OLAYEMI OLOWU V. RICHARD AMAYO & ANOR (2011)

OLAYEMI OLOWU V. RICHARD AMAYO & ANOR

(2011)LCN/4364(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2011

CA/B/61/94

RATIO

RECORD OF APPEAL: POSITION OF THE LAW ON WHERE A GROUND OF APPEAL ALLEGES MISDIRECTION OR ERROR IN LAW

An appeal is a kind of a re-hearing of a matter only upon the evidence on record from the trial Court. An Appellate Court is not allowed to go outside the record of appeal placed before it in arriving at its decision. The appellate jurisdiction of Court is initiated by filing and serving the appropriate notice of appeal containing the grounds of appeal and their particulars as well as the reliefs to be sought at the appellate Court, parties to be directly affected by the appeal etc. An appeal is argued and decided only on the issues formulated from the grounds of appeal. An issue in an appeal that was not duly formulated from one or more of the grounds of appeal is incompetent. According to a number of decided cases where a ground of appeal alleges misdirection or error in law, it must state the particulars and nature of the misdirection or error. See ONIFADE V. OLAYIWOLA (1990) 21 NSCC (PT.3) 421, ADENIJI V. DISU (1958) SCNLR 408 etc. PER ALI ABUBAKAR BABANDI GUMEI, JCA

ISSUE FOR DETERMINATION: WHAT WILL BE USED TO DETERMINE THE COMPETENCE OR OTHERWISE OF AN ISSUE IN A FINAL APPEAL

An issue in an appeal must be a proposition of law or fact so cogent, weighty and compelling that a decision on it in favour of a party to an appeal will entitle him to the judgment of an appellate Court. In a final appeal the main yardstick to be used in determining the competence or otherwise of an issue in an appeal is to consider the above essential ingredients or elements of an issue alongside the deducible complaints of the Appellant against the judgment appealed. PER ALI ABUBAKAR BABANDI GUMEI, JCA

OMNIBUS GROUND OF APPEAL: WHAT ARE THE IMPLICATIONS OF THE OMNIBUS GROUND OF APPEAL

EVALUATION OF EVIDENCE: WHETHER THE EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE ARE THE PRIMARY FUNCTIONS OF A TRIAL COURT

It is a guiding principle of adjudication in appellate matters that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial. Where a court of trial properly evaluates the evidence and justifiably assesses the facts, an appellate Court, upon a proper complaint, can only find out whether there was evidence on record on which the trial court could have acted. Therefore an appellate court cannot reject the findings of a trial court on the evidence of witnesses unless such findings are perverse. See WOLUCHEM V. GUDI (1981) 5SC. 291 and IWECO v. EZEUGO (1992) 6 NWLR (pt. 249) 561. PER ALI ABUBAKAR BABANDI GUMEI, JCA

DECISION OF COURT: WHEN CAN A DECISION OR FINDING BE SAID TO BE PERVERSE

It is also well settled that a decision or finding is said to be perverse when it was not made upon any credible and admissible evidence on record or, on the application of wrong principles of law or consideration of totally extraneous matters and circumstances. PER ALI ABUBAKAR BABANDI GUMEI, JCA

JUSTICES

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

OLAYEMI OLOWU Appellant(s)

AND

1. RICHARD AMAYO
2. SOLOMON EMWINDOMWAIFO Respondent(s)

ALI ABUBAKAR BABANDI GUMEI, JCA (Delivering the leading Judgment): This is an appeal against the judgment of Edo State High Court, Benin Judicial Division, delivered on 23rd April, 1993 in suit No. B/451/87.
For the present Appellant Mr. Olayemi Olowu, it was his mother who started it all. She was the Plaintiff at the lower Court and the original Appellant in this Court until when she died on 26th November, 2004. Upon her death an application dated 29-04-2005 brought pursuant to order 3 r. 30 (2) of the Court of Appeal Rules 2002 was granted on 04/05/05 wherefor Mr. Olowu was substituted for his deceased mother.
For the 1st Respondent, Mr. Richard Amayo, it was also his mother who was sued as the 1st Defendant. She was Mrs. A Egbon. Mrs. Egbon defended the suit of Mrs. Olowu and filed a counter-claim. However, after the conclusion of the final addresses of respective learned counsel on 21-05-92 and judgment was fixed for 26/6/92. While the judgment was still being awaited, Mrs. Grace Egbon died on 20th July, 1992. Upon an application dated 29/07/92, Mr. Amayo was substituted as the 1st Defendant also in place of his deceased mother.
The 2nd Respondent/cross Appellant was the 2nd Defendant before the lower Court. He is a brother of the full blood to Mrs. Olowu. Because of the chequered history and intriguing issues in this appeal, I would, for both clarity and convenience, or expedience, use the names of these parties in the course of this judgment. However, where the con or circumstance allow, I would use their respective positions as parties in this appeal.
This is a dispute over a house located at No. 60, Igun Street, Benin City. It was built on a land measuring about 100 feet by 100 feet. In an amended statement of claim dated 9/11/89 but filed on 10/11/89 the appellant sought for the following reliefs:-
i. As against the two Defendants a declaration that the Plaintiff is entitled to the grant of a statutory right occupancy to the house and premises known and called No. 50. Igun Street, Benin City.
ii. N5, 000.00 damages against the 1st Defendant for trespass, forcible entry and malicious damage: and
iii. Perpetual injunction against the 1st Defendant only restraining her and all her servants, agents, privies etc from further acts of trespass on the said No. 60, Igun Street, Benin City.
In a statement of defence and counter-claim dated 31/03/88 but filed on 8/04/88, the 1st Defendant/1st Respondent denied the claim of the Plaintiff/Appellant and proceeded to counter-claim as follows:
i. The 1st Defendant as the eldest surviving child of late Aigbogun Obasogun who died intestate sometime in May, 1947 without a male child at No. 60, Igun Street, Benin-City, claims for a declaration that she is entitled to the grant of the statutory right of occupancy to the grant of statutory right of occupancy to the house and premises known and called No. 60, Igun Street, Benin City;
ii. Possession of the said house from the plaintiff and 2nd Defendant and/or their agents, servants or privies;
iii. An order of perpetual injunction restraining the plaintiff, 2nd Defendant and their agents, servants or privies from occupying the said house and premises and doing anything whosoever within the house and
iv. The annual value of the house rent in the sum of N100.00 (One Hundred Naira).
In a statement of defence dated and filed on 28/06/88, the 2nd Defendant contested the defence and counter-claims of the 1st Defendant and stood supportive of the claim of the plaintiff.
After issues were thus joined the matter went to trial. At the trial, the Plaintiff/Appellant gave evidence as PW4 and also called and relied on the oral evidence of 3 other witnesses. The 1st Defendant/1st Respondent also testified in her own defence and also relied on the evidence of another witness (DW1). The 2nd Defendant/Respondent/Cross-Appellant also testified on his own behalf.
After the oral and documentary evidence of the respective parties were adduced, Learned Counsel each took turns to address the Court at the end of which judgment was reserved.
In a well-considered judgment the learned trial Judge dismissed the claim of the Plaintiff and upheld the Counter-claim of the 1st Defendant and proceeded to grant all the reliefs therein, The Plaintiff was dissatisfied with the judgment and appealed to this Court initially in a notice of appeal dated 11/01/93. Further, and upon an application dated and filed on 11/01/93, the Appellant was granted leave on 13/02/95 to amend the original notice of appeal to include and incorporate 5 additional grounds of appeal. This appeal is now predicated on 7 grounds. They are as follows:-
GROUND ONE
The learned trial Judge misdirected himself on his evaluation of the facts when he went on to speculate on issues not relevant and pertinent to the resolution of the dispute by inquiring into the matrimonial status of the late Madam Oresogie Obasogun when the real issue was who built the house in dispute.
PARTICULARS
a) The learned trial Judge dwelt extensively on the question of the matrimonial status of the late Madam Oresogie Obasogun.
b) The learned trial Judge in his evaluation assumed that it was not possible for a woman i.e. late Madam Oresogie Obasogun, to build a house and rive therein alone. He assumed without any evidence to support same that she must have lived with a husband.
c) The learned trial Judge was speculating when he concluded that the disputed premises was the paternal home of the late Madam Oresogie Obasogun as there was no evidence of such from both parties -m because if (as claimed by the 1st Defendant) the grandfather of 1st Defendant built the house, then it could not be the paternal home of the late Madam Oresogie and if (as claimed by Plaintiff) late Madam Oresogie built the house, then it could not be her paternal house.
GROUND TWO
i. The judgment is against the weight of evidence.
ii. Other grounds shall be fired on receipt of records of proceedings Relief sought from the court of Appeal. Judgment of High court to be reversed in favour of plaintiff/Appellant and counter-claim dismissed.
Persons directly affected by the appeal.
GROUND THREE
The learned trial Judgment erred in law when he glossed over or even rejected evidence favourable to the Plaintiff and emphasized erroneously pieces of evidence he thought favourable to the 1st Defendant.
PARTICULARS
The learned trial Judge glossed over the evidence given by P.W.S. 1, 2, & 3.
i. That the house in dispute was built by Madam Oresogie Obasogun.
ii. Evidence of several acts of ownership and long possession by the Plaintiff and her predecessors in title
iii. That the documents relating to the land were given to the Plaintiff.
While he emphasized the evidence of D.W.1 that the house was built by the great grandfather of the first Defendant, without anything connecting the great grandfather of the first Defendant to the said house.
GROUND FOUR
The learned trial Judge erred in law in taking into consideration the matrimonial status of late Madam Oresogie Obasogun in arriving at his decision that the house in dispute was not built by the said late Madam Obasogun.
PARTICULARS
i. The learned trial Judge observed that “a party who traces her root of title to a married woman must show by clear affirmative evidence the period she built the house. Whether it was the period her marriage was still subsisting and that the land on which Oresogie built the house belongs exclusively to her and not her husband family…or her paternal family”
ii. The learned trial Judge dealt extensively in his judgment the question of the matrimonial Status of the late Madam Oresogie Obasogun.
GROUND FIVE
The learned trial Judge erred in law in the evaluation or mis-application of the ample evidence before him that Madam Oresogie built the disputed house which the Plaintiff later inherited and came to a wrong decision that the Plaintiff has not proved her case.
PARTICULARS
i. The learned trial Judge found that the disputed property belong to the paternal home of Madam Oresogie and her daughter Madam Ukpomwen and linking it to the root of title as traced by the 1st Defendant whereas there is contrary evidence by the Plaintiff and her witnesses to that effect.
ii. The learned trial Judge found that there was no evidence that Madam Oresogie Obasogun was buried by Madam Ukponmwan according to Bini native law and custom.
iii. The learned trial Judge found that undisputedly therefore, there is a missing link in the adoption ceremony of the plaintiff only by Osakue family
GROUND SIX
The learned trial Judge erred in law in allowing his mind to be weighed heavily against the Plaintiff’s failure to file reply to the counter-claim and thus acceded to the reliefs sought by the Defendant in the counter-claim.
PARTICULARS
i. The learned trial Judge failed to observe that all the issue raised with regard to the issues of title to the land in dispute were met in the plaintiff’s pleadings.
ii. The learned trial Judge failed to give adequate and sufficient consideration to the evidence of the Plaintiff of several acts of ownership and possession.
iii. The evidence of D.W.1 as regards to the traditional history of the house in-dispute has left much to be desired with particulars reference to the traditional marks of a house built by title chief and without anything documentary or other-wise linking the traditional history to the house in-dispute.
GROUND SEVEN
The learned trial Judge failed to comply with the provision of section 258(1) of the constitution of the Federal Republic of Nigeria 1979 as amended, for the judgment was delivered well over 12 months after addresses of council of the parties and by non-compliance the plaintiff has suffered miscarriage of justice.
PARTICULARS
i. The addresses of Counsel of parties took place in 21/5/92 and the judgment was delivered on 23/4/93
ii. No reason was given for the in-ordinate delay.
iii. The judgment was given as if fate G.A. Egbon (Mrs.) was still a party to the action.
iv. There are many recordings in the judgment to show that learned trial Judge has lost trends of the proceedings.
v. As a result of the judgment the has been in possession of the been depossessed of it.
In an application dated 24/10/05 but fired on 27/10/05, the 2nd Defendant/Respondent was granted extension of time to seek leave to cross-appeal, leave to cross appeal and extension of time to file Notice of Cross-Appeal etc. The application was granted on 22/10/07. The cross-appeal is predicated on 4 grounds. These are hereby reproduced with all their particulars.
GROUND ONE
The learned trial Judge erred in law when he proceeded to speculate on and rely on issues not raised or joined by the parties to the action in determining the suit and there occasioned a grave miscarriage of justice.
PARTICULARS
a) The marital status of the Late Madam Oresogie Obasogun was not put in issue by the parties.
b) The lower Court speculated on;
i. The probability or improbability of a woman building or owning a house.
ii. The matrimonial home of Madam Oresogie Obasogun and her husband.
iii. Whether the house in dispute was built during the subsistence of the marriage.
C) The parties to the suit were not afforded an opportunity to respond to matters raised suo motu by the lower Court
GROUND TWO
The learned trial Judges erred in law he failed to give a full and proper consideration of the issues raised and canvassed before him contrary to the supreme court’s decision in POLYCARP OJOGBUE & ANOR V. AJIE NNUBIA S.C. & 4 ORS (1972) 6 S.C. 271, which failure resulted in a grave miscarriage of justice.
PARTICUTARS
a) The learned trial Judge gave a cursory and improper consideration of the evidence of P.W.1, 2, & 3.
b) The learned trial Judge did not attach any weight to the title documents relating to the house in dispute.
c) The learned trial Judge did not trace the root of title of the Counter-claimant prior to his entering judgment in the Counter-Claimant’s favour.
d) The learned trial Judge was unable to make proper findings on the evidence in respect of;
i. The presence or absence of a paternal and/or maternal relationship between the parties to the action.
ii. Whether Madam Oresogie Obasogun was buried by Madam Ukponmwan according to Bini native law and custom.
iii. Whether there was a missing rink in the adoption ceremony of the 1st Respondent herein, witnessed by the Osakue family
iv. Whether the Obasogun referred to by the 1st Respondent herein and the Obazugun referred to by the 2nd Respondent herein were on and the same person.
v. Whether Obazugun or Obasogun was a chieftaincy title under Bini native law and custom.
vi. Whether the house in dispute had chieftaincy marking on it.
GROUND THREE
The learned trial Judge erred in raw, when he took the view that the Plaintiff’s failure to file a reply to the 1st Defendant’s Counter-Claim, entitled the 1st Defendant to judgment.
PARTICULARS
a) On the stat if the pleadings before the trial court issues had been joined on the ownership of the house in dispute.
b) The failure to file a Reply or Defense to a counterclaim does not entitle the counter-claimant to of the pleadings before the Court.
c) In declaratory actions, a party is not entitled to judgment on admission judgment where issues had been joined on the state of the pleadings before the Court.
GROUND FOUR
The learned trial Judge’s failure to comply with the provision of Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 as Amended led to a miscarriage of justice.
PARTICULARS
a) Counsel addressed Court on the 21st May, 1992 and the judgment was delivered on the 23rd April 1993.
b) The judgment was given in favor of Late G.A. Egbon (Mrs.) who had previously been substituted on record for Richard Amayo.
c) The learned trial Judge was unable to make specific findings on the issues joined before the lower Court.
d) The learned trial Judge made findings which were manifestly inconsistent with his record.
All said and done, the Appellant filed an amended brief of argument dated 28/03/2003 on 1/04/2003 but it was deemed properly filed and served on 10/04/2003. The 1st Respondent filed a brief of argument dated 15/04/2010 and a response to the amended brief of the 2nd Respondent/Cross-Appellant. Also, an amended brief dated 24/10/2005, was filed on 27/10/05 on behalf of the 2nd Respondent/Cross-Appellant. Learned Counsel to the Appellant also filed a reply brief to the brief of the 1st Respondent. It is dated 28/06/2010.
At the hearing of the appeal before us on 8/12/2010 respective learned counsel adopted and relied on their respective briefs of argument without more. While learned Counsel Mr. Legbedion for the Appellant urged this Court to allow the appeal, Mr. Ezomo of Counsel for the 1st Respondent urged that the appeal be dismissed. Also learned counsel Mr. Mebitaghan for the 2nd Respondent/Cross-Appellant urged that the appeal be dismissed and the cross appeal to be allowed.
At paragraph 2.01 on page 3 of the amended brief, learned Counsel to the Appellant formulated 5 issues for determination.
They are:-
i. Whether the learned trial Judge was right to hold that the house in dispute was built by the late 1st Obasogun of Benin the great grand-father of the 1st Defendant on grounds not canvassed by either of the Parties marital status of Oresogie Obasogun.
ii. Whether the learned trial Judge was right in taking into consideration the matrimonial status if the late Madam Oresogie Obasogun in arriving at the conclusion that the house in dispute was not built by her, upon issue on which no evidence was led by the parties.
iii. Whether the learned trial Judge was right to hold that on affirmative evidence the plaintiff was unable to establish that late Madam Oresogie Obasogun built the house in dispute in spite of evidences of acts of ownership and long possession by the Plaintiff.
iv. Whether the learned trial Judge was right in holding that the failure of the plaintiff to file reply to the counter-claim entitled the Defendant to judgment when the Defendant did not raise new issues in the Counter-claim or prove the Counter-claim.
v. Whether having regard to the provisions of section 258(1) and (a) of the constitution 1979 as amended the judgment having been delivered more than three months.
On the other hand, learned counsel to the 1st Respondent formulated 2 issues for the determination of this appeal. They are:-
1. Whether the learned trial Judge was right in granting judgment as per the counter claim when there was no reply to the counter claim.
2. Whether the court of Appeal can interfere with the findings of facts by the learned trial Judge in arriving at his conclusion in this suit.
While adopting a different choice of words, learned Counsel to the 2nd Respondent/Cross Appellant, after juxtaposing the grounds of appeal in the main appeal alongside those in the cross appeal, formulated and argued 4 issues in this appeal. They are:-
1. Whether the learned trial Judge decided the suit on the issues joined between the parties to the Suit having regard to the pleadings and the evidence led in the suit
2. Whether the trial Judge properly evaluated and appraised the evidence lead by the parties to the action prior to this dismissal of the Appellant’s claim and allowing the 1st Respondent’s Counter-Claim.
3. Whether the failure of the Appellant to file a Reply to the 1st Respondent’s counter Claim entitled the 1st Respondent to judgment premise on the issues joined on the pleadings before the trial Court.
4. Whether the learned trial Judge’s findings, evaluation and appraisal of the evidence led by the parties to the action adversely affected by his failure to deliver judgment after the conclusion of address by Counsel within three (3) months as stipulated by the section 2581 and 4 of the 1979 Constitution as Amended to such as extent as to amount to a Miscarriage of justice.
In his response to the Cross appeal, learned Counsel to the 1st Respondent adopted and argued the 4 issues formulated by the Cross-Appellant.
At the hearing of the appeals before us, respective learned counsel identified their briefs of argument and thereafter adopted and relied on the submissions therein on behalf of the respective parties. However, just before the learned counsel to the Appellant adopted his brief, learned Counsel to the 1st Respondent pointed out and introduced a notice of preliminary objection he filed challenging the grounds of appeal and the subsequent issues formulated out of them. He also pointed out that arguments and submissions in respect of the notice of objection have been canvassed in his brief of argument. He directed the court to parts of page 5 and also part of page 6 of his brief wherein the objection was argued.
In the preliminary objection, learned Counsel to the 1st Respondent sought to explain that the Appellant failed to argue the issues formulated based on the grounds of appeal. He then argued that the additional grounds 3, 4, 5, and 6, though characterized as errors of law, they are grounds of facts or mixed law and facts. Against this background learned counsel submitted that this court cannot interfere with the decision of the lower based on the facts since the Appellant has not shown that the conclusions and findings in the judgment were perverse, having regards to the evidence on record. He also suggested that this court lacks the power to disturb the findings of the lower court. He referred to the cases of FABUMIYI v. OBEJE (1958) NWLR 242 and RAMAINE V. RAMAINE (1992) 4 NWLR (PT.238) 650.
Further to this, Mr. Ezomo of Counsel pointed out that it is settled that arguments in an Appellant’s brief must be covered by or related to any of the grounds of appeal filed. He then submitted that where an Appellant sets up or argues that which is not related to any of the grounds of appeal, all such arguments ought to be discountenanced. He referred to AMAMU V. IKHARO (1988) 4NWLR (PT.89) 474 and WESTERN STEEL WORKS LTD V. IRON & STEEL WORKERS OF NIGERIA (1987) L NWLR (PT.49) 284 and urged this Court to dismiss this appeal.
In his response, learned Counsel Mr. Legbedion explained that there were 5 additional grounds of appeal filed with leave of this Court and not 4 as pointed out by learned Counsel to the 1st Respondent, Mr. Ezomo. After underscoring the perspective of the arguments of Mr. Ezomo of Counsel Mr. Legbedion maintained that Mr. Ezomo had misconceived the contents of the amended brief of the Appellant. To explain this, Mr. Legbedion pointed out that it is the case of the Appellant that the learned trial Judge was in grave error in his findings of facts or the findings were perverse and this court was called upon to interfere with all those pointed out perverse findings. In support of this position learned Counsel referred to paragraph 4.01 to paragraph 5.06, from pages 5 to 13 of the Appellants amended brief of argument.
In a further response, learned Counsel Mr. Legbedion maintained that the case of the Appellant was fully argued on the issues formulated from the grounds of appeal. Also learned Counsel observed that the 2nd issue formulated by Mr. Ezomo on behalf of the 1st Respondent was not founded on any of the extant grounds of appeal, he therefore urged the court to reject all the arguments so canvassed.
The 2 main and 5 additional grounds of appeal have already been set out earlier in this judgment. A very careful analysis of the grounds and their respective particulars appear to me to be a complaint by the Appellant on the findings of the lower court from its evaluation of the evidence on the root of title, particularly as they relate to traditional history and the status and position of Madam Oresogie Obasogun. The complaint of the Appellant can also mean to be an attack on the findings of the learned trial Judge summed up and decided as follows:-
“On the evidence adduced Madam Oresogie was married to Osakwe brother of the 1st Plaintiff witness, while the daughter Madam Ukponmwan was married to late Oba Eweka when the latter died Madam Ukponmwan returned to reside in the disputed house. No evidence emanated from the Plaintiff and her witnesses indicating the place Oresogie lived when she was married to Osakwe brother of the Plaintiff witness. I however accept the evidence that the disputed property is the paternal home of Madam Oresogie and her daughter Madam Ukponmwan. Hence from this sequence of events the testimony of the 1st Defendant witness that Madam Oresogie Obasogun was not initially living in the disputed property which was built by the 1st Obasogun of Benin appears to me to be more probable as it completely clears the mist as to the root of title to the property of No. 60 Igun street. On the other hand to accept the testimony of the Plaintiff tracing her root of title to Madam Oresogie Obasogun will live (sic) many questions unanswered and some of these are:-
a) Who is the father of Oresogie Obasogun
b) Where did Oresogie live with the father before she went to marry Osakwe.
c) Was Oresogie the only surviving child of the Parents?
d) If Madam Oresogie built the house in dispute between 1926 and 1927 before the demise of Oba Eweka in 1933 – where is the family property of the Obasogun which on the available evidence forms a common denominator – Madam Oresogun Ukponmwan Obasogun mother of Madam Ukponmwan Osakwe Obasogun.
“If the fact is accepted that the disputed house was built by the 1st Obasogun of Benin, then the Plaintiff’s claim tracing her title root of title to Madam Oresogie Obasogun cannot be sustained.”
(See pages 1.01-1.02 lines 18 to 12 of record of appeal.)
No doubt the Plaintiff/Appellant lost at the lower court upon the findings of the learned trial Judge resolving conflicting traditional history in favour of the 1st Defendant/Respondent. These findings were findings of fact. An appeal is a kind of a re-hearing of a matter only upon the evidence on record from the trial Court. An Appellate Court is not allowed to go outside the record of appeal placed before it in arriving at its decision. The appellate jurisdiction of Court is initiated by filing and serving the appropriate notice of appeal containing the grounds of appeal and their particulars as well as the reliefs to be sought at the appellate Court, parties to be directly affected by the appeal etc. An appeal is argued and decided only on the issues formulated from the grounds of appeal. An issue in an appeal that was not duly formulated from one or more of the grounds of appeal is incompetent. According to a number of decided cases where a ground of appeal alleges misdirection or error in law, it must state the particulars and nature of the misdirection or error. See ONIFADE V. OLAYIWOLA (1990) 21 NSCC (PT.3) 421, ADENIJI V. DISU (1958) SCNLR 408 etc.

The 2nd ground of appeal is the well-known omnibus ground and it alleges that the judgment is against the weight of evidence. This has been held to be a valid notice of appeal and generally has the following implications, viz:-
a) That the judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court wrongly accepted;
b) That the inference drawn or conclusion reached cannot be justified;
c) That there is no acceptable evidence to support the findings of the trial Court and
d) That when the evidence adduced by the Appellant is weighed on the imaginary scale against that adduced by the Respondent, the evidence in favour of the Appellant outweighs that adduced on behalf of the Respondent to the extent that the judgment given in favour of the Respondent can be said to be against the totality of the evidence adduced before the trial Court.
This Court was faced with an omnibus ground of appeal and it decided that it was a valid ground of appeal upon which it could suo motu formulate or re-formulate an issue therefrom, which it in fact did and same was approved by the Supreme Court. It went further to hold that where there are valid grounds of appeal, this Court has the power to formulate or re-formulate issues out of them. MUSA SHA (Jnr.) v. DA RAP KWAN (2000) SNWLR (PT. 670) 685 see also S.D.C. CEMENTATION (NIG) LTD v. NAGEL & CO. LTD (2003) 4 NWLR (PT. 911) 611. Against this background, to the extent that the grounds of appeal in this appeal appear to be complaining about certain findings in the judgment of the lower court and also because it is the constitutionally guaranteed right of the Appellant to bring this appeal, I am fully satisfied that the issues raised and argued in the amended brief of the Appellant are proper and competent to the extent that they raised good and cogent propositions of mixed law and facts. Therefore, this preliminary objection is hereby dismissed for lacking in merit.
I wish to begin with the arguments and submissions of learned counsel to the appellant, Mr. Legbedion on issue 5 in his amended brief. It is for very good and obvious reasons that this issue must take the center stage first. It is a kind of a master stroke. If it is decided in favour of the Appellant it would result in the judgment being set aside for being a nullity. Also, it is predicated on a fundamental provision of the Constitution of the Federal Republic of Nigeria and a procedural safeguard aimed at ensuring a very speedy disposal of cases before our courts. In opening his submissions in this issue learned Counsel Mr. Legbedion explained that final addresses of counsel were concluded on 21/05/92 and the matter was adjourned to 26/6/92 for judgment. He then pointed out that judgment was not delivered until 23/4/93, a period of one year and 4days after the conclusion of final addresses. Learned counsel submitted that this was contrary to the provision of S.258 (1) and (4) of the 1979 constitution, as amended (now S.294 (1) of the 1999 Constitution.) learned counsel reproduced the provisions of S.258 (1) and (4) (supra) and explained that it provided for a period of 3 months within which judgment must be delivered after the addresses of counsel. According to learned counsel subjection (4) makes a judgment delivered outside 3 months to be a nullity if it was shown to the satisfaction of the court, upon the complaint of a party, that the delay occasioned a miscarriage of justice on it.
Moving to the next level, Mr. Legbedion pointed out that the Appellant had suffered a miscarriage of justice due to the non-compliance with S.258 (1) (supra). He explained that there was inordinate delay in delivering the judgment. According to learned counsel, the learned trial Judge continued to maintain Mrs. G.A. Egbon as a party to the action, even though, to his knowledge, she had died. This attitude, learned counsel maintained made him to believe that the learned trial Judge had lost the trend of the case and issues involved therein when he went further to speculate and inquire into the matrimonial status of Madam Oresogie Obesogun, an issue that was not at all before the Court. In conclusion, learned Counsel referred to the case of Re: EZENWOGUN v. NGONADI (1988) 3 NWLR (PT.81) 163 and submitted that a dead person ceases to have legal personality from the date of death and lacks the capacity to sue or be sued. He also referred to the case of EMENIMAYA & ORS v. OKOROJI & ANOR (1987) 3 NWLR (pt.59) 6 where the Supreme Court held that a delay could lead to a judge to loose advantage of having seen and heard the witnesses who gave evidence in the trial before him thereby rendering him almost impossible to come to the right decision in his judgment for reasons best known to him, but certainly not supported by any authority, learned counsel urged this court to allow the appeal on this ground and set aside the judgment of the lower court and also proceed to give judgment for the Appellant.
Learned counsel Mr. Ezomo explained the delay in the delivery of the judgment to have been occasioned by the transfer of the learned trial Judge from the Benin Division to the Igara Division of the Edo state High court. Learned counsel also pointed out to the death of the 1st Defendant/1st Respondent and the consequent events that followed to have also being a factor in the delay. Upon all these explanations, learned counsel maintained that even if there was any delay, it did not occasion any miscarriage of justice on the Appellant. Learned counsel to the 2nd Respondent/cross Appellant made submissions and arguments along the line of those of Mr. Legbedion. I therefore will not wish to go into the full details of those submissions to avoid an unnecessary duplication of efforts.
I have carefully considered all the explanations, arguments and submissions of respective learned Counsel on this issue. In my effort to resolve this issue I found the record of appeal greatly helpful. This is a simple exercise. It is correct that at page 76 tines 1-6-19 of the record of appeal final addresses of counsel were concluded on 21/05/92 and the matter was adjourned to 26/06/92 for judgment. At page 83 of the record of appeal the judgment of the court started. It ended at page 109. From these pages it is clear that the judgment was dated and delivered on 23/04/93.
How about pages 77-82? Learned Counsel Mr. Legbedion, perhaps due to an oversight or misconception failed to capture the essence of the record on those pages. Between pages 77 to 78 is a motion on notice dated and filed on 29/07/92.There is an affidavit in support of that motion and it is at pages 79 and it is at page 79 and 80 (sic). At page 81- is the CTC of Exh. A as referred to in paragraph 3 of this affidavit in support of motion. At page 82 is a record of proceedings held on 22/01/93. In the course of these proceedings, the motion dated and filed on 29/07/92 was argued and granted in consequence of which the original 1st Defendant, having died was substituted by her son Mr. Richard Amayo, from the proceedings of 22/01/93, this matter was adjourned to 19/02/93 for judgment. However, judgment was eventually delivered on 23/04/1993. It is also correct that the 1st Defendant, on the face of the judgment was still said to be “G.A. EGBON (MRS.)” despite the earlier order of the Court substituting Mr. Amayo for her.
In order to avoid throwing away the baby with the bath water and also for the overriding and compelling need to do substantial justice in this matter, I am of the view that all the submissions and arguments of learned counsel Mr. Legbedion on this issue do not amount to anything more than a storm in a tea cup. In my humble view, the event of the death of Mrs. Egbon, unfortunate as it was, was an intervening event to vacate and stop the period of 3 months to run from 21/5/92 but from 19/01/93 when the order for substitution was made. Mrs. Egbon died on 20/07 /92. Her death was so sudden as she was present in court on 21/05/92 during final addresses. At the date of her death, the lower Court was still within the 3months within which to deliver its judgment. The motion for substitution was previously filed on 29/07/92, still within 3 months after the addresses of counsel. For inexplicable reasons, the motion could not be taken until 22/01/93. Since further proceedings were taken after the initial date when judgment was reserved, it is the subsequent date that must be reckoned and taken into account for the purpose of the period of 3 months under S.258 (1) (supra) This is more so when none of the counsel, including Mr. S.O. Odiase, representing the present Appellant indicated any desire to address the court further as may have been possible.
Also, I consider it a slip and common human error for the learned trial Judge to reflect the name of the deceased Mrs. Egbon on the face of his judgment. We all sometimes make such mistakes. To the extent the order substituting her was valid and subsisting she had ceased to be a party to the action and any wrongful or erroneous reflection of her name can be taken as a slip capable of being corrected under the very well known “slip rule. For the foregoing reasons, issue no. 5 is hereby resolved against the appellant.”
I now proceed to deal with issue one in the amended brief of the Appellant. In opening his arguments and submissions on this issue, learned counsel, quoted very extensively from the judgment of the lower court at page 100 of the record of appeal and explained that the matrimonial status of late Madam Oresogie Obasogun was not a point on which the parties joined issues in the pleadings. Against his explanation, learned counsel underscored the case of the Appellant as that she inherited the house in dispute courtesy of continuous possession over years with all possessory rights without any let or hindrance. He then referred to a number of paragraphs of the amended statement of claim to highlight the averments which indicate exclusive possession by the Appellant and her predecessors in title. In a further effort, learned Counsel referred to the recorded evidence of the Appellant at pages 47 – 54 of the record of appeal.
In contrast, learned Counsel tried to underscore the case of the 1st Respondent in the defence and counter-claim to be predicated on traditional history. He referred to paragraph 4 of the statement of defence and counter-claim as well as the oral evidence of the 1st Respondent at lines 20 – 25 on page 61 of the record of appeal. Upon this background learned counsel maintained that the matrimonial status of Madam Oresogie was not at all, an issue at the trial. It is also the view of Counsel that it was wrong for the lower Court to take upon itself a review of an issue that was never placed by the parties before it for a decision. He then submitted that the lower Court fell into a grave error in making a finding of fact not based on the pleadings and the evidence adduced before it. Learned Counsel relied on the cases OF BANK OF THE NORTH V. ALH. IDRISU OJEBA LTD & 2 ORS. (1993) 4 NWLR (PT. 289) 597, ADEBANJO V. BROWN (1990) 3 NWLR (PT.141) 661, OBIKOYA V. WEMA BANK (1989) 1 NWLR (PT. 96) 157 and OPEOLA v. FALODE (1991) 3 NWLR (PT, 173) 303. Upon his submission and these decided cases, learned counsel urged this court to interfere with the findings of the lower Court on an issue that did not form part of the pleadings and evidence on record.
I wish to point out at this stage that learned Counsel to the 1st Respondent adopted a very unorthodox approach to this appeal. He formulated 2 issues for determination. He argued these issues in the brief of argument from pages 6 to 9 without any attempt whatsoever to identify which of the issues he was arguing at any point in time. To the extent that no particular issue was separately argued, learned counsel to the 1st Respondent had failed to comply with the basic requirement of brief writing. His brief remains clumsy and totally inelegant.
The foregoing nonetheless and notwithstanding, I wish to just refer to such portions or parts of the brief of the 1st Respondent as could be said to be a reply to the arguments of learned counsel to the Appellant. At pages 6 to 7 of the brief, learned counsel Mr. Ezomo, for the 1st Respondent referred to a number of paragraphs of both the amended statement of claim and statement of defence and counter-claim as welt as the recorded evidence of DW1 and Exh. E. Upon this exercise, learned counsel maintained that from the evidence, the lower court was right to make findings and pronounce on the matrimonial status of Madam Oresogie.
Learned counsel to the 2nd Respondent, Mr. Udochi argued issue one at pages 6 to 10 of his brief of argument. So much of all that he presented is a substantial re-echoing of the submissions of learned Counsel Mr. Legbedion for the Appellant. Suffice it to say here; however that, learned Counsel Mr. Udochi argued and later submitted that whether or not the marriage of Madam Oresogie was subsisting at the time the house in dispute was built was not part of the case sought to be made out by the parties before the lower Court. Learned Counsel added further that the main issue was whether it was Madam Oresogie or Omoruyi Obasogun that built the house in dispute and to the extent of determining the matrimonial status of Madam Oresogie, the lower Court was wrong to have made findings thereon and use same to discredit the Appellant’s oral evidence and that of her other witnesses. He urged this court to hold that the unwarranted findings of the lower court occasioned a grave miscarriage of justice in the instant appeal. Respective learned Counsel had referred to the pleadings and the recorded evidence and urged this court to resolve this issue upon same. I have carefully considered all the referred paragraphs of the pleadings and the oral as well as documentary evidence. Learned Counsel to the Appellant and 2nd Respondent/Cross Appellant are quite right in their observation that the main issue that concerned the lower court was who built the house in dispute. This much was highlighted by the learned trial Judge when he reviewed the case and observed thus:-
“I am in complete agreement with Counsel to the Plaintiff that the issue to be resolved in this case is who built the house in dispute.”
(See lines 18 – 20 page 100 record of appeal)
In resolving this main and substantive issue, the learned trial Judge begun with a further observation that:-
“a party who traces her root of title to a married woman must show by clear and affirmative evidence the period she built the house. Whether it was the period her marriage was still subsisting and that the land on which Oresogie built the house belongs exclusively to her and not her husband family (sic) Osakwe or her paternal family – Obasogun.”
(See page 100 lines 20 – 25 of record of appeal
While still searching for an answer to this main issue, the learned trial Judge remarked that:-
Society (Sic) the custom where a woman inherits the father’s property forms the exception rather than the rule, it can only happen when there is no surviving male child.”
(Lines 13 -16 page 102 record of appeal)
All the above remarks and observations of the learned trial Judge formed the bedrock and yardstick upon which he sought for answers towards resolving the issue at the trial. It is clear that evidence of certain customary and traditional practices under Bini native law and custom was adduced upon, such pleadings of the parties, but I am unable to clearly see where specific pleadings were made and evidence adduced on the above remarks of the learned trial Judge. It is also very clear that the above remarks were the springboard and foundation the lower Court mainly and substantially employed in deciding who built the house in dispute. None of the Counsel on record made any submissions or referred to decided cases to support any of the above observations and remarks of the learned trial judge. Also, even for himself, the learned trial Judge did not show in any manner however, that these observations and remarks that he made were with any reference to any particular native law or custom fully recognized by law and approved in any decided case. These remarks and observations in my view heavily influenced the mind of the lower Court in the process of arriving at its decision
It is a guiding principle of adjudication in appellate matters that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a Court of trial. Where a court of trial properly evaluates the evidence and justifiably assesses the facts, an appellate Court, upon a proper complaint, can only find out whether there was evidence on record on which the trial court could have acted. Therefore an appellate court cannot reject the findings of a trial court on the evidence of witnesses unless such findings are perverse. See WOLUCHEM V. GUDI (1981) 5SC. 291 and IWECO v. EZEUGO (1992) 6 NWLR (pt. 249) 561. It is also well settled that a decision or finding is said to be perverse when it was not made upon any credible and admissible evidence on record or, on the application of wrong principles of law or consideration of totally extraneous matters and circumstances.
When the lower Court started its evaluation of the evidence adduced by the parties, it started with a foundation on the status of Madam Oresogie. The Court observed:-
“Madam Oresogie has no brother or sister, it was only reluctantly conceded that she has a paternal family Obasogun, she left her paternal family and got married to Osakwe, nothing is said about where she consummated her marriage with Osakwe, and later Oresogie came and built a house… which was inherited by her daughter.”
(See Page 102 record of appeal.)
These foundations in my view, and with all due respect to the learned trial Judge, are totally extraneous because the claim of the Plaintiff is principally predicated on the fact that Madam Oresogie built the house in dispute and enjoyed long possession of it and passed it on to her daughter Madam Ukponmwan from whom it passed down to the Plaintiff. Therefore it is clear that the lower Court in making all the above quoted remarks, unduly speculated on the evidence and placed on record totally extraneous considerations when it went on to decide on the matrimonial status of Madam Oresogie. It was also erroneous for the lower court to speculate upon unfounded principles of customary law and tradition and to use same to discredit the evidence adduced in support of the claim of the appellant. It is against this background that I resolve issue one in favour of the Appellant against the 1st Respondent.
Learned Counsel, Mr. Legbedion, did not argue his issue no. 2 in the amended Appellants’ brief of argument. It is deemed as abandoned and therefore liable to being struck out. It is hereby accordingly struck out.
Issue 3 was formulated out of grounds 3 and 5 of the grounds of appeal. In arguing this issue learned counsel began by referring to the case of IDUNDUN v. OKUMAGBA (1976) NMLR 200 where the 5 ways of establishing title or ownership of land were highlighted and settled. Learned Counsel went on to set out these 5 ways. According to Mr. Legbadion each of these methods of acquiring title to land is independent of the other. He then added that a court of law could give judgment to any party who is able to prove entitlement to land by any of the five methods.
Coming to the instant appeal, learned counsel pointed out that the Plaintiff/Appellant anchored her claim for title on the production of authenticated documents of title but more particularly positive acts of leasing or renting out of land over a sufficient length of time and acts of long possession as to raise a presumption of ownership. Learned counsel also, maintained that the lower Court founded its decision on traditional history and rejected all the evidence upon which the Appellant prosecuted the claim for title. According to learned counsel, it was misdirection on the part of the lower Court to evaluate the evidence on record in the way it did thereby occasioning a miscarriage of justice on the case of the Appellant.
In a further effort Mr. Legbedion surveyed the oral evidence of PW1, PW2 and PW3 as well as Exh. A and pointed out that the by Madam Oresogie and also further showed several acts of ownership and long possession particularly that Madam Oresogie lived, died and was buried in the house. Not just that, learned Counsel added, developments and improvements were made on the property, which included, but not limited, to re-roofing, plastering and building of additional rooms. Mr. Legbedion asserted that these are overwhelming facts and evidence. He accordingly submitted that the lower Court was wrong to find evidence. Learned Counsel added that the reasons given by the lower Court in rejecting the oral evidence of PW3 are unsustainable and the learned trial Judge misapplied the provisions of sections 76 and 77 of the Evidence Act. Upon this he added that these sections of the Evidence Act are inapplicable to the facts and circumstances of the evidence of PW3.
Mr. Legbedion referred to the established absence of parallel marks on the building, to contest the ultimate findings of the learned trial Judge and his preference to the case of the 1st Defendant/Respondent as most probable. He then referred to a number of decided cases and submitted that the learned trial Judge failed to evaluate the evidence adduced before taking an erroneous view or perspective of the case of Plaintiff/Appellant.
While referring to AKIBA V. OPALEYE (1984) 11 SC 189, ATOLAGBE V. SHORUN (1985) 1 NWLR (PT. 21 360 and AGBONIFO V. AIWEREOBA (1988) 1NWLR (PT. 70) 325, learned Counsel submitted that the learned trial Judge did not make proper use of the opportunity of hearing and seeing the witnesses of the parties and drew wrong conclusions from accepted facts. He urged this Court to set aside all the above highlighted perverse findings of the lower Court.
In what I consider a very perfunctory response, learned Counsel Mr. Ezomo referred to the evidence of PW2 that he did not know when the house in dispute was built or who originally built it and submitted that the lower Court was right to have dismissed the case of the Appellant. He referred to KODILINYE V. ODU 2 WACA 336 and BELLO V. EWEKA (1981) 1 SC 101 AT 117 and maintained that the Onus is on a party who seeks for a declaration of title to prove its case. He then went on to point out what he considered to be contradictions in the evidence of the Appellant’s witnesses on the date the house was built and submitted that were there are material contradictions in the evidence of a party’s witnesses, it is not the duty of a Court of law to pick and choose from the evidence of such witnesses or accredit one witness and discredit the other. He referred to the case of OGUNBIYI V. OGUNDIPE (1992) 9NWLR (PT. 263) 24 at 29 and argued that in all such cases the court must hold that such a party has not proved its case. He maintained that the lower Court was right in finding that the Appellant was unable to establish her claim by credible evidence.
Learned Counsel to the 2nd Respondent/Cross Appellant referred to the oral evidence on record and remarked that the lower Court failed to consider the various acts of ownership exercised by the Appellant in respect of the house in dispute over a sufficient length of time such as to warrant the inference that she owned the house. Upon this he submitted that, had the lower court evaluated the evidence properly it would have reached a different conclusion. He urged this court to so find. All his other submissions on this issue substantially remain similar to those of Mr. Legbedion. I do not wish to repeat them here.
In resolving this issue, I find some of the averments in the pleadings of the Appellant and 1st Respondent and the evidence adduced at the trial to be greatly helpful. Here, I wish to refer to paragraphs 4, 6, 8, 13, 14, 19 and 22 of the amended statement of claim and paragraphs 4, 9, 12, 13, 15, 17, and 18 of the statement of defence and counterclaim of the 1st Defendant/1st Respondent. The averments in the amended statement of claim are as follows:-
4. One Madam Oresogie Obasogun, the mother of Madam Ukponmwan Osakwe Obasogun built the house which is now known and called No. 60, Igun Street, Benin City, on a parcel of land originally measuring 100 feet by 100 feet. It had earlier at different times borne different house numbers – evidence of which shall be given at the trial. Evidence shall also be led so show that she built the house dispute
6. Madam Ukponmwan Osakwe Obasogun was a wife to His Highneps Eweka, Oba of Benin (of blessed memory) during which marriage she had no child. After the passing away of His royal Highness, she was set free from the Palace and she returned to her mother’s house i.e. No. 60, Igun Street, Benin City, where she then lived and died.
8. While she was alive, she lived in the said No. 50, Igun Street, Benin City, without let or hindrance from anybody especially the 1st Defendant.
13. Plaintiff avers that the said Madam Ukponmwan Osakwe Obasogun was buried at the house in dispute without any protest from anybody or specifically from the 1st Defendant who in any event, was not present throughout the interment and burial rites.
14. Plaintiff avers that after the of Madam Ukponmwan Osage possession of the house in dispute and exercised various acts of ownership by putting tenants therein, collecting rents and carrying out general maintenance of the house, without any let or hindrance from the 1st Defendant or any one at all.
19. Plaintiff avers that the house now known as No. 50, Igun Street, Benin City was not built by the father of the 1st Defendant as she claimed in her writ of Summons at the District court.
22. Plaintiff avers that she had peaceful possession of the house and premises in dispute until sometime in August, 1987, when 1st Defendant invaded the house with thugs and destroyed a door. Plaintiff on being informed reported the matter to the Police.
At paragraph 3 of the statement of defence and counterclaim, the 1st Defendant/1st Respondent denied all the above averments of the Plaintiff/Appellant among others and went further to state as follows at paragraphs 4, 9, 12, 13, 15, 17, and 18.
4. The 1st Defendant avers that her great grandfather by name Omoruyi the late Obasogun of Benin built the house in dispute during the last century. At the time the house was built the land in dispute had no Oba’s approval. The house in dispute had no approved plan since as at the time the land was acquired and the house was built, both Oba’s approval and approved plans were not in operation then. Evidence shall be led at the hearing that Oba’s approval and building plans in Benin City were not in existence at the time the house was acquired and the house was built.
9. After the death of the grandfather of the 1st Defendant in the year 1927, the father of the 1st Defendant buried him in accordance with Bini Native Law and Custom in the house in dispute after the interment also in the house in dispute. The father of the 1st Defendant then inherited the house in dispute under Benin Native law and Custom.
12. When the father of the 1st Defendant died in May, 1947 he was survived by 3 children ail females by name Grace Aigbogun Obasogun (the 1st Defendant), Ekwase Aigbogun and Janet Aigbogun respectively. The 1st Defendant is the eldest surviving daughter and child of her late father.
13. At the time of the death of the 1st Defendant’s father in 1947, the surviving children were very young and left the house in dispute with their mother to fend for them.
15. The 1st Defendant and the other surviving children of the 1st Defendant is father was taken by their mother away from the house in dispute to Odighi village.
17. The 1st Defendant avers that when her father Aigbogun was still alive the said Madam Ukponmwan Osakwe returned from her husband’s place Eweka 11 about 1933 (from the palace) without issue and begged the 1st Defendant’s father for a room in the house in dispute. The request was granted and that was how she became in occupation of the house in dispute. The said Madam Ukponmwan Osakwe came into the house in dispute before the death of the 1st Defendant’s father. She was a tenant at will.

18. The 1st Defendant shall establish during trial that her father died sometime in May 1947 in the house in dispute while the said Madam Ukponmwan Osakwe was still in occupation of the house in dispute.
Evidence was led in support of these averments. A very careful perusal of the evidence from the Plaintiff/Appellant and her witnesses goes to show that Madam Oresogie built the house now at No. 60 Igun Street on or about 1926, and perhaps 1927 too. While this fact was heavily disputed, it remained established that Madam Ukponmwan came to live in this house around 1933 or 1934. That the Plaintiff/Appellant came to live with Madam Ukponmwan as a baby from 1964 until about 1968 when she was formally adopted as a child by Madam Ukponmwan who increased the number of rooms from 4 to 12 and re-roofed the house from thatched roof to corrugated iron as well as cement plastering. All these various events took place between 1947 and 1983 when Madam Ukponmwan died.
On behalf of the 1st Respondent, it was said that she was the daughter of Aigbogun Egbon who was the direct grandson of the male gender of Omoruyi who built the house in dispute. The claim of the 1st Respondent remained anchored on inheritance on the principle of succession by eldest male child or in default of an eldest surviving male child by an eldest surviving female child while that of the Appellant is rooted on long undisturbed possession.
In a situation of this nature where 2 parties claim possession of land, the law ascribe possession to the one who can show better title. It is more so when one of the parties desires to dislodge the other in possession. In such a situation, the claims for possession can succeed only when the party in possession is proved to be a trespasser or that the party claiming possession has a better title. Such proof can only be by way of pleadings and evidence. See ODUBEKO V. FOWLER (1993) 7 NWLR (PT. 308), 637 and AGU V. NWAD 1 NWLR (PT. 589) 131. In its effort to determine title to the house in dispute, the lower Court preferred to anchor title through traditional history and found for the 1st Respondent while it did not put on the imaginary scale any evidence of long undisturbed possession as urged on it on behalf of the Appellant.
I have already put the pleadings and the evidence of the parties and the gist of the findings of the rower court on them in perspective. Can all those findings be sustained?
The lower court traced title to the house in dispute (No. 60) to Omoruyi Obasogun. He was said to be a titled chief and the title was hereditary. The title has remained unoccupied for some time now because of the absence of a direct male descendant. From the evidence of PW3, Mr. Sunday Oguma Edo and DW1, Chief Joel Inneh the house occupied by a titled Bini chief is marked with some lines on its wall. PW3 told the rower court that No. 60 has no such typical and wet known traditional marks. At page 58 lines 27-29 of the record DW1 told the lower Court in his evidence in response to cross-examination that the plastering of a house does not stop the putting of traditional marks on it.
It was pleaded and evidence was led to show that both Madam Oresogie and Madam Ukponmwan were buried at No. 60. The Appellant told the lower court in her evidence in-chief that:-
“When Madam Ukponmwan Osakwe died she was buried at her residence No. 60 Igun Street, the 1st and 2nd burial ceremony (sic) was herd at No. 60 Igun Street where she was buried. The 1st Defendant was never present throughout the burial ceremony. Neither the 1st Defendant nor any other person protested that madam Ukponmwan should not be buried and I took possession of the house nobody had ever come to challenge my ownership or inheritance of the house until 1987, when the 1st Defendant came with some thugs and broke some doors and windows of No. 60…”
(See lines 22-31 page 49 record of appeal)
This piece of evidence was very crucial to the case of the Appellant. The lower court did not put this evidence in perspective. PW3 confirmed that Madam Ukponmwan was buried at No. 60 and that he was present at the burial. However, DW3, Chief Inneh told the court that Madam Ukponmwan was buried at the cemetery but evaded answering if he was physically present at the burial. Also, the 1st Respondent told the court that she was not at the burial of Madam Ukponmwan but she admitted that she roofed the house with corrugated iron sheets. Where she was when Madam Ukponmwan was roofing No. 60 with iron sheets from the former thatched roof, concrete plastering and burial was not very clear from the evidence on record.
In his evidence PW3 told the Court that:-
“When Madam Oresogie was building the house my father assisted her in building the house at Igun street, although I was a small boy before Nigerian Independence…”
(See Lines 4-7 page 43 record of appeal.)
This witness testified further that:-
“The house at Igun Street when … (it) … was built by Madam Oresogie was a small house with thatched (sic) roof of about four rooms, but presently the house has been iron sheets and the building has been expanded and developed. It was Madam Ukponmwan who developed the building enlarged it, and changed the roof to corrugated iron sheets. There was a dispute between Madam Ukponmwan and her neighbor the late Mr. Aigbe about the sixties over the boundary between both parties and the matter was settled by Chief Inneh and Chief Ihama.”
(See lines 1-9 page 44 record of appeal.)
DW1, while responding to cross-examination by counsel to the Appellant told the Court that when his father was Inneh he invited him to sit over a dispute over boundary between Inneh and Uresogie.
Is this a reference to the dispute between Madam Ukponmwan and Chief Aighe as set out in the evidence of PW3? I think it is.
In its judgment the lower Court referred to the evidence of PW3 and remarked as follows:-
“The evidence of 3PW as to the fact that late Madam Oresogie Obasogun built the house is too scanty and unreliable, as it failed to give details of the manner of assistance rendered by his father. The 3PW gave evidence of fact which he said that he vividly recalled (sic) but when that event happened he was a small boy. It must be maintained that 3PW is not stating that the act was done by him. On this basis therefore, it seems to me that for the testimony of 3PW to be relevant and of probative valve he should have stated his ages as a “small boy” to enable the Court determine whether at a particular age 3PW could vividly recalled (sic) what happened. This omission has retendered the testimony of 3PW extremely unreliable and I accordingly reject it…” (See lines 9-19 at page 106 record of appeal)
With the greatest respect to the lower Court, it was not only what PW3 did that was relevant, what he saw or perceived with any of his senses was relevant too. Though a “small boy” PW3 remembered his father helping Madam Oresogie to build the house. If the age of 3 was very relevant or crucial, as the lower Court said, then that could easily have been resolved from the available evidence on record. In his response to cross-examination, PW3 had told the Court that he was born in 1917 and the mud house was built between 1926 and 1927 by Madam Oresogie with the help of his father. This easily placed the age of PW3 to between 9 and 10 years old. This aspect of the evidence of PW3 remains credible as it was not shown to be unreliable by any other credible evidence. The yardstick and benchmark for acceptability of the evidence of PW3 placed on it by the lower Court are on the high side and cannot be justified in the circumstance of this case.
In rejecting the evidence of PW3 the lower Court sought refuge under sections 76 and 77 (a) and (b) of the Evidence Act. S. 76 provides thus:-
“All facts, except the contents of documents, may be proved by oral evidence.”
Also S.77 provides thus:-
“Oral evidence must, in all cases whatever, be direct –
a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
If the evidence of PW3 is put in its con, in my view, it would amount to no more than a man assisting a woman to build a house as it is such a very notorious fact that men are more at home at building sites than women even today, let alone nearly 100years ago. The learned trial Judge, in my view could have taken judicial notice of such a very notorious fact. This Court will now do the needful in the circumstance. There was therefore no basis for the lower Court to reject the evidence of PW3. 5.77, rather than excluding the oral evidence of PW3 reinforces and supports its acceptance in my humble view.
It was established at the trial that the father of the 1st Respondent died in 1947. It was also fully established that he 1st Respondent did not come to claim title to No. 60 until 1985, two years after the death of Madam Ukponmwan. There is nothing on record, from the perspective of the 1st Respondent to show what happened to No. 60 during the period between 1947 to 1985. The only explanation was that as at 1947, the 1st Respondent and her 2 sisters were too young to perform the 2nd burial rites of their late father so their mother took them away to her village, without more. In my view this unaccounted period needs an explanation in a claim for title predicated on traditional history.
Where traditional history is found to be cogent and it is accepted by the trial court, it can support a declaration of title to land. In the instant matter, the lower court found in favour of the 1st Respondent based on traditional history. The power of the court to grant a declaration of title to land is discretionary and it should be exercised with proper sense of responsibility and a full realization that a judicial pronouncement ought not to be made unless there are circumstances that call for its making.
Proof of title to warrant a declaration can be made if it was shown to the satisfaction of a court that a claimant has exercised acts ownership over the land. Such acts include selling; leasing or renting etc. also acts of long enjoyment and possession of rand may be prima facie evidence of ownership of the particular piece or quantity of land. See OGUNDIPE V. AWE (1988) 1 SCNJ 84 and IDUNDUN & ORS V. OKUMAGBA & ORS (1976) 9-10 SC 227. Also in the case of KOJO 11 v. BONSIE (1957) 1 WLR 1223 it was held that the best way to test traditional history of title to land is by reference to the acts of ownership or possession in recent years as established by evidence. In the instant appeal the issue of acts of ownership and possession in recent times was raised by the Appellant by the use of terms such as “building and re-building or improvements on the property without let or hindrance over a very long period and also burial of successor in title on the disputed property, etc.”
The case of KOJO V. BONSIE (supra) was not cited before the lower Court or this Court. But if a case is made in the pleadings in respect of acts of ownership or possession in recent times, the Court is perfectly entitled to invoke the rule in KOJO V. BONSIE even without the prompting of any of the parties. See OKOCHI v. ANIMKWOI (2003) 18 NWLR 1 at 25 (Ogundare, JSC dissenting at 33-34.) In my view the learned trial Judge failed to consider the various acts of ownership exercised by the Appellant and her predecessors in title in respect of No. 60 which said acts extended over sufficient length of time and were numerous and positive enough as to warrant the inference that ownership of the said house vested in the Appellant.
Upon the foregoing issue 3 is hereby resolved against the 1st Respondent in favour of the Appellant and 2nd Respondent/Cross-Appellant. Having decided and resolved as such on issues 1 and 3, I hereby hold that the decision of the lower Court that the evidence proffered by the Appellant in support of her claim does not possess such probative value as to entitle her to the reliefs in her amended statement of claim is perverse and against the weight of evidence adduced before the lower Court. This appeal and Cross-Appeal are allowed. The order dismissing the claims of the Appellant is hereby set aside. In consequence of that, the claims of the Appellant are hereby granted in terms of her amended of claim. The counter claim of the 1st Respondent fails and is hereby dismissed.
Having dismissed the counter claim of the 1st Respondent, I do not see any purpose of going into issue No. 4 as formulated and argued in the Appellants, amended brief and also issue no. 3 in the brief of the 2nd Respondent/Cross-Appellant. I order for N20, 000 costs against the 1st Respondent each in favour of the 2nd Respondent/Cross-Appellant.

OYEBISI FOLAYEMI OMOLEYE, JCA: I have had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, A.A.B. Gumel, J.C.A. I am at one with his line of reasoning and conclusion therein that, both the appeal of the Appellant and the cross-appeal of the 2nd Respondent are meritorious.
The facts of this matter, submissions of learned counsel in this double-edged appeal as well as the findings of the trial court have all been meticulously laid out in the lead Judgment. It is in giving my full support to the lead judgment that I state as follows:
Regarding the validity or otherwise of the judgment of the trial court being appealed, at the conclusion of counsel’s addresses on 21.05.92, judgment in the case was adjourned to 26.6.92 – See page 76 of the record of appeal. This not withstanding, the judgment could be delivered within ninety (90) days in tune with the provisions of Section 258 (1) of 1979 Constitution, now Section 294 (1) of the 1999 constitution. However, before the expiration of the ninety (90) days, a motion for the substitution of the then 1st Defendant who became deceased was filed on 29.07.92. The said motion was granted without any objection on 22.01.93 – see pages 77 to 82 of the record of appeal. The judgment was eventually delivered on 23.04.93. Time started to run not on 21.05.92 but on 22.01.93. Therefore, the judgment delivered on 23.04.93 was within time and valid to all intents and Purposes.
It is a time-hallowed legal principle that, ownership of land can be proved by any of the following five ways:
(1) Traditional evidence.
(2) Production of documents of title.
(3) Acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner.
(4) Acts of long possession and enjoyment of the land.
(5) Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See the cases of: (1) Dike v. Okoloedo (1999) 7 SCNJ p. 248; (2) Oko v. Okenwa (2010) 3 NWLR (Pt. 1181) p. 406 and (3) Orlu v. Gogo-Abite (2010) Vol. 181, LRCN p. 193.
The Appellant, whose case is supported by the claim of the 2nd Respondent/Cross-Appellant, hinged his claim on (1), (3) and (4) above. That is, the property in dispute, No. 60, Igun Street, Benin-City was an inheritance. These facts were pleaded by him and evidence was led at trial in support thereof, especially, of acts of ownership, long possession and enjoyment of the property for a period of nearly six decades by the Appellant’s predecessors in title. Although the 1st Respondent is also claiming from the same ancestor through her late father, she failed in my view to prove when exactly her late father came into the alleged possession of the property in dispute.
The Appellant adduced evidence that his predecessor in title built the property in question way back around 1926 and 1927 and continued to make improvements on it till she died in 1985. This fact was supported by the evidence of the 1st Respondent. However, the 1st Respondent did not come to the scene until 1987. It is trite that when the issue as to which of two claimants has a better right to possession of a property in dispute, the law will ascribe the possession to the person who proves a better title. See the cases of; (1) Aromire v. Awoyemi (1972) 1 All NLR (Pt. 1) p. 10; (2) Fasoro v. Beyioku (1988) 2 NWLR (Pt. 76) p. 263; (3) Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) p. 386 and (4) Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) p. 265.
All the issues raised in the pleadings, evidence led and the findings of the trial Court have been dealt with adequately in the lead judgment. I agree that the trial Court had failed to properly examine the totality of the evidence placed before it. Its findings as contained in the judgment being appealed are clearly unsupported by the very cogent evidence adduced by the Appellant. The learned trial Court was wrong to find in favour of the 1st Respondent.
This Court will not ordinarily interfere with the findings of fact of a trial Court unless it is shown that such findings are perverse and not based on the evidence led and the applicable law(s). See the cases of: (1) Woluchem v. Gudi (supra); (2) Akintola v. Balogun (2000) 1 NWLR (Pt.642) p. 532; (3) Chukwu v. Nneji (1990) 6 NWLR (Pt. 156) p. 363 and (4) Mini Lodge Ltd v. Ngei (2010) 10 W.R.N. p. 58. In the instant matter, the Appellant has succeeded in convincing this Court that, this is a situation in which it should interfere with the findings of the trial Court.
In the final analysis, for the above and the very detailed reasons advanced in the lead judgment, I too find that this appeal and consequently the cross-appeal are meritorious and allow them. I abide by all the orders made in the said lead judgment including the order as to costs of Twenty Thousand Naira (N20, 000) in favour of the Appellant and 2nd Respondent each and against the Respondent.

CHIOMA EGONDU NWOSU-IHEME (Ph.D) JCA: I have had the advantage of reading before now the Judgment just delivered by my learned brother ALI ABUBAKAR BABANDI GUMEL JCA. All the relevant issues submitted for determination of the appeal were exhaustively appraised. I adopt the reasoning therein and conclusion as mine. This appeal and cross-appeal are hereby allowed. The order of the court below dismissing the claims of the Appellant is set aside. I subscribe to the order for costs proposed in the lead Judgment.

Appearances

Mr. Legbedion J.E.For Appellant

AND

Mr. G.E. Ezomo and
Mr. D.I. Aigbekaen
Mr. U.T. UdochiFor Respondent