Ojo Ogbemudia Eholor Vs. Felicia Osayande (1992)
LawGlobal-Hub Lead Judgment Report
I. L. KUTIGI, J.S.C
The plaintiff in his amended Statement of Claim sought for the following reliefs against the defendant:
“(a) A declaration of title to all that piece or parcel of land situate lying and being in Ward 22/J, Oye Street, New Benin, Benin City and demarcated by Licensed Surveyor’s beacons Nos. MG 5172. MA 7935, MA 7934 and MG 5171 and which said land is clearly delineated in PINK on Plan No.4878 dated 29th December, 1975.
(b) Possession of the said piece or parcel of land.
(c) an injunction restraining the defendant, her agents and/or servants from further trespassing onto the said piece or parcel of land.
Pleadings were filed and exchanged. At the trial the plaintiff testified and called three witnesses. The defendant also testified and called two witnesses.
Briefly stated plaintiff’s case was that in 1975 he bought a piece of land measuring 200 ft by 125ft from one Okhonkpanwoyi Iguisi who testified as P. W.1 at the trial. He did nothing on the land. When he visited the land in 1974 he noticed that one of his beacons No.93/J had been removed and planted about 21 feet into his land. He said another pillar No, MA 7934 which was never on his land had been planted in place of beacon No. 93/J, He also found that the other side of his land had been reduced by ten feet. When he bought the land from Iguisi (P.W.1), he was given a Certificate of Transfer which was tendered as Exhibit 1 at the trial. Plaintiff then reported the matter to the vendor (P.W.1) who then contacted the defendant to whom he had sold the adjoining plot of land. When the defendant failed to adjust, he then instituted these proceedings.
The defendant on the other hand said she also bought from the same vendor, P.W.1., a plot measuring 100ft by 100ft in 1966. It was part of an area measuring 300ft by 125 ft belonging to P.W.l. She said she paid P.W.1 the sum of N320.00 and P.W.1 executed a conveyance (Exhibit 5) in her favour. She said it was P.W.1 who showed and measured the land for her. She denied moving any beacons and trespassing on plaintiffs land.
It must be stated here now that both sides engaged the services of surveyors, after the case had gone to court, to prepare survey plans for them. The survey plans Exhibits 4 & 7 for the plaintiff and the defendant respectively, were tendered at the trial. Also both Exhibits 1 and 5 for the plaintiff and defendant respectively, recited the beacon numbers or the areas of land sold to the respective parties, there was no plan attached to either of the exhibits showing the entire land of P.W.1 or the portions sold to either of the parties. I shall have more to say on this later.
At the conclusion of the trial the learned trial Chief Judge in a reserved judgment found against the plaintiff and dismissed his claims, the plaintiff, dissatisfied with the judgment then appealed to the Court of Appeal, Benin City where his appeal was dismissed. He has now further appealed to this Court.
Four grounds of appeal were originally filed. These were later amended and reduced to two – and read thus:-
“1. The learned Justices of the Court of Appeal erred in law when they based their decision solely on an objection ‘which was raised suo motu by the court and relied on by counsel for the respondent who did not file the proper notice or adopt the proper procedure of raising such objection.
- The learned Justices of Appeal erred in law in their consideration of ground 7 of the appellant’s brief by failing to apply the principles of law as enunciated in Mogaii & Ors v. Odofin & Ors (1978) 4 SC. 91 at 93-95.
PARTICULARS OF ERROR
The learned Justices of Appeal merely endorsed what the trial Court did without showing or examining how or in what way the trial court correctly evaluated or appraised evidence.
Both sides filed and exchanged briefs. These were adopted by counsel at the hearing. Oral submissions were also made in addition thereto.
Learned counsel for the appellant Mr. Odiase has submitted in his brief the following two issues for determination in the appeal:
A. Whether the Court of Appeal was right to have based its decision solely on the question of counsel for appellant’s failure to advance arguments I support of the grounds of appeal filed.
B. Whether the Court of Appeal correctly applied the principles of weighing and/or appraising evidence, more so as it appeared to have merely endorsed the error of the trial judge by default.”
On the first issue counsel submitted that although under the rules of court, learned Justices of the Court of Appeal are empowered to strike out a ground of appeal that is vague or disclosed no reasonable ground of appeal or even strike out a notice of appeal that is incompetent, grounds 1 – 6 of the grounds of appeal before the Court of Appeal did not only disclose reasonable grounds of appeal but equally gave copious particulars of error which that court ought not to have ignored. It was submitted that as a brief of argument was merely to assist the court in arriving at a just decision, that court ought to have considered the grounds of appeal even though they were not argued by counsel in the brief. He cited no authority. It was also submitted that since the respondent did not file a notice of preliminary objection, the Court of Appeal should have ordered the appellant to amend his brief to ensure the determination on the merits, of the real question in controversy between the parties. He said the Court of Appeal was wrong to have raised the issue suo motu and to have dismissed grounds of appeal Nos. 1 – 6 thereof. He said the sins of counsel in this case should not be visited on the litigant. He referred to the case of Obiora v. Osele (1989) 1 NWLR (Pt.97) 279.
Replying Mr. Osamudiamen learned counsel for the respondent submitted that although appellant’s brief in the lower court set out the issues for determination, it advanced no arguments in support but merely reproduced verbatim, grounds 1 – 6 in the brief. This was contrary to the provisions of the rules of court. By not advancing arguments in support of grounds 1 – 6 the applicant must be deemed to have abandoned those grounds and issues thereon. He said the appellant failed to take the hint when his attention was drawn to the point by the court but instead, proceeded to press on with the hearing of the appeal. It was also submitted that the filing of briefs is not merely to assist the court in arriving at a just decision but that where briefs are flied, the appeal will be taken to have been argued on the briefs even though the parties are “absent at the hearing. He said in this case the appellant at the hearing relied solely on his brief and he cannot complain when grounds 1- 6 were dismissed after his attention was drawn to the omission and he did not apply to rectify same. He cited in support Ogbu & Ors v. Urum & Anor (1981) 4 SC. 1 at 78.
Now at the hearing in the Court of Appeal, Benin on the 11th day of January 1988 the record of proceedings on p.183 shows thus:”
Parties are present.
I. Omigie, for the Plaintiff/Respondent
A.A. Omorodion for the Defendant/Respondent
Mr. Omigie argues the appeal.
Refers to the appellant’s brief filed on 10/7/85 and says he relies on the brief and in its entirety. Says he has nothing more to add. Urges the Court to allow the appeal.
Court: In the brief you have only stated the grounds of appeal without any argument except in respect of ground 7 where you adduced argument.
Omigie: That is the position, my Lords.
Mr. Omorodion addresses the Court.
Refers to the respondent’s brief filed on 15/5/86 and says he adopts and relies on it in its entirety. Urges the court to dismiss the appeal, submits that as grounds 1- 6 have not been argued in the brief, they should be dismissed.
Mr. Omigie has nothing more to add.
Court: Judgment is reserved to a date to be notified later.
(Sgd)
MICHAEL EKUNDAYO OGUNDARE, J.C.A.
11/1/88.
On this issue Ogundare J.C.A. (as he then was) with the concurrence of Musdapher and Ndoma-Egba. J.J.C.A.) said in the judgment on pages 185-186 of the record that :-
“The purported appellant’s Brief apart from giving a brief history of the case and setting out the issues for determination merely set out the seven grounds of appeal and their particulars …………………………………………………
After setting out the issues for determination, learned counsel proceeded to set out the seven grounds of appeal relied on in support of this appeal. No arguments were offered in support of grounds 1- 6……………………………….This Court only this morning in CA/B/130/85: A.A. Ezagg v. New Nigerian Bank Ltd., in a judgment delivered by my brother Musdapher, J.C.A. discussed the consequence of failure to advance, in a Brief, arguments in support of the grounds of appeal We dismissed the appeal in that case Consequently, grounds 1 – 6 are hereby dismissed by me.”
I am in no doubt at all that both on the facts and circumstances of the case, the Court of Appeal was right to have dismissed or struck out (the effect is the case in this situation) grounds 1 – 6 of the appellant’s grounds of appeal. When the court raised the issue suo motu appellant’s counsel conceded the point. But instead of asking for adjournment to regularise the position by filing a new or amended brief or even seek leave to address the court orally on those grounds, counsel did nothing. Even at the end of the submission of respondent’s counsel to dismiss grounds 1 – 6, appellant’s counsel was still telling the court that he had nothing more to say. It is settled, even before the briefs were introduced, that where counsel proferred no arguments in support of a ground of appeal that ground of appeal must be deemed to have been abandoned and would be struck out. So also with a brief, I must add that this is not a case of visiting sin of counsel on appellant as Mr. Odiase would want us to believe. This is rather a case of competence of counsel to take an appropriate step at an appropriate time. Counsel had no excuse for not knowing what to do when he was told by the court that his brief was defective. The court has done what was, required of it and nothing more. There is no merit in the issue required which I hereby resolve against the appellant.
Turning to the second issue it was submitted for the appellant that the learned trial Judge did not evaluate the evidence adduced before him. That he merely confined himself to an examination of the plans and made pronouncements thereon without relating them to the evidence. It was therefore not sufficient for the Court of Appeal to have stated that they had read through the record and found that the learned Chief Judge weighed and appraised evidence in the manner laid down in Mogaji & Ors v. Odofin (1978) 4 S.C. 91 at 93-95. He referred to the record at pages 112-113, 186-187 and to the case of Adelenwa v. The State (1972) 10 S.C.13 at I9.
It was further submitted that there was evidence upon which the learned trial Judge could have found that there was enough land for both parties and that the respondent was the guilty party because she refused to confine herself to the land sold to her. He referred to the evidence of P.W.3 on pages 64-65, which he said was ignored by the lower courts. He said this court is quite as competent as the trial court to appraise and draw inferences from evidence. He cited LawaL v. Dawodu & ors. (1972) 1 All NLR (Pt.2) 270 and Registered Trustees of the Apostolic Faith Mission & Anor. v. Umo Bassey Eyo James & Anor. (1987) 3 NWLR (Pt.61) 556.
It was also submitted that the decision of the trial court was against the weight of evidence and that the learned Justices of the Court of Appeal were in error by not examining the evidence that was available before the trial court. We were urged to allow the appeal.
In his reply respondent’s counsel submitted that the learned trial Chief Judge reviewed and evaluated the evidence before making his findings. He also relied on the documentary evidence before him and rightly came to the conclusion that the land in dispute fell within the respondent’s portion of the land sold to her by P.W.1. He said this being an appeal against concurrent findings of fact by the High Court and the Court of Appeal, this Court should not disturb the finding except for special reasons which do not exist in this appeal. He referred to Chinwendu v. Mbamali (1980) 4 – 5 S.C. 31; Fashanu v. Adekoya (1974) 6 S.C 83.
It was also submitted that a Judge is entitled to look at plans proffered in testimony and draw valuable inferences in support of a finding. That the finding of the trial Court was predicated in this case on Exhibits 4 & 7 (Survey Plans) and the purchase receipts (Exhibits 1 & 5). He said the learned trial court’s approach to the case was not faulted and was rightly affirmed by the Court of Appeal. It has also not been faulted before this Court. We were referred to the case of Okafor v Obiwo (1979) 9 – 10 S.C. 115 at 123-124.
It was further submitted that the Court of Appeal having endorsed the approach of the trial Court and affirmed its decision this Court has no business reappraising the evidence with a view to coming to a different decision. The law is that a Court of Appeal should not lightly reverse the findings of a court of trial or substitute its own views of the case for that of the trial court. He cited Ebba v. Ogodo (1984) 4 S.C. 84; (1984) 1 SCNLR 372. It was finally submitted that the appellant failed to make out a case for the declaration of title he sought by the action. The Court was urged to dismiss the appeal.
The Court of Appeal had this to say in the issue on page 187 of the record:”
Reading through the record and the judgment I am satisfied that the learned trial chief Judge not only reviewed the evidence for both parties but properly appraised the same. After examining the exhibits tendered in the case, he came to the conclusion that the land in dispute was part of what plaintiff’s first witness sold to the defendant/respondent. In my view he did what was required of him……………………………”
I have myself read through the record and judgments of the lower court. Apart from the litigants themselves, of the three witnesses called by the appellant, two are surveyors (P.Ws 2 & 3), while P.W.1 was the common vendor of the litigants. The respondent called only two witnesses. D.W.1. was only a member of the Plot Allocation Committee, while D.W.2 was the surveyor. Documentary exhibits were tendered at the trial by the witnesses and the matter very much revolved on the meaningful interpretation of the exhibits. There were no disputes on the facts as such. The sale question for determination was clearly in my view the location of the plots of the land sold to the appellant and the respondent respectively by the common vendor (P.W.1) having regard to the beacon numbers specifically stated in their documents of title – Certificate of Transfer (Exh.l) for the appellant, and the conveyance (Exh.5) for the respondent. The parties also tendered their survey plans as stated earlier on – Exh 4 for the appellant and Exh. 7 for the respondent.
In Exhibits 2 & 5, Iguisi’s (P.W.1.) property was described as demarcated by beacon Nos. 15/J, 16/J,93/J,94/Jand 95/J. In Exh1 the plot sold to the appellant was demarcated by beacon Nos. 93/J, 94/J and 95/J, while Exh.5 the area sold to the respondent was demarcated by the beacon Nos. 16/J and 93/J. The trial Court was therefore bound to search for these beacons only and nothing else from the survey plans of the parties.
Now coming back to the two Survey Plans, Exhs. 4 & 7, it will be found that the land in dispute on its northern boundary lies between and within beacon numbers 16/1 and 93/1 in both plans. The plot sold to the respondent as I said was described in her conveyance (Exh.5) as demarcated with beacon blocks Nos. 16/J and 93/J as stated above. And so the learned trial ludge was I believe right when after comparing the plans and other exhibits he came to the conclusion that the land in dispute was pan of what Iguisi (P.W.1) sold to the respondent. (See Okafor v. Obiwo (supra). It ought to be remembered as I said earlier on that although both Exhibits 1 & 5 recited the beacon numbers of the entire P.W.1 ‘s land and the areas sold to the litigants herein there was no plan attached to any of the exhibits.
It was therefore just not enough for the appellant’s witnesses to say that a beacon “has been shifted” without indicating its true position vis-a-vis other beacons, because the respondent said that was the area shown to her by the vendor (P.W.1). The issue can probably best be resolved by having a composite plan of the entire land owned by P. W.1 showing the areas sold to the parties with their appropriate beacons. This was not done in this case. It is however settled that in a suit for a declaration of title the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not, on the weakness of defendant’s case (See Kodiliye v. Odu (1935) 2 WACA 336 & Woluchem v. Gudi (1981) 5 S.C.291).
I feel the Court of Appeal was right to have affirmed the decision of the High Court. I therefore resolve the issue against the appellant.
The two issues having been resolved against the appellant the appeal fails.
It is hereby dismissed with costs of N1,000.00 for the respondent.
Other Citation: (1992) LCN/2507(SC)
