Madam Fatimo Welle V. Joel Ajide Bogunjoko (2006)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
The parties that commenced the suit at the lower court which has now given rise to this appeal were Joel Ajide Bogunjoko as plaintiff and Sumonu Welle as defendant. The plaintiff took out a writ dated 14th of January 1975 and a statement of claim dated 5th of February 1975 in which he set out the following claims against the defendant:-
“1. Declaration of title in fee simple to all that piece or parcel of land situate lying and being in Ikate, Suruiere, Lagos a site plan of which will be filed later,
2. Four hundred naira (N400.00) damages for trespass to the land.
3. Injunction restraining the defendant his servants and/or agents from further trespassing on the said land. Annual rental value of the land is about N20.”
Pleadings were filed and exchanged and the case was set down for trial.
After the proceedings of 14th May, 1980, the defendant died and his name was substituted with Salami Amawo Welle and Jimoh Welle, who became the new defendants.
At the conclusion of trial and in a considered judgment, Adeoba, J. found for the plaintiff and granted all the claims wherewith he reduced the sum claimed for damages to N100.00. The defendants being dissatisfied with the judgment of the lower court have appealed to this court via notice of appeal dated 24th of May 1982. Three grounds were filed on their behalf by their learned counsel, Mr. P. A. A. Akinlade.
The three grounds of appeal without their particulars read as follows:-
“1. The learned trial Judge erred in law and on the facts when he held that the land in dispute is part of the land sold by Ikate Family of Chief Ajao in 1953 and 1956.
2. The learned trial Judge erred in law and on the facts on the issue of possession because plaintiff never proved possession.
3. The judgment is unreasonable, unwarranted and cannot be supported by the evidence before the Court.”
In line with the practice of this court parties filed their respective briefs of argument. The appeal came up for hearing on the 22nd of May 2006. Mr. Olaonipekun Sowole learned counsel for the appellant identified the appellant’s brief of argument. In that brief of argument two issues have been distilled from the three grounds of appeal. In his oral argument, learned counsel adopted his brief of argument and submitted that the 1st issue is tied to grounds 1 and 3, while the 2nd issue is tied to ground 2. For the purpose of clarity, let me set out the issues hereunder thus:-
“1. whether it was established that the piece of land in dispute is part of the land sold to Chief Ajao by the Ikate Family;
2. was possession established to be in the defendants/appellants.”
When learned counsel’s attention was drawn to the defective nature of his grounds of appeal, he argued that grounds 1 and 2 are competent even when the errors of law and facts are lumped together, because the grounds attack the final decision of the court below. On ground three, learned counsel submitted that it is properly couched even in absence of the use of weight of evidence.
In reply to the submission of the learned counsel for the appellant, Mr. Babajide O. Koku learned counsel for the respondent identified the respondent’s brief of argument which is dated 6th June, 2005 and filed on the 7th June 2005 and went on to adopt it. In the brief of argument, Koku Esq. of counsel also adopted the two issues which the appellant’s counsel formulated and submitted that the two issues should be answered in the affirmative. On the issue of the competency of the grounds of appeal, learned counsel submitted that, while grounds 1 and 2 are competent, ground 3 is incompetent and should therefore be struck out. In a further submission, learned counsel urged the court to discountenance issue No.1 as it is distilled from grounds 1 and 3.
In reply on point of law, Sowole Esq. of counsel submitted that even in the absence of ground 3, which he now concedes that it is defective, issue 1 is sustainable on the basis of ground 1.
Before I consider the submissions contained in the briefs of argument of the parties, I wish to deal with the preliminary issues arising from the grounds of appeal.
Grounds 1 and 2 in this appeal complain about error of law and facts. By section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999, an appeal from the decision of the Federal High Court or a High Court to the Court of Appeal on facts alone or on mixed law and facts is subject to the leave of the court below or this court before it can be filed. A ground of appeal for which leave is required, if filed without such leave being obtained is incompetent. See Ojemen vs. Momodu II (1983) 1 SCNLR 188.
The two grounds of appeal herein arose in a final decision of the court below. By S. 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999, appeal shall lie as of right from a final decision of the Federal High Court or a High Court sitting at first instance. From the foregoing therefore I agree with the learned counsel on both sides that grounds 1 and 2 are competent.
On the 3rd ground of appeal, I make bold to say that a civil appeal on the facts is not quite the same as an appeal on the facts in a criminal case. In a criminal appeal the general ground is that the verdict is unreasonable and cannot be supported having regard to the evidence, whilst an omnibus ground in civil appeal is that the judgment is against the weight of evidence. While in criminal matters, the prosecution must prove his case beyond reasonable doubt, civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighted against that which is adduced by the respondent. It is therefore wrong to couch a ground that is not in conformity with this proof. See: Atuyeye & Ors v. Ashamu (1987) 18 NSCC (Pt 1) 117; (1987) 1 NWLR (Pt.49) 267.
Both the appellant’s and the respondent’s counsel have agreed that ground three is incompetent. This being so, same is hereby struck out. The next question to consider is the competence of the issue formulated from both ground one which is competent and ground three which is incompetent.
In Ayalogu vs. Agu (1998) 1 NWLR (Pt.532) 129 my learned brother Salami, JCA went spiritual when he reflected on the Biblical parable of the sower, some of whose seeds fell amongst them and when they germinated and grew up, they were chocked up by wild uncultivated bush. My lord held in that judgment that the bad grounds that supported the issue which was also supported by good grounds literally chocked up those good grounds. Having narrated the story he referred to the case of Madam Asiawu Adetoju Korede v. Prince Adedapo Adedokun & Anor, unreported appeal No. CA/I/14/92 where in arguing the appellant’s brief, counsel related grounds of appeal filed along with the notice of appeal as well as the inchoate grounds of appeal to the same issue and it became impossible to separate argument advanced on an issue in respect of perfect and imperfect grounds, the court in a lead judgment per Salami, JCA said:-
“This is the mixed grill served and I am of the firm view that it is not the business of the court to sift chaff from grain by performing a surgical operation on the appellant’s brief to extract argument in respect of the valid grounds from the invalid ones, as such exercise may involve the court in descending into the arena and the dust rising there from may of necessity becloud its judgment. The duty of the Court is that of an umpire whose function in the interest of justice is to tend the rope and not to step into the brawl by excising argument on good grounds of appeal from those of bad ones.”
See also Honika Sawmill (Nigeria) Limited v. Hary Okajie Hoff (1994) 2 NWLR (Pt. 326) 252; S. B. Bakare v. African Continental Bank (1986) 5 SC 45 at 50-52; (1986) 3 NWLR (Pt.26) 47; Khalil v. Yar’Adua (2003) 16 NWLR (Pt.847) 446.
Clearly issue one which is formulated by the appellant is supported by ground one which is competent and ground 3 which is incompetent. It is therefore not the function of this court to carry out surgical operation on the grounds in order to save the issue. This being so issue I and all the argument canvassed thereupon are hereby struck out.
Having struck out issue one, the only issue left for consideration is issue 2.
On issue 2, the appellant made a brief submission, which I reproduce hereunder as follows:-
“3.2.1 The consideration of possession by the learned trial Judge is from line 7 page 90 to line 31 page 91 wherein he predicated judgment on the issue for the respondent mainly on his finding on title which is attached in issue 1. He stated on page 91 lines 23-26 that: ‘The plaintiff having discharged the onus placed on him, the onus now shifts to the defendant to establish a better right to possession or to justify his right to possession by showing a better title to the land’.
3.2.2 If our submission on the issue of the title is accepted, the holdings on possession will automatically fall, and the appellant having shown physical possession should have judgment.”
Finally on issue 2, the learned counsel for the appellant called on this court to hold that the learned trial Judge was wrong on the title because the composite plan did not relate to the plan of the appellants, and his judgment on possession based purely on title be set aside.
Learned counsel for the respondent, lumped his argument on issue one and two together in his brief of argument, after having adopted the two issues formulated by the appellant’s counsel. Having struck out the appellant’s first issue, it has become difficult for me to separate the respondent’s argument on issue two from the appellant’s issue one. Since it is not my business to perform such a function, I will restrict myself to the points raised by the appellant’s counsel.
From the brief of argument of the learned counsel for the appellant, I am of the firm opinion that the appellant’s second issue clearly attacks the findings of facts and seriously challenges the judgment of the court below in an area which is only narrowly open to this court. The appellant wants this court to review the assessment of the evidence before the lower court and ascribe probative value to such evidence.
I will want to state at this stage that the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal can only interfere with the performance of that exercise if the trial Court has failed to discharge that responsibility fairly. In other words, an appellate Court has no jurisdiction to interfere with the assessment and evaluation of evidence of a trial Court in the absence of a special circumstance warranting such interference.
See Eki v. Giwa (1977) II NSCC 96; (1977) 2 SC 131; Fashanu v. Adekoya (1974) 1 ALL NLR (Pt.1) 35. The learned trial Judge had reached a conclusion that there is no dispute as to the identity of the land in dispute, and that both parties traced their title from the same root which is Ikate family. (See page 90 paragraphs 10-15). The law is settled that in a claim for declaration of title where both parties trace their title from the same source or root, the plaintiff in order to succeed must establish a better title to the land.
At page 91 paragraph 27 of the record, the trial Judge found that all the plaintiff’s witnesses and the 2nd defence witness testified that the Ikate family sold an area of land which include the land in dispute to Chief Ajao as far back as 1956 and that the executors of Chief Ajao sold the land in dispute to the plaintiff in 1973. The learned trial Judge further found that this sale superceded the sale by the same Ikate family to the Defendant in 1974.
Clearly Ikate family having divested themselves of the title to the land in 1956 no longer had any title left in the land to pass to the defendant at the time they purported to sell the land in 1974 to the defendant. The trial Judge was therefore right to have declared invalid the latter sale to the defendant/appellant and found that the plaintiff/respondent had a better title. Where adverse parties to an action for title to land rely on a common root of title, it is trite law that the party who shows a better title is entitled to succeed. See Adesanya v. Otuewu (1993) 1 NWLR (Pt.270) 414.
Again, it is settled that when in an action for damage for trespass both parties claim the right of possession by virtue of their respective title, the law ascribes possession to the one with better title. In Aromire v. Awoyemi (1972) 1 ALL NLR (Pt.1) 101 at 102, the Court held:-
“When in an action for damages for trespass, both parties claim the right of possession by virtue of their respective titles, the trial Judge should resolve the issue of their competing titles, for the law ascribes possession to the one or them with better title and the plaintiff must first show a prima facie title to the land before a consideration of the weakness of the defendant’s title arises.”
In this appeal the trial Judge properly assessed the evidence before the lower court and this court finds it inexpedient to interfere with its findings.
Another point which was raised by the learned counsel for the appellant is that the learned trial Judge was wrong on the title because the composite plan did not relate to the plan of the appellants and his judgment on possession based purely on title be set aside.
The non-relation of the plans of both parties has nothing to do with the evidence upon which the learned trial Judge relied in coming to the final decision of the court below. Although one of the ways in proving ownership of land is by production of document of title which must be duly authenticated, mere tendering of those documents does not automatically prove that the land therein purportedly conveyed granted or transferred by the instrument becomes the property of the grantee. The existence of such documents is merely a prima facie evidence of title to the land it covers and no more. Mere registration does not validate spurious or fraudulent instrument of title or a transfer or grant which in law is patently invalid or ineffective. See Alhaji Goni Kyari v. Alhaji Chiroma Alkali & 2 Ors (2001) 5 SCNJ 421; (2001) 11 NWLR (Pt.724) 412; Prince Ngene v. Chike Igbo & Anor (2000) 4 NWLR (Pt.651) 131.
Another issue which was raised by the learned counsel for the appellant which is worth mentioning under issue two is where he said:-
“… wherein he predicated judgment on the issue for the respondent mainly on his finding on title which is attached in issue 1.”
Here if there are arguments which would have been raised here, but such argument are attached to issue one which has been struck out, such arguments or submissions have gone with that issue and they cannot be dealt with here.
On the whole I find no merit in this appeal. Accordingly same is hereby dismissed. The appellant shall pay the cost of this appeal to the respondent, which I assess at ten thousand naira (N10,000.00)
Other Citations: (2006)LCN/2022(CA)
