Ofu Osadim V. Chief E. E. Tawo (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

The Plaintiff instituted an action against the Defendant at the High Court of Cross-River State, sitting at Ikom in Suit No. HM/99/2000 claiming as per the endorsement on his Statement of Claim thus:-

“1. The sum of N100 million being general damages for Cocoa illegally harvested while in trespass on the land in question.

2. A declaration that the continuous stay of the Defendant on the Plaintiff’s Community Cocoa farm, without the Plaintiff’s consent amounts to trespass.
3. An order evicting the Defendant from all parts of the Plaintiff’s Cocoa farm.
4. An order of perpetual injunction restraining the Defendant from further entry into any part of the Plaintiff’s Cocoa farm.

Pleadings in the matter were filed, exchanged and completed and the matter was then set down for hearing. The parties presented two witnesses respectively including themselves. At the conclusion of the trial, the learned trial Judge found in favour of the Plaintiff and entered judgment for him in the following terms:-

“1. The Defendant is to vacate the portion of Cocoa farm belonging to Ndoma Ndoma forthwith.

2. The Defendant is to negotiate with the Okosoro community the rent he is to pay to them, on account of his late mother’s Cocoa farm because he is not a native of Okosoro but of Akparabong village.
3. The Defendant is to enter the portion of the Cocoa farm belonging to his late mother only after drawing up a proper agreement with the community with effect from 1st January 2006.
4. All the previous rents due from the Cocoa farm belonging to Ebin Eyam and also that belonging to Ndoma Ndoma are hereby waived. The next of kin to Ebin Eya and Ndoma Ndoma are to enter separate agreements with Okosoro community-who are hereby mandated to demarcate the two farms with life trees.
5. This case is hereby accordingly determined and disposed with N10,000.00 against the Defendant on record in favour of Okosoro community (represented by the Plaintiff) in this case.
6. Judgment for the Plaintiff”.

Being dissatisfied with the judgment, the Defendant appealed against the same on the grounds that;

“(1) The judgment is against the weight of evidence.

(2) The trial Court erred in law in awarding reliefs not sought by the parties which said error led to a gross miscarriage of justice.

(3) The trial Court erred in law in awarding a relief to a person who is not a party or privy to any of the parties in the suit.

(4) The trial Court erred in law in alluding to and reaching conclusions on the law and customs of inheritance of Okosoro and Akparabong where evidence on same was neither pleaded nor called during trial”.

The Appellant in his Brief of Argument, prepared by his Counsel, O. N. Agbor Esq, propounded three issues for determination by this Court.

They are:

“(1) Whether the trial Court was right in entering judgment for the Plaintiff in the face of material contradictions in the evidence of the prosecution witness?

(2) Whether the lower Court had the jurisdiction to partition the farm in dispute and award same to a party who did not file any claim?

(3) Whether the lower Court was right in making reference to and using a custom that was not given in evidence by any of the parties to resolve the issue of inheritance”?

Learned Counsel for the Appellant argued all the issues together rather than in disjunctive form. He referred to the evidence of P.W.1. at pages 6-7 and 11-12, Exhibit B, the cross-examination of P.W.1, his reference to the Chairman of the Community who he did not call as a witness, and also the testimony of P.W.1 at pages 14-18 where it contradicted that of P.W.2 on payment of rents and the identity of the farm in dispute. P.W.2 said that his late brother, Ndoma Ndoma never paid rents before his death.

Counsel further referred to the evidence of the Defendant and his witness and said that they were consistent on the fact that the Defendant’s Mother hailed from Okosoro, Bendeghe Ekiem and deforested the land in dispute. She engaged the services of late Ndoma Ndoma. D.W.2 said that the Defendant’s late mother farmed on the family land and not Okosoro Community land. Counsel then queried; where lies the Plaintiff’s claim that the Defendant is the Community’s tenant? He referred to the case of Ishie vs. Ansa (2001) FWLR Part 80 p. 1529 at 1537 ratios 6 and 7 where it was held that it is the duty of a party who contends that another person is his customary tenant to establish the same by pleading and leading evidence that the relationship of landlord and tenant exists between them and payment of allegiance, tribute, loyalty or rent is being made to him or his ancestors by the tenant, and that in the absence of the Appellant ever paying allegiance, tribute, loyalty or rent to the Respondents or their ancestors, the Appellant cannot be called customary tenants. He also stated that Exhibit B is a forgery.

Counsel further stated that the Plaintiff’s claim was prosecuted in a representative capacity and that the Plaintiff did not claim any relief for the partitioning of the Cocoa Farm into two or at all, but, the trial Court at pages 43-52 of the record of appeal particularly at p. 51 ordered for a partitioning of the Farmland and for a portion to be given to P.W.2 who is not even a party to the suit and never filed any claim in the suit. He cited the cases of Apatira vs. L.I.LGC (2007) 39 WRN p. 144 at 155 ratio 10, A.G. Cross-River State vs. Chukwuogor Nig. Ltd (2007) 23 WRN p. 44 where Ngwuta J.C.A opined that if a Court cannot grant a party before it a relief not asked for, then there can be no basis for a Court making order in favour of a non-party to the proceedings who necessarily has not asked for any relief.

Learned Counsel further contended that the trial Court on its own raised an issue touching on the paternity of the Defendant, that he hailed from another community called Akparabong. The trial Court said, he could inherit but only if he negotiates with the Plaintiff’s Community on the rent to be paid since the Defendant is not a native of Okosoro, the Plaintiff’s Community. He submitted that neither in the pleadings nor in the evidence before the Court was it disclosed that it was the custom of Akparabong or Okosoro that for a son of different paternity or community to inherit his late mother’s farm, such a son must pay rents to the community. He contended that custom being a fact must be proved through credible evidence. He cited Nteogwuile vs. Otu (2001) FWLR Part 68 p. 1076 ratios 1, 2 and 3 at p. 1077 to 1079 and stated that the learned trial Judge veered off and imported evidence on custom which was never adduced before him. He then urged the Court to allow the appeal and set aside the judgment and orders of the trial Court delivered on the 16th February, 2006.

The Respondent filed a Notice of Preliminary Objection and also incorporated his argument thereon in the Respondent’s Brief of Argument. The objection is pivoted on three grounds. The preliminary questions raised by the Appellant are;

“1. Whether the filing of the so called terms of settlement on the 20th September, and the subsequent judgment obtained after the filing of the Notice of Appeal does not constitute a waiver of Appellant’s right of appeal or an abandonment of the notice of appeal.

2. Whether or not the Appellant has the right to file his notice of appeal on 14th March, 2006 and have the appeal entered on the 13th October, 2008 without leave of Court.
3. Whether this appeal is competent in the absence of service of Notice of Appeal on the Respondent”.

With regard to question No.1, learned Counsel for the Respondent, Emmanuel Okpa Esq, narrated that after the Appellant filed Notice of Appeal on the 14th March, 2006, he, subsequently, on the 20th September, 2006 filed what he described as ‘Terms of Settlement’ at the Court below and then misled the Court below into entering a second judgment in the same suit that had previously been finally determined by the same Court. The said second judgment was back-dated to the 20th September, 2006. He then referred to the case of A.G. Federation vs. Guardian Newspaper Ltd (1999) NWLR Part 618 p. 200 wherein the Supreme Court listed four ingredients a Court must consider in its determination of issue of jurisdiction.

With regard to the question NO.2, learned Counsel referred to Order 7 Rule 11 of the Court of Appeal Rules, 2007 and the case of Shodehinde vs. Registered Trustees, Ahmaddivya (2001) FWLR Part 58 p. 1057 at 1070 and submitted that an appeal is said to be entered in an Appellate Court when the record of proceedings has reached that Court and not before. He said that the Notice of Appeal was filed on the 14th March, 2006 and the appeal was entered on the 13th October, 2008, about 2 years and 7 months, without the Appellant obtaining the leave of this Court or that of the Court below.

Counsel further alleged that there is no proof of service of the Notice of Appeal on the Respondent. He then argued that the appeal was not initiated in accordance with due process of law and upon fulfillment of condition precedent for the Court to assume jurisdiction. He then urged that the appeal be dismissed.

The Respondent, in the alternative, raised four issues for determination. They are:-

“1. Whether the findings of the learned trial Judge were perverse thereby occasioning a miscarriage of justice.

2. Whether custom and inheritance were made an issue before the lower Court.
3. Whether Okosoro clan (the Plaintiff) has no reversionary right over all land leased out to strangers.
4. Whether there are contradictions in the evidence of the Plaintiff’s witnesses” .

In respect of issue No.1, the Respondent’s Counsel referred to pages 45-51 and 30 of the record of appeal and submitted that the trial Court found as a fact that the farmland of Ndoma Ndoma (the farm in dispute) is distinct from the farm of Madam Ebin Iyam (the Defendant’s mother), and that Exhibit B was entered into between the Plaintiff and Ndoma Ndoma, and, that the agreement was written in 1959 and not 1949. He referred to the cases of Cornelius Ltd. vs. Ezenwa (2003) 2 W.R.N p. 98 at 106 ratio 2 and Akulaku vs. Ifong (2002) 22 W. R.N p.1 at 3 – 4 per Nnamani J.S.C at lines 28 -29 and submitted that an Appellate Court would only disturb the judgment of the trial Court where it is shown that the trial Court did not make use of the advantage of seeing the witnesses and watching their demeanor.

He stressed that the farms of Ndoma Ndoma and Ebin Iyam were two separate farms, and, the issue of splitting them as contended by the Appellant in his brief is compounded, because, one cannot split two distinct farms into two. He said that the only cocoa farm in dispute is that of late Ndoma Ndoma and not that of Iben Iyam.

On the issue of custom, learned Counsel for the Respondent submitted that no issue of custom or inheritance was raised by the court and as such the argument of Counsel for the Appellant on it, ought to be discarded.

He further stressed that the land in dispute, i.e, Ndoma Ndoma’s cocoa farm has not been split into two by the Court. He further stated that there was no contradiction in the evidence of P.W. 1 and P.W. 2. He said that P.W.2, incidentally, was the chairman of the Community at the time. He was a relation to Ndoma Ndoma and a witness to the agreement between the Okosoro Community and Ndoma Ndoma. He said that there was no inconsistency in the evidence of both P.W. 1 and P.W. 2, that it is rather the evidence of the Defendant and his lone witness that is tainted with material contradictions. He said that the evidence of D.W.2 confirmed the assertion of the Plaintiff that Exhibit B was the agreement entered into between Okosoro Community and Ndoma Ndoma. He then urged this Court to dismiss the appeal and affirm the judgment of the lower Court.

In the Appellant’s Reply Brief, it was submitted that the terms of settlement dated 20/9/06 filed by the Appellant was in respect of the Motion on Notice filed on 21/3/06 for an order for a stay of execution of the judgment of the lower Court delivered on 16/2/06. He contended that filing the terms for the grant of stay of execution of such a judgment does not amount to waiver of a right of appeal.

Further, Counsel submitted that the Notice of Appeal was filed within time on 14/3/06. It was only on 13/10/06 that the Appellant obtained the leave of the trial Court for departure from the Rules by being permitted to compile the record of proceedings. He submitted that the appeal was deemed to have been entered on 13/10/08 when the Motion for departure was granted by the Court. He cited the cases of Shodehinde vs. Registered Trustees, Ahmaddiyya Movement (Supra) ratio 8 in support.

On the issue of claim of non-service of the Notice of Appeal on the Respondent, Counsel submitted that the Respondent was served with the Notice and Grounds of Appeal on 27/3/06. He referred to p. 135 of the record which contains the letter by the Registrar of the lower Court inviting the parties for the settlement of records. He said that the Respondent’s Counsel was present during the settlement of records. He referred to Ishie vs. Ansa (2001) FWLR Part 80 p. 1529 ratio 21 and stated that parties are bound by the record of proceedings. He said that the Respondent was served with the affidavit filed by the Appellant on 19/11/08 and to which was attached the said Exhibit B, so, the argument of the Respondent that Exhibit B was smuggled in is untenable. Counsel then urged the Court to discountenance the preliminary objection.

The Plaintiff, i.e, the Respondent in this appeal, testified as P.W.1. He stated that he is from Okosoro Community Bendeghe Ekiem and the Clan Head of Okosoro. He leased a land in 1959 to one Ndoma Ndoma, now dead, to cultivate cocoa and to pay them rent. They entered into a lease agreement.

The land is bounded in the North by Obi Tangban, in the South by Mba Eganga, in the West by Takim Tah, in the East by Ebin Iyam, who was his fiance and who hailed from Akparabong. The Defendant was her son. The Defendant is now in possession of the farm but he encroached on the farm, and as a result they wrote a letter to him asking him to explain why. The Defendant honoured the letter and came and met with the Council of Chiefs of the Community.

Before the next date given to the parties, the Defendant rushed to the Police Station and lodged a report. Because the police dribbled them, they decided to institute an action against the Defendant in the Court of law. He stated that the Defendant is now occupying the late Ndoma Ndoma’s farm. He tendered as Exhibits A and B respectively, the said letter dated 26/04/2000 written to the Defendant by Okosoro Council of Chiefs inviting him, and, a copy of the lease agreement dated 13/7/59 entered into between the Okosoro Community Bendeghe Ekiem and the said late Mr. Ndoma Ndoma of Nde town. He prayed the Court to order the Defendant to pay to him, the arrears of rent due to him from the farm. Secondly, to enter into a new agreement with, in respect of his said farm. He said that the Defendant was owing him the sum of N500,000.00 being arrears of rent since 1959.

Under cross-examination, he said that he became the Chief of Okosoro Community in 1996 which is now a clan. He sued the Defendant not in his personal capacity as Chief E.E. Tawo, but as a representative of Okosoro people. He said that the late Ndoma Ndoma made some payments to his community before he died, but, he could not remember the exact amount. He said that the Chairman of the Community knows about it. The village Head of Okosoro in 1959 was Chief Anyoghadi Obase but he prevaricated and said it was one Ojong Etta, who then signed the agreement on behalf of Anyoghadi Obase. He said that the lessors in Exhibit B were Chief Obi Tangban, Awungh Awhuwe, Ojong Etta and Etta Anyoghadi Obase. It was one Henry Ogbu Ayuk who wrote Exhibit B and he signed it. There are three clans in Bendeghe Ekiem. The counter-affidavit which he filed in the Defendant’s Motion on Notice for injunction was tendered as Exhibit C. He said that the Defendant was paying 40 pounds sterling per annum for the farm. Ndoma Ndoma started paying 40 pounds rent per annum from July, 1949 till his death. He admitted that when the community wrote to the Defendant they demanded that he should pay rent on the farm for 37 years. Unlike his brother, he failed to pay.

P.W.2, one Ekpere Ayang, is from Bendeghe Ekiem and a farmer. He knew the parties in the case. He said that the late Ndoma Ndoma was his senior brother. He stated that Ebin Iyam, the Defendant’s mother and Ndoma Ndoma were friends, she was a concubine to Ndoma Ndoma. He said that his brother got the cocoa farm from the Okosoro community on 13th July, 1959. He accompanied his brother to the place where the land sales agreement was entered into. His late brother deforested the farm land before planting his cocoa on it. Those who signed the agreement were late Chief Ayong Adi Obasi, Chief Awunhe Awung, Chief Obi Etta, Chief Henry Ayuk, and himself and one late Ekum Bassey. He signed the agreement as a witness. He was working on the said land with his brother. The land is bounded to the North by late Obi Tangban, and the West by Obi Ojong, East by Ebin Iyam and in the South by Mba Eganga. He was working on the said land with his brother. He said that the Defendants’ mother did not start planting Cocoa on the disputed land in 1953. His brother lived together with the Defendants’ mother from 1956 to 1962. When his brother died, he could not take over the management of the farm because he was still tender in age and did not have the means too, so, also, were members of his family. Later when he wanted to take over the farm land, he was informed by the community that the defendant, son of Ebin Iyam had taken over the farm land. He further stated that the Ebin Iyam had her own cocoa farm different from his brother, Ndoma Ndoma’s own, but they shared common boundary. He said he was asking the court to order the defendant to vacate his late brother’s farm (Ndoma Ndoma) and to pay to the community, One Hundred Thousand Naira general damages for exploiting economic trees such as cocoa, bush mango, Iroko tree, Mahogany, etc, from the land since 1962 till date.

Under cross examination, he said he was 24 years when his senior brother died. The late Ndoma Ndoma and himself were cousins, their mothers were from the same parents. Ndoma Ndoma had no child of his while alive. He was survived by family relations. He died in 1962. He was to be paying N40 to the community in 5yrs time from when the agreement was written in 1959, but did not pay any rent to the community because he died in 1962. He said that P.W.1 was told what happened, but, he P.W.2 was a witness to all that transpired and that Chief Oyongadi Obasi could have signed for the town but because of old age.

D.W.1, the Defendant, said that his mother was a native of Okosoro in Bendeghe Ekiem and she acquired the cocoa farm land now in dispute as a native of Okosoro and developed it in 1953. He said that Ndoma Ndoma worked for his late mother as a labourer. He also stated that Ndoma Ndoma worked for his mother and then lived in her farm plantation from 1954 to 1969. D.W.1 stated that the land in dispute has boundary on the North with the farm land of late Mba Eganga, on the South by Mr Achun Ojong’s farm land, to the East by the same Mba Eganga farm land, Tikam Tah and the Achun Ojong’s farmland, and on the West by late Chief Obi Tangban and the late Eganga’s farmland. He said that his late mother cultivated the cocoa farm for 29 years without any hindrance or demand for payment of rent or tribute to anybody because she was a native of Bendeghe Ekiem. He inherited the cocoa farm after his mother’s demise in 1982, being the only child of his mother without confrontation from any person or group of persons. He said that in June 2000, one Chief Achun Ojong and his two sons encroached on a part of his cocoa farmland and cultivated it. He commenced an action against him and his sons at the Northern Etung District Court, Etomi. He filed suit Nos.128/2000, 129/2000 and 130/2000 respectively. Later, they had out of Court settlement. The certified true copy of the said suit No.130/2000 and the terms of settlement out of Court were equally received in evidence as Exhibits D and E respectively. He denied that the late Ndoma Ndoma entered into a lease Agreement with the community. He said that the purported agreement was a forgery. He is in possession of the cocoa farm and it was only in the year 2000 that the community informed him that the cocoa farm belonged to them. When he was invited after Exhibit A was made by the Chiefs of the community, he was asked by them to pay the sum of N29,060 being the arrears of rent for 37 years. He refused to pay and he was supposed to pay the money to Nkwambuk community. Neither his late mother, Madam Ebin Iyam nor Ndoma Ndoma her worker, paid any rent or tribute to any person or body.

In his cross-examination, he said he is a native of Bendeghe Ekiem by extension. He said there was no lease agreement between Okosoro Community and Ndoma Ndoma. He was nine years old in 1949 and he was living in Akparabong but was visiting his mother then on holidays. His mother deserted his father in 1942 when she left the matrimonial home in Akparabong. Chief Obi Tangban was his mother’s cousin. He is from Bendeghe Ekiem.

D.W.2-Elder Achun Eganga Mbek, said that the land in dispute belonged to one Madam Ebin Iyam, it is bounded in the North by Mba Eganga, in the South by Achun Ojong, in the East by Tikam Tar and Mba Eganga in the West by Chief Obi Tangban and Chief Eganga Mbek. The land belongs to the Defendant’s family of which he is a member. The Defendant inherited the land in question from his late mother, Madam Ebin Iyam. He said that the land did not belong to the Plaintiff and Okosoro community. He further told the Court below that Exhibit B is a forgery, it did not contain the signature of Henry Ayuk, an educated man who was shown in Exhibit B. He knew Ndoma Ndoma as one of the labourers who worked for Madam Ebin Iyam. Nte Ayuk was Ndoma Ndoma’s brother. Ndoma Ndoma did not leave any property behind including the land in dispute. As a labourer, he was living from hand to mouth.

I must recognized the need to consider firstly, the preliminary objection pivoted on three grounds that was raised by the Respondent’s Counsel in this appeal, so as to ascertain if there will be need to delve into the substance of the appeal before us.

The first question borders on whether the Appellant’s constitutionally guaranteed right to appeal against the judgment of the trial Court delivered on the 16th February, 2006, had been waived by a subsequent order made by the trial Court in the light of the document addressed to “Whom It May Concern” filed on 20/09/06 before the lower Court. That document I must note was filed after the Court had heard the parties on their evidence and delivered its judgment. Even though the back-dated order of the lower Court made pursuant to the said document described the order as an extension of the judgment delivered on 16th February, 2006, that does not and cannot clothe the said back-dated order with status it does not and cannot possess in law in relation to the Judgment delivered on 16/2/06. The procedure culminating in the making of the back-dated order is totally different from the procedure that led to the judgment of 16/2/06 in respect of which the present appeal was filed. It is left for the Respondent to decide on what to do with respect to the said order made after the evidence of the parties had been fully heard and judgment delivered thereon.

It is said that an appeal is a complaint against the decision of a lower Court and a challenge of the validity of that decision. It is an invitation to a higher Court to review the decision of a lower Court and to decide whether on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision.

The right of appeal against the decision of a Court is a constitutional right that enures in favour of a person. It cannot be restricted or expanded by any other law.

The right to appeal does not exist in favour of any person unless and until it is created by statute or the Constitution. It does not derive from the inherent jurisdiction of a Court or the common law. Consequently, no Court has jurisdiction to hear any appeal unless it is derived from or directly traceable to a statutory provision.

By virtue of section 243 (a) of the 1999 Constitution, any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by the Constitution shall be exercisable in the case of civil proceedings at the instance of a party thereto or; with the leave of the Federal High Court or the High Court of a State or the Court of Appeal, at the instance of any other person having an interest in the matter.

A “person having an interest in the matter” is synonymous with a person aggrieved, which means a person who has suffered a legal grievance, a person against whom a decision has been pronounced, which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something. In other words, a party aggrieved is a person having some interest in the subject matter of an action, the outcome of which is certain to affect him one way or another and which makes it imperative that he should be joined as a party to the proceedings, and, where he was a party to the proceedings, a decision was made, which wrongfully deprived him of an entitlement or something that he had a right to demand. See Ngige vs. Obi (2006) 14 NWLR Part 999 p. 69-70.

The right to appeal is constitutionally guaranteed that no person aggrieved by the decision of the lower Court can be deprived of the same or barred from exercising it so long as there are existing orders or judgment of the Court that had not been set aside and which are still weighing heavily on the neck of the person so aggrieved. It is clear in the so called back-dated order of the lower Court made after judgment had been delivered in the case that the orders made in the judgment of 16th February, 2006 still subsist and were never set aside in the said back dated ruling/order. That procedure is a distinct procedure that could be challenged by the Respondent in this appeal. The Notice of Appeal filed on 14/3/2006 was in respect of the judgment delivered on 16th February, 2006 and not in respect of what the learned trial Judge described as Exhibit AAB adopted and entered as an extension of the consent judgment delivered on 16th February, 2006 between the parties.

It is to be noted that what was delivered on 16th February, 2006 was not a consent judgment but a judgment delivered after both sides had been fully heard on their rights.

It is therefore my profound view that the filing of the said terms of settlement on 20/09/06 and the subsequent orders made by the trial Court in respect thereof, after the filing of the Notice of Appeal by the Appellant does not constitute a waiver of the Appellant’s Right of Appeal or an abandonment of the Notice of Appeal.

I would further observe that the other grounds raised in the preliminary objection were bereft of foundation as p. 135 of the Record of Appeal referred to by the Appellant’s Counsel clearly bore witness to the fact that the Respondent was served with the Notice of Appeal on the 27th March, 2007.

It is also clear that the Notice of Appeal was filed within the stipulated period and that with the order for departure made by this Court on 13/10/08, the Records of Appeal already compiled and transmitted were deemed to be in order.

Based on the foregoing, it is my considered view that the preliminary objection raised by learned Counsel for the Respondent is baseless and therefore ought to be overruled. Accordingly, the same is hereby not countenanced.

It has to be emphasized at this juncture that an Appellate Court will be slow to interfere with the finding of fact by a trial Court and will only do so if the trial Court failed to use or palpably misused its advantage of seeing the witness or if the finding of the trial Court is not supported by evidence or is erroneous in law or wrong or perverse. Where a trial Court failed to make a finding on a material and important issue of fact or approached the evidence called by the parties wrongly, the Appellate Court would have no alternative but to allow the appeal.

A close scrutiny of the reliefs sought by the Respondent at the trial Court reveals that the suit was rooted in trespass, damages for trespass, eviction and injunction.

It is an established principle of law that as a claim for trespass to land is rooted in exclusive possession, all a Plaintiff needs to prove is that he has exclusive possession or he has the right to such possession of the land in dispute, but once a Defendant claims to be the owner of the land in dispute, title to it is put in issue and in order to succeed the Plaintiff must show a better title than that of the Defendant.

By section 135 (1) of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. By section 137 (1) of the Act, in civil proceedings, the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence produced on either side, regard being had to any presumption that may arise on the pleadings. Section 139 further provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. See Qia vs. Kamalu (2005) 18 NWLR Part 958 p. 523.

The first issue suggested by the Appellant’s Counsel is whether the trial Court was right in entering judgment for the Plaintiff in the face of material contradictions in the evidence of the prosecution witness?

It is trite law that where witnesses of a party gave inconsistent and/ or contradictory evidence on material facts, their evidence on the point must be regarded as unreliable and also must be rejected. Contradictions of a minor details in the evidence adduced on behalf of a party which do not affect the substance of the issue to be adduced are irrelevant and do not vitiate the case of a party. The relevant contradiction is that which amounts to a disparagement of other pieces of evidence adduced, thereby making it unsafe for the Court to rely on either. See Uwaekweghiya vs. State (2005) 9 NWLR Part 930 p. 227. Although no relief was sought by the Respondent with regard to payment or arrears of rents, there were certainly contradictions in the testimonies of P.W.1 and P.W.2. as to whether Ndoma Ndoma paid any rent to their community or not. The reliefs the Plaintiff stated during his evidence in chief before the Court were completely at variance with the ones endorsed on his Statement of Claim. P.W.1 said that Ndoma Ndoma was paying to them ?40 per annum for the farm before he died whereas P.W.2 said that he was to start paying the said sum from the fifth year of entering into the lease agreement. He said he was a witness to the fact while P.W.1 was informed of all these.

It must be pointed out that not an iota of evidence was adduced in proof of the alleged N100 million general damages the Plaintiff suffered for the illegally harvested cocoa on the part of the Appellant while trespassing on the land. The Appellant persistently said he was on his late mother’s cocoa farm which he inherited from her. He insisted that Ndoma ndoma worked as a labourer for his late mother and never had his own farm. The said Ndoma Ndoma lived on his late Mother’s Farm Plantation. He said that his late mother cultivated the cocoa farm for 29 years and died in 1982. At her demise, he went into possession and has remained in possession of the same ever since. From the assertions of the Appellant, it was clear that it was the same cocoa farm the parties were talking about since he maintained that Ndoma Ndoma lived in his mother’s farm and worked as a labourer for her. The Plaintiff and his witness could not prove before the lower Court the exact identity of the land they leased out to the late Ndoma Ndoma and then the portion trespassed upon by the Defendant. D.W.2’s testimony was quite firm and unshakable as to how the Defendant’s late mother owned the farm and too when the Ndoma Ndoma went to live with the Appellant’s mother in 1954.

With regard to the fourth award made by the trial Court to the Respondent by mandating the two communities to demarcate the two portions with life trees, it must be observed, with due respect to the learned trial Judge, that none of the parties sought for an order of partition.

The concept of partition connotes that where property belonging to a family is shared or divided among constituent members of that family, each member of such family retains exclusive ownership of the portion of the family land partitioned to him. Partition is one of the ways of determining family ownership of property. This is quite different from the principle of allotment of family land which can validly be assigned or sold with only the consent of the entire family. In effect, family ownership of such property is automatically brought to an end. See Oyede vs. Olusesi (2005) 16 NWLR Part 951 p.341.

It is trite law that a Court of law ought not to award to a Plaintiff a substantive relief he has not specifically claimed and may in fact not desire. Also where a relief claimed in a suit is abandoned or withdrawn it automatically ceases to exist and the Court is without jurisdiction to grant it. See Ajao vs. Ademola (2005) 3 NWLR Part 913 p. 636.

A careful study of the evidence led by the Respondent in proof of his case at the lower Court clearly shows that no iota of evidence was adduced in proof of the reliefs sought by him.

The law is that where a party to a case fails or refuses to submit the issues he raised in his pleadings for trial by giving evidence in their support, the trial Court must resolve the case against the defaulting party except there are other legal reasons to the contrary. The Respondent in this appeal did not adduce evidence in support of his pleadings that it was the same piece of land which his community allegedly granted to the late Ndoma Ndoma that the Defendant is now occupying or encroached upon. The Plaintiff, also could not prove to the Court below that he was in exclusive possession of the area being occupied by the Appellant or that there was any alleged wrongful entry on the land by the Appellant. The Appellant insisted he was occupying his mother’s farmland which his late mother enjoyed for about 29 years without hindrance.

It is clear from the pleadings and all the reliefs sought by the Plaintiff that none of the awards made by the trial Court at the conclusion of the case was sought for by the Plaintiff. It is not within the province and competence of the Court to evolve a case for the parties thereby taking the case out of the realm contemplated by the pleadings. This amounts to the Court departing from the case placed before it and considering the issues that were not matters of contest between the parties. By the trial Court holding inter alia;

“2. The Defendant is to negotiate with the Okosoro community the rent he is to pay to them, on account of his late mother’s Cocoa farm because he is not a native of Okosoro but of Akparabong village.

3. The Defendant is to enter the portion of the Cocoa farm belonging to his late mother only after drawing up a proper agreement with the community with effect from 1st January 2006.
4. All the previous rents due from the Cocoa farm belonging to Ebin Iyam and also that belonging to Ndoma Ndoma are hereby waived. The next of kin to Ebin Eya and Ndoma Ndoma are to enter separate agreements with Okosoro community-who are hereby mandated to demarcate the two farms with life trees”.

It, unwillingly, took the case out of the realm contemplated by the pleadings. The law requires parties to call witnesses to proffer evidence to prove their cases, and dispose relevant issues in the main substantive claim. It is not the function of a trial Court by its own exercise to supply or imagine evidence. It is the duty of a court or tribunal or of any adjudicating body to limit itself to the evidence before it and not to go fishing for evidence or even individuals who are not parties to the suit before it and make unsolicited awards to them.

Law should only be applied to the facts of a case. It is not for a Court to manufacture facts or work from law backwards to facts on the pre of justice. That could amount to judicial anarchy. It is the establishment of facts that comes first and later the application thereto of the principles of law. This is the only legal process by which justice could be arrived at. It is utterly wrong for a Court to award the reliefs not sought for by a party to the suit or even make an award to a person who is not a party to the proceeding.

It is clear as crystal that the learned trial Judge wrongly evaluated the facts before him and applied the law on a misapprehension of facts or on extraneous materials.

This is a proper case for the Appellate’s Court’s intervention where the trial Court totally misused the opportunity and advantage it had in assessing and evaluating the evidence proffered before it which obviously led to a serious miscarriage of justice. There is merit in this appeal and therefore, it ought to be allowed.

Consequently, the judgment of the High Court of Cross River State sitting at Ikom and presided over by His Lordship, M.a. Eneji J., in Suit No. HM/99/2000 and delivered on the 16th February, 2006 and the orders made therein are hereby set aside and the Respondent having failed to discharge the onus placed on him by the Evidence Act to prove his case on a balance of probability before the lower Court is not entitled to any award. Accordingly, the Respondent’s case is hereby dismissed.

There will be costs to the Appellant against the Respondent which assessed and fixed at N20,000.00.

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Other Citations: (2009)LCN/3242(CA)