held that –
‘The appellants chose not to give evidence but to rely on the evidence of D.W.1 and D.W.2….’
it erred in law in giving sanction to the trial Area Court’s assertion that:-
‘The defendants refused voluntarily to give evidence shows that they knew nothing about the land in dispute…..’
(4) The decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”
The parties filed and exchanged briefs in accordance with the Rules of this court. The appellants filed the appellants’ brief and the respondent filed the respondent’s brief. The appellants filed a Reply brief. The appellants, at page 4 of the appellants’ brief, formulated three issues for determination, including one relating to the plea of res judicata. The only issue formulated for determination in the respondent’s brief was whether the respondent had proved his case so as to be entitled to judgment. Having regard to all the circumstances of this case the main issues, in my view, are as follows:
- Whether, as the grounds of appeal raising the issue of res judicata were some of the grounds on the basis of which the appellants applied for and obtained leave of this court to appeal against the judgment of the High Court to this court, it was no longer necessary for the appellants to obtain the leave of this court to raise the said issue, bearing in mind that the said issue was not raised in the High Court or that, if raised, it was abandoned and the grounds relating thereto were struck out by that court.
- Whether the plea of res judicata relied upon by the appellants in this suit, could be sustained or was established.
- Whether the High Court, Gboko, was right in affirming the decision or judgment of the trial Area Court declaring the respondent the owner of the land in dispute and awarding it to him.
It is to enable the proceedings leading to the striking out of the grounds relating to the plea of res judicata to be clear and be fully understood that I reproduced above the three grounds of appeal which were originally before the High Court, Gboko. Lines 13-20 of page 41 of the record of proceedings, which showed how the learned Counsel for the appellants applied to withdraw the two relevant grounds of appeal and how the court struck out the two grounds, are as follows⢠:
“R. O. Ndefo Esq: We filed three grounds of appeal. We intend to abandon grounds one and two and argue only 3.
Court: Grounds 1 and 2 are hereby struck out.
(Sgd) A. B. Utsaha (Sgd) L. C. Anoliefo
Judge Judge
26/11/86 26/11/86
R. O. Ndefo Esq: Our ground 3 is that the judgment was against the weight of evidence.”
Despite the clear application of the learned counsel for the appellants in the High Court, Gboko, to abandon grounds 1 and 2 of the grounds of appeal, which were the grounds relating to the pica of res judicata and striking out of the said grounds by the court, the record showed that the learned Counsel for both parties. (appellants and respondent) subsequently canvassed the grounds relating to the aforesaid plea and referred to Exhibits “B” to “D” which were judgments tendered in support of the aforesaid plea. The record also showed that the High Court, too, in its judgment, considered the aforesaid plea and expressed its views on the question whether the trial area court was wrong or right in rejecting the plea.
When the appeal came up for hearing, the learned Counsel for the respondent drew attention to the respondent’s brief in which he raised an objection to the grounds of appeal relating to the plea of res judicata on the ground that the appellants’ grounds of appeal in the High Court, Gboko, relating to the said plea having been struck out by the court, on the application of the appellants themselves, the appellants could not raise the issue, without leave, in this court. He cited Barclays Bank of (Nig) Ltd. v Maiwada Abubakar (1977) 10 S.C. 13 at pp.20 & 21; Seismograph Service (Nig) Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at p.155; Odiase & Anor. v. Agho & Ors. (1972) 1 All NLR (Pt.1) 170 at p.175. The submission made on behalf of the appellants was that as the High Court, Gboko, based its judgment on the issue of res judicata, the appellants were entitled to appeal on the errors committed by the High Court. The learned Counsel for the appellants argued that this matter, being a civil case, if the learned Counsel still argued the grounds of appeal, which had been struck out, the High Court was right in dealing with them. He referred to page 57 of the record and argued further that as this court had granted the appellant leave to appeal from the High Court to this court, the leave of this court was not required for the grounds of appeal set out in the document containing the proposed grounds of appeal attached to the application for leave to appeal. He cited Lauwers Import-Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pl.83) 429 at p.443.
Proceedings relating to the hearing and the determination of an appeal pending before a High Court are regulated by law. For that reason, the learned Counsel arguing the appeal and the court vested with the jurisdiction to hear and determine it can legally deal with it only according to the relevant law, rules and legal principles. When a ground of appeal is, with the leave of the court, abandoned and consequently struck out, the learned Counsel for the parties cannot, before the court hearing the appeal, legally canvass or argue the ground of appeal again and the said court cannot legally or properly take the ground of appeal or any argument advanced for or against it into account in the determination of the appeal. Any argument advanced for or against a ground of appeal, which has been abandoned and which has been struck out, goes to no issue and can properly be totally and completely ignored by the court hearing the appeal. For these reasons, this court rejects the submission of the learned Counsel for the appellants that as the High Court, Gboko, based its judgment on the issue of res judicata, though the grounds of appeal relating thereto had been struck out, the appellants were entitled to appeal on the errors committed by the High Court. Also, this court rejects the submission that this matter being a civil case, if the learned Counsel subsequently argued the relevant grounds of appeal, which had been abandoned and which had been struck out, the High Court was right in dealing with them. The arguments of the learned counsel, on the matter went to no issue and that aspect of the judgment of the High Court which dealt with the issue of res judicata as if there were grounds of appeal against the decision of the trial Area Court thereon, was incompetent and will be completely disregarded by this court. The legal position was that the two relevant grounds of appeal, relating to the decision of the trial Area Court that the plea of res judicata relied upon by the appellants could not be sustained, having been abandoned and struck out by the High Court, there was no appeal before the High Court against that aspect of the judgment of the trial Area Court. The High Court should not have given consideration to submission of the learned Counselor embark on the task of finding out whether the aforesaid decision of the trial Area Court, on the point, was right or wrong. All that the appellate High Court should have done in the circumstance, was to hold that the decision of the trial area court, on the point, was correct or right, there being no appeal against it.
The next question for consideration is whether, as the grounds of appeal raising the issue of res judicata were some of the proposed grounds on the basis of which the appellants applied for and obtained leave of this court to appeal against the judgment of the High Court, it was no longer necessary for the appellants to obtain the leave of this court to raise the said issue bearing in mind that the issue was not in law raised in the High Court, Gboko, or that, if it was originally raised. it was later abandoned and the grounds of appeal relating thereto were struck out in that court. In Lauwers Import-Export case (supra), the appellant obtained leave of the Supreme Court to file some additional grounds of appeal. The additional grounds of appeal included some grounds which for the first time, raised certain issues not raised in the lower court. When the appeal came up for hearing, the respondent raised an objection that the grounds of appeal were not competent as the leave of the Supreme Court to raise them was not obtained. The overruling the objection. Agbaje, J.S.C., at page 443, said, inter alia, as follows:
“As to the objection to grounds 1, 2, 3, 4, 5 & 7 of the additional grounds of appeal on the grounds that they raise questions of mixed law and fact or facts alone and since the issues were not raised in the lower court they cannot be raised in this court for the first time without leave of this court. I cannot really see how this objection can be successfully pursued at the moment. Assuming that the bases upon which the objection is based are correct, since leave of this court has already been granted on 11/5/87, as I have said above to argue the grounds of appeal, counsel for the defendant can no longer say that the points are being raised in this court if even for the first time without leave of this court.”
When a similar issue came before this court (Benin Division) in Adamu v. Ikharo (1988) 4 NWLR (Pt.89) 474, Omo, J.C.A., at p.491, said, inter alia, as follows:-
“Before I conclude on this ground however, I have to draw attention to what an appellant who seeks to argue new matters not raised in the court below in this court must do. It is not enough to file an application to file and argue additional grounds of appeal simpliciter. Such an application when granted does not constitute seeking and obtaining leave of this court to argue new issues/grounds of appeal. If such an application is granted, it will be obtaining leave by default and through the back door.
To be correct, the application filed must specifically state and unequivocally so, that leave to argue new issues/grounds not canvassed in the lower court is being sought. And the new issues/ grounds in respect of which leave is sought must be clearly set out with supporting affidavit disclosing why the said issues were not raised in the court of trial. The application will then be argued on that basis and leave duly granted or refused on its merits.”
In a situation like this, the judgment of the Supreme Court prevails. It has, however, to be said that the Supreme Court decision in Lauwers Import-Export case (supra) was not cited to Omo, J .C.A., in Adamu’s case (supra). Be that as it may, what remains is that a respondent’s counsel has to be more vigilant. Whenever a ground of appeal proposed in support of an application raises an issue, for the first time, in the Court of Appeal, which was not raised in the lower court, an objection on that ground should be raised, if the learned Counsel for the respondent wants to raise such objection, notwithstanding the fact that the leave being sought is for the purpose of filing and arguing additional ground(s) of appeal, otherwise the opportunity to raise the objection may not be available again.In the present appeal, the judgment of the Supreme Court in Lauwers Import-Export case does not apply in that the leave which was granted to the appellants, as shown by the copy of the relevant order at page 57 of the record of proceedings, was leave to appeal from the High Court to this court.
The leave granted by the Supreme Court in Lauwers Import-Export case was to file and argue additional grounds of appeal. The attitude of the Supreme Court in that case could be that having given the appellant leave to file additional grounds of appeal, it would be superfluous to require the appellant to apply for and obtain another leave in relation to some of the grounds which raised in the Supreme Court, for the first time, issues which were not raised in the court below. If the learned Counsel, for the respondent in Lauwers Import-Export case, had any objection to such grounds he ought to have raised it when the application for leave to file and argue the additional grounds of appeal was being heard. The answer to the question raised in the first issue is in the negative.
Assuming, for the purpose of argument, that I am wrong in holding that the answer to the question raised in the first issue is in the negative. I now deal with this matter as if my answer to the question is in the affirmative. The next thing for consideration is the question raised in the second issue which is whether the plea of res judicata made by the appellants, in this suit, could be sustained or was established. In order to establish a plea of res judicata, it has to be shown that the parties, the subject-matter, and the issues in the previous suit and the present suit are the same. See Abiodun v. Fasanya (1974) 11 S.C. 61 at p.71; Iyaji v. Eyigebe (1987) 3 NWLR (Pt.61) 523: and Alao v. Akana (1988) 1 NWLR (Pt.71) 431. Somehow, the arguments in the appellants’ brief and the appellants. Reply brief did not really or specifically show that the subject-matter in the previous suit, upon which the appellants relied for the plea of res judicata, was the same as the subject matter in this suit. The arguments related to what the trial Area Court allegedly did or did not do but there was nothing in the appellants’ brief or in the Reply brief, which could make this court come to the conclusion that the land in dispute in the alleged previous suit was the same as the land in dispute in the present suit. There was the argument or complaint, at page 5 of the appellants’ brief, that when the court went to visit the locus in quo, the respondent showed the land in dispute which was in rectangular form and also showed the land which was subject matter of the previous suit (which Oramee won in the trial court and in the Federal Court of Appeal) that was about 600 yards from the land in dispute in the present suit and that there was nothing in the record of proceedings to show that the appellants were asked to show anything or to make any comment on the respondent’s assertion or on the court’s entries.
The submission, at page 5 (paragraph 8) of the respondent’s brief) was that the allegation that the appellants were not heard and were not given an opportunity of being heard during the visit of the trial Area Court to the locus in quo was baseless and unfounded. It was pointed out that the trial Area Court requested the parties to be at the locus in quo to show the size or the materials as regards the inquiry or investigation of the plea of res judicata. It was also pointed out that the trial Area Court drew attention of the appellants to what the respondent was showing the court. I think there is substance in the submissions made, on this point, by the respondent. Page 15 of the record of proceedings showed that the appellants and the respondent were all present in the trial Area Court on the 26th July, 1984. Page 16 of the record of proceedings showed that before the court rose on that day the following things, as recorded occurred:-
“We have at this juncture on our own thought it wise to visit the Area in question ….. before we came (sic) to a decision as to whether the land in dispute had been adjudicated upon or not. The date of visit is 2/8/84. Plaintiff and the defendants to be there and to show sizes or materials as regards the inquiry or investigation of the plea of res judicata.”
The record of proceedings at pages 16 and 17 also showed that on the 2nd August, 1984, the appellants, the respondent and members of the court were present at the locus in quo and that the inspection was carried out in the presence of the parties on that day. The respondent showed the members of the court certain marks and signs as members of the court and the parties went round the place. On this aspect of the matter, the following was what was recorded at page 17 of the record of proceedings:
“The defendants were shown these marks and signs as we went round during the inspection.”
If the appellants were present during the inspection, went round with the members of the court when the respondent was showing them certain marks and signs on the land in dispute in the present suit and they were shown the aforesaid marks and signs, it was open to them, if they disagreed with the respondent on any question pertaining to what he (respondent) was showing to members of the trial Area Court, to say so. If the place that the respondent showed the members of the court as the land in dispute in the present suit or as the land in dispute in the previous suit was not the land in dispute in the present suit or the land in dispute in the previous suit, as the case might he, they (appellant) were free to say so. There was no evidence that there was any time that they indicated that they wanted to say anything and that the members of the trial Area Court refused to listen to them.
There was also the argument, at page 6 of the appellant brief, that one Oramee Enze had been held out by the appellants as the owner of the land in dispute on the basis of the judgment in his favour, in an Area Court, in Exhibit “B” which went up to the Federal Court of Appeal which also gave Judgment in his favour in Exhibit “D.” According to the appellants, the said Oramee Enze was present when the locus in quo was being inspected but was not called by the court or allowed by the court to show exactly what area involved in Exhibit “D.” The views which I expressed above about the alleged failure to hear or to give opportunity of being heard to the appellants apply. With equal force, in this respect. If Oramee Enze had anything useful to say during inspection of the land in dispute, he would have said it. Further, there is nothing on record to show that there was any time that he indicated that he wanted to say anything and that the members of the trial Area Court refused to listen to him.
The appellants conceded, in the arguments complaining about what the trial Area Court should have done or not done., at pp.6 to 9 of the appellant’s brief, that the appeal dealt with by the Federal Court of Appeal in its judgment in Exhibit “D” which was in favour of the said Oramee Enze was not the appeal on the judgment of the Area Court in Exhibit “B” which was allegedly reversed by the High Court, that is, the land in dispute in Suit No.CV.58/79 to which Exhibit “B”” related was not the land in dispute in Suit No.CB.34/79 which went on appeal to the High Court. Makurdi, and subsequently on appeal to the Federal Court of Appeal in relation to which the Federal Court of Appeal gave the judgment in Exhibit “D.” The complaints of the appellants was that the trial Area Court ought to have discovered the discrepancy and should have draw the attention of the appellants to it. The case or Ajetunmobi v. Omowumi (1961) All NLR (Pt.1) 120 at 122 was cited in support of the argument that the appellant being unassisted litigants should have been asked by the trial Area Court to produce the correct judgment of the trial Area Court in the case which went on appeal up to the Federal Court of Appeal, that is, the judgment in Suit CB.34/79.
No doubt, the discrepancy mentioned above, which was conceded by the appellants, knocked the bottom out of the defence or the appellants which was substantially or mainly based on the plea of res judicata because one of the essential things that anybody relying on the plea has to prove is that the subject-matter in the previous suit and the subject matter in the present suit are the same. I don’t see how the appellants can properly or legally blame the trial court for their own (appellants’) failure to produce the judgment of the trial Area Court in Suit No.CB.34/79. The law is that a plea of res judicata should not be entertained by a court unless the record of the court on which it is founded is produced or good reason is given for its non-production. See The Annie Johnson, 126 L.T. 614; and Karfawa v. Nagogo (1970) N.N.L.R. 20. In any case, the following, at pages 14 and 15 of the record of proceedings, showed the efforts made on 18/7/84, by the trial Area Court in this connection:#
“Court to defendants: Have you any proof to show that the court or land had been adjudicated upon?
1st defendant to Court: No I do not have anything myself to prove but Oramee has.
2nd defendant to Court: I have nothing there to show.
3rd defendant to Court: I have nothing there to show except Oramee.
4th defendant: I have no documents to show except Oramee.
Further hearing was then adjourned to 26th July, 1984. When further hearing resumed. the appellants told the trial Area Court, at p.15 of the record, that they had copies of the judgments showing that the land had been adjudicated upon hefore. They tendered Exhibits “B”, “C” and “D.” If the members of the trial Area Court were not going to descend to the arena and be seen to be actively assisting one of the parties, they should not do more than they had done in this case for the purpose of enabling the appellants to produce evidence in support of their plea of res judicata.
Above all, the true position is that the production of the judgment of the Area Court in Suit No.CB.34/79, which went on appeal up to the Federal Court of Appeal, could not have made any difference in favour of the appellants. Rather, it would have supported my statement that the bottom had been knocked out of the defence of plea of res judicata on which the appellants relied. The evidence of the respondent was that the land in dispute in the case which Oramee Enze won in the Area Court and in the Federal Court of Appeal was a rice farmland which was different from the land in dispute in the present suit that was not a rice farmland. When Oramee Enze (D.W.1) was asked, under cross-examination by the respondent, whether the land to which the judgment of the Area Court and the judgment of the Federal Court of Appeal, which were in favour of Enze related, was not a (Fadama) Ijande rice farmland which did not extend to the land in dispute, the answer of Enze was in the negative. That evidence, however, contradicted the evidence of Sase (D. W.2), at page 21 of the record of proceedings,
which was as follows:-
“I know D.W.1 and the Defs. I do not know the p1. That the D.W.1 had a (Fadama) Ijande rice farmland case with one Angbegha Tyondo. The case was in favour of D.W.1. He had an appeal and the Federal Court confirmed the decision of the lower court and quashed that of the High Court who had reversed that of the lower court. The D.W.1 then gave the land to the defs to settle upon and they built some few houses thereupon. That’s all.”
Under cross-examination by the respondent, the D.W.2 stated that the dispute was in the Fadama rice farmland and not outside it. The lead judgment read by Coker, J.CA. (as he then was) in Exhibit “D” showed that the claim in the trial Area Court was for recovery of possession of a rice farmland, which confirmed or corroborated the evidence of the respondent and the evidence of D. W.2. Consequently, the judgment of the Area Court in Suit No.CB.34/79, if produced, could not have shown that the land in that suit, a rice farmland, was the same as the land in the present suit. The result is that one of the essential clements for a successful plea of res judicata has not been established. The answer to the question raised in the second issue above is in the negative.
The third issue is whether the High Court, Gboko, was right in affirming the decision or judgment of the trial Area Court declaring the respondent as the owner of the land in dispute and awarding it to him. The High Court, after making reference to the issues before the trial Area Court and examining the findings of fact made on these issues said, at page 49 of the record of proceedings, as follows:-
“Can it be validly said in this matter on appeal that the trial court’s findings of fact are perverse or otherwise not supported by the evidence properly adduced before it and accepted? We are of the view that the answer must be no. The trial court properly evaluated the evidence ill arriving at its decision. Proof in civil matters is proof on the balance of probability.”
In this case, it appears that the only defence, of any substance, put forward by the appellants was the plea of res judicata. It does not necessarily follow that once the defence had collapsed, judgment must be given for the respondent. Here, the respondent was claiming that the land in dispute was his, that is, ownership or title to the land. For that reason, the onus was on the respondent to establish his claim by positive evidence led by him and not by relying on the weakness of the appellants case. See Kodilinye v. Odu 2 WACA 336.
Before coming to a conclusion on the third issue, it is necessary to deal with certain matters straightaway. It was submitted for the appellants that it was wrong to have declared the respondent as the owner of the land in dispute when he did not give the description of the aforesaid land. The law is that the boundaries of a piece of land which are either admitted or well known to the parties in a case need not be proved. See Adama’s case (supra); and Olujide v Adeagbo (1988) 2 NWLR (Pt.75) 238. In this case, the respondent and the appellants knew where the land in dispute was. After the trial Area Court had informed the parties that an inspection of the land in dispute would be carried out and requested the parties to be present there, the case was adjourned to a later date when the parties were to meet the members of the court at the locus in quo. The evidence was that all parties were present at the inspection. There was no evidence of any disagreement by the parties as to the identity of the land in dispute, As a result of the inspection, full particulars of the features on and of the boundaries of the land in dispute are now in the record of this case.
It was also submitted, on behalf of the appellants, that the nature of the respondent’s claim was not stated and, therefore, he should not have been declared the owner of the land in dispute. Legal technicalities are to be avoided in proceedings taking place in Area Courts, The whole proceedings should, where necessary, be considered to determine the matter in controversy. See Osu v. Igiri (1988) 1 NWLR (Pt.69) 221. In such matters, there is relaxation of the rules relating to framing of claim. procedure and so on and so forth as what really matters is the substance and not the form. See Ikpang & Ors. v. Edoho, (1978) 2 L.R.N. 29, in which the Supreme Court, at pp.35 & 36, stated the guidelines as follows:-
“Firstly in respect of claims before those courts it is necessary to look at the substance rather than at the form of the writ (Boadu v. Fosu, 8 W.A.C.A. 187; Okuma v. Tsutsu, 10 W.A.C.A. 89); one therefore should not examine those writs ‘microscopically’ (Udofia v. Afia 6 W.A.C.A. 216 at 218) or with a fine toothcomb.
Secondly, on the question of procedure……….
Thirdly, generally, great latitude must be given to, and a broad interpretation placed upon native court cases – and one may add customary court cases – so that the native proceedings, the evidence of the parties and the judgment must be examined in order to determine what the native or customary court case was all about (Ajayi v. Aina, 16 N.L.R.67). The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, the evidence may show clearly that the claim, although framed in trespass was in reality a fight as to the title of ownership of the land in dispute.”
Applying the foregoing principles, if the claim of the respondent for his area of farmland from the appellants is considered in the light of his statement immediately before be closed his case (at p.14 of the record of proceedings), that he prayed the court to give the title and ownership of the said land to him, it is clear that the respondent’s claim was for title to and/or ownership of the land in dispute.
It was further contended, in the appellant’s brief, at p.10, that since Exhibit “D” had declared that the surrounding lands to the land in dispute in the case were Gramer Enze’s land, an issue estoppel arose therefrom to bar any subsequent contest as to the ownership of the surrounding lands which included the land in dispute in this case. Ezewani v. Onwordi & Ors. (1986) 4 N.W.L.R. (Pt.33) 27 at 42; and Fadiora & Anor., v. Gbadebo & Anor. (1978); S.C. 219 at pp.228-229 were cited. Reference was made to section 15 of the Evidence Act and it was submitted that if the trial Area Court had properly applied the provision of the section it would have come to the conduction that the surrounding lands which gave title to Oramee Enze in Exhibit “D” were still the surrounding lands which the respondent was claiming. Okechukwu & Ors. v. Okafor & Ors., (1961) All N.L.R. (Pt.4) 685 at 689-690 and Idundun & Ors. v. Okumagba 9-10 S.C. 227 at 249-250 were cited. The provision of section 45 of the Evidence Act is as follows:-
“Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to one piece of land is likely to be true of the other piece of land.”
Evidence which is relevant and admissible under section 45 of the Evidence Act only raises a probability not a presumption of ownership of the land. See Archibong v. Ita (1954) 14 W.A.C.A. 520. Even if there is a presumption under the provision of the section, the presumption is rebuttable. In this case, the respondent was able to show that the land to which the judgment in Exhibit “D” related was a fish farmland whereas the land in dispute was not. Further, for the provision of section 45 of the Evidence Act to apply, there must be proof or an admission by the other party that the land in dispute is surrounded by other lands belonging to the person who claims that the land in dispute is his. See Idundun’s case (supra). In this case, there was no proof, during the proceedings in this case, that the land in dispute was surrounded by other lands belonging to Oramee Enze. Indeed, the evidence of the respondent, which was uncontradicted and which the trial Area Court accepted, was that the land in dispute was about six hundred yards from the rice farmland of Oramee Enze to which the judgment of the Federal Court or Appeal related.
It was argued, at pages 13-15 of the appellant’s brief, that the appellate High Court’s comment that the appellants did not give evidence at the trial court but relied on the evidence of Oramee Enze, like a similar comment by the trial Area Court, was prejudicial to the appellants’ case in that it adversely affected the views of both the trial court and the High Court on the defence of the appellants and led to miscarriage of justice. The defence, of any substance or significance, put forward by the appellants was the plea of res judicata. Having regard to the reasons for the failure of the plea, which had no connection whatsoever with the fact that the appellants did not give oral evidence but relied on the evidence of Oramee Enze, it is quite clear that the aforesaid comment of the High Court did not occasion any miscarriage of justice. The plea of res judicata failed because the appellants failed to produce the judgment in a previous suit showing that the parties, subject matter and issues in both the previous and the present suits were the same.
Coming hack to the question raised in the third issue, reference has already been made to the evidence of the respondent that the land in dispute belonged to his forefathers. He used to accompany them to the farm when he was young. When he grew up, he left the place having entrusted it to his elder brother. On his return, he found that the appellants had been trespassing on the land. The respondent’s brother gave evidence for the respondent and confirmed the respondent’s evidence in various material particulars. He testified further that Oramee Enze, the landlord of the appellants, sued him (respondent’s elder brother) in respect of the land in dispute but the action was struck out for want of prosecution by the said Oramee Enze and he tendered the record of proceedings which was marked Exhibit “A”. The foregoing was not contradicted and there was nothing, on record, to show that it was not true. In the circumstance, the trial Area Court was perfectly right to accept it, act on it, and to declare that the respondent was the owner of it. The trial Area Court was also right to award it to the respondent. In the same way, the appellate High Court was right to affirm the judgment of the trial Area Court awarding the land in dispute to the respondent. The answer to the question raised in the third issue above is in the affirmative.
The appeal does not succeed. The judgment of the High Court, Gboko, affirming the judgment of the Area Court in suit No.CV.98/84 awarding the land in dispute to the respondent in this case is affirmed. The appeal is dismissed with N250 costs to the respondent.
Other Citations: (1989)LCN/0089(CA)
