OJO OGBEMUDIA EHOLOR VS. FELICIA OSAYANDE (1992)

OJO OGBEMUDIA EHOLOR VS. FELICIA OSAYANDE

(1992) LCN/2507(SC)

In the Supreme Court of Nigeria

Friday, July 17, 1992

Case Number: SC.142/1989

RATIO

EVIDENCE – BURDEN OF PROOF: ON WHOM LIES THE BURDEN OF PROOF IN A CASE FOR DECLARATION OF TITLE

“It is however settled that in a suit for a declaration of title the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not on the weakness of defendant’s case (See Kodilinye v. Odu (1935) 2 WACA 336 & Woluchem v. Gudi (1981) 5 S.C.291).”PER KUTIGI, J.S.C

APPEAL – GROUNDS OF APPEAL: WHAT HAPPENS WHERE A COUNSEL PROFFERS NO ARGUMENT IN SUPPORT OF A GROUND OF APPEAL

“It is settled, even before the briefs were introduced, that where counsel proffered no arguments in support of a ground of appeal that ground of appeal must be deemed to have been abandoned and would be struck out.”PER KUTIGI, J.S.C

LAND LAW – GRANT OF LAND: WHETHER A GRANTEE WHO IS AFFECTED BY TOWN PLANNING CAN SEEK COMPENSATION FROM THE GRANTOR OR HOLDERS OF ADJOINING LAND

“It is of course, trite law as well as a matter of common sense that a grantee of land which gets affected by town planning regulations must take his land as he finds it and cannot turn to his grantor or the holder of an adjoining land to compensate for his loss thereby. This is a part of the maxim: caveat emptor (let the buyer beware). The town planning regulations were part of what grantee should have investigated in the process of his investigations of the title. See Keech v. Hall 1 Dougl…21, per Lord Marisfield.” PER NNAEMEKA-AGU, JSC.

APPEAL – INTERFERENCE WITH EVALUATION OF EVIDENCE: PRINCIPLES THAT SHOULD GUIDE THE APPELLATE COURT WHEN INTERFERING WITH THE FINDINGS OF THE LOWER COURT BASED ON EVALUATION OF EVIDENCE

“The guiding principle has been well set out by this Court in many cases including the case of Chief Frank Ebba v. Washi Ogodo & Anor. (1984) 1 S.C.N.L.R. 372 . It is this: that where this Court has reached the conclusion that there are good reasons to intervene, then in arriving at the correct order to make it has to bear in mind the fact that where the question does not affect the issue of credibility of witnesses, the appellate court will be in as good a position as the court of trial to reach a decision on the fact at issue. An issue of credibility will necessarily arise where both sides to the conflict have tendered oral evidence on the point at issue and the court will have to contend with the problem of deciding which evidence it will prefer to accredit and which it will discredit. In this regard, having regard to the need in such cases to put the evidence called by both sides on either side of an imaginary balance and weigh them together (for which see Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91), it has always held the view that evidence which goes one way, in that there is nothing on the point from one of the parties, ought to be accepted, unless it is of such a nature and quality that no reasonable tribunal will accept it.” PER NNAEMEKA-AGU, JSC.

JUSTICES:

ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria

IDRIS LEGBO-KUTIGI Justice of The Supreme Court of Nigeria

EMMANUEL OBIOMA OGWUEGBU Justice of The Supreme Court of Nigeria

SHEHU USMAN MOHAMMED Justice of The Supreme Court of Nigeria

Between

OJO OGBEMUDIA EBOLOR Appellant(s)

AND

FELICIA OSAYANDE Respondent(s)

I. L. KUTIGI, J.S.C (Delivering the Leading Judgment): The plaintiff in his amended Statement of Claim sought for the following reliefs against the defendant:
“(a) A declaration of title to all that piece or parcel of land situate lying and being in Ward 22/J, Oye Street, New Benin, Benin City and demarcated by Licensed Surveyor’s beacons Nos. MG 5172. MA 7935, MA 7934 and MG 5171 and which said land is clearly delineated in PINK on Plan No.4878 dated 29th December, 1975.
(b) Possession of the said piece or parcel of land.
(c) an injunction restraining the defendant, her agents and/or servants from further trespassing onto the said piece or parcel of land.
Pleadings were filed and exchanged. At the trial the plaintiff testified and called three witnesses. The defendant also testified and called two witnesses.
Briefly stated plaintiff’s case was that in 1975 he bought a piece of land measuring 200 ft by 125ft from one Okhonkpanwoyi Iguisi who testified as P. W.1 at the trial. He did nothing on the land. When he visited the land in 1974 he noticed that one of his beacons No.93/J had been removed and planted about 21 feet into his land. He said another pillar No, MA 7934 which was never on his land had been planted in place of beacon No. 93/J, He also found that the other side of his land had been reduced by ten feet. When he bought the land from Iguisi (P.W.1), he was given a Certificate of Transfer which was tendered as Exhibit 1 at the trial. Plaintiff then reported the matter to the vendor (P.W.1) who then contacted the defendant to whom he had sold the adjoining plot of land. When the defendant failed to adjust, he then instituted these proceedings.
The defendant on the other hand said she also bought from the same vendor, P.W.1., a plot measuring 100ft by 100ft in 1966. It was part of an area measuring 300ft by 125 ft belonging to P.W.l. She said she paid P.W.1 the sum of N320.00 and P.W.1 executed a conveyance (Exhibit 5) in her favour. She said it was P.W.1 who showed and measured the land for her. She denied moving any beacons and trespassing on plaintiffs land.
It must be stated here now that both sides engaged the services of surveyors, after the case had gone to court, to prepare survey plans for them. The survey plans Exhibits 4 & 7 for the plaintiff and the defendant respectively, were tendered at the trial. Also both Exhibits 1 and 5 for the plaintiff and defendant respectively, recited the beacon numbers or the areas of land sold to the respective parties, there was no plan attached to either of the exhibits showing the entire land of P.W.1 or the portions sold to either of the parties. I shall have more to say on this later.
At the conclusion of the trial the learned trial Chief Judge in a reserved judgment found against the plaintiff and dismissed his claims, the plaintiff, dissatisfied with the judgment then appealed to the Court of Appeal, Benin City where his appeal was dismissed. He has now further appealed to this Court.
Four grounds of appeal were originally filed. These were later amended and reduced to two – and read thus:-
“1. The learned Justices of the Court of Appeal erred in law when they based their decision solely on an objection ‘which was raised suo motu by the court and relied on by counsel for the respondent who did not file the proper notice or adopt the proper procedure of raising such objection.
2. The learned Justices of Appeal erred in law in their consideration of ground 7 of the appellant’s brief by failing to apply the principles of law as enunciated in Mogaii & Ors v. Odofin & Ors (1978) 4 SC. 91 at 93-95.
PARTICULARS OF ERROR
The learned Justices of Appeal merely endorsed what the trial Court did without showing or examining how or in what way the trial court correctly evaluated or appraised evidence.
Both sides filed and exchanged briefs. These were adopted by counsel at the hearing. Oral submissions were also made in addition thereto.
Learned counsel for the appellant Mr. Odiase has submitted in his brief the following two issues for determination in the appeal:
A. Whether the Court of Appeal was right to have based its decision solely on the question of counsel for appellant’s failure to advance arguments I support of the grounds of appeal filed.
B. Whether the Court of Appeal correctly applied the principles of weighing and/or appraising evidence, more so as it appeared to have merely endorsed the error of the trial judge by default.”
On the first issue counsel submitted that although under the rules of court, learned Justices of the Court of Appeal are empowered to strike out a ground of appeal that is vague or disclosed no reasonable ground of appeal or even strike out a notice of appeal that is incompetent, grounds 1 – 6 of the grounds of appeal before the Court of Appeal did not only disclose reasonable grounds of appeal but equally gave copious particulars of error which that court ought not to have ignored. It was submitted that as a brief of argument was merely to assist the court in arriving at a just decision, that court ought to have considered the grounds of appeal even though they were not argued by counsel in the brief. He cited no authority. It was also submitted that since the respondent did not file a notice of preliminary objection, the Court of Appeal should have ordered the appellant to amend his brief to ensure the determination on the merits, of the real question in controversy between the parties. He said the Court of Appeal was wrong to have raised the issue suo motu and to have dismissed grounds of appeal Nos. 1 – 6 thereof. He said the sins of counsel in this case should not be visited on the litigant. He referred to the case of Obiora v. Osele (1989) 1 NWLR (Pt.97) 279.
Replying Mr. Osamudiamen learned counsel for the respondent submitted that although appellant’s brief in the lower court set out the issues for determination, it advanced no arguments in support but merely reproduced verbatim, grounds 1 – 6 in the brief. This was contrary to the provisions of the rules of court. By not advancing arguments in support of grounds 1 – 6 the applicant must be deemed to have abandoned those grounds and issues thereon. He said the appellant failed to take the hint when his attention was drawn to the point by the court but instead, proceeded to press on with the hearing of the appeal. It was also submitted that the filing of briefs is not merely to assist the court in arriving at a just decision but that where briefs are flied, the appeal will be taken to have been argued on the briefs even though the parties are “absent at the hearing. He said in this case the appellant at the hearing relied solely on his brief and he cannot complain when grounds 1- 6 were dismissed after his attention was drawn to the omission and he did not apply to rectify same. He cited in support Ogbu & Ors v. Urum & Anor (1981) 4 SC. 1 at 78.
Now at the hearing in the Court of Appeal, Benin on the 11th day of January 1988 the record of proceedings on p.183 shows thus:”
Parties are present.
I. Omigie, for the Plaintiff/Respondent
A.A. Omorodion for the Defendant/Respondent
Mr. Omigie argues the appeal.
Refers to the appellant’s brief filed on 10/7/85 and says he relies on the brief and in its entirety. Says he has nothing more to add. Urges the Court to allow the appeal.
Court: In the brief you have only stated the grounds of appeal without any argument except in respect of ground 7 where you adduced argument.
Omigie: That is the position, my Lords.
Mr. Omorodion addresses the Court.
Refers to the respondent’s brief filed on 15/5/86 and says he adopts and relies on it in its entirety. Urges the court to dismiss the appeal, submits that as grounds 1- 6 have not been argued in the brief, they should be dismissed.
Mr. Omigie has nothing more to add.
Court: Judgment is reserved to a date to be notified later.
(Sgd)
MICHAEL EKUNDAYO OGUNDARE, J.C.A.
11/1/88.
On this issue Ogundare J.C.A. (as he then was) with the concurrence of Musdapher and Ndoma-Egba. J.J.C.A.) said in the judgment on pages 185-186 of the record that :-
“The purported appellant’s Brief apart from giving a brief history of the case and setting out the issues for determination merely set out the seven grounds of appeal and their particulars …………………………………………………
After setting out the issues for determination, learned counsel proceeded to set out the seven grounds of appeal relied on in support of this appeal. No arguments were offered in support of grounds 1- 6……………………………….This Court only this morning in CA/B/130/85: A.A. Ezagg v. New Nigerian Bank Ltd., in a judgment delivered by my brother Musdapher, J.C.A. discussed the consequence of failure to advance, in a Brief, arguments in support of the grounds of appeal We dismissed the appeal in that case Consequently, grounds 1 – 6 are hereby dismissed by me.”
I am in no doubt at all that both on the facts and circumstances of the case, the Court of Appeal was right to have dismissed or struck out (the effect is the case in this situation) grounds 1 – 6 of the appellant’s grounds of appeal. When the court raised the issue suo motu appellant’s counsel conceded the point. But instead of asking for adjournment to regularise the position by filing a new or amended brief or even seek leave to address the court orally on those grounds, counsel did nothing. Even at the end of the submission of respondent’s counsel to dismiss grounds 1 – 6, appellant’s counsel was still telling the court that he had nothing more to say. It is settled, even before the briefs were introduced, that where counsel proferred no arguments in support of a ground of appeal that ground of appeal must be deemed to have been abandoned and would be struck out. So also with a brief, I must add that this is not a case of visiting sin of counsel on appellant as Mr. Odiase would want us to believe. This is rather a case of competence of counsel to take an appropriate step at an appropriate time. Counsel had no excuse for not knowing what to do when he was told by the court that his brief was defective. The court has done what was, required of it and nothing more. There is no merit in the issue required which I hereby resolve against the appellant.
Turning to the second issue it was submitted for the appellant that the learned trial Judge did not evaluate the evidence adduced before him. That he merely confined himself to an examination of the plans and made pronouncements thereon without relating them to the evidence. It was therefore not sufficient for the Court of Appeal to have stated that they had read through the record and found that the learned Chief Judge weighed and appraised evidence in the manner laid down in Mogaji & Ors v. Odofin (1978) 4 S.C. 91 at 93-95. He referred to the record at pages 112-113, 186-187 and to the case of Adelenwa v. The State (1972) 10 S.C.13 at I9.
It was further submitted that there was evidence upon which the learned trial Judge could have found that there was enough land for both parties and that the respondent was the guilty party because she refused to confine herself to the land sold to her. He referred to the evidence of P.W.3 on pages 64-65, which he said was ignored by the lower courts. He said this court is quite as competent as the trial court to appraise and draw inferences from evidence. He cited LawaL v. Dawodu & ors. (1972) 1 All NLR (Pt.2) 270 and Registered Trustees of the Apostolic Faith Mission & Anor. v. Umo Bassey Eyo James & Anor. (1987) 3 NWLR (Pt.61) 556.
It was also submitted that the decision of the trial court was against the weight of evidence and that the learned Justices of the Court of Appeal were in error by not examining the evidence that was available before the trial court. We were urged to allow the appeal.
In his reply respondent’s counsel submitted that the learned trial Chief Judge reviewed and evaluated the evidence before making his findings. He also relied on the documentary evidence before him and rightly came to the conclusion that the land in dispute fell within the respondent’s portion of the land sold to her by P.W.1. He said this being an appeal against concurrent findings of fact by the High Court and the Court of Appeal, this Court should not disturb the finding except for special reasons which do not exist in this appeal. He referred to Chinwendu v. Mbamali (1980) 4 – 5 S.C. 31; Fashanu v. Adekoya (1974) 6 S.C 83.
It was also submitted that a Judge is entitled to look at plans proffered in testimony and draw valuable inferences in support of a finding. That the finding of the trial Court was predicated in this case on Exhibits 4 & 7 (Survey Plans) and the purchase receipts (Exhibits 1 & 5). He said the learned trial court’s approach to the case was not faulted and was rightly affirmed by the Court of Appeal. It has also not been faulted before this Court. We were referred to the case of Okafor v Obiwo (1979) 9 – 10 S.C. 115 at 123-124.
It was further submitted that the Court of Appeal having endorsed the approach of the trial Court and affirmed its decision this Court has no business reappraising the evidence with a view to coming to a different decision. The law is that a Court of Appeal should not lightly reverse the findings of a court of trial or substitute its own views of the case for that of the trial court. He cited Ebba v. Ogodo (1984) 4 S.C. 84; (1984) 1 SCNLR 372. It was finally submitted that the appellant failed to make out a case for the declaration of title he sought by the action. The Court was urged to dismiss the appeal.
The Court of Appeal had this to say in the issue on page 187 of the record:”
Reading through the record and the judgment I am satisfied that the learned trial chief Judge not only reviewed the evidence for both parties but properly appraised the same. After examining the exhibits tendered in the case, he came to the conclusion that the land in dispute was part of what plaintiff’s first witness sold to the defendant/respondent. In my view he did what was required of him……………………………”
I have myself read through the record and judgments of the lower court. Apart from the litigants themselves, of the three witnesses called by the appellant, two are surveyors (P.Ws 2 & 3), while P.W.1 was the common vendor of the litigants. The respondent called only two witnesses. D.W.1. was only a member of the Plot Allocation Committee, while D.W.2 was the surveyor. Documentary exhibits were tendered at the trial by the witnesses and the matter very much revolved on the meaningful interpretation of the exhibits. There were no disputes on the facts as such. The sale question for determination was clearly in my view the location of the plots of the land sold to the appellant and the respondent respectively by the common vendor (P.W.1) having regard to the beacon numbers specifically stated in their documents of title – Certificate of Transfer (Exh.l) for the appellant, and the conveyance (Exh.5) for the respondent. The parties also tendered their survey plans as stated earlier on – Exh 4 for the appellant and Exh. 7 for the respondent.
In Exhibits 2 & 5, Iguisi’s (P.W.1.) property was described as demarcated by beacon Nos. 15/J, 16/J,93/J,94/Jand 95/J. In Exh1 the plot sold to the appellant was demarcated by beacon Nos. 93/J, 94/J and 95/J, while Exh.5 the area sold to the respondent was demarcated by the beacon Nos. 16/J and 93/J. The trial Court was therefore bound to search for these beacons only and nothing else from the survey plans of the parties.
Now coming back to the two Survey Plans, Exhs. 4 & 7, it will be found that the land in dispute on its northern boundary lies between and within beacon numbers 16/1 and 93/1 in both plans. The plot sold to the respondent as I said was described in her conveyance (Exh.5) as demarcated with beacon blocks Nos. 16/J and 93/J as stated above. And so the learned trial ludge was I believe right when after comparing the plans and other exhibits he came to the conclusion that the land in dispute was pan of what Iguisi (P.W.1) sold to the respondent. (See Okafor v. Obiwo (supra). It ought to be remembered as I said earlier on that although both Exhibits 1 & 5 recited the beacon numbers of the entire P.W.1 ‘s land and the areas sold to the litigants herein there was no plan attached to any of the exhibits. It was therefore just not enough for the appellant’s witnesses to say that a beacon “has been shifted” without indicating its true position vis-a-vis other beacons, because the respondent said that was the area shown to her by the vendor (P.W.1). The issue can probably best be resolved by having a composite plan of the entire land owned by P. W.1 showing the areas sold to the parties with their appropriate beacons. This was not done in this case. It is however settled that in a suit for a declaration of title the onus of proof lies on the plaintiff who must succeed on the strength of his own case and not, on the weakness of defendant’s case (See Kodiliye v. Odu (1935) 2 WACA 336 & Woluchem v. Gudi (1981) 5 S.C.291). I feel the Court of Appeal was right to have affirmed the decision of the High Court. I therefore resolve the issue against the appellant.
The two issues having been resolved against the appellant the appeal fails.
It is hereby dismissed with costs of N1,000.00 for the respondent.

A. G. KARIBI- WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother Kutigi, J.S.C. in this appeal. I agree that this appeal be dismissed.
Appellant shall pay costs assessed at N1,000.00 to the respondent.

E. O. OGWUEGBU, J.S.C.: I have had the advantage of reading the judgment of my learned brother, Kutigi, J.S.C. and I agree with him that this appeal ought to be dismissed.
I would like to comment on issue “B” formulated by the appellant which reads:
“Whether the Court of Appeal correctly applied the principles of weighing and/or appraising evidence, more so as it appeared to have merely endorsed or fallen into the error of the trial Judge by default”.
This issue is based on ground 7 of the grounds of appeal where the appellant complained that “the judgment is against the weight of evidence.”
The plaintiff lost in Benin Division of the High Court of Justice, Bendel State in Suit No.B/189/75. He was dissatisfied with the decision and appealed to the Court of Appeal, Benin Division. He filed only one ground of appeal along with his notice of appeal on 29:9:79. This ground of appeal reads:-
“The decision cannot be supported by the evidence.”
He intimated that further grounds of appeal would be filed on receipt of the record of proceedings.
On 27:6:85, the Court of Appeal granted the plaintiff/appellant extension of time to file and argue additional grounds of appeal. The additional grounds were numbered one to six.
In the brief of argument filed on behalf of the appellant in the Court of Appeal, the six additional grounds of appeal were reproduced at pages 2 to 4 of the said brief. There is a seventh ground of appeal which reads:-
“Ground 7:
The judgment is against the weight of evidence.”
The learned Justices of the Court of Appeal dismissed grounds one to six (the additional grounds) for reasons stated in their judgment with which I entirely agree. As to ground 7, the court below said:
“Arguments were however proferred in respect of ground 7 which is the general ground that the judgment is against the weight of evidence. Leave was never sought nor obtained to file and argue ground 7 as formulated in the Brief. The first six grounds set out in the brief were only those in respect of which leave of this court was sought and obtained to file and argue. The original ground in the Notice of Appeal reads:-
‘That the decision cannot be supported by the evidence.’
There was no time leave of this Court was ever sought nor granted to amend the original ground. It follows therefore that the only ground now available to the appellant must be deemed to have been abandoned by the appellant in his brief. That being so, the result is that this appeal must fail.
Assuming, but without deciding, that ground 7 as formulated in the brief could be interpreted as reflecting the original ground as contained in the Notice of Appeal, I need to consider the submissions of learned counsel in respect thereof.”
The learned Justices of the Court of Appeal proceeded to consider the arguments put forward by both learned counsel. At the end the Court held per Ogundare, J.C.A. as he then was:
“Reading through the record and the judgment, I am satisfied that the learned trial Chief Judge not only reviewed the evidence for both parties but properly appraised the same. After examining the exhibits tendered in the case, he came to the conclusion that the land in dispute was part of what the plaintiff’s first witness sold to the defendant/respondent. In my view, he did what was required of him and I am not prepared to say he came to a wrong conclusion. In the result, the appellant has failed to discharge the onus on him which is to prove that the judgment appealed against is wrong.”
The court found no substance in ground 7 and dismissed the appeal.
The learned counsel for the appellant has urged this Court to hold that ground 7 was properly argued. He submitted that the fact that the appellant bought first is very material. The common vendor thereafter can only dispose of what is left. He stated that the common vendor (P.W.1.) would not be able to dispose of what he had already sold out to the plaintiff/appellant.
I think the documentary evidence received in evidence at the trial Court put to rest the pieces of oral evidence given to both parties and their witness. The trial Judge had no need to look beyond these documents – Exhibits” 1″, “2”, “3”, “4”, “5”. and “7” in arriving at his decision.
Exhibit 1 is a purchase receipt by which P.W.1 purported to transfer a building plot of 91 Lawani Street, New Benin City, Benin situate at Ward 22J New Layout and measuring 200 feet long by 125 feet wide along a proposed street with beacon block numbers 93J, 94J and 95J to the appellant.
The plot purportedly transferred to the appellant by P.W.1 is a portion of his holding measuring 300 feet by 125 with beacon Nos. 15/J, 16J-93/J, and 94/J situate in the new layout Ward 22/J. (See Exhibits “2” and “3”) .
In Exhibit “5”, the same P.W.1 (O. lguisi) purported to transfer to the defendant/respondent a plot of land measuring 100 feet by 100 feet out of his holding at Ward 22/J, New Benin, Benin City measuring 300 feet by 300 feet and demarcated with beacons block Nos. 15/J, 16/J, 93/J, 94/J and 951/J The plot transferred to the defendant is adjacent to that transferred to the appellant and is what remained of the holding of P.W.1 after the initial transfer to the plaintiff/appellant. Neither Exhibit”1″ nor Exhibit “5” has any survey plan attached to it to indicate the positions of the survey beacons mentioned in both documents. In the same manner, Exhibits “2” and “3” through which the P.W.2 got the conveyance of the plot measuring 300 feet by 125 feet has no survey plan to show the beacon numbers stated therein.
The absence of survey plans in these Exhibits dealt a fatal blow to the case of the appellant. It would have been otherwise if he had developed his own plot of land in that case, his own holding would have been properly defined and demarcated on the land and the respondent would only purchase whatever was left. This was not so.
Exhibits “4” and “7” are the dispute plans made by the parties after the institution of the action. None of the two exhibits can represent the true area of land transferred by P.W.1 to each of the parties.
` If the survey plans with beacon numbers mentioned in Exhibits “1”, “2” and “5” are not before the Court it will be impossible to determine who encroached upon the land of the other. If they are available a composite plan should have been ordered and the parties should have been saved a lot of their precious time and expense. Any examination of Exhibits “4” and “7” even with a microscope cannot throw any light on the issue involved.
The questions which remained unanswered by the parties are:- Who planted the survey beacons Where are the survey plans having the beacon numbers in Exhibits” 1″, “2”, and “5” If there had been any evidence as to the existence of the respective survey plans whose beacon numbers appear in those exhibits. A proper order which this Court could have made is that of non-suit. The courts below applied the principles enunciated in Mogaji & ors. v. Odofin & ors. (1978) 4 S.C. 91 at 93-95.
Having regard to all the surrounding circumstances, no useful purpose will be served if such an order is made.
The appeal therefore fails and it is accordingly dismissed by me. I subscribe to all the consequential orders made in the lead judgment.

S. U. MOHAMMED, J.S.C: I have the advantage of reading, in draft, the lead judgment just delivered by my learned brother, Kutigi, J.S.C I agree with his reasoning which I adopt as mine. I too dismiss the appeal with N 1,000.00 costs to the respondent.

P. NNAEMEKA-AGU, J.S.C (Dissenting): With utmost humility and greatest respects, I find it difficult to agree with the judgment of my learned brother, Kutigi, J.S.C., in this appeal. My difficulty arises from two vital but well-established principles, namely: (i) that when a trial court fails to consider, or consider adequately a vital aspect of a party’s case, the appeal must be allowed and (ii) that when evidence adduced by the party goes one way, no question of credibility arises. So the available evidence ought to be accepted by the appellate court unless it is of such a quality that no reasonable tribunal should accept it.
This is a further appeal by the plaintiff against the judgment of the Court of Appeal, Benin Division which had dismissed his appeal against the judgment of the High Court. The plaintiff had instituted an action in Benin High Court claiming for a declaration of title to a piece or parcel of land situate in Ward 22J, New Benin, Benin City, more particularly shown in the plaintiffs plan. Exh 4, possession of the said land and perpetual injunction restraining the defendant, her agents and servants from further trespassing on the said land.
After hearing, the learned trial Judge dismissed the plaintiffs case. His appeal to the Court of Appeal was also dismissed: hence his further appeal to this Court.
The facts leading to the institution of the action are straight forward. On plaintiffs application dated 8/8/61, Ward 22J, Ward Allotment Committee, Benin City alloted a piece of land measuring about 300 feet by 125 feet of one Okhonkpamwoyi Iguisi at New Benin, Benin City. The grant was approved by the Oba of Benin on the 9th of January, 1961. On 12/12/65, Iguisi sold part of the land measuring 125 feet x 200 feet to the plaintiff, leaving a balance of 125 feet x 100 feet for himself. Later Iguisi sold another piece of land measuring 100 feet x 100 feet to the defendant. Some time later, the plaintiff visited the land and noticed that some property beacons marking the boundaries of his land had been moved and that a fence had been erected on part of his land, a pit latrine in another and vegetables planted on yet another part. He showed this to the defendant but as she refused to listen to reason, the plaintiff reported the trespass to their common vendor, Iguisi. The latter intervened and agreed there was trespass. But as both he and an on official of Bendel State Development Town Planning Authority failed to persuade the defendant to see reason and co-operate, plaintiff brought this action, which, as I have stated, was decided by the two lower courts against him.
In this appeal, the two amended grounds of appeal and the issues for determination formulated therefrom are short, and run as follows:
“1. The learned Justices of the Court of Appeal erred in law when they based their decision solely on an objection which was raised suo motu by the Court and relied on by counsel for the respondent who did not file the proper notice or adopt the proper procedure of raising such objection.
2. The learned Justices of Appeal erred in law in their consideration of ground 7 of the Appellant’s brief by failing to apply the principles of law as enunciated in Mogaji & Ors v. Odofin & Ors. (1978) 4 S.C. 91 at 93-95.
Particulars of Error
The learned Justices of Appeal merely endorsed what the trial Court did without showing or examining how or in what way the trial court correctly evaluated or appraised evidence.
The appellant framed “Issues for Determination” thus:
1. Whether the Court of Appeal was right to have based its decision solely on the question of counsel for appellant’s failure to advance arguments in support of the grounds of appeal filed.
2. Whether the Court of Appeal correctly applied the principles of weighing and/or appraising evidence, more so as it appeared to have merely endorsed or fallen into the error of the trial Judge by default.”
Respondent formulation of the issue appears more positive. They run thus:
“i. Whether the Court of Appeal was wrong to have dismissed the appeal on grounds 1 – 6 of the additional grounds of appeal because they were not argued in his Brief by the appellant
ii. Whether the Court of Appeal was wrong to have dismissed the appeal on ground 7 (taken for ground 1 of the original ground of appeal) which on a most benevolent view, appeared to have been argued in the appellant’s Brief”
In his submission on the first issue learned counsel for the plaintif (hereinafter called the appellant) in his brief submitted that the Court of Appeal was wrong to have raised the question that the appellant did not advance any argument in his brief on grounds 1 – 6 by itself; that it was a matter which should have been raised by the defendant herself, on a proper notice of preliminary objection as contemplated by the rules, and that the Court was wrong to have based its decision on it. In any event, he submitted in his reply brief, the appellant’s grounds 1 – 6 were detailed and contained his argument of the appeal which he adopted in his brief and oral argument. So it was a misapprehension for the Court of Appeal to have held either that he did not argue grounds 1 – 6 or that he abandoned them.
In his reply, learned counsel for the respondent submitted that appellant did not in the Court below, advance any argument with respect to grounds 1 – 6 and that this was contrary to the rules. So, he was deemed to have abandoned the grounds. It was not for the Court to advise the appellant to withdraw his brief for amendment. As the appellant relied solely on his brief in oral argument, he was, therefore deemed to have abandoned the grounds.
I believe it is necessary to put the facts in respect of this issue in their correct perspective. At page 158 of the record, the appellant in his brief formulated the four issues which, in his opinion, were for determination in the Court of Appeal. These were followed at pages 159 to 161 by grounds of appeal which in grounds 1 – 6 were very detailed, elaborate and argumentative. Such forms of statement of grounds of appeal were not, I must point out, intended by the Court of Appeal (Amendment) Rules of 1984, particularly Order 3 rules 2(2) to 2(4). But learned counsel for the respondent took no objection to the grounds as formulated. Rather at pages 168-175 of the respondent’s brief he regarded the appellant’s grounds 1 – 6 as argument of appellant’s appeal and dealt with them as such by replying to all the points raised therein. To put beyond doubt how the appellant regarded his argumentative grounds of appeal, he opened his argument at page 161, under paragraph 9.1 thus:
“Having regard to what has been said in grounds 1 – 6 in this Brief………………..”
then he went ahead to argue ground 7.
This does not show that he intended to abandon the grounds, as the learned Justices of the court below thought. Rather, he adopted them as his argument of the appeal. This was, no doubt, novel and not in accordance with the rules. But then being merely a matter of non-compliance with the Rules and not a matter going to the jurisdiction or the vires of the Court, it was for the respondent, and not for the court, to object to it. Counsel on her behalf did not object: rather he treated the grounds as appellant’s argument and proceeded to deal with them as such. I, therefore, agree with learned counsel for the appellant that the Court of Appeal was in error to have treated grounds 1 – 6 as abandoned or not argued.
This brings me to the role played by the Court below. Learned counsel for the appellant submitted that if the procedure adopted by the appellant was objectionable, it was a matter for a notice of a preliminary objection by the respondent under Order 3 rule 15, and that, as there was none, it ought not to have been taken by the Court suo motu. Learned counsel for the respondent did not appear to have addressed himself seriously to this aspect of the issue. But I consider it most fundamental.
I would wish to begin my consideration of it by referring to what I stated in Okoduwa & Ors. v The State (1988) 2 NWLR (Pt.76) 333 at p.354 where I said:
“There are certain fundamental norms in the system of administration of justice we operate. That system is the adversary system, in contradistinction to the inquisitorial system. In that adversary system parties, with their counsel, and the judge have their respective roles to play. Basically, it is the role of the Judge to hold the balance between the contending parties and to decide the case on the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules. Under no circumstances must a Judge under the system do anything which can give the impression that he has descended into the arena, as, obviously, his sense of justice will be obscured. This is the necessary inference from all the decided cases on the point. See for examples, Fallon v. Calvert (1960) 2 Q.B. 201, at p.204; in re Enoch v. Zaretsky Bock & Co Arbitration (1910) 1 K.B. 327; Jones v. National Coal Board (1957) 2 All E.R. 155; Qmoregbe v. Lawani (1980) 3-4 S.C. 108 at
pp.120-121.
Although most of the above cases were those at first instance, the same principle applies on appeal also, mutatis mutandis. Even though by the rules an appellate court can raise a point not raised by the parties and ask the parties to address it on the point, that liberty must be applied with the principles of our adversary system and fair hearing in mind. In view of those principles such points that can be so raised by the court are usually those which go to the jurisdiction or the vires of the particular Court, and not those on non-compliance with the rules which carry no fundamental implications. Indeed, as stated in Okoduwa’s Case (supra) parties can, in the system agree on rules of procedure they choose to adopt. In this case the matter was merely procedural: as learned counsel for the appellant decided to argue his client’s appeal in the grounds of appeal after formulating the issues for determination and learned counsel for the respondent not only failed to take objection to the procedure but also endorsed it by dealing with those arguments, the court has no room or power by itself to take an objection to the procedure, The court below was clearly in error. The appellant was, therefore, right when he submitted that the court should have decided grounds 1 – 6 on their merits.
On the second issue, the complaints of the appellant were that, the Court of Appeal was wrong to have, again suo motu, raised an objection to the form of the general ground of appeal in ground 7 and virtually reached a decision to dismiss the appeal on that basis before reluctantly considering it; that because of that attitude, the court did not give its full consideration to the manner the learned trial Judge treated the evidence called by both sides; and that but for that wrong approach the court would have come to the conclusion that the complaint in ground 7 had merit. Relying on the case of Atanda v. Ajani (1989) 3 NWLR (pt. 111) 511, at P.531 &539, he submitted that in view of this wrong approach this cannot rightly be regarded as one where there have been concurrent findings of facts.
In the respondent’s brief, learned counsel for the respondent submitted that the learned trial Judge resolved the main issue, that is whether the land in dispute lay in the land sold to the appellant or in the one sold to the respondent correctly and the Court of Appeal was right to have agreed with him on the point. This is, therefore. a question of concurrent findings of fact by the two courts; Chinwendu v. Mbamali (1980)4 – 5 S.C. 31. It is not correct to say that the learned trial Judge failed to evaluate the evidence because he not only reviewed the evidence but also evaluated it based on the purchase receipt and survey plans before the court. He was entitled to have preferred those documentary pieces of evidence to oral testimonies of witnesses, he submitted: See Fashanu v. Adekoya (1974) 6 S.C. 83. He was entitled to have looked at the plans filed by the parties: Ndukwe Okafor & Ors v. Agwu Obiwo & Anor (1978) 9 – 10 S.C. 115, p.123. The Court of Appeal was right to have endorsed the procedure and to have dismissed the case because appellant did not prove his title in that he did not prove that the Oba of Benin approved the transfer of the land in dispute to him by Iguisi; the case of Bello v. Eweka (1981) 1 S.C. 101 was relied upon.
I shall dispose of this last point first. I may observe that the point about approval or not by the Oba of Benin of the transfer of the land in dispute by Mr. Iguisi lo the appellant is being raised for the first time in this Court. It was not raised on the pleadings or in the Court of Appeal. Learned counsel for the appellant did not even deal with it in his reply brief: however, I shall consider it.
No doubt, the approval of any grant or transfer of land according to Benin customary law by the Oba of Benin is a most crucial factor, as title to land in Benin begins not with any conveyance or assignment but with that approval: See on this: K.S. Okeaya v. Madam Ekiomado Aguebor (1970) 1 All N.L.R. 1; Vincent Bello v. Magnus Eweka (1981) 1 S.C. 101 Arase v. Arase (1981) 5 S.C. 33. But it is a question of fact whether or not any particular grant or transfer was duly approved. As it is so, it is a fact which ought to be duly raised on the pleadings and proved by evidence. So I must hold that because respondent’s notice is now no longer necessary since the deletion of Order 8 rule 3 by the Supreme Court (Amendment) Rules, 1992 a party may now urge the Court to affirm a decision on grounds other than those relied upon by the Court below, but that he cannot thereby rely on an issue of fact which ought to have been, but was not, pleaded. Therefore on the state of the pleadings, I would have disregarded what learned counsel for the respondent said about the fact that approval by the Oba of Benin was not proved. But then it is one of the necessary things which a person who as plaintiff, claims title by transfer according to the customary law of Benin has to prove in order to be entitled to it. As it is so and it was not raised or decided upon. I shall simply regard it as non-proven and grant to the plaintiff what he is entitled to in spite of that state of the facts.
Now ground 7 as originally filed in the grounds of appeal in the Court of Appeal runs thus:
“That the decision cannot be supported by the evidence.”
But in the brief, it was then formulated, without leave to amend as follows:
“The judgment is against the weight of evidence.”
Then appellant’s argument followed accordingly. Respondent’s argument also followed suit at page 175 of the record. No objection was raised as to the reformulation of that ground, nor was any issue as to whether or not there had been any amendment thereof since the original grounds of appeal were filed, raised by the respondent. Nor was it raised in oral argument. In my respectful opinion, our system of appeals in our adversary system does not permit a court to dig into the records and fish out issues, no matter how patently obvious, and. without hearing the parties use it to decide an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a Judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the court then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided. Indeed. it was this consideration that informed the following provision in Orded rule 2(6) of the Court of Appeal Rules, 1984, which runs thus:
“6. Notwithstanding the foregoing provisions the Court in deciding the appeal shall not be confined to the grounds set forth by the appellant:
Provided that the court shall not if it allows the appeal rest its decision on any ground not set forth by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”
There is a similar provision in Order 8 rule 2(6) of the Supreme Court Rules, 1985. I am therefore of the clear view that the Court of Appeal was in error to have suo motu picked up the point and used it for a consideration of the appeal, moreso as the two formulations are in substance, the same.
But I think the most serious point made on behalf of the appellant is the complaint that because of that wrong approach the court below did not give a proper consideration to the evidence called by the parties on the crucial issue as to whether the land in dispute fell within the area sold by the common vendor, Iguisi, to the appellant or that sold to the respondent.
Now it was pleaded in paragraphs 10, 11, 12, 13, 14, 16, 17, 18, 19, and 21 of the Statement of Claim as follows:
“10. Several months after the plaintiff had purchased his said land from Mr. O. Iguisi as hereinbefore referred to, the defendant in the company of one Mr. Omokaro approached the said Mr. Iguisi to purchase the remaining land measuring 100 feet by 100 feet.
11. The said Mr. Iguisi then transferred his remaining land measuring 100 feet by 100 feet to the defendant.
12. The plaintiff has exercised his right of ownership over the said land from the date of purchase without challenge from any body until in or about 1974 when the plaintiff visited the said land and found that the defendant trespassed unto the land, moved Ward’s beacon block No.93/J from its original place and planted it about 21 feet into the plaintiff’s land thereby reducing the plaintiff’s land from 200 feet to about 179.4 feet and planted survey beacon No. MA/934 side by side with Ward’s beacon Nyo.93/3 in the position it was moved to by the defendant.
13. The defendant also erected a fence on part of the plaintiff’s land, dug a pit-hole latrine on another part of the plaintiff’s land and planted vegetables thereon.
14. The plaintiff then called the attention of the defendant to the said beacon which was moved by the defendant and also to the fence and the pit-hole latrine dug by the defendant on the plaintiff’s land. The defendant refused to listen to the plaintiff.
16. The plaintiff reported the matter to the said Mr.lguisi who inspected and measured the land again in company of the plaintiff and confirmed that Ward’s beacon No.93/J had been moved from its original position into the plaintiff’s land.
17. Mr. Iguisi then invited the defendant so that the matter may be settled but defendant refused to discuss the matter with Mr. Iguisi, Mr. Iguisi then told the defendant that she had trespassed onto the plaintiff’s land.
18. The plaintiff in turn reported the matter to the said Mr. Omokaro who accompanied the plaintiff to the said land, measured the land and confirmed that defendant trespassed unto plaintiff’s land. Mr. Omokaro then invited the defendant so that the matter may be settled but again as before the defendant refused to co-operate.
19. The plaintiff then invited the defendant and Land Officers from Bendel Authority who inspected both plaintiff’s and defendants land and confirmed that the defendant trespassed onto plaintiff’s land.
21. After pleadings had been ordered in this case, the plaintiff employed the services of Mr. O.E. Omoregie. Licensed Surveyor to survey the said land and Plan No. OM.4878 dated 29th December 1975 was prepared. The said plan is filed herewith and will be founded upon at the trial.”
(Italics mine)
The defendant denied or traversed most of the above averments. At the trial the appellant called evidence in proof of the above averments. I deem it necessary to refer to the most relevant ones. The plaintiff himself testified as follows:
“In 1974 when I went there, I found that the Ward Beacon 93/J had been uprooted and planted about twenty-one feet inside my land. Another survey beacon No. BA 7934 was planted by beacon No.93/J in its new position. BA 7934 was not on my land when I bought my land. I found that the otherside of my land was reduced by ten feet. A fence was constructed between BA 7934 and 93/J. I invited defendants’ attention to what I saw. She gave no satisfactory explanation. I then reported the matter to Iguisi. I took him to the site and showed him the extent of the trespass. Iguisi called the defendant and told her she had trespassed in that she had taken pan of my land to the extent of ten feet one side and twenty feet on the other.”
Iguisi himself (P.W.1) confirmed this where he stated:
‘Plaintiff later came and complained to me that the defendant encroaches on twenty-one feet of his land at the first pan and ten feet at the area.”
Later he continued:
“As a result of the plaintiff’s complaint, I went to check the land and getting there I found that plaintiff’s boundary pillar had been removed and that the encroachment complained of by plaintiff took place.”
Plaintiff also called a surveyor (P.W.2) who confirmed the trespass in the following words after comparing what he saw on the ground with what was represented on the plan, Exh.4 prepared by licensed surveyor, Omoregie. Then deceased:
“I saw the survey beacons of the land verged yellow, they are planted far away from where they were supposed to be. They should have been planted along the yellow line. Their numbers are BA 7936 and MA 7937. They ought to have been planted nearer to the road. The one to the north is twenty feet from the road and that to the south is ten feet from the road. If the beacons had been correctly planted, the defendant’s land would have measured one hundred feet by one hundred and ten feet.”
Plaintiff did not stop there. He also called a surveyor in the Land Division of the Bendel State Development and Town Planning Authority (P.W.3) who testified as follows:
“The plaintiff and defendant were there. We told them where the beacons ought to be. By beacons I mean the Ward beacons. The Ward was 22J. Distance of the striking tines from adjacent roads away from ten feet to fifteen feet. The beacons facing Eweka Street were not in position I mean the correct places where they should be.The beaconing ought to have been placed near to Eweka Street. The two beacons facing Eweka Street were not in position. They should have been nearer Eweka Street. The beacons ought to be at the edge of the road.”
It is clear from the testimonies of these four witnesses that the beacons near Eweka Road had been moved and that there were acts of trespass complained of on part of plaintiff’s portion of the land. The defendant on the other hand denied the trespass and stated that she did all the acts complained of on her land. The two witnesses called by her said nothing which could resolve the main issue as to whether the portion of land where those acts were committed were on her own or plaintiffs land. Samson Ojo Odeh, D.W.1, simply stated that he knew the place where the land of the plaintiff and defendant were situate. D.W.2, Isikwe Umemezie Ufoegbune, a licensed Surveyor, tendered the defendant’s plan, Exh. 7 which he said he made in 1978 showing the abuttals and dimensions of defendant’s land as shown to him by the defendant. Hew as not shown any document of title. So, the defendant did not call any piece of evidence in rebuttal of the clear evidence of the plaintiff showing that she had moved the boundary beacons and committed trespass on portion of the land which belonged to the plaintiff.
The above witnesses were not really cross-examined on the above serious pieces of evidence by the plaintiff and his witnesses. They are therefore deemed to have been admitted. But what is most striking is defendant’s own testimony. In spite of the abundant and clear evidence by the plaintiff and three of his witnesses showing that the defendant moved two beacons one about 21 feet and the other about 10 feet into the plaintiff’s land, she did not categorically deny this in chief while in the witness box. Her defence was a bare denial of trespass. Rather she impliedly admitted plaintiff’s case under cross-examination and in her plan, Exh.7. For in spite of the fact that the parties common vendor, Mr. Iguisi, stated that his whole land, as per Exh.2 stretched from Eweka Street, the defendant said that when she was told by Ward Delegates of Ward 22J that she had to make an allowance of25 feet from Eweka Street, she did so. This was not a term of the grant. To quote her words under cross-examination:
“The road the Ward Delegates said I should give allowance of twenty-five feet for is Eweka Street. I made an allowance of twenty-five feet from the road before measuring 100 feet by 100 feet I bought from Iguisi. From my land to the edge of my side of Eweka Street is twenty-five feet.”
Thus she impliedly admitted but tried to justify and explain the cause of the trespass. Plaintiffs and defendant’s parcel of land lie side by side from Eweka Street, the defendant’s lying closer to the road. Their vendor did not make any allowance of 25 feet from the road before selling to the defendant a parcel 100 feet by 100 feet which is contiguous to the plaintiff’s land which was sold to him some time before the defendant’s. She moved 25 feet further inside from the road in order to meet the requirement of the Planning Authority. But her grantor P.W.1 never made such an allowance. It is of course, trite law as well as a matter of common sense that a grantee of land which gets affected by town planning regulations must take his land as he finds it and cannot turn to his grantor or the holder of an adjoining land to compensate far his loss thereby. This is a part of the maxim: caveat emptor (let the buyer beware). The town planning regulations were part of what grantee should have investigated in the process of his investigations of the title. See Keech v. Hall I Dougl…21, per Lord Marisfield. In this case, the defendant was wrong to have shifted some twenty-one feet into the plaintiff’s land in order to fulfill the town planning requirement. This is the crux of plaintiff’s case.
A careful examination of the plans filed by the parties in this case, i.e, Exh. 4 for the plaintiff and Exh.7 for the defendant, against the, background of the land of their common grantor, Iguisi, shows that the important question is which of the two contending parties owns the piece of land edged pink in both plans and surrounded by property beacons marked thus: MG.5171, MG.5172, MA.7935, MA.7935 and MA.7934 (imposition with 93/J). The learned trial Judge resolved this question by simply examining the positions of the beacons on the two plans. With respects, he did not appear to have adverted to the above evidence which shows unmistakably that the defendant shifted further inside from Eweka Street into the plaintiff’s land when neither Mr. Iguisi’s document of grant, Exh.2 nor the approval for him, Exh. 5 and the defendant’s grant as reflected therein made any allowance for such a shift. Also the clear evidence of the plaintiff and such independent witnesses as P.W.2and P.W.3 as well as their common vendor, P.W.1 (Mr. Iguisi) shows that beacon No.93J has been moved about 21 feet from where it was supposed to be. Indeed even defendant’s plan Exh.7 shows that the defendant’s boundary pillar MA 7934 is now in the same position with Ward beacon No.93J which originally marked plaintiff’s boundary. The sum total of all these pieces of evidence is that the defendant had trespassed into the land of the plaintiff who had admittedly an earlier grant from Iguisi.
The learned trial Judge in his eleven page judgment summed up the evidence in ten pages and devoted just one page to examining the documentary evidence only. Significantly, he did not deal with the damaging evidence of the plaintiff, P.W.1, P.W.2, and P.W.3 part of which I have set out above; nor admission of the defendant that she shifted 25 feel from Eweka Road. He rather decided to deal with the matter on the basis of the documentary evidence tendered before him, namely plaintiffs document of transfer from 19uisi, Exh.4, then Exh.5 showing the area sold to the defendant and his plan, Exh.7. Then he concluded:
“It is therefore very obvious from all that I have shown from the two plans and exhibits 1 and 5 that the area in dispute is part of what Iguisi, on his own showing per exhibits 1 and 5 sold to the defendant, and this being so the plaintiff fails in this suit. It does not matter to whom Iguisi first sold. He made clear the area he was selling.”
Clearly Exhs. 1 and 5 do not reflect the new positions of the beacons, thus the learned trial Judge clearly failed to resolve the crucial issue as to whether or not the beacons shown on defendant’s plan, Exh.7, were in place. He did not advert to the evidence of the plaintiff and his three witnesses which affirmatively shows that the defendant’s beacons Nos. MA 7936 and MA 7939 ought to have been planted nearer the road but have been moved, with the result that they abut into plaintiff’s land by distance varying from 20 feet to 10 feet. As the defendant still look her 100 feet from the moved position, this obviously affected plaintiff’s land. Although it has been stated that documentary evidence ought to be used as a hanger from which to assess conflicting oral testimony (for which see Fashanu v. Adekaya (1974) 1 All NLR (Pt.1) 35,at 41-42; also Lion Buildings Ltd. v. Shadipe (1976) 12 S.C. 135, p.153), it is my view with respects, that the learned trial Judge was in grave error to have purported to reach a conclusion on the issue on the documentary evidence alone without adverting to oral testimonies. Although documentary evidence because of its permanency, is usually a very reliable piece of evidence; yet oral testimony sometimes gives meaning to documentary evidence. In the instant case, it serves no useful purpose that the learned trial Judge tried to interpret the property beacons as reflected in the plans without refrence to the evidence that those on the defendant’s plan Exh.7 had been moved out of where they were supposed to be. The Court of Appeal without adverting to this wrong approach, concluded that it had not been persuaded that the learned trial Judge was wrong.
This brings me to the question of concurrent findings on the point by the two lower courts. This court usually approaches such findings from the premises that, following from the fact that making of findings on primary facts is a matter preeminently within the province of the Court of trial which has the opportunity of seeing and hearing the witnesses testify, a Judge’s conclusion on the facts is presumed to be correct. So, that presumption must be displaced by the person seeking to upset the judgment on facts: See Williams v. Johnson (1937) 2 WACA 253; Balogun & Ors v. Agboola (1974) 1 All NLR (Pt.2) 66. And when in addition an appellate court has confirmed such a conclusion, the presumption is stronger still. It can only be reversed upon special circumstances shown. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718; Ukpe Ibodo & Ors v. lguisi Enarofia (1980) 5-7 S.C. 42, at 55-58. But once this Court is satisfied that the court of trial did not properly evaluate the evidence, or that it made a wrongful approach to the evidence tendered before it, or has in any way not properly utilized its advantages of seeing or listening to the witnesses, then a special circumstance has been shown, the confirmation of the finding by the Court of Appeal notwithstanding. So it has the right, indeed the duty, to intervene: see Olujinle v. Adeagbo (1988) 2 NWLR (Pt.75) 238; Ojo v. Governor. Oyo State (1989) 1 NWLR (Pt.95) 1. In my view, the situation has arisen in this case, as the learned trial Judge did not properly evaluate the evidence called before him because he did not advert to oral testimonies tendered at all.
The final question is what order should be made in this case. The guiding principle has been well set out by this Court in many cases including the case of Chief Frank Ebba v. Washi Ogodo & Anor. (1984) 1 SCNLR 372. It is this: that where this Court has reached the conclusion that there are good reasons to intervene, then in arriving at the correct order to make it has to bear in mind the fact that where the question does not affect the issue of credibility of witnesses, the appellate court will be in as good a position as the court of trial to reach a decision on the fact at issue. An issue of credibility will necessarily arise where both sides to the conflict have tendered oral evidence on the point at issue and the court will have to contend with the problem of deciding which evidence it will prefer to accredit and which it will discredit. In this regard, having regard to the need in such cases to put the evidence called by both sides on either side of an imaginary balance and weigh them together (for which see Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C. 91), it has always held the view that evidence which goes one way, in that there is nothing on the point from one of the parties, ought to be accepted, unless it is of such a nature and quality that no reasonable tribunal will accept it. As in the instant case the evidence of the plaintiff and his three witnesses went one way as I have shown, it ought to have been accepted. I accept it as clearly establishing the trespass complained of by the plaintiff.
I shall now consider plaintiff’s claims before the court. As approval by the Oba of Benin was, at the time the action was brought in 1975, one of the necessary things which a person who claimed title by transfer had to prove and there was no evidence on it. I cannot grant the first head of claim in the form in which it has been formulated. However in view of the evidence of the plaintiff and his grantor, Mr. Iguisi, plaintiff is entitled to possess the land granted to him by the admitted common vendor.
On my conclusions above, the case of trespass has been clearly made out. As there is no claim for damages but for possession and injunction, those two claims succeed.
In the result, the appeal succeeds and is allowed. I set aside the judgments and orders of the courts below. Also:
i. I declare that the plaintiff is entitled to possess all that piece or parcel of land being and situate in Ward 22/J, Oye Street, New Benin, Benin City, which is delineated PINK in Plan No.4878 dated 29th December 1975, which was tendered as Exh. 4 in this suit.
ii. I also grant to the plaintiff possession of the said land.
iii. I also grant to the plaintiff an injunction restraining the defendant, her agent and/or servants from further trespassing onto the said piece or parcel of land.
The plaintiff is awarded the costs of this suit which I assess as follows:
N500.00 in the High court, N500.00 costs in the Court of Appeal
and N1,000.00 in this Court.
Appeal dismissed by a majority of 4-1
Nnaemeka-Agu, J.S.C. dissented.