Ressel L. Y. Dakolo & Ors. V. Gregory Rewane-dakolo & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

Suits No.W/135/94 and No.W/163/94 were ordered consolidated by the learned trial Judge. The 1st, 2nd and 3rd respondents, as plaintiffs suing in a representative capacity claimed against the appellants’ as defendants for:

1. A declaration that No. 1 Robert Road, Warri and No. 45 Warri/Sapele Road, Warri are the bonafide property of Late Madam Edomi Ogbe.
2. A declaration that the plaintiffs’ being the surviving children of late Madam Edomi Ogbe whose parents administered the properties before the death of the last of them in 1992 are entitled to letters of Administration of the properties.
3. An order against the 4th defendant revoking the Letters of Administration granted by the 4th defendant to the 1st, 2nd 3rd defendants on or about 7th of February, 1994 in respect of the said properties.
4. An order against the 4th defendant to cause to be issued Letter of Administration to the plaintiffs in respect of the properties at No.1 Robert Road, Warri and No. 45 Warri/Sapele Road, Warri.
5. An order of perpetual injunction against the 1st to 3rd defendants, from applying for Letters of Administration in respect of the said properties and against the 4th defendant, its servants, privies or agents from issuing letters of Administration to the 1st to 3rd defendants their servants, privies or agents, heirs or successors-in-title.

The defendants in the consolidated suits suing as Administrators of the personal and real estate of Solomon Dakolo claimed as follows:

1. A declaration that the property situate at and known as No. 1 Robert Road, Warri otherwise referred to as 9, Warri/Sapele Road and after renumbering of streets referred to as 45 Warri/Sapale Road, Warri is part of the estate of Solomon Dakolo, deceased, who died on 31st December, 1954 and does not form part of any estate called Edomi Ogbe Estate.
2. A declaration that the defendants appointment of Ben Akporiaye as estate agent and the purported vesting in him of the power to manage the property known as No.1 Robert Road otherwise or sometimes referred to either as 9 or 45, Warri/Sapele Road, Warri without the consent of the plaintiffs is wrongful, null and void.
3. A declaration that having regard to the fact that the property known as No. 1 Robert Road Warri, did not at any time belong to Edomi Ogbe nor does same form part of Edomi Ogbe’s Estate upon which the defendants grounded their claim/authority, the defendants appointment of Dr. G. I. Emiko as the legal representatives in respect of the above named property is wrongful, null, void and deceptive.
4. An order compelling each of the defendants to account for rents or money collected throught the instrumentality of Ben Akporiaye or their agent, Warri otherwise referred to as 9 or 45 Warri/Sapele Road and pay some over to the plaintiffs.
5. An order for a perpetual injunction restraining agents, or all servants from demanding and/or collecting rents any tenant/occupants of the premises known as No. 1 Robert Road, Warri otherwise referred to either as 9 or 45 Warri/Sapele Road, Warri and from interfering or medling in any manner howsoever with the management of the said property without the consent or permission of the plaintiffs.

For clarity the respondents were plaintiffs in suit No.W/135/94 while the appellants were plaintiffs in Suit No.W163/94. After consolidation; the respondents remained as plaintiffs while the appellants in suit No.W/163/94 became the defendants. The Probate Registrar of the High Court of Justice, Delta State was the 4th defendant. Trial was at the High Court of Delta State. In Warri, Akpiroroh J (as he then was) presided. Six witnesses gave evidence for the defendants. Documents were admitted as exhibits. The Plaintiffs relied on traditional evidence to prove that they own the property while the defendants relied on acts of ownership. The learned trial judge was satisfied with the plaintiffs’ evidence and entered judgment in favour of the plaintiffs. The claims of the defendants’ were dismissed. Dissatisfied, the defendants’ lodged an appeal in the Court of Appeal, Benin Division. That court agreed with the judgment of the learned trial judge and in the concluding paragraph of the judgment said:

“in the result having regards to the aforesaid, I hold the view that this appeal lacks merit and it is hereby dismissed. The judgment of the learned trial Judge, Akpiroroh, J (as he then was) delivered on 7/8/98 is therefore affirmed by me…,”

This appeal is against that judgment. In accordance with Order 6 Rule 5 of the Supreme Court Rules briefs of argument were filed and exchanged by counsel. Learned counsel for the appellant filed an appellant’s brief and a Reply brief on 27/9/06, and 5/11/09 respectively. Learned counsel for the respondents filed a respondent’s brief on 9/10/09. Incorporated in the respondents brief are arguments on a Preliminary objection. This is now accepted practice, as it obviates the necessity of filing a separate Notice of Preliminary objection. This practice makes it possible for the judge to determine the preliminary objection with the appeal, thereby saving time. In the appellants briefs three issues are distilled from five grounds of appeal. They are:

1. Whether the Court of Appeal was right in holding that the issue of estoppel was adequately dealt with and could not be considered,
2. Whether the 1st – 3rd respondents rather than the appellants proved their case for title and thus entitled to judgments.
3. Whether or not the court of Appeal made a correct approach to the appellants’ case having regard to the state of the Law, the treatment given to the issue for determination, grounds of appeal, the law and the approach adopted.

On his part, learned counsel for the 1st-3rd respondents formulated two issues for determination.

1. Whether the court below was right when it adopted and considered the sole issue for determination formulated by the appellants and struck out the other grounds of Appeal from which no issues were formulated.
2. Whether the court below was right when it affirmed the judgment of the trial court based on the sole issue for determination submitted to it by the appellants.

Preliminary Objection

Learned counsel for the appellants’ filed five grounds of appeal from which three issues were distilled for determination of this appeal.

His objection is that Grounds 2, 3, 4 and 5 and issues 1, 2, and 3 are incompetent and should be struck out.

I have examined in detail the grounds of appeal and the issues, and considered submissions of counsel on the preliminary objection. I find the grounds of appeal to be inelegantly drafted and prolix in the extreme, but anyway one looks at it the substance of the appellants’ grievance appears obvious. In effect the appellants’ are not satisfied with concurrent findings of fact by the courts below. In the circumstances I shall adopt the three issues formulated by the appellants’ learned counsel for determination of this appeal. At the hearing of the appeal on the 5th of April 2011 learned counsel for the appellant adopted his briefs and urged the court to allow the appeal. Learned counsel urged the court to uphold the preliminary objection and dismiss the appeal as incompetent. Learned counsel for the appellant urged the court to dismiss the preliminary objection.

The Facts

The original owner of No. 1 Robert Road, Warri is Chief Ogbe Yonwuren. One of his chirdren is Madam Edomi Ogbe. After her first marriage to one Mr. Weeks, she Married Mr. Solomon Benson Henry Dakolo. The appellants are the children of Solomon Benson Dakolo, while the respondents are children of Ayo Glasone Yon-Dakolo, a son of Madam Edomi Ogbe. The respondents are plaintiffs, by traditional evidence satisfied the learned trial Judge that the original owner gave No. 1 Robert Road, as a gift to his daughter, and they as her grandchildren are entitled to Letters of Administration of the property in the absence of their parents who are dead. The Court of Appeal agreed with the findings of the learned trial Judge and dismissed the appeal.

Issue 1:

Whether the Court of Appeal was right in holding that the issue of estoppel was adequately dealt with and could not be considered.

Learned counsel for the appellant observed that the respondents are estopped from contesting title to No. 1 Robert Road, Warri with the appellants in view of the judgments in Suits Nos. W/108/94 – Exhibit K, SC.209/1972 – Exhibit L. Reliance was placed on Section 151 of the evidence Act. Reliance was placed on Osunrinde v. Ajamogun (1972) 7SCNJ (Pt.1) pg.106

Learned counsel for the respondent observed that the issue of estoppel was dealt with by the High court, contending that is cannot be raised in this court without leave of this court, contending that the appellants’ argument on this point is incompetent and liable to be struck out. Reliance was placed on Shittu v. Fashawe (2005) All FWLR Pt.278 pg.1017

In the court of Appeal seven grounds of Appear were filed but only one issue was formulated for consideration by the court. It was the omnibus issue. That explains why the court of Appeal had this to say on the issue of Estoppel.

“I do not find it necessary to deal with the issue of estoppel which has been adequately(sic) with by the learned trial judge in his judgment. In any event, the issue of estoppel cannot in fact be considered under the appellants’ sole issues for determination”.

I am in complete agreement with the findings of the Court of Appeal, but I earlier commented on the inelegant state of the appellants’ Notice of Appeal and the justice in the matter demands I address this issue on Estoppel.

The well laid down position of the law is that where a judgment is final, and on the merits, and delivered by a court of competent jurisdiction over the parties and the subject matter, any party in such suit as against any other party is estopped in a subsequent suit from disputing such decision on the merits. Once the decision is final on the same question and between the same parties it is binding until upset on appeal.

Where a party sets up res judicata by way of estoppel as a bar to the other parties claim, the following must be established.

(a) There must be a judicial decision;

(b) The court that delivered the decision must have had jurisdiction over the parties and the subject matter;

(c) The decision must be final and on the merits;

(d) The decision must determine the same question as that raised in the later litigation, and

(e) The parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.

Res judicata estoppel is necessary to ensure the conclusiveness of judicial decisions and that individuals ought to be protected from vexations and multiplicity of Suits. See:

Odievivedie v Echanokpe 1987 1NWLR pt 52 p633

Okpuruwu v Okpokam 1988 4NWLR pt 90 p554

Udo v Obot 1989 1NWLR pt 95 p59

My lords, in suit No:W/108/94- Exhibit K. The claim was for recovery of possession, Mesne profit and Perpetual Injunction. Suit No: SC.209/1972 is the judgment from the appeal in Exhibit K.

The parties and subject matter in Exhibits K and L are not the same as in this suit.

In Exhibit K the claim in the main was for Recovery of possession, while in this case it is for Title, to determine the true owner of the property. A claim for possession is separate and distinct from a claim for title. A person in possession, or entitled to possession is not necessarily the owner of the property.

Accordingly, Exhibits K and L do not operate as estoppel as the decision in those suits did not decide the same question as the question in this appeal. Furthermore, the parties are different.

ISSUE 2

Whether the 1st- 3rd respondents rather than the appellants proved their case for title and thus entitled to judgment.

The 1st – 3rd respondents, as plaintiffs’ claimed that the landed property now known as No.1 Robert Road, Warri and referred to as No.45 Warri/Sapele Road was given to their late grandmother, Late Madam Edomi Ogbe during her life time by her father, Late Chief Ogbe Yonwuren, who owed vast land along Warri/Sapele Road including the said No.1 Robert Road. It is their case that being the surviving grandchildren of Late Madam Edomi Ogbe, in the absence of their deceased parents who administered the property before their death are entitled to Letters of Administration of the property. On the other hand, the appellants as defendants’ case is that the property in dispute did not belong to Madam Edomi Ogbe, but that it formed part of the area known as Ogbe-Ijaw, then owed by Ijaws, and that following the acquisition of the area by the Government of Nigeria, the Government granted leases, and that on 15/5/1930 the Government of Nigeria granted Lease of the property in dispute to Solomon Benson Henry Dakolo the father of the defendants/appellants’.

In all cases on land the first task is to identify the land or property in dispute. Where the identity of the land is in dispute it is resolved by each side producing Survey plans supported by credible evidence to satisfy the court of the land or property in issue. But where the land or property is well known to both sides the need no longer arises. In this case the identity of the property is not in issue. It is clear that No.1 Robert Road and No.45 Warri/Sapele Road is the same property as No.1 Robert Road, called No.45 Warri/Sapele Road.

In proof of Title to the property the respondents relied on Traditional evidence while the appellants’ relied on evidence of acts of ownership. In his submissions learned counsel for the appellants’ observed that both the court below and the trial court were in error to hold that the 1st – 3rd respondents proved their case for title and are thus entitled to judgment. He argued that the traditional history relied on by the respondents’ did not satisfy the condition laid for its acceptance. Reliance was placed on Anabaronye v Nwakaihie 1997 1 SCNJ p.161.

Learned counsel argued that Exhibit D was authentic notwithstanding the alteration on it since there is no reliable evidence as to the time when the alteration complained of was made, contending that the findings of both courts below on Exhibit D ought to be set aside.

He further argued that the respondents were unable to lead credible evidence of acts of ownership and possession. Concluding, he submitted that it was the appellants’ rather than the 1st – 3rd respondents’ that proved their case for title.

Learned counsel for the respondents argued that the findings of fact made by the trial court and affirmed by the Court of Appeal become concurrent findings of fact which this court will not lightly interfere with, contending that finding of a judge based on facts will not be interfered with unless the findings are perverse. Reliance was placed on:

Nwokorobia v. Nwogu 2009 ALL FWLR pt. 476 pg.1868

He submitted that since learned counsel for the appellants’ failed to show that any of the findings of the learned trial Judge was perverse there was nothing upon which the specific finding of fact could be disturbed by the Court of Appeal. Concluding he observed that there is nothing to warrant this court to interfere with the concurrent findings of the two courts below.

There are five ways in which ownership/title to land may be proved.

They are:

1. Proof of traditional evidence;
2. Proof of acts of ownership, acts by persons claiming the land such as selling, leasing, renting out all or part of the land, or farming on it or otherwise utilising the land beneficially such acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that he is the true owner;
3. Proof by production of document of title which must be authenticated;
4. Proof of ownership by acts of long possession and enjoyment in respect of the land to which the acts are done;
5. Proof of possession of connected or adjacent land, circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute, may rank also as means of proving ownership of the land in dispute. See:

Amajideogu v Ononaku 1988 2 NWLR pt.78 p.616

Piazo v Tenalo 1976 12 SC p31

Idundun v. Okumagba 1976 9 – 10 SC p224

Omoregie v. Idugiemwanye 1985 2 NWLR Pt.5 p.41

In proof of title to the property in dispute the respondents (1st – 3rd) relied on Traditional evidence or history.

Now, History is all about evaluating belief on the basis of credibility. Declaration of title to land is granted at the discretion of the trial judge after hearing both sides, and to succeed a plaintiff must show how the land devolved and eventually came to be owned by him. This is done by the plaintiff narrating a continuous chain of devolution which is tested by cross-examination. On conclusion of oral testimony the trial judge is to decide which of the two are telling the truth and proceed to grant a declaration of title to the side that he is impressed with.

The plaintiff succeeds on the strength of his case and not on the weakness of the defendants’ case. See:

Kodilinye v. Mbanefo Odu 2WACA p336.It is only where there is conflict in traditional history that the approach to resolve the issue spelt out in:

Kojo the II v. Bonsie & Anor 1957 2WLR p.1223 applies.

The respondents’ relied on the fact that the property in dispute was a gift by their grand mother’s father, Chief Ogbe Yowuren, to her Madam Edomi Ogbe as their root of title, while the appellants’ relied on Exhibit D the lease granted to their father by the Government of Nigeria on 15/5/1930. The learned trial judge examined Exhibit D and observed as follows:

“A look at plan A attached to Exhibit D shows the name of Edomi on top of it cancelled and the name Solomon Dakolo is written on top of it. Equally a look at plan B attached to Exhibit D also shows the name of Miller Brothers on top of it erased and cancelled and the name of Solomon Dakolo is written on top of it”

After reviewing the testimony on oath of PW5 and PW6, A Deeds Registrar in the Lands Registry Asaba, and a Chief Surveyor, the learned trial Judge concluded thus:

“…The unchallenged evidence of PW5 and PW6 which I accept and believe shows clearly that plans A and B in Exhibit D were tampered with and therefore are not only questionable and unauthentic but fraudulent …I find as a fact …that it was the father of the defendants (appellants’) who altered Plans A and B attached to Exhibit D and inserted his name on them.

To further support his finding the learned trial judge observed that:

“The name Edomi is shown on the plan attached to Exhibit B which is the original name with which the survey plan was produced and signed by the Surveyor General at that time. This also goes to show that Madam Edomi was in possession of the land at the time Exhibit B was made otherwise her name could have Not appeared on it…”

the learned trial Judge believe the traditional history/evidence of the respondents (1st, 2nd and 3rd), that the property in dispute was given to Madam Edomi Ogbe as a gift by her father, Chief Ogbe Yowunren, and she had been in physical possession several years before 1930. The respondents thus proved title by traditional history. After examining evidence the Court of Appeal quite rightly in my view agreed with the learned trial Judge. That court said:

“I have perused the record and from the evidence adduced by the respondents as plaintiffs, relevant portions of which have been reproduced in this judgment. I am satisfied that the learned trial Judge fully appraised and gave probative value to the relevant evidence before making his findings and coming to the conclusion which he reached”.

A lease agreement looses its authenticity once altered. Where a lease agreement or/and its attachments are altered or tampered with the presumption of regularity can no longer be ascribed to it. Such a document is no longer authentic. With the alterations on Exhibit D, the case of the appellants’ crumbles. On the other hand the consistent testimony of the respondents witnesses tracing root of title and a short chain of devolution remains unassailable for all times. Concurrent findings of the courts below are correct.

Unchallenged evidence shows that when Solomon Benson Henry Dakolo married Madam Edomi (the grandmother of the respondents) he lived with her in her house. He survived her, so it was easy for him to alter Exhibit D, thereby claiming his dead wife’s property. Findings of fact by the trial court, which have been confirmed by the Court of Appeal, would not be upset by this court except the findings are perverse or were not supported by credible evidence, or there is/was miscarriage of justice or violation of procedure or neglect of some principle of law. See:

Balogun v. Adejobi 1995 2 NWLR pt.376 pg.131

Iroegbu v. Okwordu 1990 6 NWLR pt.159 pg.643

Onifade v. Olayiwola 1990 7 NWLR pt.161 pg.130

The following findings of facts made by the learned trial judge were confirmed by the Court of Appeal.

1. The land in dispute was owned by Chief Ogbe Yonwuren. He gave it to his daughter, Madam Edomi Ogbe, (as a gift) the grandmother of the 1st – 3rd respondents.
2. The father of the appellants’, Solomon Dakolo in an attempt to convert/claim the land as his own fraudulently altered survey plans Exhibit A and B attached to Exhibit D.
3. Madam Edomi Ogbe (deceased) built structures on the land and had been in possession prior to 1930 when exhibit D was executed.

These findings are not perverse, rather they are the truth, and the Court of Appeal was correct to confirm them. In the circumstances concurrent findings of fact by the courts below are unassailable.

ISSUE 3.

Whether or not the Court of Appeal made a correct approach to the appellants’ case having regard to the state of the Law, the treatment given to the issue for determination, grounds of appeal, the Law and the approach adopted.

Learned counsel for the appellants observed that the Court of Appeal did not properly consider the appellants case before affirming the decision of the learned trial Judge, contending that the Court of Appeal was wrong to strike out all but one of the seven grounds of appeal, thereby failing to consider the arguments considered in the appellant’s brief. He urged this court to consider all points canvassed in the appellants brief and find in favour of the appellants. Reliance was placed on:

lbrahim v Mohammed 2003 6 NWLR Pt.817 p.615

Agbo v State 2006 6 NWLR Pt.977 p.545.

Learned counsel for the respondents observed that the Court below was right when it heard the appeal based on the sole issue formulated by the appellant and struck out the other grounds of appeal from which no issues were raised as abandoned. Reliance was placed on:

Aigbobachi v Aifuwa 2006 ALL FWLR pt.303 p.202

In the Court of Appeal, the appellants filed seven grounds of Appeal, and only one issue was formulated by the appellants for determination. It reads:

Whether the learned trial Judge was right in entering judgment in favour of the 1st – 3rd respondents having regard to the facts and legal issues placed before him and the approach adopted by him.

This issue is formulated from the omnibus ground which reads:

“Judgment is against the weight of evidence”

where no issue is formulated in respect of ground/s of appeal, the ground/s of appeal from which no issue was formulated are deemed abandoned and ought to be struck out by the Court of Appeal. In this case the Court of Appeal was correct to strike out grounds 2 – 7, since they were abandoned by the appellants. See:

Western Steel Works v Iron and Steel Workers Union 1987 1 NWLR Pt.49 p.304

Nduwe v Okocha 1992 7 NWLR Pt.252 p.131

Obasi v Onwuka 1987 3 NWLR Pt.61 p.369

Appeals are argued on issues and not on grounds of appeal. Respondents’ brief before the Court of Appeal was thus faulty, and it is not the business of that Court to make a case for the appellants. The Court of Appeal was correct not to consider arguments in the brief that were not from any issue. See:

Ibrahim v. J.S.C Kaduna State 1998 12 SC p.20

P. Obiorah v. P. Osele 1989 1 SC Pt.11 p.60

The approach adopted by the Court of Appeal and its findings are correct. I find no substance in this appeal. It is hereby dismissed. Parties to bear their own costs.

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SC.169/2004