Yesufu Ogedengbe & Ors V Chief J. B. Balogun & Ors (2007)
LAWGLOBAL HUB Lead Judgment Report
I.F. OGBUAGU, J.S.C.
This is an appeal against the decision of the Court of Appeal, Benin Division, [hereinafter called “the court below”], delivered on 23rd April, 2001, dismissing the appeal to it and affirming the Judgment of the trial court delivered on 12th June, 1998 in favour of the Plaintiffs/Respondents. The Appellants have now appealed to this Court on three (3) grounds of appeal which without their particulars, read as follows:
“(i) The Court below misdirected itself on the fact when it held that “this apparent contradiction cannot be used to discredit all the other features that define the boundaries of the disputed land. After all there is still the long stone ground which forms the boundary between Ekpasa and Lampese. If Use Hill use the only crucial land mark ……. then the argument will stand.”,
(ii) The Court below erred in law when it declined to order a retrial when the trial Court failed to evaluate vital evidence of traditional history, possession and boundary men adduced by the Defendant on ground that 2nd defendant lied and contradicted himself.
(iii) The Court below erred in law when it held that “the trial Judge was perfectly right to have accepted and acted on the evidence adduce (sic) by the Plaintiffs” without a considera-tion of the corresponding evidence of the defendants on traditional evidence of ownership and possession of the land in dispute inter-alia. (the underlining his)”.
The Appellants, have formulated two (2) issues for determination, namely,
“1. Was the Court below right to have held that the apparent contradiction in the Respon-dents (then Plaintiffs) (sic) evidence on the identity of the land in dispute was not fatal to the claims for declaration of title and injunction. (Ground 1).
- Was the Court below right to have refused to order a retrial in view of the failure of the trial court to evaluate vital evidence (Grounds 2 and 3)”.
I note that the Respondents, adopted the above issues The issues of the parties, as far as I am concerned, have made the determination of this appeal, less cumbersome for me. This is because I note firstly, that the defendants/Appellants, joined issues on the identity and features of the land in dispute. Secondly, the court below, refused to order a retrial because of an alleged failure of the trial court, to evaluate vital evidence. See Grounds 2 and 3 of the grounds of appeal. On 8th January 2007, when this appeal came up for hearing, learned counsel for the Appellants – Ajayi, Esqr. in his oral submission, stated in respect of their Issue 1, that there was no certainty of the boundaries of the land in dispute. On Issue 2, he stated that credibility, was in issue and yet, the court below proceeded to evaluate. That the position therefore, is for an order of retrial. He cited and referred to the case of Okomalu v. Akinbode (2006) 4 SCNJ. 53 (it is also reported in (2006) All FWLR (Pt.314) 211), (2006) 5 SCM, 144. He still urged the Court, to allow the appeal, set aside the Judgment of the court below and order a retrial. On his part, Chief Orbih, submitted that the parties know the land in dispute. That a Survey Plan, was filed and that the Surveyor, testified, that other witnesses also testified and that there is also concurrent findings of the two lower courts. That the boundary the Appellants say there was contradiction is about the boundary with a third party who is not a party in the dispute.
That it was not a boundary dispute. That no issue was joined on the identity of the land as the Surveyor, gave evidence and he was not challenged. On the issue of evaluation, Chief Orbih submitted that the court below, did not go ahead to evaluate the evidence, only that it found as a fact, that the identity of the land, was not in issue. He finally urged the court to dismiss the appeal. It is now firmly settled in a plethora of decided authorities, that land to which a declaration of title is sought, must be sufficiently identified. See the case of Ezeokeke & ors. v. Uga & ors. (1962) 1 ANLR (Pt. l) 482, 484. In other words, in a claim of title, it must be made to a defined area, with certainty. See the case of Amodu Rufai v. Ricketts & 5 ors (1934) 12 WACA95. It is also settled that before a declaration of title is given, the land which it relates, must be ascertained with certainty. The test being whether a Surveyor, can from the record, produce an accurate plan. PAGE| 3 See the cases of Kwadzo v. Adjei (1944) 10 WACA 274; Chief Aro v. Chief Obaloro (1968) NMLR 238; Arabe v. Asanlu (1980) 5-7 S.C. 78 at 90; Udofia v. Afia (1980) 6 WACA 216; Okorie v. Udom (1959) 5 FSC. 162; cited also in the case of Oke & ors. v. Eke & ors. (1982) 2 S.C. 218 at 232 and many others. Also firmly established, is that in a claim for declaration of title to land, (as in the instant case leading to this appeal) the onus is on the plaintiff to prove title to a defined area to which a declaration, can be attached. See the cases of Odesanya v. Ewedemi (1962) ANLR (Pt. l) 318 & 320; Okuoja v. Ishola (1982) 7 S.C. 314 at 351 citing Udofia v. Afia (supra); Baruwa v. Ogunhola (1938) 4 WACA 158; Elias v. Sulathan (1973) 1 ANLR 282; and Omo-Bare v. AlhajiEllas (1978) 7FCA 22 just to mention but a few. It is also firmly settled, that where a plaintiff in an action for declaration of title, fails to prove the boundaries of the land he is claiming, he has failed by that omission, to prove his case and the proper order which the court should make in such circumstances, is usually one of dismissal of the claim. See Amala v. Maduku 14 WACA 580; Alade v. Dina 17 NLR 32; Epi & anor. v. Aiebedion (1975) (1) NMLR 31; (1975) 5 U.LL.R. (Pt. 11) 157; and Ugbo v. Nwokeke 6 ENLR 106. Indeed, it is also settled that inaccurate plan, will defeat a plaintiff’s claim. This is also the case, if the description of the land in dispute, contradicts the plan. I have gone this far, in order to let the Appellants know and appreciate, that these settled principles of law, are clear and unambiguous and no longer in doubt. But in the instant case, not only did the Respondents, produce arid tender a Survey Plan –Exhibit 7, they also called a Licensed Surveyor – PW. 7 who testified on oath and identified Exhibit 7 which was tendered, without any objection. The Records show that his evidence, was never challenged by the Appellants in cross-examination. The boundary witnesses, also testified. The trial court, was satisfied that the identity of the land in dispute, was clearly established in evidence. As a matter of fact and this is also settled, where the identity of the land in dispute, is known to the parties and not in dispute, no plan is necessary. Absence of a plan, is not fatal to a plaintiff’s claim, if proper description of the land is available in the proceedings. See Etiko v. Aroyewun (1959) 4 FSC129: Arabe v. Asanlu (supra); Chief Sokpui II v. Chief Agbozo III 13 WACA 241 at 242; Atolaebe v. Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 4 S.C. 250 at 275 just to mention a few. Indeed, and this is also settled, where the identity of land is not clear to a defendant, he could or should in fact, apply for particulars. As I stated earlier in this Judgment, the production and tendering of a Survey Plan, is one of the ways in which evidence can be led, to prove the boundaries of a land in dispute. See also the case of Chief Emiri & 4 ors. v. Chief Imieyeh & anor. (1999) 4 NWLR (Pt.599) 442 at 463. 465. 468; (1999) 4 SCNJ. 1. But a plan, is not a sine qua non. See the case of Akpasgue & anor. v. Ogu & ors. (1976) 6 S.C. 42, at 45 – 46. Some description, however, is necessary to make a disputed land, ascertainable. See Chief Sokju II v. Chief Abgozo (supra) at 242 and Ajadi B. Awere v. Suleman Lasoju (1975) NMLR 100 at 101. Both referred to in the case of Alii v. Aleshinloye (2000) 6 NWLR (Pt. 660) 177 at 215; (2000) 4 SCNJ. 16. See also Chief Emiri & ors. v. Chief Imieyeh & anor. (supra) wrongly cited in the Respondent’s Briefs, (it is not Pt. 442) but at page 442). PAGE| 4 Now, I note that the 1st Plaintiff/Respondent, at page 72 of the Records, lines 25 to 35 on oath, described the boundaries of the land in dispute. Therein, he stated as follows: “…….Ekpesa common boundary with Lampese is Esia or Egba or big boulders. This Lampese/Ekpese boundary was demarcated in 1922 by one Mr. E.A. Williams who was the H.D.O. (Higher District Officer) ”. Under cross-examination by P. Orifunmishe of counsel for the Defendants/Appellants, the 1st Plaintiff/Respondent who stated that he is “the Deji of Ekpesa”, maintained that he knew all the boundaries of the land in dispute. P.W. 5 one Ibrahim Igbegeije, from Lampese and lives there, on oath, also testified at page 59 of the Records, inter alia, as follows: “the White man settled the dispute for us (i.e. between Ekpesa and Lampese communi-ties). He it was who demarcated the boundary. He used a big rock to demarcate the boundary and drew a line from it to Ose Hill. Ose Hill is on our land. The boundary line followed up to river Izo near Ogugu.”
In fact, under cross-examination, PW5 further testified, that there is a common boundary between his family land and that of Ekpesa of the Plaintiffs/Respondents. He was never discredited in cross-examination and his said evidence, was never challenged. P.W. 7 – Francis O. lyawe is the Licensed Surveyor. He produced the Survey plan of the land in dispute he surveyed and prepared which was tendered without objection from the defence and was marked Exhibit 7. I note that thirteen (13) witnesses including a Traditional Ruler – P.W. 10 – H.R.H. Oba Momodu Idaiye, testified as a boundary man for the Plaintiffs/Respondents. The trial court in its Judgment, found in favour of the Respondents. As rightly submitted in the Respondents’ Brief, even where it is not reasonably possible to ascertain the location or identity or boundaries of the land in dispute, the production of a Survey plan, may be an answer to provide a solution to the problem. The case of Salami v. Obodogun (1997) 49 LRCN 1020 at 1023 is cited and relied on. The learned trial Judge at page 2O3 of the Records, stated inter alia, as follows: “ I find no substance in the submissions by the learned counsel for the Defendants that the plaintiffs failed to prove (sic) (meaning prove) with certainty the area of land claimed. I find that the 1st Plaintiff is a witness of truth so also are virtually all the witnesses of the Plaintiffs. On the other hand I find the evidence off. PW. 2 as most unreliable.”. The court below, at page 326 of the Records, stated inter alia, as follows: “The inconsistency said to exist between Exhibit 7 and the evidence of PW7 and PW1O as to the boundaries lies only in the imagination of the appellants. I cannot see the contradiction in the evidence of 1st Plaintiff and Exhibit 7 since it is not the whole of Ekpesa land that is being disputed”. At pages 328 to 329, the court below stated inter alia, as follows:
“This piece of evidence (i.e. part of the evidence of the PW7) considered alongside that of DW3 (2nd Defendant) will undoubtedly show that the Plaintiffs were in possession of the disputed land and the denial by the Defendants of the existence of Ekpesa land would be seen not to be true. The trial Judge had the singular advantage of seeing the witnesses testify. He watched their demeanor (sic) and the Appeal Court on the cold printed records cannot decide on the issue of credibility.” I agree. This is because, it is now firmly settled, that the function of assessment of credibility of witnesses, is essentially, for the trial court and not that of the Appeal Court. See the cases of Akpapuna & ors. v. Nzeka & ors. (1983) 2 SCNLR. 1 at 14; Ebba v. Osodo (1984) 4 S.C. 84 at 98 (1984) 1 SCNLR 372; Obodo & anor. v. Ogba & ors. (1987) 3S.C. 459 at 460, 480 – 482, 485; (1987) 3 S.C.N.J. 82; Babatunde Ajayi v. Texaco Nig. Ltd. & ors. (1987) 3 NWLR (Pt. 62) 577; (1987) 9 – 11 S.C. 1 at 27 and many others. The Respondents, cited and relied on the cases of Alize v. Umaru (2002) NWLR (Pt.787) 369 at 390; Archibong v. Akpan (1992) 4 NWLR (Pt. 238) 750 at 757. 760 C.A; and Ibuluva v. Dikibo (2001) 8 NWLR (Pt.716) 678 at 680 C.A. I note that there are mix ups in the citations in the Respondents’ Brief and in their Legal /List of Authorities. Thus, where the question(s) that falls/fall to be determined, raises/raise the issue of credibility, an Appellate Court, will not interfere. See also the cases of Ogunleye v. Oni (1990) 2 NWLR (Pt.135) 745: (1990) 4 SCNJ. 65: Ejabulor v. His Highness. Osha (1990) 5 NWLR (Pt. l48)l; (1990) 7 SCNJ. 187; Ngillari v. NICON (1998) 8 NWLR (Pt.560) 1 at 20 – 21; (1998) 6 SCNJ. 16 – per Onu, JSC. and recently, Chief Okechi & 2 ors. v. Chief Animhwoi & 2 ors.(2003) 18 NWLR 1 (Pt.851) 1: (2003) 2 SCNJ. 260 at 277 (2003) 6 SCM, 112 – per Tobi, JSC. Issue 1 fails as it is resolved against the Appellants. As regards the issue of retrial, it is now firmly established that it is only where a plaintiff, has failed totally, to prove his case and there is substantial irregularity apparent on the Record or shown to the Court, that an order for retrial will be made. But this is not the case in the instant case leading to this appeal. See the case of Ayoola v. Adebayo (1969) 1 AllNLR 159,162 – per Coker, JSC. Again, it is only where a trial court, fails to make findings of fact on specific issues of fact and thus, fails to resolve the issues that arise in the pleadings of the parties, that an Appellate Court, should send the case back to the trial court, for retrial. See the cases of Bamidele v. Adeyemi (1963) 1 ANLR 146 at 148: Shell B.P. v. Cole (1978) 3 S.C. 183: Adibu v. Binutu Karimu & anor. (1988) 1 S.C. 136 at 139; (1988) 1 SCNJ. 70; Ezeoke & ors. v. Nwagbo & anor. (1988) 3 SCNJ. (Pt.l) 37 at 49; Chief Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt.95) 27 and Sanni v. Dr. Ademiluyi (2003) 1 SCNJ. 197: just to mention but a few. PAGE| 6 I find that none of the circumstances of these cases, is applicable in the instant case leading to this appeal. See also recently, the case of Alhaji Okomalu v. Chief Akinbode (supra) where this Court – per Tobi, JSC at pages 68 – 69 of the SCNJ and 229 – 232 of the All FWLR, listed eleven (11) instances when this Court, pursuant to Section 22 of Supreme Court Act and Order 8 rule 13(1) of its Rules, will order a retrial and six (6) instances, when it will not so order. This issue is also resolved against the Appellants. Finally, there are concurrent findings of fact by the two lower courts. The Appellants have failed to show why this Court should interfere and the Court has not seen, any reason why it should interfere. See the cases of Njoku v. Erne (1973) 5 S.C. 293; Chilwendn v. Mbamali (1980) 3 – 4 S.C. 31 and Ibodo v. Enirofia (1980) 5-7 S.C. 42 and many others. See also the cases of Abimbola v. Abatara (2001) 9 NWLR (Pt. 717) 66 (jib. 78-79 (it is also reported in (2001) 4 SCNJ. 73, (2001) 5 SCM, 1) and Chime & on. v. Chime (2001) 3 NWLR (Pt. 701) 527at 551 (it is also reported in (2001) 1 SCNJ. 182, (2001) 2 SCM, 16) cited and relied on in the Respondent’s Brief. In the end result or final analysis, this appeal lacks substance and has failed abysmally. I have no hesitation in dismissing it and I so dismiss it. I hereby and accordingly, affirm the decision of the court below affirming the Judgment of the trial court. Costs follow the events. The Respondents are entitled to costs fixed at NlO,000.00 (ten thousand naira) payable to them by the Appellants.
S.C. 273/2001
