Nicholas Apurosein Ogidi (Deceased) & Ors V. Chief Daniel B. Egba & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The respondents in this court were also respondents at Court of Appeal, being victorious plaintiffs at the trial High Court claimed:

(i) Declaration of title to the various adjoining lands known as IMOTI, AKIRIGBO, OPALLA, EKUN-OBIYI, IWULA DUGBO and EDUMOMON situate in around Emaka1akala village in Ogbia District of the Brass Local Government Area and more particularly delineated on Plan No. TJR 123LD filed with the Statement of Claim and thereon edged PINK.

(ii) N2,000.00 (Two Thousand Naira) damages for trespass committed on the land dispute.

(iii) Perpetual Injunction restraining the Defendants, their servants and agents from further act of trespass on the said land.

The land in dispute is situate in the delta of River Niger and it is quite extensive. The land claimed as owners by plaintiffs/respondents extends on both sides of Brass River which runs North to South-West of the plan tendered by respondents. But the area of contention is on the cast side of the Brass River. The appellants’ own plan however avoided indicating this all important Brass River but indicated several minor creeks leading to other creeks which are tributaries of Brass river. This is not surprising because whereas the appellants’ plan was based on scale 1:2500′, that of the respondents’ is based on 1:5000′. Clearly shown on respondents’ plan are lands known as IMOTI, AKIRIGBO, OPALLA, EKUNOBIYI, IWULA DUGBO and EDUMOMON all around the village of respondents of Emakalakala. All the lands aforementioned are of the kindred of Emakalakala. The defendants/appellants picked a small area and amplified it but without the benefit of the global view of the entire land in relation to the land in dispute. The respondents had to sue due to encroachments on the eastern side of the land claimed by them, by the defendants. On that side the land is forested by various economic trees- “Alagba”, Asiga”, Obho”, “Ogbono” etc. because the terrain is swampy, these trees as logs could only be moved out through canals which the defendants/appellants were now digging in earnest. These incursions were particularly on Iwuladugbo and Opalia lands of Emakalakala kindreds. After instituting the action, the respondents executed a lease. Exhibit B on a part of the land.

The trial court, after reviewing all evidence before it and based on the parties’ pleadings, found in favour of plaintiffs. The trial court also found that evidence of some of the appellants’ kindred supported the contention of the respondents. Against these findings of fact, the appellants appealed to the Court of Appeal which affirmed the decision of the trial court. The Court of Appeal also found that there is nothing much in Exhibit B. whichever period it was made, to vitiate the solid and clear findings of fact in favour of the respondents. They have now appealed to this Court.

The appellants, based on their grounds of appeal, formulated the following issues for determination:-

“(a) Whether the Court of Appeal is justified in refusing to pronounce on the inadmissibility of Exhibit B in its interpretation of the ratio decidendi in Nwadike v. Ibekwe (1987) 4 NWLR (Part 67) 718 and if not whether the wrongful admission of the said Exhibit and probative value ascribed thereto by the trial court occasioned serious miscarriage of justice

(b) Whether the Court of Appeal is justified in affirming crucial inferences and purported admissions said to have arisen from the pleadings and evidence adduced at the trial and so opined by the learned trial Judge, when such inferences are contrary to the real issues joined in the pleadings and such evidence was at variance with the issues so joined and/or not supported by matters so pleaded

(c) Whether the Court of Appeal is justified in affirming the verdict of the trial court when such verdict was not a product of weighing together the cases of both parties and crucial defence evidence not being considered at all

(d) Whether the Court of Appeal is correct in upholding the further amendment to the Amended Statement of Claim when such amendment was made mala fide and in terms completely outside the prayer therefor”

As against these issues, the respondents’ own issues for determination are:-

“3.01 Whether admissibility or otherwise of Exhibit B was covered by any issue properly raised by the Appellants before the Court of Appeal, if the answer is in the positive whether or not failure to consider a miscarriage of justice.

3.02 Whether the Court of Appeal was right in upholding the decision of the learned trial judge that the Respondents have discharged the onus of proof that they are the owners of the land in dispute by relying on their traditional evidence and evidence of acts of possession admitted by the Appellants and/or their witness.

3.03 Whether the Court of Appeal was right in upholding the decision of the learned trial judge granting leave to the Respondents to further amend their Amended Statement of Claim.

Much significance was placed on Exhibit B. the lease agreement on a portion of the land clearly marked out in respondents’ plan. Exhibit A, in yellow verge. The assignment was made on 13th October, 1976, by the respondents as beneficial owners to Itabai Emakalakala Union as farms under the Federal Government Operation Feed the Nation” Programme. The respondents were certainly in possession of the entire area covered by Exhibit B. In fact, the area covered by Exhibit B was not the causes belli because the appellants were never therein, it is the forested area to the east of Exhibit A where the appellants were felling trees and digging canals to transport the resultant logs that prompted the issuance of writ on 9th October, 1976. The execution or Exhibit B on 13th October, 1976 was therefore not of any consequence to the court action of the respondents as plaintiffs.

Therefore refuge sought by appellants under Exhibit B’s alleged illegality and inadmissibility as evidence is a big storm in a teacup. The cases of Ikenye & Anor. v. Ofume & Ors (1985) 2 NWLR (Pt.5) 1; Owoniyin v. Omotosho (1961) 1 All NLR 304, (1961) 2 SCNLR 57; Alashe v. Olori-Ilu (1964) 1 All NLR 390; Yassin v. Barclays Bank D.C.O. (1968) 1 All NLR 171, and Anyaebosi v. R.T. Briscoe Nigeria Ltd. (1987) 2 NWLR (Pt.59) 84, 109, are not applicable to this matter.

As for the second issue for determination, learned trial Judge in a most meticulous evaluation of evidence before him on which he made copious findings or fact arrived at the conclusion that not only were the respondents all along in lawful possession of the land, he also found that the defendants by their pleadings and evidence in court supported the plaintiffs’ claim on the parcels of land in dispute. But the big issue here is the ground of appeal upon which this issue is based. It is entirely a ground or fact as it is couched as follows:-

“(2) ERROR IN LAW

The learned Justices of the Court of Appeal erred in law by upholding the decision of the trial court particularly at page 88 lines 33 to 37 of the record where the learned trial Judge held as follows:-

“The real essence of ownership lies in the power of alienation and it is the most conclusive incident of ownership, and it is by virtue of such power that the Emakalakala people as owners leased out land to the Union as evidenced in Ex. B.”

(Italics supplied)

The same shortcomings an: in Grounds 4, 5, 6, 7 and 8 upon which other issues for determination are based. These grounds of appeal were filed without leave of the Court. They are grounds of facts, the mere couching of the grounds as grounds of law cannot make them grounds of law. The Constitution of the Federal Republic of Nigeria 1979 in section 213(3) thereof provides:-

“3. Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with leave …”

No leave was obtained to file the grounds of appeal based on facts not law. Only one ground is valid, and it is of no consequence as I have adverted already in this judgment concerning Exhibit B. The 2, 3, 4, 5, 6, 7 and 8 grounds of appeal are therefore incompetent and arc hereby struck out. (Golok v. Diyalpwan v. (1990) 3 NWLR (Pt.139) 411; Suraki v. Kotoye (1990) 4 NWLR (Pt. 143) 144; Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130; NNSC. v. Establishment sima of Vaduz (1990) 7 NWLR (Pt. 164) 526; Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392; Metal Construction (WA) Ltd. v. Migliore, In Re Ogundare (1990) 1 NWLR (Pt 126) 299.)

The two lower courts have adequately adverted to the facts in this matter and made concurrent findings thereupon. Those findings are based on the parties’ pleadings and evidence and are not perverse or repugnant and Supreme Court will not interfere with those findings of fact. (F.C.S.C v. Laoye (1989) 2 NWLR (Pt.106) 652; Narumal & Sons Ltd. v. NBTC Ltd. (1989) 2 NWLR (Pt.106) 730; Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369; Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt. 126) 253; Okonkwo v. Adigwu (1985) 1 NWLR (Pt. 4) 694).

In sum total, I find no substance in this appeal and I dismiss it with N10,000.00 costs to the respondents against the appellants.

SC.162/1991