James Okpala V. Francis Okoli (2009)
LawGlobal-Hub Lead Judgment Report
SIDI DAUDA BAGE, J.C.A.
This is an appeal against the Judgment of Nwizu J, of the High Court, Awka in the Awka Judicial Division of Anambra State in Suit No. AA/42/82 Francis Okoli V. James Okpala delivered on the 28th day of February, 2007, which made a declaration that the Plaintiff is the person entitled or deemed to be entitled to the customary right of occupancy to the piece and parcel of land known as and called “Ana Azu Owelle Francis Okoli” situate at Isiamaigbo village Agulu. Briefly the facts culminating in this appeal are as follows:-
The present Respondents in this appeal as plaintiffs in the High Court Awka, had claimed against the Appellants as defendants in that Court as follows:-
(a) A declaration that the plaintiff is the person entitled or deemed to be entitled to the customary right of occupancy to the piece and parcel of land known as and called “Ana-Azuowelle Francis Okoli” situated at Isiamaigbo village Agulu within the jurisdiction with annual rental value of N10.00 (Ten Naira).
(b) N10,000.00 (Ten thousand Naira) damages for trespass.
(c) An order of injunction restraining the defendant, his servants, privies and agents from further trespass to the said land.
The defendant in the High Court did not counter claim.
The contention of the Respondent as plaintiff in the High Court is that, he is from Isiamigbo Agulu whilst the defendant is from Amorji village Agulu. The Isiamaigbo village and Amorji village both in Agulu village both in Agulu have a common boundary where the two parties reside. In this common boundary there are two ancient Ekpe wall and in-between them there is a track road. He further said the land in dispute the subject matter of this action is called Ana Agu Ogbajali and that Ogbajali was the original owner of the land and as such that he exercised various acts of ownership on the land. Ana Agu Ogbajali which is in dispute is the one he got as his own share which is called and referred to as Ana-Azu Owelle Francis Okoli.
The defendant in the High Court now appellant on the other hand contended that the land in dispute was granted to him by the Umuokpalugo family in 1968. He further said where the plaintiff built his residential house is at Amorji and was given to him by the Umuokpaligbo family as their Nwadiana because the said plaintiff lacked land in Isiamaigbo village Agulu to built his house.
The High Court after reviewing the evidence before it, based on what it termed as the probative values of the evidence of the witnesses found that the plaintiff by credible evidence has discharged the burden of proof placed on him. The evidence of the plaintiff outweighed that of the defendant. The plaintiff has satisfy the court that he is “indeed in exclusive ownership of the land”, and that he is entitled on the evidence to the declaration he seeks for, the customary right of occupancy to the piece and parcel of land known as and called “Ana Azu Owelle Francis Okoli” situate as Isiamoigbo village Agulu.
The Defendants who are Appellants in this appeal being dissatisfied with the judgment of the High Court appealed to this court vide a Notice of Appeal brought under 03 & 2 of the Court of Appeal Rules, and on the following grounds.
(1) The trial judge misdirected himself in law when he held at page 1b of his judgment as follows:
“The essential thing was that there was a trespass into the plaintiffs land and when the defendant was reported to Igwe of Agulu with all his Cabinet Chiefs the defendant ignored all their invitation”.
PARTICULARS OF ERROR
(a) In his judgment the trial judge referred to Id1-Id3 which is three copies of letters purported to be letters of Invitation to the defendant/appellant from the Igwe of Agulu.
(b) The said three copies of the letters of Invitation purported to have been written by the Igwe of Agulu, and marked Id1 – Id3 were tendered for identification purposes.
(c) By the foregoing passage in the Judgment the trial judge was referring to the purported letters of Invitation from the Igwe of Agulu marked Id1 – Id3.
(d) A letter or indeed any document tendered for identification purposes is not before the Court.
(e) For a document relied upon to be before the court it ought to be tendered as an exhibit.
(f) By arriving at a conclusion in the above passage that there was an Invitation from the Igwe of Agulu, the trial judge was relying on those purported 3 letters of invitation.
(g) The three letters having been tendered for Identification purposes have no evidential value.
(h) Since those 3 documents have no evidential value the trial judge should not have mentioned them at all in the judgment or made reference to them at all.
(2) The trial judge misdirected himself in law when he held as follows:-
“If the defendant was the owner of the land he would have been hold enough to attend to the invitation of the Igwe of Agulu rather he was defiant of all entireties to reason”.
PARTICULARS OF ERROR
(a) Assuming without conceding that there was an invitation from the Igwe of Agulu to the Defendant/Appellant that would amount to invitation to customary arbitration.
(b) If the Defendant/Appellant was invited by the Igwe of Agulu to a customary arbitration, he need not attend because he is not bound to submit.
(c) Under the law, the Defendant/Appellant can only be bound to customary arbitration if he submits to it.
(d) The Defendant/Appellant has a right under the law to submit or not to customary arbitration.
- To allow the Appeal and set aside the judgment.
When this appeal came up for hearing on the 5th day of March, 2009 Appellants counsel A.O. Mogboh Jnr adopted and relied on the Appellants brief of Argument dated the 4th of April 2008, but filed on the 7th of April 2008. The Respondents counsel Emeka Eliaba Esq. adopted and relied on the Respondents brief of argument dated the 16th day of June 2008, but filed on the 19th of June, 2008.
Arising from the three grounds of appeal contained in the Appellants Notice and Grounds of Appeal the Appellant has distilled the following three Issues for the determination of this Court and which is contained in page 2 of the Appellant’s Brief of Argument Via-
(1) Whether having regards to the evidence before the court, the plaintiff proved the identity of the land in dispute.
(2) Whether on the principles in Magaji V. Odofin (1978) 3 – 4 SC 91, the trial judge adequately evaluated and reviewed the evidence properly before arriving at a decision.
(3) Whether having regards to the facts and circumstances of the case the Respondent established his title to the land in dispute without a visit to locus in quo by the judge.
The Respondent at pages 4 and 5 of the Respondents brief of arguments adopts in paripassu the Issues as formulated by the Appellant as listed above.
I think the issues formulated by the Appellant in their brief of argument and adopted wholly by the Respondent in their brief of argument are broad based and adequately cover all the three grounds contained in the Appellants Notice and grounds contained in the Appellants Notice and Grounds of Appeal and I propose to adopt and rely on them in my treatment of this appeal. I shall treat issues 1 and 2 together as they can be conveniently dealt with together and they are as follows:-
ISSUE 1 – Whether having regards to the evidence before the court, the Plaintiff proved the identity of the land in dispute.
ISSUE 2 – Whether on the principles in Magaji V Odofin (1978) 3-4 SC 91. The trial judge adequately evaluated and reviewed the evidence properly before arriving at a decision.
Appellant has submitted that the respondent tendered Exhibit A as a plan showing the land in dispute. Both parties described the land in dispute in their respective pleadings. The Appellant believes that the respondent does not know the land in dispute. The Appellant maintained that he gave details of the boundaries and what he has on the land in dispute. The Appellant submitted further that a close look at Exhibit A (Respondents plan) shows he does not have land where he claims and there is no cassava farm near the land in dispute.
The Appellant submits further that from the pleadings and evidence, the land in dispute according to the Respondent was his share of their fathers land shared between 9 (nine) children. The appellant submit one would expect the children (the order eight) to have boundaries with the Respondent.
The Appellant further submits that where a plaintiff (now Respondent) in an action for a declaration of this title fails to prove the boundaries of the land he is calming he has failed by that omission to prove his case and the proper Order which the court shall make in such circumstance is usually one dismissal of the claim. See Ugo V Nwokeke 6 ENLR 106
Appellant further submit in an action for statutory right of occupancy where the parties adduced oral and document are Ad-Idem” on the Identity of the land in dispute the fact that parties ascribe different where name may not be fatal to the plaintiff claim. The situation is different where from the plaintiff evidence it is possible ascertain with reason degree of certainty the location of the land in dispute. Exhibit A produce by the respondent was very unhelpful, misleading and confusing in relation to identity and location of the land in dispute. See Makanjuola V Balogun (1989) 3 NWLR (PT. 108) 192. Ojibah v. Ojibah (1991) 5 NWLR (Pt.191) 296.
The Appellant further submits that an inaccurate survey will defeat the plaintiff claims in an action for a declaration of title. The Respondent cannot succeed in a case for declaration of statutory or customary right of occupancy where the description of the plan. See Ogedemgbe V Balogun (2007) 9 NWLR (Pt. 1036) 363.
The Appellant further submits that the Respondent by his evidence had show that his plan is inaccurate in all respect and since the description of the land contradicts the plan, the trial judge was obliged to dismissed the Respondent.
The Appellant submits further that the trial judge did not apply the principles in Magaji V. Odofin Supra by adequately evaluating and reviewing the evidence properly before arriving at his decision. The Appellant submitted further that the trial judge merely stated that the traditional evidence of the Respondent is more probable than that of the appellant and then proceeded to give judgment for the Respondent. Nowhere did he place the evidence of the parties on a scale and weighed them.
The Appellant further submitted that the respondents Exhibit A completely contradicts itself. The judge did appreciate the difference it made when the respondent in evidence said the “main road will be on my right hand side” when in fact Exhibit A his plan shows it is on the left. The plan Exhibit ‘A’ shows Agunkwo primary school on the North of the land in dispute where as the plaintiff agrees in evidence under Cross examination that it is on the South.
The Appellant submitted further that both parties agree there is a post office near the land in dispute. The appellant said he built a supermarket near the land in dispute which belongs to him and his family. He tendered Exhibits C.D. and E the correspondence between him and the Post Master General for the approval of the Postal Agency. The respondent stated that the land on which the Postal Agency was built was donated formerly by Amoji and Isiamaigbo. The Appellant submits that the trial court did not find that the two communities owned any communal land, and did not find the Appellant built and managed the Post Office.
The Appellant submitted further that without visiting the land in dispute it will be difficult to make proper legal finding of fact on this issue. If the Respondents house i.e. cantilever extend, beyond the respondents land into the appellants land. If there was a poultry house of the appellant and an underground water tank built by the appellant adjacent to the land in dispute. The trial judge will not be in a position to find out things as they exist or believes the Appellant or Respondent from the evidence given and from their plans Exhibits A and B.
The Respondent has submitted that it is now settled law that a Plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates and the boundaries there of. The plaintiff in an action for declaration of title to land can discharge the onus of showing with certainty the area of land he claims by filing a survey plan reflecting all the features of the land and showing clearly the proper boundaries thereof. See: Agbeje V. Ajibola (2002) 93 LRCN 1 at 16 F ratio 7.
The Respondent further submitted that he tendered his Survey Plan No. MEC/1317/82 which was admitted as Exhibit ‘A’. Apart from this, the Respondent and his witnesses during the trial adduced oral description of the land in dispute to the extent that a surveyor acting on the strength of the description can make a plan of the land in dispute.
The Respondent submitted that a court has the power to look at any document in its file which is not tendered as an Exhibit. Again a court has the competence to look at a plan or pleading that has been amended. The original plan of the appellant can be used to highlight the falsity in the Appellants case that Exhibit ‘A’ did not correctly show the land in dispute and the Respondent does not know the land in dispute. See: Agbaisi V. Ebikoreje (1997) 4 NWLR (pt. 502) 630 ratio’s 1 and 2.
The Respondent further submits that at trial he and his witnesses described the land in dispute, its boundaries boundary features and boundary neighbours. The Appellant did not adduce such evidence and the issue of identity of the land did not arise at all at the trial and as such the trial court had no business to relate Exhibit’ A’ and the evidence given in support of its with Exhibit ‘B’. This is so because the Appellant did not counter claim and so it is the respondent’s plan which determines which area of land is in dispute. See: Duru V. Onwumelu (2001) 92 LRCN 3148 at 3161 ratio 9.
The Respondent further submits that it is settled law that in an action for declaration of title to land a plan is not an absolute necessity if all the parties and the court know precisely what piece of land is in dispute. See: Lawson V. Afani Cont. Co. Ltd (2002) 2 NWLR (pt. 752) 585 at 619 ratio 10.
The Respondent further submitted that the trial court after placing the evidence adduced by the parties on that imaginary scale as enjoined in Mogaji V. Odofin (Supra) preferred the evidence of the Respondent and his witnesses to that adduced by the Appellant and his lone witness.
Respondent further submits that an appellate Court will be slow to overtion the findings of fact of a trial court which heard and saw the witnesses and which in the final analysis prefers the evidence of one set to the other so long as such conclusions by the trial court are based on admissible and considered evidence. See: Igbuya V. Eregare (1990) 3 NWLR (pt. 139) 425 at 433 ratio 6.
Respondent submitted further that the trial court was right in preferring the traditional history of the respondent to the story of the appellant. This is so because where evidence shows that the plaintiff through his predecessors in title had been in long… Uninterrupted succession to the parcel of land in dispute, the onus is on the defendant to dislodge the claim of the plaintiff by cogent evidence. See: Amayo V. Erinmwingbovo (2006) 11 NWLR (Pt. 992) 669 at 687 ratios 3.
Respondent submitted that there is therefore no doubt that he got the land in dispute from the estate of his late father and the trial court properly evaluated all the evidence before it and their found for the Respondent. This court is urging to resolve these 2 issues against the Appellant.
As contained in page 120 of the records, the trial judge in the 2nd paragraph of the judgment in that page stated that in matter relating to title to land, the plaintiff can only succeed if he is able to establish any of the five ways of proving title to land to wit:
(a) By traditional history or evidence.
(b) By production of title deed or documents which are duly authenticated.
(c) By act of selling, leasing, renting out all or part of the land or by farming a portion of it.
(d) By acts of possession and enjoyment of the land and
(e) By possession of connected or adjacent land in circumstances rending it probable that the owners of such connected or adjacent land would in addition be the owner of the land in dispute. The learned trial judge cited the following cases: – Idundun Vs. Okemagba (1976) 7 – 10 SC 277, Santi V. Bugobiri (2005) 2 FWLR (pt. 263) 550 at 553.
The trial judge then quite rightly reviewed the case of the plaintiff (now Respondent) how he led evidence of traditional history how their great grand father Ogbajali acquired the entire land as a virgin forest called Ana Agu Ogbajali when human population was very far. The learned trial judge also reviewed the evidence of the defendant (now appellant), also the vital evidence of PW1 as well as PW3 which was not challenged in Cross-examination. “The judge thereafter stated in page 122 of the records that in this court is therefore bound to accept the traditional history of the Plaintiff than that of this defendant… ”
At page 123 of the records paragraph 2 the judge stated:
“On a careful review of the evidence before me based on evaluation of the probative value of the evidence of the witness, it seems to me that the plaintiff by credible evidence has discharged the burden of proof placed on him by section 135 and 136 of the Evidence Act 1990. Again on the Rule in Mogaji V. Odofin 1978 4 SC. 91 the evidence of Plaintiff out weighed that of the defendant… ”
This is a land dispute with the characteristic opposed or opposite claims of ownership. Both parties claim ownership of the land in dispute through their progenitor. The appellant who is Respondent claim ownership through his progenitor Ogbajeli. The Respondent who is the appellant claim ownership through his progenitor Okpalaugo. The name of land in dispute is called “Ana-Azu Owelle Francis”.
In Dada & 2 Ors V. Bankole & 2 Ors (2008) 1 SC (pt. 111) 247 – 248, Tobi JSC Stated:-
“The main function of an appellate court (including the Court of Appeal) is to re-evaluate the evidence at the trial court. This, the Court does, by examining the cold record of Appeal before it. As long as the court does not go outside the record in search for mere inculpatory or exculpatory evidence, this court will not fault the Court of Appeal… ”
This Court again has examined the evidence of the 4 witnesses called by the Plaintiff/Respondent and the 2 witnesses called by the defendant. I am more impress with the long traditional history led in evidence by the Plaintiff/Respondent on how their great grand father Ogbajali acquired the entire land as a virgin forest called Ana Agu Ogbajali when the human population was very far. When Ogbajali died his male children shared his land. Okoli got as his own share. Anagu Ogbajali part of which is now in dispute.
The Defendant Appellant in his evidence contended that the land where the plaintiff (Respondent) is now occupying was given to the Respondent by the family of the appellant as their grand child, as the Respondents mother came from Amorji village Agulu, where the appellant comes from, on examination of the 2 versions of the parties, I cannot but agree with the trial judge at page 122 of the records first paragraph where he stated:-
“This Court is therefore bound to accept the traditional history of the plaintiff than that of the defendant that the land in dispute formed part of the defendant’s land”.
In addition to the long traditional history, the plaintiff/Respondent tendered Exhibit ‘A’ at the lower court, which is the plan of the land in dispute. It is a well established principle that a plaintiff who claims a declaration of title to land must prove clearly the area of land to which his claim relates and the boundaries thereof. See: Kwadzo V. Adjei (1944) 10 WACA 274. Ibezue V. Lebu (1992) 2 NWLR (pt. 591) 437; Olisa V Asojo (2002) 1 NWLR (pt. 743) 13. Such a plaintiff must describe the land with certainty as to entitle him to declaration of title and injunction: – Onwuka V. Ediale (1989) 1 NWLR (pt. 96) 183; Udeze V. Cbikebe (1990) 1 NWLR (pt. 125) 194.
The Plaintiff Respondent testified on Exhibit ‘A’. In his evidence he testified that Isiamaigbo and Amorji villages have common boundaries where himself and defendant reside. He referred to the ancient Ekpe wall that formed the boundary put up by their ancestors of both the Plaintiff/Respondent and the Appellant with a track road in-between the two Ekpe wall. He further stated that he belongs to the Ogbajali family in Agulu. He says the portion of the land in dispute is part of the land allocated to him which is called Ana Azu Owelle be Francis Okoli. Further in evidence he said that the Postal Agency belonging to Amorji/Isiamaigbo village is at the boundary of Agu Ogbajali.
The Appellant tendered his survey plan of the land as Exhibit ‘B’. He told the lower court that the Isiamaigbo village and Amorji village Agulu are neighbours with a road separating the two villages. He says Agunkwo land which was allotted to him by his family Okpalugo family houses this residential building and this portion of land in dispute. This court is of the view that Exhibits ‘A’ and Exhibit ‘B’ no material difference was shown by the Appellant from the claim of the Respondent.
Also on the issue of contradictions which the appellant raised in the evidence of the plaintiffs witnesses, I agree with the finding of the trial judge at page 122 of the record 2nd paragraph, wherein he states:
“The defence had raised Issue of contradictions in evidence of the plaintiff witnesses. It must be borne in mind that it is not every discrepancy in the evidence of one witness with the other amounts to contradiction. It is rather a discrepancy or contradiction that goes to the root and merit of a case that is always considered.
See: Ndebilie V. The State (1965) N.M.L.R. p. 253 at 257 per Brelt JSC”.
In view of all that is stated above, I therefore resolve Issue 1 and 2 in favour of the Respondent against the Appellant.
And I move to the third Issue, to wit the contention of the Appellant that title to land cannot be established without a visit to the locus in quo by the judge. The Issue of visit to the locus in quo is covered by section 77 of the Evidence Act Cap 112 Laws of Federation of Nigeria which gives the court power to undertake an inspection of an immovable property. It was said that at the conclusion of evidence and during the address the trial judge was urge to visit the locus in quo to see things for himself. This was very necessary according to the Appellant as the parties had contested and placed many Issues on what is on the land. It is submitted by the Appellant that the learned trial judge was in good faith obliged to visit the locus to satisfy himself as to who to believe.
The Respondent on the contrary maintained that it was rather in the appellant written address that he sought the opinion of the trial court whether a visit to the locus in quo will assist it in resolving the conflicting evidence of the parties. The respondent maintained it is not only through a visit to the locus in quo that conflicting evidence of the parties will be resolved.
The application of the visit to the locus in quo it is already settled in law, where after the conclusion of evidence of parties and the address of counsel, the trial judge is left with conflict in the evidence of the parties, some doubts in the mind of the judge, if such visit is not occasion, the justice of the case may not be met. Such visit may occasion on the application of any of the parties or suo moto by the court in the overall interest of justice. In matter relating to title to land visit to the locus in quo is not one of the five ways stated earlier in this judgment in proving title to land. See: Idundun V. Okumagba Supra and Santi V. Bugobiri Supra. As in the instant case, based on balance of probabilities and preponderance of evidence the court held that the plaintiff (now Respondent) has proved his case and accordingly entered Judgment in his favour, such issue of visit to the locus in quo becomes more of surplusage. Issue number three is resolved in favour of the Respondent.
All three Issues having been resolved in favour of the Respondent, the Appeal fails and is dismissed and the judgment of F.C. Nwizu J. of the High Court of Justice Awka in Suit No. AA/42/82 delivered on the 28th of February, 2007 is hereby accordingly upheld.
There shall be N30,000.00 (Thirty thousand Naira) cost in favour of the Respondent against the Appellant.
Other Citations: (2009)LCN/3262(CA)
