Newman Olodo & 10ors V Chief Burton M. Josiah & 11ors (2010)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division, delivered on 5th June, 2002.
The respondents herein, were the plaintiffs in suit No.YCC/63/95 at the Customary Court, Onopa- Yenagoa filed by them in representative capacity. In their ‘Amended Claim ‘, they claimed against the defendants/appellants herein in a representative capacity i.e. for themselves and as representing Tombo family Unit of Izifa Compound, Ahenfa Epie, yelga, as follows:-
“A. A declaration that the plaintiffs (Izifa Compound) are vested with Customary Right of Occupancy over and covering the piece or parcel of land known and Called Azigene bush situate in Akenfa Epie, Yelga.
B. A declaration that the defendants who are descendants of one of Izifa’s daughters are not vested with an exclusive right or better right of ownership (title) than the plaintiffs over the land known and called Azigene bush situate in Akenfa Epie, Yelga.
C. An order of perpetual injunction restraining the defendants by themselves, their agents, assigns, servants or successors-in-title from exercising further acts of trespass or exclusive right over the said Azigene bush.”
The appellants, as plaintiffs in Suit No.YCC/64/95 (for themselves and as representing Tombo family Unit, Akenfa-Epie, Yelga) also claimed as follows:-
“A. Declaration that the plaintiffs are vested with an exclusively Customary Right of Occupancy over and covering the piece or parcel of land known and called OKPUZA LAND and the creeks therein situate in Azigene Bush Akenfa, Epie.
B. An order of perpetual injunction restraining the defendants by themselves, their successors-in-title, agents servants, assigns or privies from further acts of trespass.”
On 23rd November, 1995, the trial Customary Court ordered the consolidation of the two suits for purpose of hearing. Each party adduced evidence and called witnesses. At the conclusion of evidence, the court inspected the land in dispute in company of the parties/representatives. In its judgment delivered on 25/6/96, the trial Customary Court found in favour of the defendants and pronounced at page 70 of the Record as follows:-
“Having carefully considered the evidence before us, we hereby give the following judgment –
- That the portion or piece of land called Azigene (excluding Okpuza land and creeks) belong to the people of Izifa family of Akenfa town. Accordingly, the Customary Right of Occupancy over the said Azigene land excluding (Okpuza lands and creeks) is hereby awarded to the plaintiffs.
- The land known and called Okpuza land that is – the portions or parcels of land surrounding the four Okpuza creeks including Ozinkoye and Olodo fishing channels which the defendants inherited from their own grand father belongs exclusively to the defendants. In this regard, the Customary Rights of Occupancy over the lands surrounding the said Okpuza creeks including Ozinkoye and Olodo fishing channels is hereby awarded to defendants.
- Both parties are hereby ordered to restrict their farming and fishing activities to their respective portions only.”
The plaintiffs felt unhappy with the stance posed by the trial Customary Court and appealed to the High Court of Appeal. Thereat, Ungbuku, CJ on 21st October, 1999 upturned the judgment of the trial Customary Court. The reason given by the learned Chief Judge was that the trial Customary Court failed to properly evaluate the evidence before it and thereby caused a miscarriage of justice.
The defendants who were not pleased with the judgment appealed to the Court of Appeal which heard the appeal. In its own judgment handed down on 5th June, 2002,the judgment of the learned Chief Judge was affirmed. The defendants have, ex debito justitiae, appealed to this court.
On 11th October, 2010 when the appeal was heard, learned counsel on each side of the divide adopted and relied on the brief of argument filed on behalf of each party. Each counsel also advanced useful oral argument.
On page 3 of the appellants brief of argument, the issue couched for determination is:-
“Whether or not the Court of Appeal was right in affirming the decision of the learned Chief Judge (as he then was) having regard to the facts, the state of the law and the approach adopted.”
On behalf of the respondents, the issue formulated on page 3 of their brief reads as follows:
“Whether the Court of appeal was right in affirming the judgment of the High Court which awarded the entire Azisene Bush to the plaintiffs.”
It is clear to me that the complaint of the appellants relates basically to the re-evaluation of the evidence adduced – both oral and documentary by the High Court and the Court of Appeal.
This court has, in a number of cases, set down guiding principles to be followed.
An appellate court should not ordinarily substitute its own views of fact for those of the trial court. See. Ebba v. Ogodo (1984) 1 SCNL 372; Balogun v. Agboola (1974) 1 ALL NLR (Pt. 2) 66.An appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or conclusion reached was perverse or wrong. See: Nwosu v. Board of Customs & Excise (1988) 5 NWLR (Pt 93) 225, Nneji v. Chukwu (1996) 10 NWLR (Pt. 578) 265.
It is settled that ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses. An appeal court will not lightly interfere with same unless for compelling reasons. See: Ogbechie v. Onochie (1988) 1 NWLR (Pt. 470) 370.
The law is firmly established that where a court of trial fails to make findings on material and important issues of fact by brushing them aside or approaches the evidence called by the parties wrongly, the appellate court will have no alternative than to act accordingly as the circumstance dictates. See Akpan v. Otong (1996) 10 NWLR (Pt. 476) 108; Morenikeji v. Adegbosin (2003) FWLR (Pt. 163) 45; Ogbu v. Wokonta (2005) All FWLR (Pt.277) 815.
In cases tried by Native or Customary Courts, it is desirable and necessary to look at the whole of the proceedings – the whole evidence of the parties and the judgment in order to arrive at a correct conclusion as to what the case is about. ‘Substantial justice’ should be the watch words. if it arrives at a reasonable decision, such is acceptable. See: Efi v. Eyinful (1954) WACA 424, Ajayi v. Aina 16 NLR 67 at 71; Ekpo v. Utong (1990) LRCN 1473 at 1587; Onuma v. Ezekoli (2002) 2 S.C. (Pt. 11) 76; Ogundele & Anr. v. Agiri & Anr. (2009) 12 SC (Pt.1) 135 at 173.
It is the business of the trial court to put evidence with probative value as adduced by both sides on an imaginary scale to ascertain who has the upper hand. See: Mogaji v. Odofin (1978) 4 SC 91 at 93; Bello v. Ewelca (1981) 1 SC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt 1) 101; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Adisa v. Ladokun (1973) 1 All NLR (Pt.2) 18.
The learned counsel for the appellants had axe to grind with the position taken by the court below in considering the evidence adduced by them in proof of their radical title to Okpuza land. He contended that it was not one of the points raised at the trial court and in the High Court of Appeal. As stated above in this judgment, since the matter originated in the trial Customary Court, it is necessary for the appellate court to look at the whole proceedings – the evidence of the parties and the judgment in order to arrive at a correct conclusion as to what the case is all about. The totality of the evidence adduced should be appraised so as to enable the appellate court do substantial justice in the matter. See: Efi v. Eyinful (supra); Ajayi v. Aina (supra).
I have also stated it earlier in this judgment that where a trial court fails to make findings on material and important issues of fact by brushing them aside or approaches the evidence called by the parties wrongly, the appellate court will act as the circumstance dictates to do substantial justice. See: Morenikeji v. Adegbosin (supra). In my considered opinion, the Court of Appeal did the correct thing by considering the evidence adduced by the appellants in proof of their radical title to Okpuza land. Since this is the crux of the case of the appellants, it was not out of place for the Court of Appeal to have considered, as it did, the vital evidence jettisoned by the trial Customary Court.
The appellants traced their root of title to Tombo, their ancestor. On the point in issue, Gershom Newman testified at pages 44/45 of the Record as follows:-
“The land North Nyon-obi creek was occupied by many wild beasts, such as guerrillas, elephants, tigers etc, so only brave people will be able to enter into that land to farm. Our grand father Tombo was a very brave hunter, so he was the first person to establish fishing channel in the forest —–
– He also had two big fish ponds which we have presently inherited. Late Tombo established farms also in the said forest some of which we are still using.”
The appellants called Leadus Canus (DW.3) from Otobogbeli Compound to support them. On page 56 lines 1 to 4 of the Record, he testified as follows:-
“—–the first person who crossed to farm and utilise the land in question is Olodo family people —– In the ancient time only Olodo had the courage to venture into the said land to drive away the Gbarian clan and used the said land. When Mr. Newman Olodo grew up, he took over from his late father. Mr. Newman used to go into the said forest to cut timber. After a firm possession of the said land, Mr. Newman called this land Okpuza.”
Under cross-examination, D.W.3 at page 56 said late Olodo was a good hunter so he first ventured into the said land and took possession of same. At page 56 line 12, he pointedly said -‘I do not know the land called Azigene.
The court below, rightly in my view, appraised the above. It found that from the evidence of Gershom Newman and the D.W.3, there emerged a major conflict. It felt that the effect of it was that it succeeded to destroy the case of the appellants and knocked off the bottom of their claim to title and left the case of the respondents solid and monolithic.
I agree with same. This is because
where as in this case for a claim for a declaration of title, the appellants and their witnesses gave conflicting history of the appellant’s root of title, such root would be treated as unreliable. See: Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt. 7) 393.
The court below was on a firm stance in the position taken by it. I cannot fault same. The D.W.3 who admitted that he did not know the Azisene bush, did not testify that any member of his Otobogbeli compound or his ancestors /predecessors gave any land to the Izifa compound as asserted by the appellants. At a point, the appellants said Otobogbeli, as first settler, allocated farm land to the sons of Izifa. They then argued that it was through the exceeding bravery of their unidentified ancestor (Tombo according to Gershom Newman or Olodo according to D.W.3) that they became exclusive owners of the portion of land called Opuza.
The appellants admitted at page 60 lines 18-20 of the Record that the whole of Azigene Bush is the common property of the Izifa compound.
The appellants had the onus to prove exclusive ownership of the land they called Okpuza. This is as dictated by section 135 of the Evidence Act 1990.
It is incumbent on a party who asserts the existence of a fact to prove same.
As found by the learned Chief Judge and the court below, there was no evidence of partition. In this case, the burden of proof rests on the appellants. See: Osawaru v. Ezeiruka (1978) 6-7 SC 135. Since the appellants failed to discharge the onus of proof which rests on them, their claim must fail.
Much effort was employed by the Court of Appeal interpreting the meaning of ‘ownership’ as used by the parties at the trial customary court. The court below felt that the word – ‘ownership’ as used by the parties, does not create an estate. The cases of Enimil & Ors v. Tuakyi (1952) 13 WACA 10; Amodu Tijani v. Secretary, Southern Provinces, Nigeria (1921) 2 A.C. 39, where it was observed that the notion of individual ownership of land is quite foreign to native ideas; land belongs to the community, village or family, never to individual’ were cited. As well, the case of Eze v. Samuel Igilegbe (1952) 14 WACA 61 was referred to by the Court of Appeal.
In this matter, it is Tombo family members; not an individual that is laying exclusive claim to Okpuza land. The effort dissipated on the interpretation of the word ‘ownership’ was not apt. It was undeserving. However, it is not a big deal.
On the use of paragraph 4 of the statement of Defence, Exhibit ‘A’ filed in suit No. YHC/3/86 by the trial Customary Court, the Court of Appeal had this to say –
“It is sufficient for me just to say that the submission is wholly unacceptable. Paragraph 4 of Exhibit ‘A’ is no evidence in proof of any fact in issue.”
The learned counsel for the appellants tried to fault the above stance of the court below. I feel such was to no avail. At pages 115-176 of the Record, the court below pronounced as follows in respect of Exhibit ‘A’-
“The above apart, there was evidence that the Azigene land is the subject matter of suit No. YHC/3/86 (see Exhibit A) – The suit is pending. There was evidence that the Izifa family was sued in a representative capacity. There was evidence that Chief Sylvanus Akpalo with Mr. Gershom Newman and two others are the representative of the Izifa family in the suit. There was evidence that the Izifa family made a survey plan of the Azigene land or bush inclusive of the Okpuza land now being claimed by the appellants. A natural question to ask is this: why did the appellants not file their separate Statement of Defence, make their survey plan to defend their own land— It is my view that had the trial Customary Court properly evaluated the evidence before it, it certainly would have reached a decision different from its judgment.”
I perfectly agree with the above. A joint defence culminating in the filing of Exhibit ‘A’ wherein the appellants did not file their own separate survey plan of their desired Okpuza land does not advance their case to any considerable length-
It is clear to me that if the trial Customary Court had appropriately appraised the totality of the evidence adduced before it and placed same on an imaginary scale as propounded by Fatai-Williams, JSC, (as he then was) in Mogaji v. Odofin (supra) at page 93 and further stressed by Eso, JSC in Bello v Eweha (supra) it should have found that the evidence of the respondents far outweighed that of the appellants. Their attempt at embarking upon ‘secession’ from Izifa Compound where they belong as the fifth (5th) family got crushed through the employment of due judicial process.
I cannot see my way clear in tampering with the balanced judgment of the court below. The appeal is devoid of merit. It is hereby dismissed. The judgment of the Court of Appeal of 5th June, 2002 which affirmed the decision of the High Court of Appeal delivered on 21st October, 1999 is hereby confirmed. The appellants shall pay N50,000:00 costs to the respondents.
SC.2/2003
