Pastor Iboro Udo Udo V. Sir Jude E. N. Ekpo & Anor (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Judgment of Hon. Justice Stephen E. Okon delivered on the 4th day of March, 2014 at the High Court of Akwa Ibom State in Suit No. HT/6/2010.
Being dissatisfied with the Judgment, the Appellant has brought this appeal by filing the notice of appeal dated the 25th April, 2014 and filed on the 25th April, 2014.
The facts of this case according to the Appellant is that the Respondents trespassed into his land known as and called No. 11 Umoekabom Road, Ikot Ekpene in Akwa Ibom State and built a tank – stand thereon which tank – stand was anchored unto the building of the Appellant without the consent, permission or authority of the Appellant.
Also, the Respondents forcefully trespassed onto the Appellants said land and opened an access Road without the consent or permission of the Appellant. At the lower part of the access Road was already the access Road of the Appellant to his property.
As a result of the above, the Appellants on the 16/03/2010 took out a writ of summons against the Respondents and claimed as follows as per the
1
damage suffered viz:
1. The sum of N10,000,000.00 (Ten Million Naira) only being general damages in that on or about the 1st day of January, 2010, the Respondents broke and entered the Appellant’s land lying and situates at No. 11, Umoekabom Road, Ikot Ekpene, within the jurisdiction of this Honorable Court and built a tank – stand thereon preparatory to selling of water thereof without the authority, permission or consent of the Appellant.
2. An order directing the Respondents to demolish the said tank-stand made up of cement blocks and remove the debris from Appellants land lying and situates or known and called No. 11 Udoekabom Road, Ikot Ekpene.
3. An order directing the Respondents to pay to the Appellant, the sum of N100,000.00 (one Hundred Thousand Naira) only being the cost of the Appellants land forming part of No. 1 Umoekabom Road, Ikot Ekpene, which the Respondents forcefully trespassed thereon and converted it into their own use as an access Road to their Respondents compound without the consent of the Appellant or his predecessor in title and without paying one kobo to the Appellant for the use of the land.
4. An order of
2
perpetual injunction restraining the Respondents, their agents, servants, privies and any other person howsoever called acting on their behalf from trespassing into the plaintiffs land known and called No. 11 Umoekabom Road, Ikot Ekpene.
At the conclusion of hearing the learned trial judge delivered its decision on the 24th day of March, 2014 and dismissed the Appellant’s case and gave Judgment in favour of the Respondents in their counter-claim, hence this appeal through a notice of appeal filed on the 25/4/2014.
To argue the appeal, the Appellant formulated issues for determination thus:
1. Whether the Judgment of the High Court of Ikot Ekpene in this case was consistent with the evidence adduced at the hearing of this suit?
2. Whether failure to pronounce any findings by the trial High Court on the issue of trespass to Appellant’s building in the building of the tank-stand by the Respondents across the gutter and anchored on the Appellants building has not occasioned a miscarriage of justice?
3. Did the trial Court properly evaluate the evidence in this case before restraining the plaintiff and his agents from making use of
3
the Access Road.
4. Whether the findings of the trial Court did not amount to allowing the acts of continuing trespass by the Respondents on the land of the Appellant?
5. Was the Judgment of the trial Court in this case perverse?
In arguing issue No. 1 above, learned Appellant’s counsel submitted that the Judgment was not consistent with the evidence adduced by the parties at the trial and therefore erroneous. It has, therefore, occasioned a miscarriage of justice and consequently a nullity. SeeOPOBUJI VS. MUNIRU (2012) 203 LRCN 132 at 137. According to learned counsel, the action is in trespass with a claim for injunction; title of the parties to the land in dispute is automatically put in issue. See OMOTAYO VS. COOPERATIVE SUPPLY ASSOCIATION (2011) 202 LRCN 134 at 146. The Appellant he stated said that the land in dispute was acquired through sale to him by PW2 his predecessor in title. Acquisition of land by sale is one of the five ways of proving title to land. See OMOTAYO VS. COOPERATIVE SUPPLY ASSOCIATION (2011) 202 LRCN 134.
To prove title to the access road area of his land, the Appellant tendered the receipt of purchase sum
4
of the land issued to him by PW2 as Exhibit A. The said Exhibit A shows that he bought the whole land including the disputed access road on the 2/1/96 at the cost of N17,000.00 (Seventeen Thousand Naira) Only in the presence of the following who signed as witnesses:
1. Chief Festus Asu
2. Edet Akpan Udo
3. Grace Effiong Akpan
4. Itoro Effiong Akpan
5. Emmanuel Udo Abatai
6. Pastor Ekanka S. Otu
7. Pastor Aniekan Umoinyang
8. Pastor Jessy Effiong
9. Pastor Joseph Ekpenyong
There is also Exhibit A which is a Deed of Conveyance dated the 2/7/96 and prepared by one Francis Henry Umoh and signed same as well.
The PW2 and appellants predecessor in title had stated in his evidence that he surveyed the land in 1983 including the access road without any interference from anyone until the Respondent trespassed on the said land by directing a tipper lorry to deliver sand through this route and destroyed cassava crops in the process. From the above, learned Appellant’s counsel submitted that the Appellant had proved all the ingredients of sale. See INYANG VS. ESHIET (1990) 5 NWLR (PT. 149) 178 at 180.
On
5
the other hand, the Respondents anchored their ownership of the access road on sale and mentioned the same PW2 as his vendor and predecessor in title. He alleged that he bought the access road at the cost of N550.00 (Five Hundred & Fifty Naira) Only and could not tender any document or even call witnesses to support his assertion. Worse still is that even his purported vendor and predecessor in title (PW2) denied ever selling the property to him. DW2 who testified for the Respondent said he saw the sale transaction from afar but could not know the vendor. What it all means is that the Respondents could not prove the particulars of the sale and even PW2 denied ever selling the access road to the Respondents.
The learned trial judge just believed the evidence of the Respondents without giving reasons which in law is not enough. SeeNW0KE VS. OKERE (1994) 5 SCNJ 102 at 105. Without giving reasons for believing the evidence of the Respondents, the said Judgment is a nullity. See SOWEMIMO VS. THE STATE (2004) 18 NSCQR 24 at 26.
?DW2 did not testify at the trial and it was therefore wrong for the trial judge to have based his findings and Judgment
6
on the proposed evidence that was not adduced by a particular witness at the trial as such evidence does not flow from the evidence before the Court.
It is on record that the 2nd Respondent failed to appear to adduce oral evidence in support of the written depositions on oath, had abandoned same pleadings and, therefore, no findings should have been based on it by a trial judge. See ODUNSI vs. BAMIGBALA & ORS. (1995) 27 LRCN 187 at 191. It is the contention of the Appellant learned counsel that if the 2nd Respondent as a vital witness had adduced evidence for the Respondent, it could have decided the case one way or the other. SeeTHE STATE VS. NNOLIM & ANOR. (1994) 6 SCNJ (PT. 1) 48 at 50.
On the basis of that learned Appellant counsel urged this Court to resolve this issue in favour of the Appellant.
ISSUE NO. 2
Whether failure to pronounce any findings by the trial Court on the issue of trespass to Appellant building in the building of the tank-stand by the Respondent across the gutter and anchored on the Appellants building has not occasioned a miscarriage of justice?
Learned Appellant counsel submitted
7
that the failure of the trial Court to pronounce any findings or Judgment in respect of the claim of trespass to the Appellant’s building and land by the Respondents in building the tank-stand/water house thereon and anchoring same unto the building of the Appellant. Failure to do same has occasioned a miscarriage of justice.
It is a counsel submission that if the findings were pronounces in respect of this head of claim which are material; the Judgment would have been in favour of the Appellant. See KAREEM VS. UNION BANK OF NIGERIA (1996) 38 LCRN 843 at 847. In addition, the Respondents did not make any attempt to deny the claim and as such, the trial Court ought to have ruled in favour of the Appellant. See ACHILIHU & ORS. VS. ANYATONWU (2013) 220 LRCN (PT.2) 215 223. Learned Appellant counsel stated that for whatever reason the Appellant having proved that the tank is actually anchored to his building had proved trespass to his property and should have been awarded that claim. See TUKURN & ORS. VS. SABI & ORS. (2013) 222 LRCN (PT. 1) 65 at 70.
On this, he urged the Court to resolve this issue in their favour and then allow the appeal
8
and set aside the Judgment of the lower Court.
ISSUE No.3
Did the trial Court properly evaluate the evidence in this case before restraining the Appellant and his agents from making use of the access road?
Learned Appellant counsel answered this issue in the negative because it is the duty of a trial Court to properly evaluate the evidence before it in making its own findings and the Judgment. SeeMINI-LODGE LTD. & ANOR. VS. NIGEL & ANOR. (2010) 182 LRCN 172 at 176.
In view of the above, learned Appellant’s counsel then urged on this Court to re-evaluate the pieces of evidence of the Appellant and restore the right of the Appellant and his agents through the access road because the order made by the trial Court is offensive to the Appellant and his agents. See OSUJI VS. EKEOCHA.
He then urged the Court to resolve this issue on behalf of the Appellant.
ISSUE NO. 4
“Whether the findings of the trial Court did not amount to allowing the acts of continuing trespass by the Respondents on the land of the Appellant.”
It is the learned Appellants submission that if the evidence of the Appellant’s
9
witnesses were properly evaluated, the Judgment of the trial Court would have been in favour of the Appellant. Vesting of legal title is a matter of law to be deduced from facts and evidence admitted before a Court of law. See EYO VS. ONUOHA & ANOR. (2011) 195 LRCN 38 at 47.
Further, he submitted that the learned trial judge failed to consider the address of the Appellant’s counsel based purely on the misspelling of the word “proved” as “procured” amounts to a technicality which have no place in modern jurisprudence. See AKPAN VS. BOB & ORS. (2011) 193 LRCN 78 at 100. He then urged the Court to resolve this issue in favour of the Appellant.
ISSUE NO.5
“Was the Judgment of the trial Court in this case perverse?”
The decision of the trial Court is perverse he submitted. According to learned Appellant’s counsel, the trial Court in its findings stated that the suit was maliciously brought against the Respondents as the appellant was instigated by his predecessor in title (PW2) since PW2 was jailed in a criminal suit at the instance of the Respondents.
This finding was perverse and occasioned a miscarriage of justice
10
as the trial judge based his Judgment on this issue in giving Judgment to the Respondents. See MINI-LODGE LTD & ANOR. VS. NIGEL & ANOR. (2010) 180 LRCN 172 at 180; OSUJI VS. EKEOCHA (2009) 177 LRCN 134 at 146. This type of findings according to learned counsel is highly speculative as there is no certified criminal record of any Court proceedings in that respect. It is, therefore, perverse. Also the learned trial Court believed that the Appellant was convicted in the main suit and hence his instigating this present one. The 2nd Respondent did not attend Court to testify and yet the trial Court made use of the 2nd Respondent in his evaluation of evidence at the Judgment stage. Even the refusal by the trial Court to consider Issue No. 1 raised by the Appellant counsel in their final written address on mere mis-spelling also amounts to perversity because the trial Court shut its eyes to the argument raised in the address.
All these acts and omission on the part of the Court amounted to perversity and occasioned a miscarriage of justice according to Appellant’s counsel. On the basis of the above learned counsel then urged the Court to resolve this
11
issue in favour of the Appellant and finally to allow the appeal and set aside the Judgment of the lower Court.
On the other hand, the Respondent formulated two issues for determination:
1. Whether from the evidence adduced at the lower Court the Respondent were not entitled to the grant of reliefs claimed in their counter-claim.
2. Whether the learned trial judge from the pleadings and evidence adduced at the trial was not justified in dismissing the Appellant?s case.
Under this issue, learned Respondent counsel stated that the Respondents anchored their ownership and claim of the disputed Access/pathway by purchase of same under native law and custom of Ikot Ekpene (Annang) people. According to him, N550.00 was paid to PW2 and another N20.00 to enable the removal of cassava crops that were planted thereat. Customary gifts were also given to PW2. It was after that Effiong Akpan Udo (PW2) collected sand from the ground of access road and gave it to the 2nd Respondent as a customary traditional sign of sale of the access road outright to the 2nd Respondent. The Respondents he stated have, therefore, proved valid sale of land under
12
customary law. See OKIKE VS. LPDC (2005) ALL FWLR (PT. 274) (2005) 15 NWLR (PT. 949) 472; ODUMADE VS. OGUNAIKE (2011) ALL FWLR (PT. 566) Page 529; MBANEFO VS. AGBU (2014) ALL FWLR (PT. 724) 40.
Therefore, the purported sale of the access/pathway property of the Respondents to the Appellant is a nullity.
The Respondents according to learned counsel had established their ownership of the land in dispute over a sufficient length of time of over 15 years before the purported sale by the PW2 to the Appellant. Also he further buttress their stand, the Respondents? counsel also contended that the Respondent submitted evidence of the identity of the land with certainty by pleading the boundary as could be seen on paragraph 11 of the statement of defence and counter-claim.
The Respondents according to Respondents counsel have discharged the onus placed on them before a grant of declaration of title to the access road granted to them by the trial Court. In view of this, he urged the Court to resolve this issue in their favour.
ISSUE No. 2
1. Whether the learned trial judge from the pleadings and evidence adduced at the trial was not
13
justified in dismissing the Appellants case”.
Learned Respondents ?counsel contended that the finding of fact by the trial judge was based on the credibility of witnesses as the trial Court was in the best position having had the rare opportunity of hearing had the rare opportunity of hearing and watching the demeanor of the witnesses and also the evidence submitted by the Respondents? witnesses.
By so doing, the learned trial judge rightly applied the law to the facts and therefore the contention of the learned counsel to the Appellant that the Judgment of the trial Court was erroneous and occasioned a miscarriage of justice is clearly misconceived and contrary to the clear evidence on the record. On the counter-claim the Respondents pleaded fraud and even gave particulars of same in paragraph 28 of the statement of defence/counter-claim at page 46 of the record of appeal. The Appellant on their part did not discredit the allegation of fraud against him during cross-examination of the Respondents witnesses. The trial Court was therefore right in its finding of facts that PW2 had divested himself on the portion of his land and
14
therefore had nothing there to deliver to the Appellant.
Exhibit A (receipt of payment) of the disputed land did not provide the boundary of the land which is purported to have been alienated by the said Exhibit A to the Appellant.
On the issue of trespass, learned Respondent counsel stated that the Appellants were not in possession but the Respondents and so the claim for possession was rightly dismissed by the trial Court. See ONOVO VS. MBA (2014) 14 NWLR (PT. 1477) 391 at 421. As a result, the trial Court did rightly and effectively examine and evaluate the relevant evidence relating to the trespass complained about. Since the said findings are not perverse nor does it lead to miscarriage of justice, the Court of Appeal has no business to interfere in same. See ENANG VS. ADU (1981) 11-12 SC 25; ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1.
On the basis of the above, he urged the Court to resolve this issue in favour of the Respondent and finally to dismiss the appeal and affirm the decision of the trial Court.
I will commence the resolution of issues as formulated by the parties.
?Appellants issue No.1 is to the effect as
15
whether the Judgment of the High Court of Ikot Ekpene in this case was consistent with the evidence adduced at the hearing of this suit.
This is an action in trespass with a claim for damages and injunction as stated herein before in this Judgment. As a result, title is therefore in issue. See OMOTAYO VS. CO-OPERATIVE SUPPLY ASSOCIATION (2011) 202 LRCN 134 at 146.
In a claim for a declaration of title, the plaintiff must succeed on the strength of his case and not on the weakness of the defendants case. The onus lies on the plaintiff to satisfy the Court on the evidence he adduced that he is entitled to a declaration of title. If the plaintiff fails to discharge the onus, his claim fails and his claims are dismissed. See KODILINYE VS. ODU (1935) 2 WACA 336; ABISI VS. EKWEALOR (1993) 6 NWLR (PT. 302) 42; SALAMI VS. GBODOOLU (1997) 4 NWLR (PT. 449) 377.
Now, title to the land in dispute or its ownership may be proved in any of the following ways:
1. By traditional evidence
2. By production of documents of title which are duly authenticated;
3. By acts of selling, leasing, renting out all or part of the land or farming on
16
it or on a portion of it
4. By acts of long possession and enjoyment of land;
5. By proof of possession of connected and/or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute. See IDUNDUN VS. OKUMAGBA (1976) 9/10 SC 227.
In the instant case on appeal both Appellant and the Respondent traced their title to PW2 (Effiong Akpan Udo). According to the Appellant, he acquired the portion of the land in dispute through sale/purchase to him by PW2 and tendered the receipt of purchase – Exhibit A. According to the contents of Exhibit A, the Appellant bought the whole land including the disputed access road on the 2/1/96 at the cost of N17,000.00. There was also a Deed of Conveyance dated 2/7/96 duly executed.
On the other hand, the Respondents anchored their ownership of the access road by purchase of same from PW2 under native law and custom of Ikot Ekpene (Annang) people but no formal agreement was executed in that respect. The Respondents claim that they paid the same PW2 the sum of N550.00 (Five Hundred and Fifty Naira) Only and
17
further paid N20.00 (Twenty Naira) Only to the PW2 to enable the removal of the cassava crops that were planted there. Also customary gifts were presented to PW2 who thereafter collected sand from the ground of the access road and gave it to the 2nd Respondent as a customary traditional sign of sale of the access road outright to the 2nd Respondent.
The fact that is not in dispute between the Appellant and the Respondents is that both of them claim title to the land in dispute through the same source i.e the PW2. Therefore, where as in this case, the two parties are ad idem that the radical title in the disputed land belongs to an established owner whom they hold as their vendor, unless either party can trace his own title to that of the common vendor, he cannot succeed. See Thomas VS Holder (1946) 12 WACA 78, Awomuti v Salami (1978) 12 SC 135, Lion Buildings Ltd. v Shadipe (1976) 12 SC. 135, Dr Adebo v Saki Estates Ltd & Anor (1999) 7 NWLR (Pt.612) 525, A. Ola Yesufa v Robinson Oluseyi Adama (2002) LPELR – 12162 (CA).
In Agboola V. Abimbola the Supreme burden and standard of proof where the contending parties claim to derive their title
18
from a common source, had this to say:
“To start with, if it is a common ground as indeed it was that the land originally belonged to the Oloto chieftaincy family, then in order to establish title to the land, a party must trace his title to the family. SeeThomas v Preston Holder (1946) 12 WACA 78. There cannot be no doubt whatsoever on the evidence before the Registrar that the Appellant did so clearly by the conveyance Exhibit D extended in his favour by the Oloto Chieftaincy family.
On the other hand, the Respondent (as her predecessor in title) has no conveyance from the Oloto chieftaincy family and indeed except for the purchase receipt Exhibit B. They had no documents whatsoever evidencing any transfer to them of the absolute interest of the Oloto Chieftaincy family.”
Earlier on in the course of this Judgment, I had stated that the Appellant tendered and admitted Exhibit A which is a receipt of payment which accords with one of the five ways of proving title to land. See Idundun v Okumagba (Supra). This is unlike the Respondents who could not produce any document of purchase of same land as claimed by them.
?In the light of the
19
above authority, I hereby resolve issue No. 1 in favour of the appellant and thereby hold that the Judgment of the High Court of Ikot Ekpene in this case was not consistent with the evidence adduced at the hearing of this suit.
On the contention that the trial judge did not give reasons for his Judgment as argued by the Appellant; learned Appellant’s contended that it is not enough for the trial judge merely to say. I believe without any reason to back it up and proceed from them to arrive at a Judgment as per page 2I7 of the records.
The need to give reasons in any decision or Judgment of a Court cannot be over-emphasized. It has been stated in ABACHA VS. FAWEHINMI (2002) FWLR (PT. 4) 568 that the substance of Judgment of a Court is embodied in its RATIO DECIDENDI or ratio(s) in a case, that is, the reason or reasons for the decision(s) as against mere passing remarks. There is, therefore, the need for a Court particularly on whose decision is subject to appeal, to always give reasons why it exercises its discretion in a particular way, if only because every such exercise of its discretion is subject to review. See EKWUNIFE VS. WAYNE WEST
20
AFRICA LTD. (1989) 5 NWLR (PT. 122) 425, (1989) 12 SC 92; WILLIAMS VS. VOLUNTARY FUNDS SOCIETY (1982) 1 – 2 SC 745, It is, thus, a general requirement even for a Tribunal charged with the performance of judicial functions. This becomes more important where appeal lie from its decision to a higher Court or Tribunal. Even without the likelihood of an appeal it makes for open and even handed justice for reasons to be given. To decide without giving reasons leaves room for arbitrariness and leaves the parties to grope in the darkness as to how the decision of the Court or Tribunal is arrived at. If Judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule merely tossing the coin and likely to result in judicial anarchy. See AGBANELO VS. UBA (2000) 7 NWLR (PT. 666) 540.
It was, therefore, wrong in law for the learned trial judge not to have given reasons for his decision. Accordingly, I hereby resolve this issue in favour of the Appellant and against the Respondent.
A look at the Respondents’ side of his evidence reveals lack of credible evidence to the claim of the Appellant. Even though the
21
weakness of the Respondents? case does not enhance the chances of the Appellants appeal but it may be appropriate to consider the weight to attach to his evidence if at all. First is that he purchased the land in dispute under native law and custom of Annang people (Ikot Ekpene) from the PW2 at the cost of N550.00 on the 30/11/1981. Thereafter, he paid N20.00 for clearing the site by removing the cassava crops planted on it.
By way of a humorous remark can the above quoted monetary value sustain the land transaction in dispute when compared to that of the Appellant? The answer in my humble view is obviously in the negative even though we are talking of a pathway.
Significantly, it must be noted that the most crucial aspect of the duty of the Court of first instance in the evaluation of evidence is to determine where the imaginary scale of justice preponderates by the placement of qualitative evidence thereon. In this matter, the learned trial judge did the needful and his decision cannot be impugned. Accordingly, I resolve this issue in favour of the Appellant.
?On issue No. 2 of the Appellant which is whether the failure to
22
pronounce any findings by the trial High Court on the issue of trespass to Plaintiff’s building in the building of the tank-stand by the defendant (Respondent) across the gutter and anchored on the plaintiff’s (Appellants) building has not occasioned a miscarriage of justice?
The general rule which is now settled is that a Court be it first or appellate, has a duty to consider all the issues pleaded before it. Howbeit, where it is of the view that a consideration of one issue is enough to dispose of the matter, the said Court is not under any obligation to consider all the other issues posed by the parties. See7-UP BOTTLING COY LTD VS. ABIOLA & SONS BOTTLING CO. LTD. (2001) 13 NWLR (PT. 730) 469 at 493. Consequently, where a party submits an issue for determination, that Court must make a pronouncement on the issue except where the issue is subsumed in another and where that happens, there shall be no longer be the necessity of making a separate pronouncement on the issue or issues subsumed. See OKONJI VS. NJOKONNA (1992) 7 NWLR (PT. 202) 131 at 146; OGUNDARE & ORS. VS. ALAO (2013) LPELR 21845 (CA).
In the instant case, the crux of the
23
Plaintiff (Appellant) case at the lower Court was that:
—– the sum of N10,000,000.00 (Ten Million Naira) Only being general damages in that on or about the 1st day of February, 2010, the defendants (Respondents) broke and entered into his land lying and situates at No. 11 Umoekabm Road, Ikot Ekpene, within the jurisdiction of this Honorable Court and built a tank-stand there on preparatory to selling of water thereof without the authority, permission or consent of the plaintiff.
This was the principal claim of the Appellant at the lower Court and it cannot be subsumed into other issues in this appeal. Live issues like the one herein before mentioned are the props or fundamentals of a matter of importance deal with relevant issue or issue validly raised by the Appellant in this appeal as per the records. All through the Judgment of the lower Court no mention was made on the issue of trespass to Appellants building in the building of the tank-stand by the Respondents across the gutter and anchored on the Appellant?s building. The failure and/or refusal of the lower trial Court to consider and make pronouncement one way or the other on the
24
plaintiff/Appellant fundamental claim constitute a denial of fair hearing. The omission has therefore, constituted a miscarriage of justice. This issue is, therefore, resolved in favour of the Appellant. SeeISHAYA BAMAIYI VS. THE STATE & ORS. (2001) 1 NWLR (Pt. 715) 270; KOTOYE VS CBN & ORS. (1989) 1 NWLR (PT. 98) 419.
On the issue No. 3 of the Appellant that is:
Whether the trial Court properly evaluated the evidence in the case before restraining the Appellant and his agent from making use of the access road.
This issue is akin to the Respondents? issue No. 2. As such they will all be taken together. An evaluation of evidence, involves the consideration of each set of evidence given by the parties, the determination of the credibility of the respective witnesses and the ascription of probative value to the evidence evaluated. This fundamental principle has long been laid down by the Supreme Court in the case of MOGAJI VS. ODOFIN (1978) 3 – 4 SC 65 at 67 wherein FATAYI-WILLIAMS reading the lead Judgment said:
?”In short before a judge before whom evidence is adduced by the parties before him in a civil cases comes to a
25
decision as to which evidence he believes or accept and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale, he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together He will then see which is heavier not by the number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses.”
This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:
(a) Whether the evidence is admissible;
(b) Whether it is relevant
(c) Whether it is credible;
(d) Whether it is conclusive and;
(e) Whether it is more probable than that given by the other party.
Finally, after involving the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he had accepted per OGUNBIYI JSC in ANEKWE VS. UWEHE (2014) 34 WRN 30 at page 58 –
26
59.
Learned Respondents’ counsel urged this Court not to address the issue of evaluation of fact as prayed by the Appellant as this is the exclusive preserve of the trial Court to do. He placed reliance onAWODI VS. AJAGBA (2015) 3 NWLR (PT. 1447) 578 at 612 where the Supreme Court stated that:
“When an Appeal Court addresses questions of facts, it should accord high regard to the findings of the trial Court, since that Court saw the witnesses, was able to access them and made findings on demeanor which Appeal Court cannot easily dislodge, so, the Supreme Court should not substitute its own opinion of evidence for that of the lower Court?. See also INEC & ANOR. VS. ONYIMBARE. C. RAY & ANOR. (2014) 14 NWLR (PT. 892) 92.
It is not in doubt that the evaluation of evidence is the primary duty of the trial Court as submitted by the Appellant.
The Appellant’s contention is that even when the Appellant stated that the building of tank-stand was executed by the Respondent in 2010 while the act of trespass on the access road has been a continuous one, the learned trial judge failed to make proper evaluation on this very crucial aspect
27
of the Appellants relief and claim. This has consequently occasioned, a miscarriage of justice and
I hereby resolve this issue in favour of the Appellant.
On issue No. 4 which is whether the findings of the trial Court did not amount to allowing the acts of continuing trespass by the defendants/Respondents on the land of the plaintiff/appellant this issue has been elaborately considered under issue No. 3 hereinbefore stated since this issue is subsumed in issue No. 3 as stated above, there is therefore no need to make any separate pronouncement than to adopt my reasoning and conclusion thereat. See OKONJI VS. NJOKONNA (1991) 7 NWLR (PT. 202) 731; OGUNDARE & ORS. VS. ALAO (2013) LPELR – 21845 (CA).
Accordingly, I hereby resolve this issue in favour of the Appellants.
Issue No. 5 is:
“Whether the Judgment of the trial Court in this case is perverse”.
A perverse decision of a Court can arise in several ways:
(a) It could be because the Court ignored the facts or evidence or;
(b) That it misconceived the thrust of the case presented or;
(c) Took irrelevant matters into account which substantially formed the
28
basis of its decision or;
(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case or;
(e) Committed various errors that faulted the case beyond redemption.
The hallmark is invariably, in all this, a miscarriage of justice and the decision must be set aside on appeal. See ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 360; ADIMORA VS. AJUFO (1983) 3 NWLR (PT. 80) 1; AGBOMEJI v. BAKARE (1998) 7 SC (PT. 1) 10, (1998) 9 NWLR (PT. 564) 1; ODIBA VS. AZEGE (1998) 7 SC (PT. 1) 79, (1998) 9 NWLR (PT. 566) 370.
The main thrust of the Appellant’s ground of appeal is the issue of trespass to the Appellant’s building in the tank-stand by the Respondents across the gutter and anchored on the Appellants building, this issue as fundamental as it is/was not considered or a pronouncement made on it by the trial Court. No evaluation of evidence on this issue was carried out by the trial judge. It is the duty of a trial judge to evaluate the evidence and to make primary findings of fact. This duty unless it is shown not to have been done according to well laid down principles of law, an Appeal Court cannot
29
interfere with such findings. See ORIRI & ORS. VS. ESERORAYE & ANOR. (1991) LPELR – 1536 (SC).
The inability or refusal of the trial Court to make pronouncement on the vital issue of the tank-stand that anchored on the Appellant’s building has occasioned a miscarriage of justice to the 2nd Respondent.
Also, from the record, he did not attend Court to give evidence even though he made a statement on oath. Nonetheless the trial Court made use of his sworn deposition on oath in arriving at its decision against the Appellant. The said sworn deposition of 2nd defendant ought not to have been considered meritoriously as was done by the trial Court. This is so because it is not really an evidence before the Court. Averments in pleadings unless where admitted by the opposite party must be established or proved by evidence, failing which as in this case, must be discountenanced as unsubstantial. There is no way such sworn deposition on oath can be construed as evidence. See the case of ODUNSI VS. BAMGBALA (1995) 1 NWLR (PT. 374) 641 per Ogwuegbu JSC.
At page 210 of the record of appeal, the trial Court with respect went into a voyage of his own on
30
the BLACKS LAW DICTIONARY meaning of “PROCURE” instead of “PROVED” as contemplated by Appellant’s counsel in his brief of argument. As a result of the printer’s error, the trial judge refused to consider all the argument and submissions of the Appellant counsel in his brief of argument. This is a clear case where the trial judge took irrelevant matters into account which substantially formed the basis of its decision. See ODUNSI VS. BAMGBALA (supra).
Failure of the trial judge to consider the above mentioned instances of the Appellant’s counsel submission before giving Judgment in favour of the Respondent amounted to a miscarriage of justice otherwise, Judgment could have been in favour of the Appellant. SeeMINI-LODGE LTD. & ANOR. VS. NIGEL & ANOR. (2010) 182 LRCN 172 at 180; OSUJI VS. EKEOCHA (2009) 177 LRCN 134 at 146.
In conclusion therefore, I hereby resolve this issue No. 5 in favour of the Appellant and against the Respondents.
Having resolved all the issues for determination against the Respondent, I hold that the appeal is highly meritorious and it is hereby allowed. The Judgment of the lower Court is set aside inclusive of
31
the counter-claim. I assess and fix cost at N50,000.00 in favour of the Appellants.
Appeal allowed.
Other Citations: (2016)LCN/8898(CA)
