Mr Osok Aneji & Ors V. Sylvester Ikwo Odwong (2016)
LawGlobal-Hub Lead Judgment Report
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the judgment of the High Court of Cross River State sitting at Obubra Judicial Division delivered by KOOFFREH J. on the 17th February,2014.
The parties belonged to neighboring villages and had a dispute over a piece of land resulting in the respondent taking out a writ of summons against the appellants who were then four inclusive of the then 1st defendant who unfortunately died in the course of the proceedings. The reliefs sought by the respondent/claimant were as follows:
”1. An Order declaring that the plaintiff is entitled to the Statutory Right of Occupancy over all that parcel of land situate, being and lying in between the Government Primary School, Owakande 11, Obubra and the former pineapple farm along Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the jurisdiction of this honourable Court.
2. An Order of mandatory injunction compelling the defendants to remove and uproot all economic trees planted on the plaintiff?s land by the defendants, their agents, members, privies, assigns etc.
?3. An Order of
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perpetual injunction restraining the defendants, their agents, staff, members, assigns, servants, privies etc. from entering, encroaching or in any manner trespassing into the plaintiff’s parcel of land situate, being and lying in between the Government Primary School,Owokande 11, Obubra and the former pineapple farm along the Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the jurisdiction of this honourable Court.
4. Damages totally assessed at six million, one hundred and twenty thousand naira (N6,120,000.00) only claimed viz:
(i) Special damages amounting to one million, one hundred and twenty thousand naira (1,120, 000.00) only.
PARTICULARS OF SPECIAL DAMAGES
(I) Six hundred thousand naira (N600,00.00) only being value of the yam farm on the said land which yams were harvested and taken away by the defendants.
(II) Four hundred thousand naira (N400,000.00) only being value of the plaintiff?s cassava farm on the land which worth of cassava tubers the defendants harvested and took away.
(III) Twenty thousand naira (N20,000.00) being value of the plaintiff?s maize on the land which worth of
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maize was harvested and taken away by the defendants.
(IV) One hundred thousand naira (N100,000.00) only being value of fifty (50) palm trees on the land destroyed by the defendants.
5. General damages of five million naira (N5,000,000) only for defendants brazen acts of trespass into the plaintiff?s property situate, being and lying in between the Government Primary School, Owakande 11, Obubra and the former pineapple farm along Obubra-Apiapum Road in Ogada, Obubra Local Government Area within the jurisdiction of this honourable Court.
On being served with the originating processes, the defendants filed a joint statement of defence which elicited a reply from the plaintiff. Parties having joined issues, the case proceeded to trial at which 2 witnesses testified for the respondent/claimant while 4 witnesses testified for the appellants/defendants. In a considered judgment delivered as aforesaid on the 17th February, 2014, the learned trial Judge found in favour of the respondent/claimant and granted his reliefs.
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Dissatisfied, the appellants filed a notice of appeal on the 7th April, 2014 containing 3 grounds. The said notice of
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appeal was subsequently amended via an amended notice of appeal filed on the 27th May, 2015 but deemed properly filed and served on the 28th April, 2016 this time containing 5 grounds.
At the hearing of the appeal, Mr. Okare the learned counsel for the respondents drew attention to the preliminary objection argued in the respondent’s brief filed on the 26th May, 2015 but deemed properly filed and served on the 28th April, 2016. He adopted the arguments in respect of the said preliminary objection contained therein, abandoned the second leg of the objection and urged the Court to strike out the appeal.
Mr. Okoro, the learned counsel for the appellants adopted the appellants brief filed on the 27th May, 2015 but deemed properly filed and served on the 28th April, 2016 as well as the appellants’ reply brief filed 3rd November, 2015 but deemed properly filed and served also on the 28th April, 2016 as the arguments of the appellants in furtherance of their appeal. He pointed out that the response to the preliminary objection is contained in the reply brief and urged the Court to dismiss the said preliminary objection and allow the appeal.
?In respect
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of the main appeal, Mr, Okare adopted the respondents briefly earlier alluded to, as the arguments of the respondents in respect of the main appeal in the event that the preliminary objection failed. He urged the Court to dismiss the appeal.
The take off point must be the preliminary objection of the respondents raised and argued in the respondent?s brief.
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The said objection as couched by the respondent is as follows:
”That the appellants?’ present counsel- the legal practitioners of the law firm of Ejukwa K. Usong & Associates are disqualified from representing the appellants in this matter and hence all Court processes constituting the present appeal as prepared, signed and filed by any of the said legal practitioners on behalf of the appellants are incompetent.”
Arguing the said objection Mr. Okare submitted that a legal practitioner is not allowed to represent a party at some stage of a proceeding and later in the same proceedings turn round to represent his opponent. He identified the occasion in the record of appeal, when the present learned counsel for the appellant held brief for the counsel representing the respondent
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before the trial Court. He referred to ANATOGU v. IWEKA 11 (1995) 8 NWLR (PT. 415) 547 at 582-583, ANYEKA v. OGBONNA (2013) 11 NWLR (PT 1366) 462 at 484.
He submitted further that it was immaterial that counsel held brief on that occasion as even while holding brief, counsel is deemed to have full mandate to conduct the case. He referred to FALOWO v. BANIGBE (1998) 6 SCNJ 42 at 64.
He concluded by submitting that by breaching the fundamental rules of professional ethics in this regard, the appeal initiated by counsel is accordingly incompetent and should be struck out. He referred to BRAITHWAITE v. SKYE BANK PLC (2013) 5 NWLR (pt 1346) 1 at 18.
Responding to the contentions of the respondent, Mr. Okoro the learned counsel for the appellant prefaced his arguments by challenging the competence of the objection on the ground that it ought to have been initiated as a motion on notice since it was a challenge to processes filed. He referred ADEJUMO v. OLAWAIYE (2014) ALL FWLR (PT. 743) 1910 at 1929-1930 and OSIGBEMEH v. EGBAGBE (2014) ALL FWLR (PT 744) 58 at 71.
?On the substance of the objection, the learned counsel submitted that the rule
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involved was meant to protect the sanctity of any confidential information passed on to the legal practitioner involved but that in the present situation, the counsel only held the brief of his colleague only once for the purposes of adjournment which did not involve client?s confidential information being placed at risk. He referred to OGBESHE v. IDAM (2014) ALL FWLR (PT. 728) 992 at 1010 and OGBORU v. UDUAGHAN (2014) ALL FWLR (PT. 719) 1041 at 1056-1059.
He pointed out that no allusion was made to the confidential information that may be imperiled. He urged the Court to dismiss the objection and referred to NBA v. KOKU ESQ (2006) ALL FWLR (PT. 334) 1928 at 1943.
The first reaction to the objection by Mr. okoro for the appellant was to object to the competence thereof based on the form in which it was presented. He anchored his contention on the decisions of the Supreme Court in ADEJUMO v. OLAWAIYE (supra) and OSIGBEMEH v. EGBAGBE (supra).
It seemed however that the learned counsel misconceived the position of the law propounded by the Apex Court in this regard. The law as stated was that a preliminary objection is only so properly
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described where its success would terminate the entire appeal but where it would only knock out some process leaving the appeal in existence, such objection should be by way of motion on notice.
The intendment of the objection herein is to terminate the entire appeal and as such properly qualifies as a preliminary objection. I shall accordingly proceed to the merits thereof.
This objection is predicated on the operations of Rules 17 (4) and 21 (2) (a) of the Rules of Professional Conduct for Legal Practitioners, 2007 which provide thus:
17 (4) A lawyer shall not accept a proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it is likely to involve him in represent differing interests, unless it is obvious that the lawyer can adequately represent the interest of each, and consents to the representation after full disclosure of the possible effect of such representing on the exercise of his on dependent professional judgment on behalf of each.
21(2) Good cause for which the lawyer may be justified in
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withdrawing from the client’s employment includes the following_
(a) Conflict of interest between the lawyer and the client.”
The material placed before this Court constituting the basis for non-qualification of the appellants’ counsel was that the said learned counsel represented the respondent in the proceedings before the trial Court of 3rd December, 2012 captured on pages 404-405 of the record of appeal as follows:
”Claimant present.
Defendant absent.
Appearances: – K.U. Ejukwo Esq. with Theresa Usang and K. Okoro?s holding the brief of I.C. Ovat for the Claimant.
A.A. Obo Esq. for the defendant: I apologized for the absence of the defendants due to the fact that they are bereaved.
We pray for a date as the witness who was to testify is the person who lost his wife today.
Court: Application granted. This matter is adjourned to l7th December, 2012 for continuation of hearing.
SIGNED
JUDGE
3/12/2012.”
?From the above records, apart from announcing appearance holding the brief of his learned friend, the said learned counsel now acting for the appellant did not make any contribution to the proceedings.
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The only event at the said proceedings was an adjournment for continuation of hearing. A careful perusal of the entire record of proceedings up till conclusion of trial did not reveal any other contribution or participation of the said counsel.
Appearance of counsel holding brief for their colleagues for purposes of adjournment is an innocuous process regularly occurring in our Courts. It is so sufficiently innocuous that counsel on opposing sides, in the best tradition of the bar do inform the Courts of communications with their colleagues on the other side indicating that such a colleague would be absent from Court. The regularity is of such a nature that it does not require any proof pursuant to Section 124 (1) of the Evidence Act, 2011.
?I do not agree with Mr. Okare that this totally harmless assistance to a colleague rendered in the spirit of good camaraderie at the bar should disqualify the learned counsel for the appellants and consequently render this appeal incompetent. Agreeing with him will not only trivialize a most important cornerstone of attorney-client relationship but cause grievous harm to the esprit de corps among legal practitioners.<br< p=””</br<
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The circumstances here in my view cannot raise any form of conflict of interest as Mr. Ejukwa and his subordinates did not act in a manner sufficient to place them in a fiduciary or even contractual relationship with the respondent in this appeal as considered by the Legal Practitioners Disciplinary Committee of the Body of Benchers in NBA v. KOKU (supra) or involving late chief F.R.A. Williams, SAN before the Supreme Court in ANATOGU v. IWEKA 11 (supra).
I find no merit in this objection and I therefore dismiss it accordingly.
I shall now proceed to the substantive appeal.
In respect thereof, Mr. Okoro submitted 2 issues for determination as follows:
”1. Bearing in mind the state of the pleadings and the fact that the respondent as claimant tied his claim of the subject matter to a previous proceeding, whether no issue arose of identity and if it arose whether it was established by the claimant.
2. In the face of the acknowledgement by exhibit A1 of “individual/family farmlands” aside the Owokande 11 Community residential area and the land contested in HC/295/99, whether the trial Court?s evaluation of evidence on the matter
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of Exhibit A1 like in other matters is not inapt.”
The respondents equally formulated two issues as follows:
”1. Whether from the state of the pleadings and evidence adduced the identity of the land in dispute in this case has been established during trial of the case.
2. Whether or not, the trial Court properly evaluated the documentary evidence in Exhibit A1 and all other relevant evidence adduced during trial.”
The issues formulated by the two sides address the same subject-matter. For the purposes of determining this appeal I shall adopt the issues as formulated by the appellants if only because they initiated the appeal based on their vexation with the judgment of the trial Court.
The first issue to be resolved therefore is as follows:
”Bearing in mind the state of the pleadings and the fact that the respondent as claimant tied his claim of the subject matter to a previous proceeding, whether no issue arose of identity and if it arose whether it was established by the claimant.”
Arguing this first issue, Mr. Okoro submitted that the parties gave differing descriptions of the land in dispute in their respective pleadings
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therefore placing the onus on the respondent/claimant to establish the identity of the land in dispute which burden will not be obviated even where the appellants/defendants admitted knowledge of the land in dispute once dimension is not admitted. He referred to ODOFIN v. ONI (2001) FWLR (PT 36) 807 at 818, OJIBAH v. OJIBAH (1991) 6 SCNJ 156 at 166, ASSAM v. OKPOSIN (2000) 10 NWLR (PT 626) 659 at 669, ADESHOYE v. OLOWOLAGBA (1996) 12 SCNJ 95 at 105, ADOMBA v. ODIESE (1990) 1 SCNJ 135 at 144 and ODOFIN v. AYOOLA (1984) 11 SC 72.
He further submitted that the failure of the respondent to produce evidence of identity of the land justifies the presumption that the evidence if produced would be unfavorable to him. He referred to Section 167 (d) of the Evidence Act 2011, GATAH NIG. LTD v. ABU (2005) ALL FWLR (PT 278) 1186 at 1217 and N.E.R.D.C v. GONZE NIG. LTD (2000) 9 NWLR (PT 623) 532 at 594.
For the respondent, Mr. okare submitted that contrary to the postulations of the appellants, the respondent did clearly plead the identity, boundaries and location of the land he claimed, which was admitted by the appellants who however contested his ownership claims
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ascribing ownership to a different source.
The learned counsel proceeded to highlight portions of the testimonies of witnesses at the trial pointing to admissions by witnesses of the appellants to their familiarity with the land claimed by the respondent and in dispute in the litigation. He further referred to Exhibit 46, the survey plan of the disputed land tendered by the respondent without objection from the appellants and submitted that the apart from the admission of the identity of the land in dispute by the appellants, the respondent had conclusively via credible evidence established and ascertained the identity of the said land in dispute. He referred to ERO v. TINUBU (2012) 8 NWLR (PT. 1301) 104 at 121- 122, ADETORO v. OGUNLEYE (2000) FWLR (PT. 26) 1833 at 1841, EKPEMUPOLO v. EDREMODA (2009) 8 NWLR (PT. 1142) 166 at 195 and ATANDA v. ATANDA(1989) 6 SCNJ (PT 11) 193 at 209.
Mr. Okare further submitted that the respondent tendered Exhibit A1 as the decision of the customary arbitration which confirmed his title to the land in issue which decision was entered as consent judgment by the High Court of Cross-River State in Exhibit A2 and that the
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parole evidence offered by the respondent tying the land in Exhibits A1 and A2 to the land in dispute was not subjected to cross examination by the appellants thereby indicating an admission of same. He referred to OFFORLETTE v. STATE (2000) FWLR (PT. 12) 2081 at 2098 -2099, ATANYI v. MIL GOV OF PLATEAU STATE (2002) FWLR (PT. 89) 1164 AMADI v. NWASU (1992) 6 SCNJ (PT. 1) 59 at 71 and ODUNEYE v. STATE (2000) FWLR (PT. 13) 2289 at 2307.
The learned counsel for the appellants further submitted that while the appellants denied in their pleadings that the land in Exhibits A1 and A2 was the same as the land in dispute and their witnesses followed suit in their depositions adopted as their testimonies in chief, their witnesses however admitted to the contrary under cross examination. In this regard he referred to portions of the testimonies of DW1 to DW4 and contended that the present circumstances was distinguishable from that in ADESHOYE v. OLOWOLAGBA (supra) referred to by Mr. Okoro the learned counsel for the appellants.
Mr. Okare further contended that Exhibits A1 and A2 were not tendered as res judicata but to support possession and ownership rights of
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the respondent. He referred to LADIMEJI v. SALAMI (1998) 4 SCNJ 1 at 14, EGBARAN v. AKPOTOR (1997) 7 SCNJ 392 at 401, ALIYU v. SODIPO (1994) 5 SCNJ 1 at 22 and AGBAISI v. EBIKOREFE (1977) 4 SCNJ 147 at 162.
In the appellants? reply brief, Mr. Okoro reiterated his earlier submissions and pointed out that the respondent in his arguments was trying to deviate from the case presented at trial which is totally unacceptable. He referred to NBA v. KOKU ESQ (supra), ANYEKE v. HARRICLEM (supra), EDEBIRI v. EDEBIRI (1997) 4 SCNJ 177 at 187, and REGISTERED TRUSTEES, N.A.C.H.P.N v. M.H.W.U.N (2008) ALL FWLR (PT. 412) 1013 at 1056 and AJAYI v. TOTAL (NIG) PLC (2014) ALL FWLR (PT 719) 1069 at 1088-1089.
This issue is in three parts considering the way it was framed and arguments canvassed. The first is as to whether from the state of the pleadings, the respondent/claimant tied his claim to a previous proceedings, the second is as to whether an issue of identity arose in the case and if it did, then thirdly whether it was established by the respondent.
The significance of the sole linkage of the respondent/claimant?s case with the previous litigation
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becomes evident in the light of the identified methods of establishing ownership of land as long decided in a number of cases but best captured in the well-known case of IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC 224.
The position is that ownership of land could be proved in five ways, to wit;
1. by traditional evidence;
2.by production of documents of title which are duly authenticated;
3. by acts of selling, leasing, renting out all or part of the land, or farming on it or on a portion of it;
4.by acts of long possession and enjoyment of land; and
5. by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition be the owner of the land in dispute.
The pleadings of the respondent/claimant comprise the statement of claim filed along with the writ of summons herein on 3rd November, 2008 and the reply to the defendants’ joint statement of claim filed on 28th May, 2009. Both processes are on pages 2-6 and 185-187 respectively in the record of appeal.
A careful perusal of the statement of claim throws up Paragraphs 21-25 as averments
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relating to the previous litigation on the disputed land. The said Paragraphs are as follows:
”21.The plaintiff states that sometime in 1999, one Edoma Jacob and James Ikitaka Ofekpa all of the neighboring Owakande 11 Village, Obubra trespassed into the plaintiff?s aforesaid parcel of land. Edoma Jacob planted palm trees and even erected a semi permanent house on the aforesaid land on account of the foregoing acts of trespass the plaintiff instituted a civil action against them at the High Court of Justice, Calabar in Suit No. C/295/99.
22.That the land dispute being the subject matter in Suit No. C/295/99 almost resulted in a communal crisis between the Ogada and Owakande communities and to prevent any breakdown of security in the area the Obubra Local Government Council under the chairmanship of Chief Alex Irek constituted the peace Committee of Obubra Urban Chiefs to arbitrate and mediate over the matter.
23.The aforesaid Peace Committee was comprised of the Chiefs and leaders of thought of Imabana ltamtet, Imabana Ochokwu and Obubra Villages and the contending Ogada l, 11 and Owakande 1 and 11 communities all of Obubra Local
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Government Area.
24.The parties in Suit No. C/295/99 willingly and unreservedly submitted to the aforesaid arbitration and after extensive hearing, consultations and deliberation of the matter the Peace Committee of Obubra Urban Chiefs in her verdict published in a document titled POSITION PAPER OF PEACE COMMITTEE OF OBUBRA URBAN CHIEFS IN RESPECT OF OGADA-OWAKANDE COMMUNUAL CRISIS dated the 22nd day of December, 2000 and signed by all the said Committee members inter alia awarded and adjudged the plaintiff as the owner of the said parcel of land. The plaintiff hereby pleads the said document and shall rely on same at the trial of the matter.
25.The plaintiff further avers that the aforesaid arbitral award of the Peace Committee was in the proceedings of the 12th day of August, 2003 considered, adopted and approved as the consent judgment of the High Court of Justice, Calabar in Suit No. C/295/99 between the parties. The enrolled order of the aforesaid consent judgment shall be relied upon of the trial of the case.
In the Reply to the Defendants, Joint Statement of Defence, the respondent/claimant averred in Paragraph 6 Sub (a) and (b) as follows:<br< p=””
</br<
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6.The plaintiff strongly denies the averments contained in Paragraphs 17 and 18 of the Defendants Joint Statement of Defence. In answer thereto the plaintiff states as follows:
(a) That the land being the subject matter of the case between the plaintiff and Edoma Jacob (in Suit No. C/295/99) is one and the same with the land that is the subject matter of this present case between the parties herein.
(b) That the land the defendants called “Ato-Voh-sekh” is one and the same land with the one the peace Committee of the Obubra Urban adjudged in favour of the claimant.”
It is important to state that the respondent did not aver anywhere in his pleadings that the previous case, suit No. C/295/99 constitute res judicata. This is understandable as it could only constitute res judicata if the parties, cause of action and subject matter are the same. See AMINU v. HASSAN (2014) 57 NSCQR 44.
?From the portions of his averments highlighted above and reading the entire pleadings of the respondent/claimant communally, the case put forward by the respondent/claimant in this regard was that he had taken several steps prior to the suit which generated this
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appeal to assert his ownership rights to the land in question and ward off acts of trespass.
As can be seen from several other averments in his pleadings, he certainly did not limit or tie his claim to the said disputed land to this previous action. Specifically, he traced his root of title in Paragraphs 7- 18 of the statement of claim as follows:
7 .The plaintiff avers that the aforesaid farm land was long ago deforested by his grandfather- Late Egariga Odwang.
8. In furtherance to the foregoing the plaintiff avers that Late Egariga Odwang after deforesting the aforesaid land cultivated and formed on the said land and at different times fell palm trees situate on the land for tapping purpose.
9.That under the Osopong native laws and customs as applicable to the parties where a person deforests a parcel of land and dies, his children inherits such land and accordingly the ownership of such land devolves on the children of that person who deforested the land.
10.That Egariga Odwong begat one child named Mr. Odwong Egariga and in pursuance to the said native laws and custom his son Mr. Odwong Egariga inherited that aforesaid parcel of land
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deforested by his late deceased father. The said Odwong Egariga is the plaintiff?s father and like his late father (Egariga Odwong) begat the plaintiff alone.
11.That on account of the foregoing the plaintiff?s father Odwong Egariga farmed on the said land until he too died.
12.That the plaintiff father (Late Mr. Odwong Egariga) died in the same week that the plaintiff was put to birth and in view of the plaintiff?s tender age his uncle named Ikwo Okpata took over as the caretaker as the said land.
l3.That Ikwo Okpata upon taking over the control and management of the land built a hut on the said land where he lived with his entire family including the plaintiff as his ward. Apart from living on the said land Late Ikwo Okpata farmed on the land as well as hunting on the land and tapping palm trees on the land.
14.The plaintiff avers that the said Ikwo Okpata died in 1958 when the plaintiff was still of a very tender age on account of which another uncle of the plaintiff named Ojen Odwong took over as the caretaker of the said land.
15.The plaintiff states that when his mother remarried at Ochon Village, Obubra he was
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an account of his age constrained to live with his mother and his step father at the said Ochon Village, Obubra.
16.The plaintiff states that his afore-named caretakers of the land did farm uninterruptedly on the said land.
l7.The plaintiff avers that in 1998 after he attained majority and decided to relocate from Ochon to his homeland, Ogada he met Late Ojen Odwong who on the instance of the plaintiff handed over care takership of the land to the plaintiff who under the prevailing custom inherited the aforesaid land from his forebears through his father.
18.That in furtherance to the foregoing the plaintiff become seized of the ownership of the said land and in exercise of his ownership rights to the said land had been using, farming and working on the said land since he relocated from Ochon to Ogada, Obubra.
Emanating from the enumerated averments therefore which were supported by the testimonies of the 2 witnesses for the respondent/claimant at trial i.e. the respondent himself as CWl and one Eko Otaba his boundary man, as cw2 is that the respondent/claimant supported his claim to the land in dispute with the previous decision in Suit
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C/295/99 in addition to other pieces of evidence but could not be properly described as having tied or anchored his claim to the said judgment.
The next question here is as to whether an issue of identity of the land in dispute has arisen within the circumstances of this case contrary to the finding of the learned trial Judge that parties were ad idem on the identity of the land in dispute.
It is beyond contention that to succeed in a claim for declaration of title to land, the claimant must establish the location, dimension and boundaries of the land in dispute in a clear and concise manner unless from the state of the pleadings identity of the land in dispute is admitted by his opponent. According to ONNONGHEN, JSC;
“It is settled law, which law has acquired notoriety, that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case of the defendant. The plaintiff must therefore satisfy the Court that upon the pleadings and evidence adduced by him he is entitled to the declaration sought.
That apart, the plaintiff must first and
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foremost plead and prove clearly the area of land to which his claim relates and the boundaries thereof and if the location and size of the land is in issue, the plaintiff must prove the exact location and the area being claimed. It follows therefore that proof of the identity of the land in dispute is a sine qua non to establishing a case of declaration of title to land” . see DADA v. DOSUNMU (2005) 27 NSCQR 485 at 508.
The respondent/claimant averred on the identity of the land in dispute in Paragraphs 4 and gave the dimension and boundaries in Paragraphs 5 and 6 of the statement of claim as follows:
”4. The plaintiff avers that he is the owner of large expanse of land known, situate, lying and being in between the Government Primary School, Owakande 11, Obubra and former pineapple farm along the Obubra- Apiapum Road in Ogada, Obubra within the jurisdiction of this Honouroble Court.
5. The plaintiff avers that he is bounded in the north by the Government Primary School, Owakande 11, Obubra, in the East by the Garri Factory and the landed properties of Eko Otaba and the Okpa’s Family of Ogada Community and by the South by the pineapple farm
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(a.k.a. Obo Ben Farmland).
6. Plaintiff states that the boundary between the plaintiff and the Government Primary School, Owokande 11, Obubra of the Eastern and Western parts of the said land at a stream known and called ‘Ajegabrajegha’. The plaintiff avers that the aforenamed stream is the boundary mark between the plaintiff of Ogada and the Owokande Villages of Obubra Local Government Area. While the Owakande people are bounded by one part of the stream the plaintiff and his Ogada people are on the other side of the said stream.”
The appellants/defendants denied this averments and in response stated their contrary position in Paragraph 7 and expanded on the specifics in Paragraphs 8-14 of their joint statement of defence dated 2nd December, 2008 and contained on pages 40-49 of the record of appeal as follows:
7. Paragraph 4 of the statement of claim is vehemently denied by the defendants. They aver that the claimant has a farmland only beside the Garri factory along Obubra/Apiapum Road. The farmland specifically lying, being and situate in between Government Primary School Owokande 11 and former pineapple farm opposite the Garri Factory is
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exclusively owned by some families and people from Owokande 11 Village Obubra.
8. The defendants deny Paragraph 5 of the statement of claim. They aver that Eko Otobo, and Okpa’s family of Ogada have no farmland(s) around the area of the area of the alleged land in dispute.
9. Paragraphs 6, 7, 8 and 9 of the statement of claim are vehemently denied by the defendants. They aver that “AJEGABRAJEGHA’ stream which has its source from a point at the upper side of it is called “ETA -PREYE, and is the traditional stream of Owakande 11 people. The said stream has no bearing or boundary marks or features recognized by the people of Ogada and Owakande communities as their boundary marks.
10.They further aver that at no time in the history of Ogada and Owakande 11 communities that an agreement was reached to the effect that the said ”AJEGABRAJEGHA? stream be used as a boundary mark or line to demarcate farmlands owned by the two communities. That apart from the claimant who is laying false and vogue claims to the alleged land in dispute, no Ogada person in the history of their existence had ever laid claim on the farmland situate at the left hand side
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of the land along Obubra/Apiopum road. The parcels of land on both sides of the ?AJEGABRAJEGHA” stream are exclusively owned are exclusively owned by some families from Owakande 11 community.
11. In further answer to Paragraphs 6, 7, 8 and 9 of the statement of claim, the defendants state that the alleged land in dispute is a large expense of land which is owned by the families of Chief Monday Adoro Ogoghe Sunday Uji Okpa and Okeke Okpechi, of Owakande 11, same having been inherited from their late fathers. The 1st defendant was allocated part of this land by the persons mentioned herein to cultivate his crops like banana, plantain, oranges, cassava and yams at different years between 2002 and 2007.
12. The defendants state further that the part of the land given to the 1st defendant by Chief Monday Adora Ogaghe, Sunday Uji Okpa (3rd defendants) and Okeke Okpechi is called and known as ?Ata-vah-sekh?, and same were defrosted by their late fathers namely, Adora Ogaghe, Ofutef Okpa and Igut Okpechi many years ago. There state that part of the ?Ata-vah-sekh? land owned by Chief Monday AdoraOgaghe is bounded in the North
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by the land of Igut Okpechi now inherited by Okeko Okpechi his son.
13. The said land in the East is the bounded by land of late Ofutet Okpa which is inherited by his son Sunday Ugi Okpo the 3rd defendant. The said land shares a boundary at the far eastern side with the Obubra Local Government land which is called pineapple farm and is directly opposite the garri factory Obubra where the claimant has his own land which is economic trees including palm are already on it.
14. The “Ato-vah-sekh? land owned by the 3rd defendant and part of it rented out to the 1st defendant is bounded in the North and South by the land of Igut Okpechi and in the west by “AJEGABRAJEGHA? stream. And at the far end of left hand side of the land is also owned by Igut Okpechi. That one Okeka Okpechi the son of Igut Okpechi equally rented his part of the land to the 1st defendant in 2007 only to plant cassava and yams. And that area rented to the 1st defendant is bounded in the North by the land of the 3rd defendant, in the South by the land of Chief Monday Adara and of the Eastern and Western part by ‘AJEGABRAJEGHA’ stream besides the Government Primary School
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Owakande 11 .
The averment of the appellants/defendants in their Paragraph 7 acknowledges the existence and location of the disputed land as described by the respondent/claimant in his Paragraph 4, the only point of departure was the ascription of ownership thereof. In Paragraphs 8 to 14 they went on to expatiate on the stated owners and the dimensions of their stakes.
I do agree with Mr. Okoro that identity of the land is not in dispute between the parties. From their pleadings, the parties were clearly not confused or in doubt about the identity of the land in them.
The learned trial Judge was accordingly on firm grounds in his findings on this issue.
In addition to the pleadings of the respondent/claimant and the oral testimonies of CW1 and CW2 supporting same, he tendered the survey plan of the land he was claiming as Exhibit A6 at trial thereby conclusively establishing identity of the land notwithstanding the state of the pleadings of the parties.
In the circumstances therefore, I resolve this issue against the appellants and in favour of the respondent.
The remaining issue is:
In the face of the acknowledgement by
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Exhibit A1 of ?individual family farmlands” aside the Owakande 11 Community residential area and the land contested in HC/295/99, whether the trial Court’s evaluation of evidence on the matter of Exhibit A1 like in other matters is not inapt.
?Arguing this issue Mr. Okoro submitted that the learned trial Judge failed to properly evaluate the arbitral award Exhibit A1 in a comprehensive way taking cognizance of the other land ownings recognized therein. He urged this Court to interfere with the findings of the trial Court in this regard and resolve the issue in favour of the appellants. He referred to NJOKU v. REG. TRUSTEES, C.H.G.F. (2007) ALL FWLR (pt. 354 ) 327 at 348 and SALAKU v. DOSUNMU (1997) 7 SCNJ 278 at 301.
He urged the Court to hold that even if the appellants/defendants failed to counter-claim or lead evidence, the moment issues were joined, respondent/claimant was duty bound to establish his case which he failed to do. He referred to UMEOJIAKO v. EZENAMUO (1990) 1 SCNJ 181 at 189.
For the respondent Mr. okare submitted that the learned trial Judge did properly evaluate Exhibit A1 drawing the appropriate inference therefrom
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that the main boundary feature of Ogada and owakande 11, the two communities involved, was the Ajeghabrajega stream which though denied by the appellants in their pleadings was admitted by their witnesses under cross-examination as well as in Exhibit B their survey plan.
He submitted further that the respondent established the identity of the land in dispute and his ownership thereof through traditional history, long possession and various acts of ownership as expected under the law. He therefore urged the Court to resolve the said issue in favour of the respondent.
It has been repeatedly stated that the evaluation of evidence and ascription of value thereto is the primary duty of a trial Court and an appellate Court will only interfere where such duty has been improperly exercised. see GBEMISOLA v. BOLARINWA (2014) 57 NSCQR 510 per OGUNBIYI, JSC at 557. see also LAWAL v. ADEKOYA (1974) 6 SC 83, BALOGUN v. AKANJI (1988) 1 NWLR (PT. 70) 301 and GAJI V. PAYE (2003 ) 14 NSCQR 613 at 626.
At the end of a civil trial, the trial Judge weighs the adduced evidence on an imaginary scale and on balance of probabilities, gives judgment to the party with the
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more believable case. A guide in this exercise was provided by Fatayi-wiiliams, JSC when his lordship stated thus:
“In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them. He will then see which is heavier not by the number of witnesses called by each party but by the guilty of the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:- a. whether the evidence is admissible; b. whether it is relevant: c. whether it is credible; d. whether it is conclusive; and e. Whether it is more probable that that given by the other party. Finally, after invoking the law, if any, that is applicable to the
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case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.” See MOGAJI v. ODOFIN (1978) 3 – 4 SC 65 at 67.
Taking my cue therefrom, I shall proceed to examine the evaluation done by the learned trial Judge of the evidence adduced at trial inclusive of Exhibit ?A1″.
With regards thereto, the learned trial Judge stated as follows on pages 434- 435 of the record of appeal:
”In Exhibit “A1” which is a position of paper of the Peace Committee of Obubra Urban Chiefs in respect of the crises of Ogoda- Owakande communal crises this committee was made up of chiefs from all communities in Obubra including the 4th Defendant.
It was resolved by the Committee in the year 2000 as follows and I quote as concerns us here.
“RESOLUTIONS: –
(ii) The sign post in the pineapple farm and other structures in that location henceforth bear Ogada-Obubra.
(v) All individual/family farmlands remain bonafide property of those who deforested and their respective beneficiaries;
(vi) Owakande 11 Community should continue to maintain occupancy of the parcel of land stretching from Ibibirafop from the Dr. Eyaba
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Memorial Girls Secondary School end to Ajegabrajega on the Government primary School end all along the Obubra/ Apiopum Road for the purpose of developing Owokande 11 residential area…..,,
The above quoted position shows that the averment of the defendants in their sworn testimony on oath are false. This is made worse by DW4 who was also a member of the Peace Committee, but still lied on oath.
The true position from Exhibit ?A1? is that the Ajegabrajega stream is the boundary between Ogada people and Owokande 11 people. Exhibit “A2″ may not be binding on the defendants as they are not parties to the suit, but Exhibit ”A1” is binding on all communities in Obubra as it was produced by them as to how to live peacefully.
It is obvious from the above quoted portion of Exhibit ‘A1′ that the land in dispute in this case is situate on the Ogada side of the Ajegabrajega stream and not on the Owakande side.
Like I have stated earlier the claimants have painstakingly proved the title and ownership of the land in dispute by giving unchallenged traditional history of his title and acts of ownership and possession. See Exhibit “A3,’ &
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“A4?
The defendants have not led any evidence to establish how they came into possession of the land. Exhibit “7? the tenancy Agreement tendered by the defendants described the land leased to the 1st defendants as quote ?a large parcel of farm land situate at Owokande 11 village called and known as “Atah-vah-sekh…,, meanwhile in the defendants statement of defence and written statement on oath of the witnesses it is the whole land in dispute that they call Atoh-voh-sekh and this they claim belong to several Owokande families.
Exhibits “C”, “D? & ?E? tendered by the defendants are hereby ignored as not being relevant in any way to this case, even though it was pleaded and admitted.”
I have taken the trouble to quote the vital findings of the learned trial Judge in extenso to enable a proper appreciation thereof vis a vis the adduced evidence before him.
While the respondent/claimant pleaded and adduced oral evidence in support of the traditional history of his root of title, the appellants/defendant did not plead any traditional history and equally failed to cross-examine the respondent/claimant
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and his witness CW2 on this aspect of their evidence creating a tacit acceptance of same and thereby leaving the learned trial Judge with no other option than to accept the account of the respondent/claimant. see GAJI v. PAYE (supra) at 629.
The respondent/claimant gave an identification of the land in dispute which was admitted by the appellants/defendant and he did not stop at that but went further to tender a survey plan in respect thereof thereby conclusively establishing the identity of the land.
The respondent/claimant gave evidence of long possession of the said land from his forebears until it got into his hands and further gave evidence of various steps taken by him to ward off trespassers in addition to acts of ownership. All these failed to attract any form of cross-examination from the appellants/defendants.
The crux of the case was whether any member of Owakande 11 Village owned any portion of land on the other side of the Ajegabrajega stream which issue was resolved in the arbitral award, Exhibit A1. The finding of the learned trial Judge that the said Ajegabrajega constituted the natural boundary between the two Villages of
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Ogada and Owakande 11 was well justified from the contents of Exhibit A1, a document to which the appellants/defendants were privy and the effectiveness of which they did not deny.
According to EDOZIE JSC:
”As a general principle of law, the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a trial Court, which saw, heard and assessed the witnesses. Where a Court of trial, unquestionably evaluates the evidence and makes definite findings of fact, which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial Court. What the Court of Appeal ought to do is to find out whether there is evidence on which the trial Court arrived at its findings: Once there is such evidence on record, the Appellate Court cannot interfere.”
See GAJI v. PAYE (supra) at 626.
In totality therefore, I find nothing perverse in the evaluation and findings made by the learned trial Judge as they accord with the state of pleadings and evidence before the Court.
?I accordingly resolve this issue as well against the
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appellants and in favour of the respondent.
I therefore find no merit in this appeal and I accordingly dismiss it.
The judgment of the learned trial Judge is hereby affirmed.
Cost of this action is assessed at N50,000.00 and awarded in favour of the respondent against the appellants.
Other Citations: (2016)LCN/8864(CA)
