S. O. Okonkwo & Anor V. Obi T.n. Adigwu (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

In the Asaba Judicial Division of the High Court of Bendel State, the respondent in this appeal (who had since died but substituted by the Order of the Court of Appeal by his son, Felix Aninye Adigwu) as plaintiff, instituted an action against the appellants, claiming:

“(a) Declaration that the plaintiff is the owner of a parcel of land situated at Umuojife land Asaba which piece or parcel of land shall be particularly delineated in a plan to be filed later. Annual value of the land is N20.00 (Twenty Naira);

(b) N800.00 (Eight hundred Naira) damages for trespass in that on or about the 14th day of August, 1974, the defendants and/or their servants and agents broke and entered the piece or parcel of land of the plaintiff without permission or consent of the plaintiff (c) Injunction restraining the defendants, their servants and/or agents from further acts of trespass on the said piece or parcel of land.”

A plan of the land in dispute was filed by the plaintiff along with his statement of claim. It is plan No. PO/MN3/74 which is Exhibit ‘A’. In the course of trial, however, it became plain that in fact there was no dispute regarding the piece of land marked A in the plan and the plaintiff’s claim with regard to that piece of land was accordingly withdrawn.

The respondent’s case was that in 1957, he bought the parcel of land marked ‘B’ in exhibit ‘A’ from the 2nd appellant for the sum of pounds 135; that In the presence of some witnesses, he paid the purchase price for which a receipt (exhibit ‘E’) was issued by the 2nd appellant, and that an agreement (exhibit ‘C’) evidencing the transaction between him and the 2nd appellant was also executed. It was also his case that immediately after the transaction he took possession of the said land and remained in possession up to August, 1974 when the 1st appellant, who claimed to have bought the same parcel of land from the 2nd appellant, went on the land and committed the acts of trespass complained of. The defence of the 1st appellant was that he bought the land in dispute from the 2nd appellant in 1974 for the sum of N520.00 and that a Deed of Conveyance, which is exhibit G, was executed in his favour by the 2nd appellant. He said that he did not know that the same land had been sold to the respondent.

The 2nd appellant admitted that in 1957 he sold a parcel of land to the respondent. He, however, maintained that the land he sold to the respondent was different from the one the respondent claimed he had bought from him. He said that the land he sold to the respondent was situated along Abuta road and not along the Asaba-Benin road (now called Nnebisi road) as claimed by the respondent.

At the hearing of the case, both parties testified and called witnesses to prove the averments made in their respective pleadings. In a well considered judgment, the learned judge, Ogbobine, J. came to the conclusion that on the evidence before him, the respondent had proved his case and so judgment was given in his favour.

Being aggrieved by the decision of the trial court, the appellants appealed against the decision to the Court of Appeal on diverse grounds, both law and facts, but as no substance was found in any of the grounds argued, their appeal was dismissed and the decision of the trial court upheld. Still not satisfied, they have appealed further to this Court on four grounds of appeal.

The first ground of appeal reads as follows:

“Misdirection: The learned Justices of the Federal Court of Appeal misdirected themselves in fact and in law by holding that when the trial judge indicated that he would further inspect the locus but the record of proceedings did not show whether or not he did so, the presumption in law must be that he deemed the further inspection unnecessary.”

As particulars of the misdirection in this ground of appeal, reference was made to a passage in the judgment of the court below to the effect that the trial judge must have been satisfied with the evidence before him regarding the exact location of the land in dispute and that was why, he, the trial judge, abandoned the idea of revisiting the locus.

The main submission in this ground of appeal was that the learned trial judge was not satisfied with the evidence before him regarding the identity of the land in dispute and that was why he proposed a further visit to the locus.

Now the question is: were the Justices of the Court below right in their view that there was evidence which satisfied the learned trial judge with regard to the location of the land in dispute, which made it unnecessary for the trial judge to revisit the locus

In his judgment, the learned trial judge, having set out the contents of exhibit ‘C’, which the 2nd appellant admitted was executed in favour of the respondent, and also those of exhibit ‘E’, which was the receipt issued by the 2nd appellant to the respondent, said as follows:-

“Both parties have admitted before me and I wholly accept their evidence that the road previously known as Asaba- Benin Road is now called Nnebisi Road, and exhibits ‘C’ and ‘E’ show that the disputed land abut that road, even if the word, ‘abuts’ was not so expressed in those documents. They however showed that Asaba-Benin (now Nnebisi) Road forms one of the boundaries of the land. This was what the plaintiff showed during my visit to the land on inspection.

But exhibits ‘C’ and ‘E’ do not support the evidence of 2nd defendant and that of his only witness, Christopher Odita that the land measuring 100ft by 300ft sold by 2nd defendant to the plaintiff was situated on Abuta road. I accept the evidence of plaintiff and that of Mr. Lawrence Nkaka (3rd P.W.) that the disputed parcel of land is bounded by the properties of 2nd defendant and Mr. Chipi.”

In my view the above quoted passage of the judgment of the learned trial judge shows clearly that, on the evidence before him, he had no doubt as to the identity and the location of the parcel of land sold by the 2nd appellant to the respondent in 1957. It was clearly that parcel of land which was fully described in exhibits ‘C’ and ‘E’ and which was shown to him by the respondent on his visit to the locus.

In any case, the issues of the identity of the land in dispute and its location which have been raised in this ground of appeal are primarily issues of fact which had been resolved in favour of the respondent by both the High Court and the Court of Appeal indicating obvious errors in the concurrent findings of fact by two lower Courts. The Supreme Court will not, in the absence of special circumstances courts, allow such an issue of fact to be re-opened. See Mogo Chinwendu v. Nwanegbo Mbamali & Anor. (1980) 3/4 SC. 31 at 75; Lamai v. Orbih (1980) 5-7 SC. 28; Victor Woluchem v. Simon Gudi (1981) 5 SC. 319 at 326-330.

This court will not, in this case, interfere with the concurrent findings of fact of the two lower courts as no special circumstances have been shown to justify our doing so. This ground of appeal therefore fails.

The second ground of appeal reads as follows:

“The learned Justices of the Federal Court of Appeal misdirected themselves in law when they held that the plaintiff’s claim in respect of parcel’ A’ was properly withdrawn in accordance with Order 28 of the High Court (Civil Procedure) Rules of Bendel State.”

There are in fact two complaints in this ground of appeal. The first is that the plaintiff’s claim in respect of parcel’ A’ in exhibit’ A’ was not properly withdrawn.

With regard to this complaint, it is pertinent to observe that it was in fact the appellants’ counsel at the commencement of his address, at the end of the case, that made an observation which possibly prompted the respondent’s counsel to apply to withdraw that part of his claim, when the appellants’ counsel said:-

“With regard to parcel ‘A’ there is no trouble as the plaintiff admits he has built part of it. The trouble is with Area ‘B’. The defendants do not dispute the area marked ‘A’ with the plaintiff.” Following this observation by appellants’ counsel in respect of parcel ‘A’ respondent’s Counsel in his reply, applied to withdrawal respondent’s claim in respect of that parcel of land. It should also be noted that no objection was raised by the other party to the respondent’s counsel’s application. With regard to this complaint I am in entire agreement with the ruling of the learned Justices of the Court of Appeal that the withdrawal of the respondent’s claim in respect of parcel ‘A’ was in compliance with Rule 1(2) of Order 28 of the High Court (Civil Procedure) Rules Cap. 65, Laws of Bendel State. I see no merit in the complaint.

The second complaint in the same ground of appeal is the alleged failure of the learned trial judge to consider, in his judgment in respect of parcel ‘B’, the evidence adduced in support of the claim of parcel’ A’ , which had been properly withdrawn by the respondent.

I do not see how the learned trial judge could properly take into account the evidence adduced in support of the sale of parcel’ A’ by the 2nd appellant to the respondent in 1959, when dealing with the transaction between the same parties in respect of parcel ‘B’ in 1957, as both transactions, though similar in nature, but were in fact, separate and distinct transactions. This ground also fails and is dismissed.

In the third ground of appeal, the appellants’ complaint was that the record of ‘Proceedings in suit No. A/6/64, which was sought to be tendered, was wrongly rejected.

In the trial court, as earlier stated, while the 2nd appellant admitted that in 1957 he sold a piece of land to the respondent, it was his contention that that parcel of land was not the one situated along the old Asaba-Benin road as claimed by the respondent. It was his case that the parcel of land he sold to the respondent was part of a piece of land which was the subject of a dispute in suit No. A/6/64 between him and the respondent’s people. This was pleaded in paragraph 5A of the Amended Statement of Defence as follows:-

“The 2nd defendant further avers that the piece of land he sold to Plaintiff forms part of the land the subject matter of dispute in Suit A/6/64 between the 2nd Defendant and Plaintiff’s people now pending judgment since 1st August, 1957.”

The record shows that when the respondent gave evidence at the trial, he was cross-examined on some matters which would appear to be related to suit No.A/6/64. The respondent answered as follows:-

“I am a member of Umudasiafor family. I know Obi Onyebushi who is also from Umudasiafor. Both Obi Awolu and Obi Onwuka also belong to the same family. The 2nd defendant sued four of us in 1964although my name was wrongly described in the summons. He served in (sic) with a survey plan in that case, but the land was different from the one in dispute. It was not shown in that plan that I was given a plot measuring’ 100ft by 200ft. I did not tell the court in that case that I bought land from 2nd defendant and did not give evidence before that court.” It should be noted that throughout his cross-examination the respondent was never confronted with the record of proceedings in suit A/6/64, as he should have been, if the purpose of the cross-examination on the point was to challenge his credibility.

In his own testimony, the 2nd appellant said that when the respondent’s people started to share the area of land measuring 100ft by 300ft which he had sold to him along Abuta road, he sued the respondent and his people in 1964 in suit No. N6/64 and judgment in the case was adjourned sine die. The record shows that at that stage of the proceedings, Mr. Oji for the appellants applied to tender a certified true copy of the record in suit No.A/6/64, saying that when he cross-examined the respondent on the matter, he (the respondent) had denied ever giving evidence in the case. The application was vehemently opposed by Mr. Odita for the respondent on the ground that the document should have been tendered when the respondent was being cross-examined and not after he had closed his case. In his ruling, the learned trial judge upheld the objection.

Now in his brief of argument, the point made by learned counsel for the appellants was that since the respondent had denied ever giving evidence in suit No.A/6/64, if the record of proceedings in the suit sought to be tendered had been admitted, respondent’s evidence relating to the exact location of the land in dispute would have been discredited.

The point to decide therefore, is whether in the circumstances of this case the trial court was right in refusing to admit the record of proceedings in suit No. N6/64 when it was tendered.

In his ruling on the admissibility of the record of proceedings in suit No.A/6/64, the learned trial judge stated as follows:-

“On a careful consideration of the facts raised on the objection, I agree with Mr. Oji that the evidence of the plaintiff in the 1964 case could not have been pleaded. The evidence in a previous proceeding can only be useful for the purpose of cross-examining witness as to his credibility if that witness had given evidence in a previous proceeding. That can only be done when the witness is giving evidence and it is only then too that he can have an opportunity to explain any issue in the entire evidence or even to deny ever giving such evidence.

The defence counsel did not use the opportunity when plaintiff was giving evidence to confront him with his evidence in 1964; he now wants to put in that evidence through the 2nd defendant. The plaintiff is no longer afforded the opportunity to admit or deny that evidence. I think it will be absolutely prejudicial to him to admit such evidence against him and the application is therefore refused. Document marked exh. ‘H’ (Rejected).”

I am in entire agreement with the ruling of the learned trial judge which has been reproduced above. Furthermore, I am of the view that if proper foundation had been laid during the cross-examination of the respondent, the record of proceedings in suit No. A/6/64 could have been tendered through him.

Lastly, the complaint in the fourth ground of appeal that ruling on the admissibility of the record of proceedings in suit No. A/6/64 was given after the close of the 2nd appellant’s case, is, in my view, completely devoid of merit; and this is because it has not been shown that in giving the said ruling when he did, the learned trial judge was in breach of any fundamental statutory rule or procedure.

On the whole, I find that the appeal lacks merit and it is accordingly dismissed. The decision of the Court of Appeal affirming that of the High Court is hereby confirmed with N300.00 costs awarded to the respondent.M. BELLO, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Kawu, J.S.C. and I adopt it. I agree the appeal should be dismissed and is hereby dismissed with N300.00 costs to the Respondents.

A. O. OBASEKI, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Kawu, JSC. and I agree with him that the appeal lacks merit and should be dismissed.

The main and only issue raised in this appeal is as to the identity of the land sold by the 2nd appellant to the respondent. The respondent claimed that it was the land marked B on Exhibit A and this claim was upheld by the learned trial judge who heard evidence at the trial and carried out inspection of the locus in quo. This finding was also affirmed by the Court of Appeal. The 2nd appellant denied this claim but was unable to satisfy the learned trial judge that the claim of the respondent was unfounded.

The concurrent findings of fact made by the High Court and the Court of Appeal placed on the appellants a very heavy burden, that is, the burden of convincing this Court that they erred in holding that the land sold by the 2nd appellant to the respondent is that marked B on the plan Exhibit A.

The Supreme Court has made it abundantly clear that concurrent findings of fact by two lower courts will only be interferred with in special circumstances establishing obvious errors in the concurrent findings. (See Mogo Chinwendu v. Nwanegbo Mbamali & Anor. (1980) 3/4 SC. 31 at 75; Lamai v. Orbi (1980) 5n SC. 28; Victor Woluchem v. Simon Cudi (1981) 3/4 SC. 319 at 226-330; David Dawudu Lokoyi & Anor. v. Emmanuel Babalola Olojo (1983) 8 SC. 61 at 68-72).

The appellants have woefully failed to show any error in the concurrent findings. The attempt of their counsel was counter productive and revealed clearly that the learned trial judge’s findings were fully justified, it also showed that the Court of Appeal was fully justified in confirming the findings.

I will for the above reasons and the reasons so ably given in the judgment of my learned brother, Kawu, JSC. dismiss this appeal and I hereby dismiss it with costs fixed at N300.00.

I hereby affirm the decision of the Court of Appeal.

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SC.86/1984