OGBUEFI PHILIP OKADIGBO & ORS. V. UDO OJECHI & ORS.
(2011)LCN/4759(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of July, 2011
CA/E/393/2007
RATIO
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL CASES AND WHEN DOES THE BURDEN SHIFT TO THE OTHER PARTY
It is therefore trite law that the burden of proving a particular fact is on the party who asserts it. This onus however does not remain static in civil cases, it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion the proper order which the court should make is one entering judgment against him. See UNION BANK OF (NIG) LTD V. OZIGI (1994) 3 NWLR (PT 333) 385; DURU V. NWOSU (1989) 4 NWLR (PT 113) 24; MOGAJI V. ODOFIN (1978) 4 SC 91 and ARE V. ADISA (1967) NMLR 304. In AGBAKOBA V. INEC & ORS (2008) 12 SCM 159 at 194 the Supreme Court held that:- “There is by virtue of Section 137 of the Evidence Act in civil cases the principle that the party who asserts certain facts must prove them and once this is done the burden shifts to the other party- It is true, it is not permanent, the burden shifts between the parties and against the party whom judgment would be given if no more evidence is adduced. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DUTY OF COURT: WHETHER IT IS THE DUTY OF THE TRIAL COURT TO ASSESS EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO
…it is settled law that the assessment of evidence and ascription of probative value to same is the duty of the trial court that watched the demeanor of witnesses and listened to them. See AMADI V. FEDERAL REPUBLIC OF NIGERIA (2008) 12 SCM (PT 2) 217; EBBA V. OGODO (1984) 1 SCNLR 372; TAPSHANG V. LEKRET (2000) 13 NWLR (PT 684) 381. See also DUMEZ (NIG) LTD V. NWACHOBA & ORS (2008) 12 SCM (PT 2) 504. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
INTERFERENCE WITH THE FINDINGS: CIRCUMSTANCE IN WHICH AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT MADE BY A TRIAL COURT
An appellate court will not ordinarily disturb the findings of fact by a trial court unless such findings are perverse and not supported by evidence. See AMADI V. FEDERAL REPUBLIC OF NIGERIA supra at page 231and GAJI V. PAYE (2003) 14 NSCQR 613. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 34 (1) OF THE EVIDENCE ACT AS TO WHEN EVIDENCE GIVEN BY A WITNESS IN A JUDICIAL PROCEEDING CAN BE RELEVANT IN A SUBSEQUENT JUDICIAL PROCEEDING IN THE ABSENCE OF THE WITNESS THAT GAVE THE EVIDENCE
Now Section 34 (1) of the Evidence Act provides as follows:- “Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.” Provided:- (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” The above provision is no doubt an exception to the Hearsay Rule and as such there are constraints which are introduced in the proviso to the section. See IKENYI V. OFUNE (1985) 2 NWLR (PT 5) 1 at 16 where the supreme court per Karibi Whyte JSC analysed the section as follows:- “In accordance with S. 34 (1) of the Evidence Act, evidence in previous judicial proceedings is only relevant for the purpose of proving in a subsequent judicial proceeding, or in later stage of the same proceeding, the truth of the fact which it states, if the witness is dead, or for other reasons cannot be made to appear in person to give evidence. Such evidence is only admitted (a) where the proceeding is between the same parties or their representatives in interest or (b) the adverse party in the first proceeding had the right or opportunity to cross examination and (c) the questions in issue were substantially the same in both proceedings.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
INTERPRETATION OF STATUTE : BASIC PROCEDURE FOR THE APPLICATION OF SECTION 34 (1) OF THE EVIDENCE ACT
…the basic procedure for the application of Section 34 (1) of the Evidence Act is for a foundation to be laid by way of evidence on oath that the witnesses are dead which evidence if found credible and acceptable by the trial court will pave way for the admissibility of the evidence in a previous proceedings subject however to meeting the conditions set in the proviso to the aforementioned section. In this regard, I find support in the case of SHOFOLUWE V. THE KING (1951) 13 WACA 264 where the court in deciding on the provisions of Section 34(1) of the Evidence ordinance (which is similar to Section 34 (1) of the Evidence Act), stated thus:- “Section 34 of the Evidence Ordinance Cap 63 provides for the admission of such depositions in certain circumstances, but it is clear that the particular circumstances upon which the admission of the deposition is based must be shown to exist. This can only be done by evidence on oath, unless there is a special statutory provision to the contrary… It is necessary that evidence be given on oath by some witness who can testify to the fact of his own knowledge and who may, if necessary be cross examined in regard thereto. It is for the trial judge, then to determine whether the evidence so tendered is sufficient to satisfy him as to the existence of the material facts and whether upon the facts so proved the deposition is admissible but it is essential that the facts should be proved by legal evidence upon oath.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
CERTIFIED TRUE COPY: ESSENCE OF CERTIFICATION OF DOCUMENT; POSITION OF THE LAW WHEN A CERTIFIED TRUE COPY OF A DOCUMENT IS SHOWN TO BE FORGED OR FALSIFIED
“The essence of certification of a document is to show that the contents of the documents are the same with the original. PW3 under cross examination testified that documents could be presented by the members of the public for certification, in which case he must have seen the original copy of the document before it is certified. This was what he did in the case of Exhibits B and C, which are records emanating from proceedings of the court in which he is in charge of all the records. The PW3 is deemed to be in possession of the documents certified. A certified true copy of a document can only be avoided or rendered null and void if it is shown to be forged or falsified, in which case the onus is on the person raising the issue of forgery or falsification to prove that.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. OGBUEFI PHILIP OKADIGBO
2. KINGSLEY SAMUEL ELOBISI
3. LEONARD OKAFOR
4. AUGUSTINE IKEZUE (SUBSTITUTED FOR OBIANWUNA OGBUANYINYA, NWANKWO MUOKWUE, UDEDIBIA CHIEZIE, ANDREW OBIECHINA, MICHAEL ELOBISI AND CHIJI ADIBE by Order of the Court on 10/2/2003)
(For themselves and on behalf of the People of Umueri, Ogbunike. Appellant(s)
AND
1. UDO OJECHI
2. PAUL CHOSEN ANYAEGBUNAM
3. GOZIE ANYAEGBUNAM
(SUBSTITUTED FOR RAPHAEL ANYAEGBUNAM by Order of the Court on 22/11/2007
(For themselves and on behalf of People of Abo, Ogidi.) Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The Respondents in this appeal had as plaintiffs instituted Suit No. O/71/58 against the defendants, now appellants, at the High Court Onitsha, on the 28th day of April 1958 wherein they claimed as per paragraph 18 of their Amended Statement of claim as follows:-
(1) A Declaration that, plaintiff (sic) entitled to statutory Right of occupancy to all that piece or parcel of land known and called ISI-AGU LAND situate at Abo Ogidi and more particularly delineated and verged pink on the plaintiff’s plan No. MEC/91/58 filed in this Suit.
(2) #100 general damages for trespass by the defendant’s people upon the said land.
(3) Perpetual injunction to restrain the defendant and his people with their servants and agents from in anyway interfering with the plaintiff’s ownership and possession of the said land.
A summary of the facts of this case as stated by the Respondents is that the land in dispute known as ISIA-AGU LAND is their property, (that is the Abo Ogidi people), from time beyond human memory and they have exercised maximum acts of ownership and possession on the land such as farming, reaping economic trees, setting up and worshipping juju shrines, burying their dead on it as well as putting tribute paying tenants to farm on it. But recently in 1956, the appellant’s people entered the land and authorized the Onitsha Northern District council to erect a kindergarten school thereon without the permission of the Respondents.
They sent a warning to the appellant’s people including one Chief Moses Elobisi to desist from such act of trespass and the appellants through the said Chief Moses Elobisi agreed for settlement of the matter on a fixed date. However, Chief Moses Elobisi died on the said appointed date so the settlement was postponed till after the mourning period. But unexpectedly the appellants people jumped into the land again and started building a small house therein and continued to do so inspite of repeated warnings by the Respondents, hence they filed a Suit in the High Court, Onitsha.
The appellants on the other hand denied the claim contending that one Nnamenyi, a great hunter and farmer was the founder of a vast area of virgin land which he eventually shared to his four sons, known as Ogbunike, Awkuzu, Nando and Umuleri and the share for each of them became known by that sons name. Ogbunike in turn shared his portion to his six children which includes Umueri, the ancestor of the appellants. Umueri’s portion includes the land in dispute for which they exercised acts of ownership and possession by hunting, farming, planting and reaping economic trees, by granting portions of the land on customary tenancy to various people, worshipping their juju on the land and prosecuting and defending law suits thereon.
Pleadings were subsequently ordered, filed and exchanged, which pleadings were also amended with the leave of court. The plaintiffs (now Respondents) current pleadings for the trial were the Amended Statement of claim dated the 28/2/2003 while that of the defendants (now appellants) is the 2nd Amended Statement of defence dated 10/2/2003.
For a more vivid picture of the history and antecedents of the Suit which is the subject matter of this appeal and for want of better approach, I herein below reproduce the introductory part of the respondents brief being a true reflection of the Suit which no doubt had its fair share of notoriety in the legal circle as OGBUNYINYA & ORS V. OKUDO & ORS (1979) 6-9 SC 32 OR (1979 ALL NLR 105. It reads thus:-
“This suit has, indeed had a chequered history. It was filed sometime in 1958 in the Onitsha Judicial Division of the High Court of the former Eastern Region of Nigeria. After several aborted trials before and after the civil war and before several judges, the case was eventually heard and determined by Nnaemeka-Agu J. (as he then was) in favour of the plaintiffs on June 17, 1977 at the Onitsha Judicial Division of the High Court of Anambra State.
The Defendants appealed to the Court of Appeal, Enugu Division, on diverse grounds of appeal which included, inter alia, the ground of jurisdiction by which it was contended that by June 17, 1977, Nnaemeka-Agu J. no longer had jurisdiction to sit as a Judge of the High Court Anambra State. The defendants lost the appeal in the Court of Appeal. However, the defendants’ further appeal to the Supreme Court in Appeal NO. SC/13/79 was on July 5, 1979 allowed by the apex court which held that by June 17, 1977, Nnaemeka-Agu had ceased to be a Judge of the High Court Anambra State as his elevation to the Court of Appeal took effect from June 15, 1977. A trial de novo was then ordered.
However, the defendants again by a motion at the High court contended that the suit was improperly constituted in 1958 as there was no evidence that a writ of summons duly signed by a judge of the High Court of the former Eastern Nigeria was issued to commence the suit. The defendants lost their latest enterprise not only in the High court but also in the Court of Appeal and the Supreme Court in Appeal Nos CA/E/210/87 and SC/111/88 respectively. The case was subsequently set down for trial De novo before Nwizu J who at the conclusion thereof entered judgment for the plaintiffs on the 24th day of April 2007.
Being dissatisfied with the said judgment, the defendants have appealed to the Court of Appeal, Enugu Division, by notice of appeal dated and filed on 19th June 2007 and predicated on twenty four (24) grounds of appeal complaining of diverse errors of law and fact.”
The above is indeed a succinctly put summary of the extraordinary voyage of this suit which has presently dropped its anchor at the shores of this court.
The parties subsequently filed and exchanged briefs of argument.
The appellant’s brief of argument dated 1/2/2008 and filed on 13/7/2008 was settled by G.R.I. Egonu SAN. They also filed a reply brief on 6/1/2011.
The Respondents brief of argument settled by O.R Ulasi (SAN) is dated and filed on 16/7/2010.
At the hearing of the appeal on 10/5/2011 both parties through their counsel adopted and relied on their respective briefs of argument.
For the appellants, seven issues were distilled for determination to wit:-
(1) Whether the trial court was right in holding that the Onus was on the defendants/appellants to have subpoened Nwankwo Egbuniwe to testify in court that he was “alive and not dead” so as to debunk the evidence of PW1 and that the only reasonable inference one could make was that “the said Nwankwo Egbuniwe was either ill and had gone out of circulation and that it would be difficult to secure his attendance and presence in court without undue delay and expense of time?
(2)(a) Whether Exhibits ‘B’ and ‘C’ were admissible in Evidence in this case.
(b) Whether the trial court was right in relying on the contents of exhibits ‘B’ and ‘C’ in determining the case?
(3)(a) Whether there was any issue in the case as to the original boundary of the land in dispute and whether the evidence of DW9 (Sunday Elobisi) supported the evidence of the plaintiffs as to an original boundary of the land in dispute?
(3)(b) Whether the trial court was right in relating the evidence of DW9 to what it stated was the original boundary of the land in dispute and in relying thereon in determining the case?
(4) Whether the trial court was right in rejecting the traditional history of the defendants/appellants?
(5) Whether the trial court was right in refusing to give effect to Exhibits ‘D’ ‘E’ ‘F’ ‘G’ ‘H’ and ‘J’ in its determination of the case?
(6) Whether the plaintiffs/Respondents proved their case to warrant the trial court entering judgment for them in the case.
(7)(a) Whether the trial court was right in holding that the Electricity Corporation of Nigeria paid compensation to the plaintiffs/Respondents for damages to their economic trees and farm when its high tension wire passed across the land now in dispute?
(7)(b) Whether the trial court was right in holding that the compensation the defend and appellants received from the Electricity Corporation of Nigeria for damages done to their crops and economic trees was for the High tension wire that passed through a larger portion of the defendants/appellants land not in dispute and not for the one that passed through the land in dispute for which compensation was collected by the plaintiffs/Respondents?
The Respondents in their own brief of argument raised 4 issues for determination as follows:-
(1) Whether the learned trial judge was right in admitting in evidence and relying on Exhibits B and C containing the testimony of four witnesses who testified in the previous trial before Nnaemeka-Agu J. pursuant to Section 34 (1) of the Evidence Act 1990.
(2) Whether the learned trial judge was right in holding that the evidence of DW9 (Sunday Elobosi) supported the case of the respondents with respect to the original northern boundary of the land in dispute between the parties.
(3) Whether the learned trial judge was right in charaterising the appellants’ traditional history as incredible because although it is alleged that Nnamenyi shared his vast area of land among his four children, yet none of them shares a common boundary with the other.
(4) Whether the learned trial judge was justified in entering judgment for the respondents based on the pleadings and the preponderance of evidence led by the parties in this case.
The four issues as raised by the Respondents are similar to the appellants’ issues 1, 2, 3, 4and 6 and I am therefore inclined to consider this appeal on the basis of the appellants issues as they also address that of the Respondents.
On issue No. 1. G.R.I. Egonu, Senior counsel for the appellants referred to the evidence of the PW1 to contend that he was not telling the truth when he said that Nwankwo Egbuniwe was dead. On the other hand he argued, the evidence of DW4 showed that Nwankwo Egbuniwe was not dead because he bought drinks for him on 3/5/2005 and they chatted while he drank.
Learned Senior counsel also picked holes with the inference drawn by the trial judge that Nwankwo Egbuniwe was ill and had gone out of circulation thus making it difficult to secure his attendance and presence in court without undue delay and expense because this amounts to speculation and creation of evidence for the plaintiffs. He added that the Onus is on the plaintiffs to prove that Nwankwo Egbuniwe was dead and not for the defendants/appellants to subpoen him to appear in court to show that he is alive as held by the learned trial judge, so it was wrong for him to reject the evidence of DW4 as to what transpired between him and Nwankwo Egbuniwe on 3/5/2005.
Section 137 (1) and (2) of the Evidence Act provides thus:-
137 (1) “In civil cases the burden of first proving the existence or non existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with.”
It is therefore trite law that the burden of proving a particular fact is on the party who asserts it. This onus however does not remain static in civil cases, it shifts from side to side where necessary and the onus of adducing further evidence is on the person who will fail if such evidence was not adduced and if he fails to prove the assertion the proper order which the court should make is one entering judgment against him.
See UNION BANK OF (NIG) LTD V. OZIGI (1994) 3 NWLR (PT 333) 385; DURU V. NWOSU (1989) 4 NWLR (PT 113) 24; MOGAJI V. ODOFIN (1978) 4 SC 91 and ARE V. ADISA (1967) NMLR 304.
In AGBAKOBA V. INEC & ORS (2008) 12 SCM 159 at 194 the Supreme Court held that:-
“There is by virtue of Section 137 of the Evidence Act in civil cases the principle that the party who asserts certain facts must prove them and once this is done the burden shifts to the other party- It is true, it is not permanent, the burden shifts between the parties and against the party whom judgment would be given if no more evidence is adduced.”
Based on this legal perspective, the PW1 testified as follows:- (See page 78 of the record).
“I know Mr. clement Amafeobu, Lawrence Nkemakonam, Aro Arubalezeama, Nwankwo Egbuniwe. The aforementioned people testified in this case on how my people own this Isiagu land which is in dispute. These witnesses are now dead. We attended the funeral ceremonies of these people.”
Under cross examination PW1 had this to say (See page 79 of the record).
“It is true that Nwankwo Egbuniwe has his store and dwelling house opposite Oye Olisa Ogbunike. Nwankwo Egbuniwe is a trader. I do not know whether Nwankwo Egbuniwe is alife or dead. At times I hear that he died, in another vein I will here that he is alive. All I know is that I never attended his funeral.”
But in the course of further cross examination as shown in page 94 of record, PW1 answered as follows:-
“I told the court that I know Clement Amaifeobu, Lawrence Nkemakonam, Aro Arubalezeama and Nwankwo Egbuniwe. These aforementioned persons are no longer alive as suggested by counsel, but they are all dead.”
The above evidence of PW1 formed the basis for the subsequent tendering and admission in evidence of Exhibits B and C through the PW3. However, during the presentation of the case for the defence, DW4 testified as follows: – (See page 113 of Record).
“I know Nwankwo Egbuniwe. I saw him last a day before yesterday. It is not true that Nwankwo Egbuniwe died by (sic) long ago as testified by PW1 Raphael Anyaegbunam, Nwankwo Egbuniwe is alive and I was with him day before yesterday as I earlier said.”
The learned trial judge subsequently evaluated the evidence of the parties in his, judgment at pages 172 to 173 of record as follows:-
”DW4 Eseloka Elobisi in his evidence told the court that Nwankwo Egbuniwe was hail and hearty, that he chatted with him some couple of days ago and even bought drinks for him. I do not believe him as the only authentic and credible evidence that will fault the evidence of the PW1 about the state of affairs of the said Nwankwo Egbuniwe is by producing him in court by the defendants to come and testify that he is alive and not dead as the plaintiff speculated.
An application for subpoena and issuance of the same by the defendant through the court would have compelled this witness to appear before the court to debunk the evidence of the PW1.
If this Nwankwo Egbuniwe is living and is very close with the DW4, it then means that he is being kept away by the adverse party and his attendance and presence in court cannot be secured without much expense of time and delay.” (underlining for emphasis)
With due respect, I do not agree with the conclusion of the learned trial judge as per the underlined portion of his judgment reproduced above. That is not the intent and purpose of section 34(1) of the Evidence Act. The said section does not operate by way of circumstantial inference or presumption. It requires genuine and convincing evidence which will form the solid foundation upon which the process of admissibility of evidence in a previous judicial proceeding will stand. In the instant case, it is the duty of the party who seeks to bring in such evidence in a previous judicial proceeding to lay the said evidential foundation.
That notwithstanding, the learned trial judge carefully reviewed and evaluated the evidence of the witnesses and reached a decision as to who to believe or not to believe. A careful perusal of the above reproduced portion shows to my mind that he treaded the right path. The PW1 having given evidence as to the death of messrs, Clement Amaifeobu, Lawrence Nkemakonam, Aro Arubaluezeama and Nwankwo Egbuniwe. There evidence in a previous judicial proceeding having been tendered and admitted in evidence as Exhibits B and C. On the basis of Section 137 of the Evidence Act and the authorities earlier cited, the onus then shifts to the defendants (now appellants) to prove the contrary and I agree with the learned trial judge that the bare evidence of the DW4 that he saw Nwankwo Egbuniwe a few days earlier does not suffice to uproot the foundation laid by the Respondents through the evidence of PW1.
Besides, it is settled law that the assessment of evidence and ascription of probative value to same is the duty of the trial court that watched the demeanor of witnesses and listened to them. See AMADI V. FEDERAL REPUBLIC OF NIGERIA (2008) 12 SCM (PT 2) 217; EBBA V. OGODO (1984) 1 SCNLR 372; TAPSHANG V. LEKRET (2000) 13 NWLR (PT 684) 381. See also DUMEZ (NIG) LTD V. NWACHOBA & ORS (2008) 12 SCM (PT 2) 504.
In the instant appeal, except for the presumption raised against the appellants and which I earlier disagreed with, there is nothing to show that the finding of fact by the learned trial judge is perverse or not supported by evidence as to justify interference by this court. An appellate court will not ordinarily disturb the findings of fact by a trial court unless such findings are perverse and not supported by evidence. See AMADI V. FEDERAL REPUBLIC OF NIGERIA supra at page 231and GAJI V. PAYE (2003) 14 NSCQR 613.
Learned Senior counsel for the appellant had also hammered strongly on the evidence of PW1 which he contended is unreliable because, while in his evidence in chief he testified that all the four persons in question were dead but under cross examination he stated that he did not know whether Nwankwo Egbuniwe, (one of them) is alive or dead. At times he hears that he died, in another vein he will hear that he is alive. This to my mind is neither here nor there because whatever inconsistency (if any) that might have manifested therein was cancelled by his further answer under cross examination by the same senior counsel when he stated that:-
“I told the court that I know Clement Amaifeobu, Lawrence Nkemakonam, Aro Arubalezeama and Nwankwo Egbuniwe. These aforementioned persons are no longer alive as suggested by counsel but they are all dead.”
(See page 94 of the record).
I am therefore in support of the learned trial judge in preferring the evidence of the PW1 to that of the DW4. On the whole, issue No. 1 is partly resolved against the appellants.
On issue No. 2(a) and 2(b), it was the submission of the learned senior counsel for the appellants that the trial court was wrong to admit Exhibit ‘B’ and ‘C’ in evidence and to rely on same in determining the case. He contended that, for the evidence of a person who testified previously in a case to be admitted in a later trial of the case under Section 34 (1) of the Evidence Act, the fact of the previous testimony and the facts and circumstances making it impossible or very difficult for that person to appear and testify again must be pleaded and proved.
Learned counsel added that the respondents never pleaded nor proved the facts on which the evidence of the four witnesses contained in Exhibits ‘B’ and ‘C’ could be admitted in evidence and having failed to satisfy the conditions under which the evidence of the aforesaid four previous witnesses could be admitted in evidence, then exhibits ‘B’ and ‘C’ are not admissible in evidence and they are not legal evidence in the case. He cited OKONJI V. NJOKANMA (1999) 14 NWLR (PT 638) 250 at 271 to 272 and 280; and six authorities in support.
Also citing numerous authorities in support, learned senior counsel submitted that where evidence which in law is inadmissible was by inadvertence or wrongly admitted, the trial court has the power and the duty to expunge the inadmissible evidence and to determine the case on legal evidence.
Further on the issue of admissibility of Exhibits ‘B’ and ‘C’ learned senior counsel submitted that the two documents were not properly certified in accordance with the provisions of Section 111 (1) of the Evidence Act because they were presented to PW3 for certification when he had no such power to certify documents presented to him by people but only to certify copies of public documents in his custody.
For the Respondents, their learned senior counsel also referred to the evidence of PW1 at pages 78 and 79 of the record and submitted that it is trite that the previous testimony of a witness in an earlier trial which has been rendered abortive on appeal by a retrial order, is admissible in evidence in the retrial under Section 34 (1) of the Evidence Act once the conditions contained in the proviso are complied with. He added that the said conditions were complied with before exhibits ‘B’ and ‘C’ were admitted in the lower court. So the contention by the appellants’ counsel that the respondents ought to plead the fact that the four previous witnesses were dead is untenable. He cited the case of SHOFOLUWE V. THE KING (1951) 13 WACA 264.
Learned Senior counsel further contended that the learned trial judge was right to have drawn the inference that:-
“If this Nwankwo Egbuniwe is living and is very close with DW4, it then means that he is being kept away by the adverse party and his attendance and presence in court cannot be secured without much expense of time and delay.”
This is because the appellants do not appear to contest the fact that the four persons were dead and apart from the DW4, they did not bring any other witness to testify to having seen the person said to still be alive.
Besides, he added, the DW4 being of the same village with the appellants, they have a duty to bring Nwankwo Egbuniwe to court by way of Subpoena to show that he is not dead.
Learned senior counsel also referred to Section 111 (1) of the Evidence Act to contend that certification of exhibits B and C satisfies the conditions stipulated in the section and since the PW3 had custody of public documents, he only certifies copies of documents after seeing the original.
He referred to OKONJI V. NJOKANMA (1999) 14 NWLR (PT 638) 250 heavily relied on the appellants. He argued that the case is distinguishable from the instant case.
Now Section 34 (1) of the Evidence Act provides as follows:-
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.”
Provided:-
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.”
The above provision is no doubt an exception to the Hearsay Rule and as such there are constraints which are introduced in the proviso to the section. See IKENYI V. OFUNE (1985) 2 NWLR (PT 5) 1 at 16 where the supreme court per Karibi Whyte JSC analysed the section as follows:-
“In accordance with S. 34 (1) of the Evidence Act, evidence in previous judicial proceedings is only relevant for the purpose of proving in a subsequent judicial proceeding, or in later stage of the same proceeding, the truth of the fact which it states, if the witness is dead, or for other reasons cannot be made to appear in person to give evidence. Such evidence is only admitted (a) where the proceeding is between the same parties or their representatives in interest or (b) the adverse party in the first proceeding had the right or opportunity to cross examination and (c) the questions in issue were substantially the same in both proceedings.”
In the instant case, there is no dispute as to the issue of compliance with the proviso to Section 34 (1) of the Evidence Act. The main contention is that the fact of the death of the four previous witnesses ought to be specifically pleaded before their evidence in the previous proceeding will be admissible. The appellants placed heavy reliance on the case of OKONJI V. NJOKANMA (supra).
The learned senior counsel for the respondents reacted thus in their brief of argument:-
“We submit respectfully that OKONJI V. NJOKANMA (supra) can be distinguished. The nexus between the two cases – i.e. Suit No. 1/1932 and Njokanma’s case was that a witness in Suit No. 1/1931 gave a piece of evidence which the plaintiffs intended to use in support of their case in NJOKANMA. It is to be noted that the plaintiffs pleaded Suit No. 1/1931. Their pleadings did not however cover the material facts of the death of that witness, which fact was available to them. That was a fatal error which created a vacuum as there was no basis for the said Exhibit B to be received in evidence.
We respectfully submit that had the fact of Obidi’s death been pleaded, there would not have been occasion for the ratio expounded by Achike JSC and that pleading became all-important use (sic) Suit No. 1/1931 and Njokanma’s cases are two different suits.”
I do agree with the above submission to the effect that Njokanma’s case can be distinguished from the instant case. Added to that, I am also of the firm view that the basic procedure for the application of Section 34 (1) of the Evidence Act is for a foundation to be laid by way of evidence on oath that the witnesses are dead which evidence if found credible and acceptable by the trial court will pave way for the admissibility of the evidence in a previous proceedings subject however to meeting the conditions set in the proviso to the aforementioned section. In this regard, I find support in the case of SHOFOLUWE V. THE KING (1951) 13 WACA 264 where the court in deciding on the provisions of Section 34(1) of the Evidence ordinance (which is similar to Section 34 (1) of the Evidence Act), stated thus:-
“Section 34 of the Evidence Ordinance Cap 63 provides for the admission of such depositions in certain circumstances, but it is clear that the particular circumstances upon which the admission of the deposition is based must be shown to exist. This can only be done by evidence on oath, unless there is a special statutory provision to the contrary… It is necessary that evidence be given on oath by some witness who can testify to the fact of his own knowledge and who may, if necessary be cross examined in regard thereto.
It is for the trial judge, then to determine whether the evidence so tendered is sufficient to satisfy him as to the existence of the material facts and whether upon the facts so proved the deposition is admissible but it is essential that the facts should be proved by legal evidence upon oath.”
(Underlining is for emphasis)
In the instant case, the PW1 gave evidence as to the fact of the death of the four witnesses who had earlier given evidence in the matter at the trial court presided over by Nnaemeka-Agu J. before it went on a long and tortious journey to the Supreme Court where a retrial was ordered and back again to the Supreme Court over the issue of the competence of the Suit. They did not live to see or partake in the hearing before the present trial before Judge Nwizu J. who being satisfied with the evidence on oath of PW1 as to their death admitted their previous evidence as Exhibits B and C. To my mind, and subject to any other legal inhibition that would have affected the admissibility of the said documents, the learned trial judge acted within the requirements of Section 34 (1) of the Evidence Act, a proper foundation having be laid for the admission of Exhibits B and C in Evidence.
On the contention of the learned senior counsel for the appellants that Exhibits ‘B’ and ‘C’ do not satisfy the provisions of Section 111 (1) of the Evidence Act because, they were presented to the PW3 for certification by a party, when he can only certify copies of public documents in his custody.
In this regard, the learned trial judge had this to say in his judgment at page 173 of the record:-
“The essence of certification of a document is to show that the contents of the documents are the same with the original. PW3 under cross examination testified that documents could be presented by the members of the public for certification, in which case he must have seen the original copy of the document before it is certified. This was what he did in the case of Exhibits B and C, which are records emanating from proceedings of the court in which he is in charge of all the records. The PW3 is deemed to be in possession of the documents certified. A certified true copy of a document can only be avoided or rendered null and void if it is shown to be forged or falsified, in which case the onus is on the person raising the issue of forgery or falsification to prove that.”
I agree entirely with the above conclusion of the learned trial judge and add that the process of certification of Exhibits B and C by the PW3 did not violate the provisions of Section 111 (1) of the Evidence Act. The said PW3 is the Assistant Chief Registrar in charge of the court (i.e. Onitsha Judicial Division.) and has custody of all the record books, files and Exhibits in that court. It behoves him to compare the copies of any document presented to him for certification with the originals in his custody before such documents will be certified. What is more, the PW3 under cross examination provided an answer as follows:-
“It is correct to say that pages 28 – 40 of Exhibit B are photocopies. Exhibit C covering from pages 48 – 50 is equally a photocopy. The plaintiff presented these two exhibits to me for certification. It is true that I am presently in charge of Onitsha High Court. Documents could be presented by the members of the public for certification in which case I must see the original copy of the document before it is certified.”
This no doubt put paid to the issue in contention and I must add that we must be conscious of the fact that we are now in the age of digital technology were documents are now more efficiently reproduced by way of photocopying and scanning and the era of manual typography is fast fading away. Documents can now be produced with so much ease, precision speed and efficiency and we cannot afford to undermine or ignore this bandwagon of positive change. On the whole it is my view that the process of certification of Exhibits B and C by the PW3 did not violate the provisions of Section 111 (1) of the Evidence Act. Issue No. 2(a) and (b) are also resolved against the appellants.
On issue No. 3, the learned Senior counsel for the appellants argued that a proper reading of the evidence of DW9 at page 121 lines 11 to 22 of the record of appeal together with Exhibit ‘E’ clearly shows that the old Onitsha – Awka tarred road is merely the southern boundary of the land in dispute and that the actual boundary between the Respondents and the appellants is further south of the old Onitsha-Awka – Enugu tarred road as shown in Exhibit E.
He then contended that the learned trial judge at page 175 line 27 and page 176 line 11 commented on the evidence of DW9 Sunday Elobisi and then brought in statements the DW9 never made. He added that DW9 never gave evidence that the original boundary between the appellants and the Respondents was a track road or a foot path. So the trial court speculated on the state of the track road or pathway and wrongly relied on matters not in evidence in coming to its decision in the case.
Learned counsel then submitted that it is settled law that a trial court must determine a case on the facts pleaded and proved by the parties and is not allowed to make a case for the parties. He relied on the following authorities:-
Federal Capital Development Authority V. Alhaji Musa Naibi (1990) 3 NWLR (PT 138) 270 at 283; Alhaji Lasisi Bello Ogunlowo V. Prince Oyesunle Ogundare & Ors (1993) 7 NWLR (PT 307) 610 at 624 and Jimoh Adekoya Odubeko V. Victor Oladipo Fooler & anor. (1993) 7 NWLR (PT 308) 637 at 655.
Responding to this in their own issue NO. 2, the learned Senior counsel for the Respondents contended that it was DW9 who introduced evidence as to what he called “Original Boundary” between Umueri Ogbunike and Aboh Ogidi. He also referred to the response of DW9 during cross examination which is at page 121 line (13 to 22) of the record as well as the finding of the learned trial judge in his judgment at page 175 lines (1 to 11).
Learned counsel further contended that the criticism of the appellants against the learned trial judge for holding the view that the evidence of the DW9 supports the case of the respondents was indeed misplaced and not supported by evidence before the court. He referred to Exhibit ‘A’ (Respondents Survey Plan made in 1958) which shows that going from Onitsha to Enugu, the land in dispute is shown to be on the left hand side of the tarred road which the respondents testified that it passed through their land and in the process bifurcated it into two resulting in the respondents land being on both sides of the tarred road.
Learned Senior counsel referred to page 9 paragraph 3:3:1 of the Appellants brief which contrasts with their page 10 paragraph 3:3:3 and paragraphs 11 and 12 of their second amended statement of defence. He then submitted that the learned trial judge was right in holding that the evidence of DW9 (Sunday Elobisi) supported the case of the Respondents.
The issue in contention is the portion of the evidence of DW9 relating to the “Original boundary of the land in dispute.” and the propriety of the trial judge relying on such evidence in favour of the Respondents. In this regard I hereby reproduce below the relevant part of the evidence of the DW9 in order to have a clearer picture of the whole scenario. I will be more particular with pages 120 lines 9 to 14 and 121 lines 9 to 22 which are the portions hinged on by counsel for the parties in their respective briefs of argument. They read:-
Page 120 line 9-14
“The boundary with Umudioka people while facing the land and still standing on the road is on the right hand side. The upper side of the land still belongs to Umueri, the Southern part is the tarred road. The land in dispute belongs to us the Umueri people. I used to work on the land with my father when he was alive.”
Under cross examination DW9 stated as follows at page 121 lines 9-22.
“The tarred road does not pass through the land of Abor Ogidi people. It is not true that this tarred road divides the Abor Ogidi land with the result that part of their land is on the right whilst the other is on the left. This tarred road I am talking about passed through Umueri land Ogbunike and not Abor Ogidi. It is the tarred road that is the boundary between Umueri Ogbunike and Abor Ogidi people now. It is this tarred road that Umueri Ogbunike knows as the boundary between them and Abor Ogidi people since 1958.
The Original boundary between Umueri Ogbunike and Abor Ogidi was a place called Akpaka Uzomuechina which was far inside from the tarred road. I cannot say how far Akpaka Uzoechina is from the tarred road.” (Underlining for emphasis)
Meanwhile, the PW1 in his evidence at page 92 of the record testified that:-
“I was told by my father that Ogidi and Ogbunike people constructed the old footpath which they used as a boundary between the two towns. I was told by my father that this ancient footpath was constructed by Ogidi and Ogbunike people and had remained the boundary between the two towns. None of the two towns exceeds that ancient old footpath while farming on their respective lands.”
The finding/reasoning of the learned trial judge on the above pieces of evidence as shown in his judgment at page 175 to 176 reads as follows:-
“The evidence of the DW9 (Sunday Elobisi) support the evidence of the plaintiffs as regard the original boundary of the land in dispute when he said under cross examination that it was in 1958 that they started using the tarred road as the boundary between them and the Abor Ogidi people, this DW9 Sunday Elobisi said that the original boundary was at a place far away from the tarred road called Akpaka Uzomuechina. This looks credible as there must be existing route whether a track road or a footpath which the people in that area might be using before the emergence of the Onitsha – Enugu tarred road. Ostensibly, this track road or pathway with passage of time will be overgrown by weeds and trees due to lack of usage. In Josiah Akinola V. Fatoyinka Olowu & 2 Ors (1962) 1 ALL NLR (PT 1) page 225 at page 226 (Reprint). The Supreme Court held among other things that the rule that in establishing his claim a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case does not apply where the defendants case itself supports that of the plaintiff, and contains evidence on which the plaintiff is entitled to rely.
The evidence of DW9 as regards the original boundary very strongly supports the plaintiff’s case as to the boundary of the land in dispute. The footpath or track road is shown in Exhibit ‘A’ is really far away from the old Enugu/Onitsha tarred road as testified by DW9.
The above finding was sequel to a review of the plaintiffs (now Respondents) evidence relating to where the original boundary between them and the appellants was located. See page 175 lines 10 to 23 of the record). It cannot therefore, to my mind be successfully argued, that the learned trial judge substituted his own view and imagination for the evidence of DW9 or that he wrongly relied on it for the determination of the case to the prejudice of the appellant. It seems to me that the learned trial judge properly and exhaustively evaluated the evidence adduced by the parties before reaching a decision which I am also inclined to agree with. It is settled by a long line of authorities that the evaluation of evidence and ascription of probative value to such evidence are the preserve of the trial court which had the opportunity of hearing and assessing the evidence and demeanour of witnesses. See GAJI V. PAYE (2003) 14 NSCQR (PT 1) 613. EZEKWESILI V. AGBAPUONWU (2003) 14 NSCQR 189; EFFIONG V. A.I.S. & S. LTD. (2011) 6 NWLR (PT 1243) 266; and DARE V. FAGBAMILA (2009) 14 NWLR (pt 1160) 177.
However an appellate court has the competence to interfere or disturb the evaluation of evidence and or findings of the lower court which is not based on proper and dispassionate appraisal of the evidence given in support of each party’s case or where such findings are perverse, or where on the face of the record it is clear that justice has not been done in the case. See EBBA V. OGODO (1984) 1 SCNLR 372; EZEKWESILI V. AGBAPUONWU supra at 212 and ATOLAGBE V. SHORUN (1985) 1 NWLR (PT 2) 360.
In the instant case there was evidence on record to support the findings and conclusion of the trial court as shown in the testimonies of PW1, DW9 and Lawrence Nkemakonam Ubakamma whose testimony was duly admitted in evidence as Exhibit B and properly appraised in the judgment of the learned trial judge as shown in page 175 to 176 of the record. In the circumstance issues 3 (a) and 3 (b) are hereby resolved against the appellants.
On issue NO. 4, the learned senior counsel for the appellants contended that the appellants pleaded and led evidence as to their traditional history but the respondents neither filed any reply to the appellants pleading nor pleaded any traditional history in support of their case. So there was nothing in the evidence of the parties to compare or contrast with the traditional evidence of the appellants. He referred to the evidence of DW11 (Kingsley Samuel Elobisi) who testified on the traditional history as pleaded by the appellants and submitted that it was wrong for the learned trial judge to surmise that the traditional history was not credible at all or reliable.
Learned counsel added that Ogbunike, Awkuzu, Nando and Umuleri who were the children of Nnamenyi, the earliest known ancestor of the appellants did not share their father’s vast area of land themselves but their father gave them portions of his vast area of land. So it was on the wrong view held by the trial court that the children of Nnamenyi shared their father’s land themselves without common boundary with each other that led it to surmise that the traditional history of the appellants was incredible and unreliable.
From the pleadings of the parties as well as their evidence as shown in the record of appeal, the respondents relied on acts of long possession and enjoyment of the land as well as acts of ownership by renting and leasing parts of the land to tenants while the appellants relied on traditional history in proof of their ownership of the land in dispute.
It is the law that title to land can be proved in five ways, and proof of one of them will suffice. They are:-
(1) By tradition evidence
(2) By production of documents of title which are duly authenticated
(3) By acts of selling, leasing, renting out all or part of the land, or farming on it or in a portion of it.
(4) By acts of long possession and enjoyment of the land; and
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See IDUDUN V. OKUMAGBA (1976) 9-10 SC 227, NNADOZIE V. OMESU (1996) 5 NWLR (pt 446) 110 MORENKEJI V. ADEGBOSIN (2003) 14 NSCQR 340.
Where proof by traditional evidence is relied on, the traditional evidence must be conclusive, otherwise the party relying on it would not have discharged the onus of proving same. See MORENIKEJI & ORS V. ADEGBOSIN & ORS supra at 380.
In the instant case, the DW11 whose evidence was heavily relied on by the appellants in proof of their traditional history testified inter alia that Nnamenyi begot, Ogbunike, Awkuzu, Umuleri and Nando which eventually emerged as four towns. The Nnamenyi was a man of valour, a veteran hunter and farmer who discovered a large expanse of virgin land that was unoccupied. It was this vast area of unoccupied land that he discovered that constitutes today the places called, Ogbunike, Awkuzu, Umuleri and Nando.
Before Nnamenyi died he divided this large expanse of land to his four children and their respective shares of that land bear the respective names of his four children till date.
Under cross examination, the DW11 stated as follows:-
“Nnamenyi is an Ibo man. I do not know his home town. I do not know the names of his parents. It is true that Ogbunike and Awkuzu town have no common boundary. It is also true that Ogbunike and Nando towns don’t have a common boundary. It is equally true that Awkuzu town and Umuleri town have no common boundary.”
Based on the above evidence, the learned trial judge made the following finding in his judgment at page 176 to 177 of the record:-
“It was shown under cross examination that these four children of Nnamenyi which later became known as Ogbunike, Awkuzu, Nando and Umuleri do not share common boundary with each other yet they shared a common vast area of land of Nnamenyi the hunter. This renders this traditional history not credible at all or reliable.”
It seems to me that this finding of fact by the learned trial judge is plausible and acceptable bearing in mind that it sounds most improbable that a vast area of land (not two or more separate lands) that was discovered unoccupied by Nnamenyi which land today constitutes, Ogbunike, Awkuzu, Umuleri and Nando today was shared exclusively to his four children yet none of them shared a common boundary with each other. It was not pleaded neither was it given in evidence that any other person or persons other than the said four children of Nnamenyi benefited from the sharing of the said vast area of land as to at least raise an assumption that other intervening beneficiaries made it improbable for them to share a common boundary with each other. As rightly contended by appellants counsel, a court may reject the traditional history of a party if the traditional evidence is:-
(a) conflicting
(b) incredible or
(c) fanciful.
See UKWUEZE V. ATASIE (2000) 16 NWLR (PT 676) 470 and MOGAJI V. CADBURY FRY’S EXPORT LTD (1935) 2 NWLR (P 77) 393.
In the circumstance, the learned trial judge was right to have, upon proper evaluation of the appellants traditional evidence found if not credible and as such inconclusive.
This issue is also resolved against the appellants.
On issue NO. 5, the contention of the learned Senior counsel for the appellants is that the trial court in its judgment refused to give effect to Exhibit ‘D’, ‘E’ ,’F’, ‘G’, ‘H’ and ‘J’ to the prejudice of the appellants. He referred to Exhibit ‘D’ as the certified true copy of the judgment in suit NO. 0/69/56 between the people of Ukalor village Ogbunike, and the people of Ezi village, Ogidi in respect of land having boundary on the south-west with the land in dispute.
Exhibit ‘E’ is the Survey plan of the appellants wherein he argued that the trial judge should have gone to inspect the land in dispute with Exhibit ‘A’ and ‘E’ if he had any doubt at all on the matter rather than basing his conclusion on speculations.
Exhibit ‘F’ was said to be a memorandum of a farming tenancy and not a lease.
Exhibit ‘G’ is a receipt for the sum of E34.00 issued by William Ikegwuonu to Oforle Ikegbunam which confirms the pledge transaction between the parties in respect of part of the land in dispute verged orange in Exhibit ‘E’.
Exhibit ‘H’ relates to Suit NO. 38/59 at Umuigwedo District Court Grade ‘A’ against Obi Okudo for trespass to the land in dispute in 1959.
Exhibit ‘J’ is a certified true copy of Suit NO. 118/33 between Paul Nnoka and Iweobi Nnoka both of Ire Ogidi in respect of a portion of land verged brown on Exhibit ‘E’ within the land in dispute.
On this issue, a careful perusal of pages 177 to 179 show glaringly that the learned trial judge engaged in a detailed consideration of all the aforementioned exhibits one by one. He commenced the evaluation or appraisal of all the exhibits at page 177 line 3 as follows:-
“The evidence of DW13, Jabez Ndubuisi Chukwuemeka Umenyiora is worthy of note. He testified and tendered several exhibits to defend this Suit. He first tendered the certified true copy of judgment in Suit NO. O/69/56 between Okaro Ibeabuchi and another against George Udeora and others as Exhibit D involving a stretch of land having boundary with the land in dispute. This case is between Ukalor Ogbunike and Ezi Ogidi people. It has nothing to do with this present land in dispute.”
For Exhibits E, F, G, H and J. The learned trial judge found as follows:-
Exhibit ‘E’: That though the DW13 stated in his evidence that there is no trace of any road on the western boundary of the land in dispute as shown in the plaintiffs plan Exhibit ‘A’. Also that Exhibit E was produced 36 years after the suit was commenced in which a judgment had been given in 1977, in which case certain features shown in Exhibit E 36 years after the case commenced will not be the features available in 1958 when the suit commenced.
Exhibit ‘F’: That it did not show the precise area of the portion of Achalla family land involved and no dimension shown. The said land is not identifiable with exactitude other than guess work. There is no evidence from either Timothy Okadigbo or Chukwuemeka Ifezuoke or their successors or heirs to show the exact place involved in Exhibit F.
It does not show the Achalla family land as part of the land in dispute. Besides it merely showed a personal agreement between Timothy Okadigbo of Umueri and Chukwuemeka Ifezuoke of Ire Ogidi and has nothing to do with Abo Ogidi people.
Exhibit ‘G’: That it is a receipt of #34 issued to Ofole Ikegbunam of Umueri Ogbunike by Williams Ikegwuonu of Uru Ogidi as a personal transaction between the parties to which Abo Ogidi is not a party and as such do not affect the rights of Abo Ogidi if they are able to prove this case.
Exhibit ‘H’: That it was a certified true copy of a judgment in Suit NO. 38/59 from Umuigwedo District Court Grade A. Between Nwankwo Mokwe and 4 others (suing in a representative capacity for Umueri Ogbunike) against Obi Okudo of Abo Ogidi who was sued in a personal capacity for trespass and as such has nothing to do with the present case. Besides, it was instituted in 1959 when the present case was already pending in the High Court to the knowledge of the Native court.
Exhibit ‘J’: That it was a certified true copy of a judgment in Suit NO. 118/33 between Paul Nnoka and Iwobi Nnoka, both of Ire Ogidi and has nothing to do with the present case as the parties are neither from Abo Ogidi or Umueri Ogbunike.
As earlier stated, the learned trial judge duly engaged himself in a proper and thorough consideration of all the exhibits tendered in evidence and duly ascribed probative value to them as was legally necessary and I am in agreement with the conclusion reached on them as contain in the judgment of the lower court at pages 171 to 179 of the record and hold that it did not in anyway prejudice the appellants. I therefore have no cause to disturb the finding of the learned trial judge. See EBBA V. OGODO (supra). And EZEKWESILI V. AGBAPUONWU (supra).
On issue NO. 6. It was the submission of the learned senior counsel that it is the duty of the trial court to properly review and evaluate the evidence in this case and to give dispassionate consideration to the issues in the case but this the trial court failed to do. The learned Senior counsel then embarked on a review, analysis and appraisal of the evidence of most of the witnesses vis a vis the findings of the learned trial judge and submitted that he was wrong to discard the evidence of the appellants and to determine the case on the inadmissible and incredible evidence of the respondents. Also that he did not take into consideration the location of the land in dispute in its determination of the case to the prejudice of the appellants.
It is a trite principle in the administration of justice that in a civil case a trial court must put the totality of the evidence adduced by both parties on an imaginary scale before it reaches a conclusion as to which evidence it believes or accepts in preference to the other. It is expected to weigh one side against the other and then decide upon the preponderance of evidence on whose side the scale tilts. See EFFIONG V. A.I.S. & S. LTD. (2011) 6 NWLR (PT 1243) 266. In OKONKWO V. OKONKWO (2004) 5 NWLR (PT 865) 87 at 118 this court per Olangunju JCA had this to say:-
“In evaluation of evidence, the fact that the relative weight put on the evidence of each side was not expressly categorized or otherwise expressed by the trial court does not imply that the evidence of the parties were not weighed. What determines the weight of evidence is the value, credibility, quality as well as the probative value of the evidence?
The five factors that are considered in determining the probative value of evidence are:-
(a) Admissibility
(b) Relevancy
(c) Credibility
(d) Conclusiveness
Probability of the evidence by which the weight of evidence of both parties is determined.”
In the instant case a cursory perusal of the evidence adduced by the parties vis a vis the evaluation of same by the learned trial judge gives room for a positive comment. He exhaustively reviewed the testimony of all the witnesses as shown in pages 150 to 162 of the record before settling down to evaluate and ascribe probative value as was found necessary. I am inclined to reproduce in extenso, herein below part of the appraisal of evidence and findings of the learned trial judge which is a reflection of his candid and exhaustive consideration of the evidence before him. It reads thus:-
The evidence of PW1 Rapheal Anyaegbunam a man of over 86 years old who has been in this case from its inception testified on various acts of ownership and possession exercised by the plaintiffs which includes farming the land, living on it and leasing out same to tenants on payments of tributes. Also PW2 one Festus Okoye testified that he is from Ire Ndiagu Ogidi a retired public officer who said that he was born and bred on the land in dispute in a place given to his father by the Abo Ogidi people (The plaintiffs). His father built on the land and was also farming the land on payment of annual tribute.
His father died in 1954, this witness confirmed that many families apart from themselves who are from Ire Ogidi live on this Abo Ogidi land. This witness also testified that since they had been on the land that Umueri Ogbunike have not disturbed him on the land and that he still lives there. The evidence of the witnesses in Exhibits B and C also continued to state that the land in dispute belong to Abo Ogidi people.
On the contrary the defendants are saying that the land which Abo Ogidi is claiming which they call “Isiagu Aboh Ogidi” is owned by them and they call it “Ana Umueri”. The defense also gave evidence to buttress their various acts of ownership and possession. One of the acts of ownership claimed involved the building of a primary school in conjunction with this Onitsha Northern District Council in 1954. This claim is the off shoot or the initial problem the plaintiffs had with the defendants which they wanted to settle amicably before Chief Moses Elobisi died. While this issue was on sometime in 1956 the defendants started erecting another small house in the land and that was the immediate cause of this action. The 1954 trespass is a remote cause of this action. DW13 in his evidence testified that the land where the principal’s quarter of Ogbunike Boys High School was built was provided by the Umueri people without interruption from the plaintiffs. From Exhibit E it is only part of the principal’s quarter that touched the land in dispute, but this is still the continued act of trespass by the defendants in view of the fact that the said Boys High School Ogbunike was built between 1975 and 1977 many years after the case commenced.
Some of the features shown in Exhibit E the defendant’s survey plan of the land in dispute constitute various acts of trespass committed by the defendants which they called acts of trespass committed by the defendant which they called acts of ownership and possession. Exhibit E of the defendants was prepared 36 years after this case had commenced. As a matter of fact, but for the fact that this case was started denove Exhibit E was prepared many years after the close of the case in 1977, having been prepared in 1994. The features did not reflect the 1958 features in its entirety when this case commenced.
On a very careful review of the totality of the evidence before me, having regard to the preponderance of evidence and balance of probabilities, and applying the rule in Mogaji V. Odofin (1978) 4 SC p. 91 at 94 it is the respectful view of this court that the plaintiffs have discharged the burden of proof imposed on them and have satisfied the provisions of Section 135 and 136 of the Evidence Act 1990 to entitle them to the judgment of this court.
It is my humble view that the learned trial judge carefully examined the issues for determination in line with the evidence adduced by the parties without prejudice to either side. See the case of GAJI V. PAYE (2003) 14 NSCQR 613 at 626 where the Supreme Court held that:-
‘”The evaluation of evidence and the ascription of probative value to such evidence are the primary function of a trial court, which saw, heard and assessed the witnesses. Where a court of trial, unquestionably evaluates the evidence and makes definite findings of fact, which are fully supported by such evidence and are not perverse, it is not the business of the Court of Appeal to substitute its own views for those of the trial court. What the appeal court ought to do is to find out whether there is evidence on which the trial court arrived at its findings. Once there is such evidence on record, the appellate court cannot interfere.”
See also EZEKWESILI V. AGBAPUONWU supra at page 212.
In the instant case there is sufficient evidence on record to justify the findings of the learned trial judge which I am convinced are not perverse and this court accordingly will not disturb or substitute its own views with them. This issue is therefore resolved in favour of the respondents.
On issues 7(a) and 7(b) which dwells on the compensation paid by the Electricity Corporation of Nigeria for damages to crops when the electric High tension lines were passed over the land in dispute. The learned Senior counsel for the appellants submitted that both parties pleaded that the Electricity Corporation of Nigeria paid them compensation for damages to their crops when the High tension cable passed over the land in dispute. He referred to the evidence of PW1 where he testified that the Electricity Corporation of Nigeria paid his people compensation at St. Ebenezer’s School premises and that he was paid over N50 (did not state exactly how much) and did not remember the year the High tension wire was passed over the land in dispute or the year he was allegedly paid the compensation. He added that the PW1 did not produce any record of the alleged payment of compensation to him or his people and did not call any staff of (E.C.N.) or NEPA to testify as to the alleged payment. He further contended that such payment could not have been done in a school premises but in the corporation’s office or compound of the Chief of the village community concerned. He submitted that the Respondents failed to prove that they were paid any compensation for any damage in the land in dispute so the trial judge was wrong in his finding to the effect that the Respondents were paid compensation for damages to their crops on the land in dispute caused by High tension cables that passed over the said land.
Learned Senior counsel referred also to the evidence of DW11 where he inter alia, stated that the damage to the crops and economic trees was in the course of the installation of High tension cable through the middle of the land in dispute and that compensation was paid to the appellants people in the house of his father, Chief Moses A. Elobisi, the then Chief of Ogbunike who died in 1957.”
He added that the DW11 was not cross examined on his evidence on the payment of compensation. Learned senior counsel further said that the trial court accepted that the appellants were paid compensation for damage to their crops and economic trees but went on to speculate that the compensation was in respect of crops and economic trees on a quarter portion of Umueri land not in dispute which was contrary to the evidence of the DW11.
The Respondents as plaintiffs in the lower court pleaded in paragraph 12 of their amended statement of claim dated 28/2/2003 as follows:-
(12) “The plaintiff s people also occasionally bury their dead ones on the land in dispute and were paid compensation by the ECN following damages to their crops when the Electric High tension lines were passed over the land now in dispute.”
On the other hand the appellants (then defendants) in their 2nd Amended statement of defence dated 10/2/2003 averred in paragraph 16 as follows:-
16. “The Electricity Corporation of Nigeria paid compensation to the defendants people whose crops and economic trees were destroyed or damaged on the land in dispute during the planting of electric poles on the land in dispute and the installation of High tension electric cables over part of the land in dispute.”
Both parties also gave evidence in line with their pleadings through the PW1 and DW11 respectively except that while the PW1 testified that he was paid compensation at St. Ebenezar’s School premises along with other members of his community who farmed on the land where the High tension wire passed. The DW11 in his own evidence stated that the appellant’s people were paid compensation in the house of his father, Chief Moses Elobisi who was then the Chief of Ogbunike.
For learned Senior counsel for the appellants, the idea of such activity as payment of compensation by a government corporation taking place in a school premises is not possible but could only take place in the corporation’s office or the compound of the Chief of the village concerned. To this I must with due respect disagree. In this country, it is a notorious fact that most government activities in villages and communities take place more in school halls or fields and it was more so in the early fifties and sixties. So the fact that the respondent’s people were claimed to have been paid compensation at St. Ebenezar’s School premises ought not to be seen as being out of place.
Payment of such compensation to the people of a community in the compound of the head or chief of the community ought equally not to create any doubt as to its genuiness or propriety.
The next grouse as expressed by the learned Senior counsel in the appellants’ brief of argument is that though the learned trial judge accepted that the appellants were paid compensation by the Electricity Corporation of Nigeria, he went on to speculate that such compensation was in respect of crops and economic trees on quarter portion of Umueri land not in dispute. On this issue of compensation, the learned trial judge in his judgment at page 179 of the record held thus:-
“The defendants survey plan showed two high tension wires. One passed through the greater portion of Umueri land not in dispute running from northwest of Exhibit E to Northeast touching part of the land in dispute almost at the tips. Then there is another high tension wire passing through almost the middle of the land in dispute which is same as the one that passed through Exhibit ‘A’. (The plaintiffs plan) which they claimed they were paid compensation. It is not clear whether the compensation the defendants claimed they received from E.C.N. was not in respect of high tension wire that passed the greater portion of their land not in dispute as they didn’t say that the two high tension wire passed their land to which they were paid compensation. It seems to me that the compensation the defendants received from E.C.N. for the damages done to the crops and economic trees were for the high tension wire that passed through a larger portion of the defendants land not in dispute and not for the one that passed through the land in dispute in which compensation was collected by the plaintiffs.”
It seems to me that the import of the above finding by the learned trial judge is that while the Respondents pleaded and gave evidence as to one high tension wire which passed through the land in dispute as shown in their survey plan (Exhibit ‘A’) and for which they were paid compensation. The appellants on the other hand pleaded and gave evidence also as to one high tension wire passing through the land in dispute for which they were also compensated. But Exhibit ‘E’ which is their own litigation survey plan showed two high tension wires. One is running through the land of the appellants not in dispute from the Northwest of Exhibit ‘E’ to the Northeast and only touching a small portion of the land in dispute at the Northeastern end. The second high tension wire ran through almost the middle of the land in dispute as the one shown in Exhibit ‘A’.
This is also my observation upon examination of the two exhibits. To my mind therefore, the learned trial judge was correct in his findings and conclusion that both parties must have received compensation from the Electricity Corporation of Nigeria for damages to their crops and economic trees during the installation of High tension wire. But while that of the respondents is clear with reference to the particular High tension wire concerned as confirmed in their Exhibit ‘A’. This is not the case with the appellants whose Exhibit ‘E’ disclosed two high tension wires running through their lands both in dispute and not in dispute but unfortunately their pleadings and evidence did not confirm it as such. It follows that the truth as to which of the high tension wires the appellants were paid compensation becomes a matter of speculation. I therefore agree with the submission of the learned Senior counsel for the appellants that the finding of the learned trial judge that the compensation paid to the appellants were for the high tension wire that passed through a larger portion of their land not in dispute and not for the one that passed through the land in dispute was speculative.
It is trite that a court of law has no business to act on speculation or guesswork. It must act on concrete evidence produced before it. In order words, it is out of place for a court to base its decision on speculation or conjecture. See OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) ALL FWLR (PT 261) 216 SC; FEDERAL MORTGAGE FINANCE LTD V. EKPO (2005) ALL FWLR (PT 248) 1667 at 1681 and AGBALLAH v. NNAMANT (2005) ALL FWLR (PT 245) 1052.
It is equally trite law that he who asserts must prove the positive of his assertion if he is to succeed. A party who wants the court to believe in the existence of certain facts must establish those facts to the court in the form of evidence. See FEDERAL MORTGAGE FINANCE LTD V. EKPO Supra at 1681; AGBEOTU V. BRISIBE (2005) ALL FWLR (PT 257) 1454.
In the instant case, the appellants left a gapping hole in their evidence as to which of the two high tension wires shown in their Exhibit E they received compensation. It is not allowed for the court to make a case for the parties, rather cases are determined on the basis of the facts pleaded and proved upon evidence by the parties. See ODUBEKO V. FOWLER (1993) 7 NWLR (PT 308) 637.
In the circumstance, I am of the humbly view that the evidence as led by the appellant in the lower court relating to whether or not they were paid compensation by the Electricity Corporation of Nigeria for damages to their crops in the land in dispute is at best inconclusive to justify a finding in their favour.
In the final analysis I find and I so hold that this appeal lacks merit and is hereby dismissed. The judgment of the lower court delivered by Honourable Justice F.C. Nwizu on the 24th day of April 2007 is hereby affirmed.
The Respondents are entitled to costs which I assess and fix at the sum of N30,000.
MOHAMMED LADAN-TSAMIYA J.C.A.: I agree.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
G. R. I. Egonu (SAN) with D. I. UmejiFor Appellant
AND
O. R. Ulasi (SAN) with K. O. KamaFor Respondent
