Nathaniel Ochigbo V. Idi Umoru (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A.
Sometime in 1994, Nathaniel Ochigbo, the original Plaintiff (hereinafter called “The Appellant”) filed a case against Idrisu Onoja and Onoja Ogba before the Upper area Court, Ankpa claiming declaration of title to land at Agwodaba, Okpo in Olamaboro local Government Council of Kogi State, for himself and on behalf of Ochigbo Obekpa family. Besides the claim for declaration of title, the Appellant equally claimed ejectment and forfeiture of the said land against the original Defendant s as well as an injunction restraining them and their agents from further interfering with the said piece of land. Subsequently, the case was transferred from the Upper Court, Okpo.
The original 2nd Defendant, namely Onoja Ogba was reported dead on 22/9/94 hence his name was struck out from the case. Idrisu Onoja also called Idi Umoru and this accounts for why he was bearing the name Idi Umoru from the lower Court and so the said Idi Umoru is the Respondent in its Judgment delivered on 31/8/95, the Upper Area Court, Okpo, found in favour of the appellant by granting the reliefs sought. Dissatisfied with the said Judgment, the Respondent filed an Appeal to the High Court of Justice, Kogi State sitting at Ankpa in its appellate capacity. The Respondent being out of time applied for extension of time within which to file the Notice and grounds of Appeal out of time. However there was no evidence of payment of filing fees for the Notice of Appeal and the Respondent brought a Motion afterwards to file Additional Grounds of appeal. There was no evidence of payment of filing fees by the Respondent in respect of the additional Grounds of Appeal.
In their Judgment delivered on 28/4/04 the Kogi State High Court sitting in Ankpa in its appellate capacity allowed the Appeal of the Respondent, set aside the decision of the trial Area court, Okpo and dismissed the Appellants’ case. For that the Appellant has filed this appeal dated and filed on 28th day of May 2004.
The Appellant with leave of this Court granted on 21st June 2006 amended the original Notice of appeal by filing Additional Grounds of Appeal. The Amended Notice of Appeal filed on 15/12/04 was deemed filed and served on 21/6/06 containing twelve Grounds of Appeal.
STATEMENT OF FACTS:
The Appellant herein filed this case on behalf of himself and Ochigbo Obekpa family on behalf of his deceased father’s family. He lives in Agwodaba in Okpo Local Government Council of Kogi State. His case is that his father now deceased owned the piece of land in dispute, lying and situate at Agwodaba in Okpo Obekpa. That his father was given the land as a gift by one Ochoho Ujah, his uncle. That Ochoho Ujah inherited the land from his father by name Ako-Ojo and Ako-Ojo was the original founder and user of the land and the first to settle in Agwodaba. That the Appellant’s father used the land for farming and also lived on part of the land. Following the death of Appellant’s father, the land in question devolved on the children including the Appellant. A dispute arose between appellant and one Momoh Abah, resulting in clear cut demarcation between the Appellant and the said Momoh Abah sometime on 27/4/92, by Ademu Idoko, the Gago of the area when the Respondent contested the demarcation, Adamu Idoko, the Gago, re-demarcated the boundary with the aid of Ugba tree. About April 30, 1992, the Respondent moved Into the land in question is his determination to possess it. He brought in a surveyor from the Local Government to survey the disputed land and ultimately secured a Local Government Certificate of Occupancy thereon. The Appellant challenged the surveyor to stop any action, maintaining that the land belongs to him and out of panic the Respondent ran to the Eje of Olamoboro to help him out. The Eje of Olamoboro visited the land in dispute and ‘allocated’ the land to the Defendant. Aggrieved by the verdict of the Eje of Olamobioro, the Appellant sued the Respondent hence, this case.
On the other hand, the Respondent maintained a rival claim to ownership of the land. He claimed that his father gave the land to Appellant’s father. He confirmed that his father married Appellant’s father’s daughter by name Anoyi hence Appellant’s father was his own father’s in law. He traced the pedigree of ownership of the land to Ako-Ojo the person who first of all cleared the land as origin of the land. He confirmed that he procured a Certificate of Occupancy from Olamoboro Local Government Council in respect of the land at the instance of Eje of Olamoboro. According to him the land was given to his father by Oguche Emire who had the same father with his own father. That same father is Ako-Ojo from whom Respondent claimed Oguche Emire inherited the land. That his father lived and was buried on the disputed land which claim he could not substantiate being unable to identify the grave when the visit to the locus in quo took place. The identity of the land was not in dispute. At the conclusion of the trial and visit to the locus in quo the trial Upper Area Court, Okpo had no difficulty in entering Judgment for the Appellant and sustaining his claims. The Judgment was overturned by the Lower Court.
On the date of hearing, 20/5/09, Mr. Akubo SAN adopted the appellant’s Brief dated 10th July 2006 and filed on 12/7/06. Also adopted was Appellant’s Reply Brief dated 20/2/07 and filed on 23/3/07. Learned counsel for the Appellant reminded the Court that Respondent’s Brief filed 5/5/06 was invalid since when the motion for extension of time within which to file Respondent’s Brief and they were granted 7 days but failed to file a Brief.
The respondent through counsel, Mr. Ejembi who held brief for S. A Agada Esq. for the Respondent conceded that the Respondent had no Brief since they had not filed within the 7 days granted them on 20/6/07.
Since the counsel for the Respondent had not applied for adjournment and also no pending motion from Respondent and no Brief the matter was reserved for judgment.
The Appellant had formulated five (5) issues for determination which are:-
- Whether upon careful and dispassionate evaluation of evidence in this case, the Appellant could be said to have sufficiently identified the parcel of land, subject matter of this case without producing a sketch/site plan so as to entitle him to judgment
- Whether the learned Judges of the High Court of Kogi State sitting on Appeal were right in their conclusion that the Appellant did not prove his root of title to the disputed land/or prove his case on preponderance of evidence.
- Whether the Learned Judges of the High Court of Kogi State were justified in interfering with the findings of fact made by the trial Upper Area Court by coming to the conclusion that the Judgment of the trial Court was perverse on the ground that the trial court did not do any serious evaluation of evidence and that there were unresolved contradictions in the evidence of the Appellant and his witnesses.
- Whether the Learned Judges of the Kogi State High Court had the Jurisdiction to entertain the Appeal in the absence of evidence of filing and/or payment of requisite filing fees both for the Notice of Appeal and the Additional Grounds of Appeal dated the 3rd day of March, 2002.
- Whether the Learned Judges of the Kogi State High Court of Justice (sitting on Appeal) violated Section 42 of the Constitution of the Federal Republic, 1999 by preferring the reason of the Respondent to that of the Appellant on the ground that the Appellant and his father were Idoma hence strangers.
ISSUE NO.1:
Whether upon careful and dispassionate evaluation of evidence in this case, the Appellant could be said to have sufficiently identified the parcel of land, the subject matter of this case without producing a sketch/site plan so as to entitle him to Judgment.
Learned Counsel for the Appellant stated that the identity of the land, the subject matter of this case was not an issue at the trial Court since everyone knew the identity of the land in dispute and so there was no burden on the plaintiff to establish it. He cited Ogun v. Akinyelu (2004) 18 NWLR (pt.905) 362, Mani v. Shanono (2006) 4 NWLR(pt. 969) 132 at 156; Bunyan v. Akingboye (1995) 5 SCNJ 25 at 36.
Mr. Akubo SAN stated that a careful and dispassionate evaluation of the evidence shows that the scale tilts in favour of the Appellant. That the Respondent who claimed that his father’s grave was on the land had to swallow his words at the locus in quo as he was unable to show the said grave at the locus in quo. He referred to the evidence of PW1, PW2.
When the identity of the land is not in dispute there is no burden on the plaintiff to establish it. Mani v. Shanono (2006) 4 NWLR (pt. 969) 132 at 156 per Kekere – Ekun JCA, Ogun v. Akinyelu & ors. (2004) 18 NWLR (pt.905) 362.
A defendant who puts the identity of land in dispute in issue must successfully contradict the plaintiff’s survey plan of the land in dispute with his own survey plan, otherwise he would fail on that issue. Ogun v. Akinyelu (2004) 18 NWLR (pt. 90S) 362; Omoregie v. Idugiemwanye (1985) 2 NWLR (pt. 5) 41. In the case of:- Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 362 Supreme Court, held:-
- The question of the identity of the land in dispute in a suit will only arise where the defendant raises it in his statement of defence or in his testimony. Ezendo v. Obiagwu (1996) 2 NWLR (pt. 21) 208; Fatunde v. Onwoananum (1990) 2 NWLR (pt.132) 322; Ezukwu v. Ukachukwu (2004) 17 NWLR (pt.902) 227.
- In an action for declaration of title to land, the onus is on the plaintiff to establish with certainty the identity of the land to which his claim relates. This he can do in one of two ways, viz
(a) By adducing oral evidence describing the parcel of land with such degree of accuracy that will guide in producing a survey plan of the said land.
(b) By filing a survey plan reflecting all the features of the land and showing clearly the boundaries of the land. Baruma v. Ogunsola (1938) WACA 159; Awote v. Owodunni (No.2) (1987) 2 NWLR (pt. 57) 367; Epi v. Aigbedion (1973) NMLR 31.
A survey plan in the case in hand in the circumstance is not necessary in this suit for declaration of title to land Ogun v. Akinyelu (2004) 18 NWLR (pt. 905) 362 at 385; Garba v. Akacha (1966) NMLR 62; Banjo v. Aiyekoti (1973) 1 NMLR 210; Olusanmi v. Oshasona (1992) 6 NWLR (pt. 245) 22.
From what is available there was no need for the Appellant to go an extra mile to prove any identity to the land since the land in dispute was well known to the parties and this was made known to the Court at the first instance and the appellate court ought to have found as much. I answer this issue in favour of the Appellant.
ISSUE NO.2,
Whether the Learned Judges of the High Court of Kogi State sitting on Appeal were right in their conclusion that the Appellant did not prove his root of title to the disputed land and/or prove his case on preponderance of evidence.
Learned Senior Advocate submitted that the Lower Court got it wrong in its Judgment when it held that Appellant did not prove his root of title to the disputed land so as to entitle him to the Judgment of the Trial Court. That the holding of the Lower Court that the Appellant failed to prove his case on preponderance of evidence at the trial court is incorrect. That there was no ground of Appeal of the present Respondent filed and argued before the Lower Court, specifically attacking the root of title of the Appellant. Learned counsel for the Appellant contended that the issue of root of title cannot be raised suo motu by the Lower Court nor can it be argued under the omnibus ground of appeal. That the Appellant obviously discharged the burden of proof on him, regarding root of title. He said the Appellant had traced the pedigree of ownership of the land to Ako-Ojo, the admitted owner and user of the land as virgin land. It is not correct that the matter of root of title was raised suo motu by the Appellate Court below when it was not raised by the parties as a ground of appeal. This is because ground four of the grounds of appeal in the Court below is as follows:-
GROUND FOUR:
“The trial court misdirected itself when it held that the plaintiff had established a root of title which the Court believed and thereby awarded the land in the plaintiff”.
Since the Court below in its appellate capacity delivered in the matter of the root of title which was properly brought in’ as ground of appeal this issue 2 is resolved in favour of the Respondent.
Therefore the case of: N.E.P.A. v. Arobieke (2006) 7 NWLR (pt. 979) 245 at 272 does not apply. In that case it was held that where the trial court fails to make a finding of fact on a material or important issue or issues canvassed before it by the parties in its evaluation of evidence or where it gives an unfair treatment on the evidence of the parties before it then an appellate court will definitely interfere or disturb the decision of the trial court and or take an appropriate step as required by the justice and fairness of the case. Karibo v. Grend (1992) 3 NWLR (pt. 203) 426; Okipiri v. Jonah (1961) 1 All NLR 102; Akinloye v. Eyiyola (1968) NMLR 92, Salako v. Alaco (1994) 8 NWLR (pt. 360) 47 at 63; Adepoju v. Afonja (1994) 8 NWLR (pt. 363) 437 at 456 – 457.
Issue NO.2 is resolved for the Respondent, on the contention that the Court below acted on the ground of appeal properly before it and not brought in suo motu by itself.
ISSUE NO.3:
Whether the Learned Judges of the High Court of Kogi State were justified in interfering with the findings of facts made by the trial Upper area Court, by coming to the conclusion that the Judgment of the trial Court was perverse on the ground that the trial Court did not do any serious evaluation of evidence and that there were unresolved contradictions in the evidence of the Appellant and his witnesses.
Mr. Akubo, SAN stated that in their Judgment, the Learned Judges of the Lower Court interfered with the findings of fact by the trial Court, on ground that they were perverse and having faulted the trial court for not doing a serious evaluation of the evidence. That there is no regimented style of writing judgments and each Judge, each Court has his style of going about it. That the trial Upper Area Court in its own style, properly weighed and/or evaluated the evidence before it and a careful perusal of the Record of the trial Court shows that the trial Court meticulously dispassionately and commendably analysed the case in a sequential order. That the evaluation of evidence and findings of fact are the primary duties of the trial Court which had the advantage of seeing and hearing the witnesses. That the appellate Lower Court had no business with interfering with such evaluation and findings of fact of the trial Court, just for the simple reason that it would have come to a different finding or conclusion on the facts. He cited Amasike v. Registration General, Corporate Affairs Commission (2006) 3 WLR (pt. 968)462 at 493 – 494; N.E.P.A. v. Arobieke (2006) 7 NWLR (pt. 979) 245 at 272; Alabi v. Doherty (2005) 18 NWLR (pt. 957) 411 at 432; Ideozu v. Ochoma (2006) 4 NWLR (pt. 970) 364 at 395; Oyadiji v. Olaniyi (2005) 5 NWLR (pt. 919) 561 at 577; Ude v. Chimbo (1998) 12 NWLR (pt.577) 169 at 194.
Learned Senior Advocate stated that on the alleged contradictions, the Appellant had no unresolved contradictions in his evidence and those of his witnesses regarding how Appellant’s father became the owner of the land.
That it is inconsiderable that witnesses will be expected to speak with regimented accuracy. He cited Owie v. Ighiwi (2005) 5 NWLR (pt.917) 184 at 218.
It is indeed trite that there cannot be anything like concurrent possession by two parties claiming adversely to each other. Legal possession by one party, whether de jure or de facto, physical or constructive excludes the other and renders him liable to damages for trespass. Per Onu JSC Ude v. Chimbo (1998) 12 NWLR (Pt.577) 169 at 194; Amakor v. Obiefuna (1974) 3 SC 67; Balogun v. Labiran (1988) 3 NWLR(pt. 80) 66 at 82; Udeze v. Chidebe (1990) 1 NWlR (pt. 125) 141 at 162.”
The question herein cannot but be resolved in favour of the Appellant as the findings of the trial court are anything but perverse in view of the evidence available to them.
In the contest as to who owned the land in dispute the Plaintiff in the Court below set out a stronger case while the material contradictions in that of the Defendant substantially weakened their case especially when viewed at what transpired at the visit to the locus in quo. A situation where in evidence in court the defendant had in laying his claim gone so far as to say his father was buried in the land in dispute and he would identify the grave if he got there, only for him on the visit to the locus in quo to make an about face to the effect that he stated, “My father’s grave is no longer in the land in dispute”.
The importance of a visit to the locus in quo cannot be overemphasized, as a visit and inspection of a locus by a trial court is as much a part of the centre of proceedings in any suit and the same rules of evidence which apply to other parts of the proceedings apply. Daudo v. Iba (2007) 2 NWLR (Pt.1018) 321 at 357.
This about turn is not such as could be discountenanced and so the evaluation of the totality of the evidence at the trial is within the definition of evaluation by a trial court within the con of what was before them. Therefore the appellate court ought to have taken to what their duty ought to be and left the part that is only within the domain of a trial court of first instance to them. I would refer to the relevant authority of:
Alabi v. Doherty (2005) 18 NWLR (pt. 957) 411 at 433 per Onnoghen JCA (as he then was).
The whole exercise is one as to the evaluation of evidence and ascribing value to such evidence. The trial court’s primary duty has always been to discharge that burden. The appellate court would only interfere where the trial court has been shown to have relied on wrong criteria or irrelevant factors in its preference of the story of one side to that of the other. The appellate court has no business interfering with the trial court’s conclusion if same is based on a thorough and lawful evaluation as in the case in hand. See Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 616 SC. Akeredolu v. Akinremi (No.3) (1989) NWLR (pt. 108) 164 SC.
ISSUE NO. 4:
Whether the Learned Judges of the Kogi High Court had the jurisdiction to entertain the Appeal in the absence of evidence of filing and/or payment of requisite filing fees both for the Notice of Appeal and the additional Grounds of Appeal dated the 3rd day of March, 2002.
Learned Counsel for the Appellant contended that the Notice of Appeal of the Respondent dated 24th October 1995 is at pages 4 – 6 of the Record. That at page 2 of the record is an undated Motion on Notice which sought leave/extension of time to file the Notice and Grounds of Appeal of the Respondent out of time. That the Motion sought to deem the Notice and Grounds of Appeal as properly filed and served and there was no indication that filing fees were paid. Also that there was no indication that the said Notice of Appeal was filed as a separate process to justify a deeming order and there was no evidence of filing fees being paid for the said Notice of Appeal and so the validity and/or competence of the said Notice of Appeal is in issue. That it is elementary that proposed Additional Grounds Simpliciter cannot be the same as additional Grounds of Appeal. He said Section 74 (i) (m) of the Evidence Act entitles this Court to take judicial Notice of its proceedings. That the only logical and inescapable inference to be drawn is that the Respondent did not have such evidence of filing fees, such as Revenue Receipts for the Original Notice of Appeal and the Additional Grounds of Appeal to produce before the Lower Court that alternatively, if the Respondent had such evidence he inexplicably chose to withhold it. That it will be appropriate to invoke Section 149 (d) of the Evidence Act against him. He cited Jack v. Whyte (2009) 6 NWLR (pt. 709) 266 at 277 – 278; Odebunmi v. Abdullahi (1997) 2 SCNJ 112 at 127 – 128; Section 95 of the Evidence Act; Owena Bank Nigeria Plc v. Chief M. O. Olatunji (1999) 13 NWLR (pt. 634) 218 at 230; U.D.F.U. Sokoto v. Balogun (2006) 9 NWLR (pt. 984) 124 at 141; Okolo v. URN (2004) 3 NWLR (pt. 859) 87 at 108; Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252 at 292.
Payment of filing fees is a precondition to or condition precedent to the Court’s assumption of jurisdiction, so where filing fees are not paid, a court of law will have no jurisdiction to entertain the matter before it. This is because the rules of court make it mandatory for a party to pay filing fees. Okolo v. U.B.N. Ltd. (2004) 3 NWLR (pt.859) 87 at 108 per Tobi JSC; Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252.
A process is duly filed in a court of law when paid for, and the best evidence of payment is a receipt Usman Dan Fodio University, Sokoto v. Balogun (2006) 9 NWLR (pt. 984) 124 at 140 per Ba’aba JCA; Owena Bank Nigeria Plc v. Olatunji (19991) 13 NWLR (pt. 634) 218 at 230; Belgore JSC (as he then was) said in Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd (1992) 5 NWLR (pt.244) 675 at 693:
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…this importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction, but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.
In NDIC v. CBN (2002) 7 NWLR (pt. 766) 272 at 294-295 Waifo JSC said:
“Jurisdiction is regarded as a threshold issue and a lifeline for continuing any proceedings, objection to jurisdiction ought to be taken at the earliest opportunity if there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. Therefore at any stage sufficient materials or facts are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be delay in raising it”. Ndaeyo v. Ogunnaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd. (1988) 1 NWLR (pt. 68) 88; Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508; Bakare v. Attorney General of the Federation (1990) 5 NWLR (pt. 152) 516; Odofin v. Agu (1992) 3 NWLR (pt. 229) 350; Ajayi v. Military Administration, Ondo State (1997) 5 NWLR (pt. 504) 237; Jeric (Nigeria) Ltd. v. Union Bank of Nigeria Plc. (2000) 15 NWLR (pt.691) 447; Petro-Jessica Enterprises Ltd. v. Leventis Technical Co. Ltd (1992) 5 NWLR (pt.244) 675 at 693.
I have considered the Records at pages 4 – 6 referred and indeed there was no evidence that filing fees were paid before that appeal in the Court Below was embarked upon and determined. The filing fees payment are the condition precedent to the initiation of the process and absence of that means there was no valid appeal upon which the Court below could entertain and determine. Therefore this issue is resolved in favour of the Appellant.
ISSUE No.5:
Whether the Learned Judges of the Kogi State High Court of Justice (sitting on Appeal) violated Section 42 of the Constitution of the Federal Republic of Nigeria 1999 by preferring the version of the Respondent to that of the Appellant on the ground that the Appellant and his father were Idoma hence strangers.
Learned Senior Counsel, Mr. Akubo said the Appellant as a Nigerian citizen was entitled to live anywhere at any time within the territory of Nigeria including Agwodaba. That no law forbids the Appellant from owning the piece of land in dispute and so the learned Judges of the Lower Court were in gross violation of section 42 of the Constitution 1999; Emmanuel Anzaku &. Ors. V. Governor of Nasarawa State & Ors. (2005) 5 NWLR (pt. 919) 448 at 503.
This issue is really neither here nor there in view of the answer in Issue 4 which showed a lack of jurisdiction on the part of the Court below in its appellate capacity to enter into the discourse the condition precedent to the assumption of jurisdiction having not been fulfilled. It is for that reason that the ethnic origin of the Appellant and father cannot now be subject relevant to the issue of ownership of the land in question by the Appellate Court below. However in view of the answers to the questions raised in the earlier issues it is clear that the appeal is meritorious and judgment of the Court of first instance cannot be impugned or set aside. This appeal is allowed and the judgment of the Court below in its appellate jurisdiction set aside while I affirm the judgment awarded to the Appellant herein as Plaintiff in that Court of first instance, the upper Area Court Okpo. The orders of that court are re-affirmed.
I award N100,000.00 costs to the Appellant.
Other Citations: (2009)LCN/3346(CA)
