NGARA & ANOR v. OTAJI (2021)

NGARA & ANOR v. OTAJI

(2021)LCN/15164(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 17, 2021

CA/PH/532/2017

Before Our Lordships:

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. MRS. ROSE WOBO NGARA 2. CHIEF JACOB AHIA APPELANT(S)

And

DAGOGO SMART OTAJI RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING OR PROVING TITLE TO LAND

The law as it relates to proving title to land was established in the case of IDUNDUN VS. OKUMAGBA (1976) 1 NMLR 200; (1976) 9 – 10 SC 224 where the Supreme Court held that ownership of land in dispute can be proved by any of the five ways namely –
i. By traditional history
ii. By production of title document
iii. By acts of ownership
iv. By acts of long possession
v. By proof of possession of the connected land. PER IDRIS, J.C.A.

WHETHER OR NOT A PARTY RELYING ON TRADITIONAL TITLE TO LAND MUST PLEAD SAME SUFFICIENTLY

It is trite that a party seeking for a traditional title to land who relies on traditional history as proof of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land and the particulars of the intervening owners through whom he claims. To prove a case of declaration of title to land based on traditional history, the party seeking such relief must adduce evidence that is satisfactory, clear, cogent and uncontroverted.
In the case of EZE & ORS VS. ATASIE & ORS (2000) LPELR – 1190 (SC), it was held that: “The law is that to establish the traditional history of land relied on as root of title, a Plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without gaps or creating mysterious or embarrassing linkages which have not been or cannot be explained.”
Similarly, the case of ANYAFULU & ORS VS. MEKA & ORS (2014) LPELR – 22336 (SC) the apex Court held that:
“Where evidence of tradition is relied upon in proof of declaration of title to land, the Plaintiff in order to succeed must plead and establish the following facts:
i. Who founded the land;
ii. How he founded it; and
iii. The particulars of the intervening owners through whom he claims down to him.” PER IDRIS, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND MAKE APPROPRIATE FINDINGS

It is trite that it is the duty of the trial Court to adequately evaluate evidence adduced in a case before it and make appropriate findings.
In the case of TUKUR VS. UBA & ORS (2012) LPELR – 9337 (SC) the Supreme Court held:
“Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial Judge who saw and heard the witnesses testified. The trial Judge is therefore in a position to access the credibility and watch the demeanour of the witnesses. See; Bartholomew Onwubuariri & Ors Vs Isaac Igboasoyi & Ors (2011) 1 SCM 100 at 119; Michael Eyo Vs Emeka Collins-Onuoha & Anor (2011) 2 SCM 178 at 105; Guardian Newspapers Ltd & Anor Vs. Rev. Pastor Ajeh (2011) 5 SCM 111 at 124. PER IDRIS, J.C.A.

PRINCIPLES TO GUIDE THE TRIAL COURT IN THE EVALUATION OF EVIDENCE

However, when the evaluation of evidence by a particular trial Judge is in issue or being challenged, the guiding principles are as follows: (i) whether the evidence is admissible; (ii) whether the evidence is relevant; (iii) whether the evidence is credible; (iv) whether the evidence is conclusive and (v) whether the evidence is probable than that given by the other party. See; Mogaji Vs. Odofin (1978) 4 SC 91. Therefore, it is the primary responsibility of the trial Court to fully consider in totality, the evidence of both parties placed before the Court. In doing this, the trial Judge shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion. But, when the trial Court saddled with the responsibility of evaluating evidence fails so to do, or to do so properly, then an appellate Court is entitled to intervene and re-evaluate such evidence. Otherwise, the appellate Court has no business interfering with the finding of the trial Court on such evidence.”
Similarly, in the case of UKAEGBU & ORS VS. NWOLOLO (2009) LPELR – 3337 (SC) the Supreme Court held:
“… I will refer to the case of Odofin & ors. V Mogaji & ors. (supra) (it is also reported in (1978) 1 LRN 212), this Court per Fatayi Williams, JSC (as he then was and of blessed memory), stated inter alia, that before a Judge in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he must put the totality of the testimony adduced by both parties on an imaginary scale. He shall weigh one side against the other and then decide upon the preponderance of credible evidence which weighs more… In the case of Chief Onyia v. Oniah & Ors (1989) 2 SCNJ 120, it was held that if a trial Court heard two versions of an essential fact and one looked more probable, then it will be bound to believe the more probable evidence. The Court should neither create nor conjecture these probabilities. The trial Judge should consider both carefully and decide on the balance of probabilities which of the assertions to accept –See the case of Chief Afolayan v. Oba Ogunrinde & ors (1986) 3 NWLR (Pt. 26) 29 C.A. In the case of Mogaji & Ors. v. Madam Odofin (1978) 4 S.C. 91 @ 92 – 97 this Court – per Nnaemeka-Agu, JSC, stated that, when a Judge has to evaluate the evidence on every material issue in the case, he ought to put all the evidence called by each side on that issue on either side of the imaginary scale of justice and weigh them together, of course taking care that only the evidence of the same kind ought to be weighed together. That whichever side outweighs the other in probative value, ought to be accepted or believed. That not losing sight of the onus of proof, he should weigh them together to arrive at a decision, based on the facts as found, as to which the conflicting cases before him is the more probable in view of the law applicable to the case….”PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 23rd October, 2007 which was later amended and dated 9th April, 2013, the Appellants as Claimants sought for the following reliefs against the Respondent as Defendant thus:
a) A Declaration of the honourable Court that the Claimants are the owner by inheritance of the land known as and called Ohia Oni Mgbada lying and situate and being at Rumuwoji Community, Rebisi in Port Harcourt City Local Government Area of Rivers State now known as No. 90A Abba Street, Mile 1 Diobu, Port Harcourt measuring approximately 397.81 square metres particularly described on Plan No P. 1063 with Tracing No. RS. 2468 signed by Surveyor General of Rivers State on 28/5/92.
b) A Declaration of the honourable Court that the purported sale, purchase and/or registration of the Claimants’ land described in (a) above made between the Defendant and any person or authority whosoever is void and of no effect.
c) An Order of the honourable Court setting aside any purported sale, purchase, and/or registration with any person or authority by the Defendant,

of the Claimant’s land described in (a) above.
d) An Order of perpetual injunction restraining the Defendant, his privies, agents and/or servants from interfering with the Claimants’ ownership rights over the property situate at No 90A Abba Street, Mile 1, Diobu Port Harcourt earlier described.
e) N10,000,000.00 as general damages for trespass.
f) The cost of this action.

The original 1st Claimant at the trial Court (Chief Wobo Ngara) died and was substituted by his wife (Mrs. Rose Wobo Ngara) the 1st Appellant herein.

The Respondent on the other hand filed a statement of defence/counter-claim dated 2nd May, 2008 wherein he counter-claimed against the Appellants thus:
1. A Declaration that by the evidence before the Court, the Defendant is entitled to the right of occupancy of the property situate at No. 90A Abba Street, Mile 1 Diobu, Port Harcourt.
2. A Declaration that the Claimants who collect rents from the tenants without the consent and approval of the Defendant was illegal and unconstitutional.
3. An Order of Court directing the Claimants to pay to the Defendant the sum of Five Million Naira (N5,000,000.00)

only representing the illegal rents collected by them from the Defendant’s property and/or his tenants since 2003 till judgment is delivered.
4. The sum of Five Million Naira (N5,000,000.00) only representing general damages occasioned by the Claimants against the Defendant.

It is the claim of the Appellants that they are the owners of the property situate at No. 90A Abba Street, Mile 1 Diobu, Port Harcourt which is part of their family/ancestral land which they inherited alongside other adjoining properties from their late father, Chief Worlu Ngara of Rebisi Community in Port Harcourt.

It is also the Appellants’ claim that their late ancestor together with his parents were farmers and hunters deforested the land many years ago and that it was during the course of farming and hunting expeditions that they came in contact with the land which was then a thick forest. The Appellants further claim that they took possession of the entire land and remained in undisturbed possession until death.

The Appellants opened their case and called 2 (two) witnesses CW1 and CW2. The Respondent on the other hand opened their case on the 6th day

of April, 2016 and called witnesses DW1–DW2 who tendered documents which were admitted and marked as Exhibits D1–D25. The Respondent closed his case on the 23rd April, 2016 and the matter was adjourned to the 4th October, 2016 for address.

On the 4th of October, 2016, parties failed to file their respective written addresses even though they had ample time to do so and the trial Court foreclosed them. The case was accordingly adjourned to the 12th day of December, 2016, for judgment.

However, in the course of writing the judgment on the 19th January, 2017, the parties filed their written addresses and a motion praying the Court to vacate the foreclosure order. The order of foreclosure was vacated and the written addresses of the parties were deemed properly filed and served.

In delivery, the judgment in the Suit No: PHC/1684/2007, the learned trial Judge, Honourable Justice E. N. Thompson delivered judgment in favour of the Respondent. Dissatisfied with the said judgment, the Appellants herein filed a Notice of Appeal dated 8th March, 2017 comprising of 9 (nine) grounds of appeal.

Parties to the appeal filed and exchanged their

respective briefs of argument. The Appellants filed their brief of argument dated 19th July, 2018 and filed on the same date. The said brief of argument was settled by their Counsel, Chidi Aloy – Nzofutachi Esq. wherein the following issues were raised for determination thus:
i. Whether the lower Court was not wrong in failing to hold that the Appellants proved their ownership of the land situate at No. 90A Abba Street, Mile 1 Diobu Port Harcourt by at least one of the ways of proving ownership of land in Nigeria. Grounds 1 and 4.
ii. Whether the lower Court properly evaluated the evidence of the parties before it reached the findings and conclusion dismissing the appellants’ case while holding that the Respondent is entitled to the right of occupancy over the property situate at No 90a Abba Street, Mile 1, Diobu Port Harcourt. Grounds 2, 3, 5, 6 and 9.
iii. Whether the lower Court was not wrong in law and thereby occasioned substantial miscarriage of justice against the Appellants when in the absence of evidence to prove his claim of ownership, the lower Court declared the Respondent the owner of the property located at No 90A

Abba Street, Mile 1, Diobu Port Harcourt on the ground that the appellants did not file a defence to the counter-claim of the Respondent. Ground 7 and 8.

The Appellants’ Counsel argued the issues and in doing so, counsel submitted that the Appellants established their ownership of the said land by at least one of the ways of establishing ownership of land in Nigeria. Counsel further argued that the trial Court did not properly evaluate the evidence of the parties before it reached the wrongful findings and conclusion dismissing the Appellants’ case and declared the Respondent to be owner of the house and that there is no evidence that the Government of Rivers State advertised the house for sale and it was allocated to the Respondent.

In conclusion, the Appellants’ Counsel argued that the failure of the Appellants to challenge the counter-claim of the Respondent that the house was sold to him as an abandoned property did not shift the burden on the Respondent to prove his ownership of the land as required by law and thus, this Court was urged to allow the appeal and set aside the findings and judgment of the trial Court and grant the

Appellants’ reliefs as contained in the Amended Statement of Claim.

The Respondent filed his brief of argument on the 12th of December, 2019 and settled by his Counsel, T. U. Nmah Esq. and wherein a sole issue for determination was raised thus:
Whether the lower Court was right in dismissing the Appellants’ case and entering judgment in favour of the Respondent’s counter claim the appellants having failed to prove their case.

The Respondent’s Counsel in arguing the said issue, submitted in response to the argument of the Appellants’ Counsel in the Appellants’ brief of argument that the trial Court was right when it held that the Appellants were not able to prove their case to warrant the Court granting them a declaration of title over the land in dispute. Counsel further argued that the evidence of the CW1 and CW2 never established any of the five ways of proving title to land.

The Respondent’s Counsel also submitted that the Court is enjoined to disbelieve contradicted and unreliable piece of evidence and that was what the Court did when it properly evaluated the evidence of the Appellants and the

Respondent and believed the evidence of DW1 and DW2. Counsel further argued that the Appellants did not join issues with the Respondent on the counter-claim, it is therefore deemed admitted.

In conclusion, the Respondent’s Counsel submitted that the Appellants failed to proof their case at the lower Court and that the judgment of the lower Court was indeed in accordance with the evidence led and thus urged this Court to dismiss the appeal with N500,000.00 cost.

The Appellants also filed a reply brief of argument dated 11th November, 2020 and settled by their Counsel Chidi Aloy-Nzofutachi, Esq. and urged this Court to discountenance the contentions of the Respondent on the points raised and consequently resolve all the issues in favour of the Appellants.

RESOLUTION OF THE ISSUES
Upon review of the briefs of argument filed by the parties herein, I shall adopt the issues for determination formulated by the Appellants in the resolution of this appeal as it reflects all the issues formulated in this appeal. The issues are again reproduced hereunder as follows:
i. Whether the lower Court was not wrong in failing to hold that the

appellants proved their ownership of the land situated at No. 90A Abba Street, Mile 1 Diobu Port Harcourt by at least one of the ways of proving ownership of land in Nigeria.
ii. Whether the lower Court properly evaluated the evidence of the parties before it reached the findings and conclusion dismissing the appellants’ case while holding that the respondent is entitled to the right of occupancy over the property situate No. 90A Abba Street, Mile 1 Diobu Port Harcourt.
iii. Whether the lower Court was not wrong in law and thereby occasioned substantial miscarriage of justice against the appellants when in the absence of evidence to prove his claim of ownership, the lower Court declared the Respondent the owner of the property located 90A Abba Street, Mile 1 Diobu Port Harcourt on the ground that the appellants did not file a defence to the counter-claim of the Respondents.

ISSUE ONE
Whether the lower Court was not wrong in failing to hold that the appellants proved their ownership of the land situated at No. 90A Abba Street, Mile 1 Diobu Port Harcourt by at least one of the ways of proving ownership of land in Nigeria.

From the facts of the case, it is clear that the Appellants sought to establish title by traditional evidence. It is trite that a party seeking for a traditional title to land who relies on traditional history as proof of title, must plead same sufficiently. That is to say, he must demonstrate in his pleading the original founder of the land, how he founded the land and the particulars of the intervening owners through whom he claims. To prove a case of declaration of title to land based on traditional history, the party seeking such relief must adduce evidence that is satisfactory, clear, cogent and uncontroverted.
In the case of EZE & ORS VS. ATASIE & ORS (2000) LPELR – 1190 (SC), it was

held that:
“The law is that to establish the traditional history of land relied on as root of title, a Plaintiff must plead the names of the founder and those after him upon whom the land devolved to the last successor(s) and lead evidence in support without gaps or creating mysterious or embarrassing linkages which have not been or cannot be explained.”
Similarly, the case of ANYAFULU & ORS VS. MEKA & ORS (2014) LPELR – 22336 (SC) the apex Court held that:
“Where evidence of tradition is relied upon in proof of declaration of title to land, the Plaintiff in order to succeed must plead and establish the following facts:
i. Who founded the land;
ii. How he founded it; and
iii. The particulars of the intervening owners through whom he claims down to him.”

From facts of the case, it can be seen that the Appellants had two witnesses, a boundary neighbor and a former tenant who testified as CW1 and CW2 respectively. In his judgment the trial Judge on page 162 of the record of appeal held that:
“CW1 gave evidence that the property in dispute was part of the land originally

deforested by Chief Woji and passed on to successive members of the family until it got to Wobo Ngara the former 1st Claimant. From the pleadings, it is said that late Chief Woji together with his parents deforested the land very many years ago and yet Claimants continue to say that late Chief Woji was born on the land. See paragraph 5 of the amended statement of claim. This pleading is very contradictory saying on the one hand that Woji came to the land with his parents to deforest same and on the other hand, he was born on the land and joined in deforestation. The CW1 on his part does not talk of Chief Woji’s parents but ancestors and that Chief Woji was born on the land. There is also no mention of Chief deforesting any jungle. The most important issue is that there is no pleading of the original founder of the land, that is, what is the name of Chief Woji’s father, who came from Isiokpo either with Chief Woji or alone. I find this evidence not satisfactory at all.”

I find that my reasoning aligns with that of the trial Judge. First and foremost, just as the trial Judge stated from the amended statement of claim and the evidence of CW1,

it is clear that the founder of the land which was Chief Woji’s father that came from Isiokpo was not identified. Additionally, from the evidence in this case, it was hard to distinguish whether Chief Woji was born on the land after which he deforested it or he came to the land with his father from Isiokpo and together they deforested the land. Therefore, the first question as it relates to proving traditional title which is identifying the founder of the land was not answered.

As it relates to the act of ownership, the trial Judge held on page 167 of the record of appeal that:
“… Again it pricks the imagination that the CW2, Mrs. Gloria Ogilogi by her words in evidence said that “I know the Claimants. They were my landlords. I lived in the house from 1988 to the year 2003. I paid my first rent to Jacob Ahia Wobo who is the first son of late Chief Wobo Ngara. The house is located at No. 90A Abba Street, Mile 1 Dioby, Port Harcourt.” The salient questions demand answers: Did the CW2 live with pigs? We are not told. Did the original 1st Claimant give out the property in dispute to his son while his brother was alive?”

I share the same questions posed above as the trial Judge. From the evidence, it has been argued that the 2nd Appellant used the land as a piggery which was later built into a house in 1990. Here I ask: where is the evidence of rents paid by the CW2 to the Appellants? Even the trial Judge’s questions asking for a City/State permits to run a piggery or even building permit that proves that there was indeed development on that land which has a house number and street name are viable.

Counsel for the Appellants on his part, however, argued that CW2’s evidence was not challenged and as such, the trial Judge was not entitled to go beyond the evidence and determine issues before him. It is trite that the Plaintiff must succeed on the strength of its case and not rely on the weakness of the defence’s case. The Appellants’ counsels argument is of no moment. The Plaintiff is to put his/her best case forward and even if the Defendants do not challenge the evidence, such evidence must prove the Plaintiff’s claim. A trial Judge’s duty is to evaluate evidence before him in order to establish if the

Plaintiff has established his/her case by the evidence adduced.

I also find it unusual that the Appellants who claim to rightfully own the land did not come to give evidence to facts that should be within their knowledge being stories handed down to them from one generation to another. Neither did they come to show how and when they built the property on the land to clear the confusion of when it turned from a piggery to a habitable property. This leads me to asking a similar question as the trial Judge: can another person who is not one of the Appellants give evidence to establish traditional title? Alas, the law is that an Appellant can call any witness who will satisfactorily help prove the title. Nevertheless, in the instant case, evidence by one of the Appellants would have aided in establishing traditional title to the land.
To my mind, the Appellants have in fact not established title by traditional history or acts of ownership on the balance of probability. The story, though not incredible was incomplete and the testimony of either of the Appellants would have done well to clarify much of the confusion in the minds of the trial Court and

this Court. I therefore resolve this issue in favour of the Respondent against the Appellants.

ISSUE TWO
Whether the lower Court properly evaluated the evidence of the parties before it reached the findings and conclusion dismissing the appellants’ case while holding that the respondent is entitled to the right of occupancy over the property situate No. 90A Abba Street, Mile 1 Diobu Port Harcourt.
It is trite that it is the duty of the trial Court to adequately evaluate evidence adduced in a case before it and make appropriate findings.
In the case of TUKUR VS. UBA & ORS (2012) LPELR – 9337 (SC) the Supreme Court held:
“Generally, and it is settled law that the evaluation of evidence adduced and ascription of probative value or weight to such evidence is the primary duty of the trial Judge who saw and heard the witnesses testified. The trial Judge is therefore in a position to access the credibility and watch the demeanour of the witnesses. See; Bartholomew Onwubuariri & Ors Vs Isaac Igboasoyi & Ors (2011) 1 SCM 100 at 119; Michael Eyo Vs Emeka Collins-Onuoha & Anor

(2011) 2 SCM 178 at 105; Guardian Newspapers Ltd & Anor Vs. Rev. Pastor Ajeh (2011) 5 SCM 111 at 124. However, when the evaluation of evidence by a particular trial Judge is in issue or being challenged, the guiding principles are as follows: (i) whether the evidence is admissible; (ii) whether the evidence is relevant; (iii) whether the evidence is credible; (iv) whether the evidence is conclusive and (v) whether the evidence is probable than that given by the other party. See; Mogaji Vs. Odofin (1978) 4 SC 91. Therefore, it is the primary responsibility of the trial Court to fully consider in totality, the evidence of both parties placed before the Court. In doing this, the trial Judge shall put the evidence on the imaginary scale of justice and weigh it to determine the party in whose favour the scale tilts by making necessary finding of facts and then come to a logical conclusion. But, when the trial Court saddled with the responsibility of evaluating evidence fails so to do, or to do so properly, then an appellate Court is entitled to intervene and re-evaluate such evidence. Otherwise, the appellate Court has no business interfering with the

finding of the trial Court on such evidence.”
Similarly, in the case of UKAEGBU & ORS VS. NWOLOLO (2009) LPELR – 3337 (SC) the Supreme Court held:
“… I will refer to the case of Odofin & ors. V Mogaji & ors. (supra) (it is also reported in (1978) 1 LRN 212), this Court per Fatayi Williams, JSC (as he then was and of blessed memory), stated inter alia, that before a Judge in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he must put the totality of the testimony adduced by both parties on an imaginary scale. He shall weigh one side against the other and then decide upon the preponderance of credible evidence which weighs more… In the case of Chief Onyia v. Oniah & Ors (1989) 2 SCNJ 120, it was held that if a trial Court heard two versions of an essential fact and one looked more probable, then it will be bound to believe the more probable evidence. The Court should neither create nor conjecture these probabilities. The trial Judge should consider both carefully and decide on the balance of probabilities which of the assertions to accept –

See the case of Chief Afolayan v. Oba Ogunrinde & ors (1986) 3 NWLR (Pt. 26) 29 C.A. In the case of Mogaji & Ors. v. Madam Odofin (1978) 4 S.C. 91 @ 92 – 97 this Court – per Nnaemeka-Agu, JSC, stated that, when a Judge has to evaluate the evidence on every material issue in the case, he ought to put all the evidence called by each side on that issue on either side of the imaginary scale of justice and weigh them together, of course taking care that only the evidence of the same kind ought to be weighed together. That whichever side outweighs the other in probative value, ought to be accepted or believed. That not losing sight of the onus of proof, he should weigh them together to arrive at a decision, based on the facts as found, as to which the conflicting cases before him is the more probable in view of the law applicable to the case….”
The Court of appeal however in the recent case of YAKUBU & ANOR VS. MINISTRY OF HOUSING ENV. BAUCHI STATE & ANOR (2020) LPELR–49482(CA) explained eloquently the duty of a trial Judge to evaluate evidence and the procedure for evaluation of evidence when it held that:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…What I am saying in essence is that before a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts 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 scale and that of the Defendant on the other side and weigh them together. He will then see which is heavier not by number of witnesses called by each party but by the quality or the probative value of the testimony of those witnesses. See the case of MUSA SHA (JNR) & ORS V DA RAP KWAN AND ORS (2000) 8 NWLR (PT. 670) 685 at 705.”

Considering the authorities above and relating them to the circumstances of this case, the question to answer is, whether the trial Judge in fact put the totality of the testimony adduced by both parties on that imaginary scale that is, did he put the evidence adduced by the Plaintiff on one side of the imaginary scale and that of the Defendant on the other side and weigh them together?

In this case, it must be mentioned that

the trial Judge after evaluation of the evidence of the Appellants, some of which I have reproduced in the earlier part of my judgment and finding it lacking, went ahead in the counter-claim to evaluate the evidence of the Respondents. At page 178 of the Record of Appeal it was held that:
“…I need mention again that the DW2 is a staff of the Rivers State Housing and Property Development Authority he represented and on whose behalf he gave evidence. I am convinced that his evidence is correct. He gave clear evidence that in the records of the authority, the property in dispute is an abandoned property. He said they took over the duties of the APIC. The documents, Exhibits D1–D25 are in evidence and speak for themselves, parties are not allowed to alter, vary or add to the contents thereof. The documents of the sales reproduced herein before me are from the custody of the authority that made them. I do not also have doubts that the counter-claimant entered into the agreement of sale of the said No. 90A Abba Street, Mile 1, Diobu as an abandoned property. This is in line with the findings of Okocha J that the property is within the

purview of the authority… I therefore hold that relief 1 of the counter-claim, based on all the foregoing, has been established.”

Flowing from the above and from the totality of the judgment, it is clear that the trial Judge evaluated the evidence of both parties and came to a correct conclusion that the evidence of the Respondent was more probable.

I therefore resolve this issue in favour of the Respondent against the Appellants.

ISSUE THREE
Whether the lower Court was not wrong in law and thereby occasioned substantial miscarriage of justice against the appellants when in the absence of evidence to prove his claim of ownership, the lower Court declared the Respondent the owner of the property located 90A Abba Street, Mile 1 Diobu Port Harcourt on the ground that the appellants did not file a defence to the counter-claim of the Respondents.
In reaching its decision and holding that the Respondent being the owner of the land, I find that the trial Court did not just in the absence of evidence give the Respondent ownership of the property. From page 178 of the record of appeal reproduced above in issue two, the trial

Court evaluated the evidence adduced by the Respondent before coming to the conclusion that he owns the land.

The trial judge held at page 179 of the record of appeal that:
“… The documents, Exhibits D1-D25 are in evidence and speak for themselves, parties are not allowed to alter, vary or add to the contents thereof. The documents of the sales reproduced herein before me are from the custody of the Authority that made them. I do not also have doubts that the counter-claimant entered into the agreement of sale of the said No. 90A Abba Street, Mile 1, Diobu as an abandoned property. This is in line with the findings of Okocha J that the property is within the purview of the authority. It is in evidence that the counter-claimant fulfilled whatever condition precedent required for its purchase. DW2 said equivocally that the balance of the purchase price has not been demanded because of the various litigations in the property and that a refund would be made if necessary….”

Counsel for the Appellants then reproduced the Respondent’s cross-examination contained at pages 137–141 to argue that from the evidence

of the Respondent it is very clear that the house was built by the Appellants and was never declared abandoned property. I have reviewed the entirety of the Respondent’s evidence and I do not agree with the Appellants that the Respondent did not prove that the property was abandoned property. The Respondent tendered all documents to show that he followed all the requirements set out for the purchase of an abandoned property and it is trite that documentary evidence speaks for itself. Furthermore, the DW2 who is a staff of the Rivers State Housing Property Development Authority came to give correct evidence on behalf of the authority that sells the abandoned properties in Rivers State. I believe that the Respondent in fact proved that he is the owner of the property. The trial Judge did not just declare the Respondent as the owner in the absence of the Appellants establishing that they own the property.

I therefore resolve this issue in favour of the Respondent against the Appellants.

On the whole, I hold that this appeal lacks merit and same is accordingly dismissed. The judgment of the lower Court is hereby affirmed. The sum of N100,000 is

awarded as cost in favour of the Respondent against the Appellants.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of a preview of the judgment of my learned brother, Mohammed Baba Idris, JCA, where the facts leading to this appeal have been expansively set out.

I am in agreement with my learned brother’s articulate reasoning and conclusion. This appeal, I hold, lacks merit and I also dismiss it, with the costs as awarded in the lead judgment. The judgment of the lower Court is accordingly affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother MOHAMMED BABA IDRIS, JCA I entirely agree with the reasoning contained therein and the conclusion arrived thereat. His lordship having found that the traditional histories led by Appellants were not credible and incomplete, was right in dismissing their claims of title to the parcel of land as it was clearly held in YUSUF V. ADEGOKE & ANOR (2007) LPELR-3534(SC) wherein the apex Court held thus:
“…once it is

obvious from the records, as in the instant case, that a Plaintiff who pleaded traditional history failed to adduce evidence, credible one, in proof of same, his case is entitled to be dismissed, in toto no other evidence should be considered. ” per ADEREMI, J.S.C.”

And also, the argument of the Appellant on the issue of evaluation of evidence cannot affect the outcome of this appeal because, from the records of the Court, it is clear that the trial Judge properly evaluated the evidence of both parties and came to a correct conclusion that the evidence of the Respondent was more probable and the appellate Court cannot interfere as held in FRN V. UMEH & ANOR (2019) LPELR- 46801(SC) where the apex Court held thus:
“It is beyond contention that the evaluation of evidence and ascription of probative value to such evidence is the primary duty of the trial Court that, had the opportunity of observing the demeanor of the witnesses while testifying. The appellate Court that deals with only the cold evidence on record, being handicapped, will not ordinarily, interfere with the trial Court’s findings on the evidence. See Nnorodim V. Ezeani (2001) 2

SC 145 and Mogaji & Ors V. Odofin & Ors (1978) 3 SC 91.” per MUHAMMAD, J.S.C.

With these and more detailed reasoning in the lead judgment of my learned brother which I adopt as mine, this appeal lacks merits and is hereby dismissed. I endorse all the orders made in the lead judgment, including order as to costs.

Appearances:

…For Appellant(s)

…For Respondent(s)