DONATUS UZODINMA ODOEMELAM v. LINUS OPOKO NDUKA & ANOR
(2012)LCN/5383(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/PH/101/2006
RATIO
EVIDENCE: WHAT EVALUATION OF EVIDENCE INVOLVES
Evaluation of evidence is the art of consciously considering the totality of evidence proferred by all the parties, assess, make findings of fact, assign probative value unto them and put them on an imaginary scale of justice in order to determine the party in whose favour the balance tilts.
In short, a trial Judge in a civil case before him sets out the issues joined by the parties in the pleadings, assembles the evidence adduced by either side on the issues so joined, weighs that evidence on an imaginary scale and finds out which evidence outweighs the other by the quality or probative value of the testimony of the witnesses and documents.
See, Mogaji v. Rabiatu Odofin (1978) 4 SC 91 (per Fatai Williams, JSC as the then was), Chief Victor Woluchem & ors. (1981) 5 SC 291 at 294 (per Idigbe JSC, of blessed memory) Vincent Bello v. Magnus Eweka (1981) 1 SC 101 (per Eso JSC). Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 Olufosoye vs. Olorunfemi (1989) 1 NWLR (Pt.95) 26, 27, Onwuka vs. Ediala (1989) 1 NWLR (Pt. 96) 182, 208 – 209. Duru & Anor. V. Jonathan Nwosu (1989) 4 NWLR (Pt. 112) 14, 41, 50, 55. PER MOJEED ADEKUNLE OWOADE, J.C.A
ACTION: WHEN ARE PARTIES SAID TO HAVE JOINED ISSUES
Parties are said to join issues, when they take up the opposite side of a case or when they jointly submit an issue for decision. The 8th Edition, of the Black’s Law Dictionary at page 854 defines “joinder of issues” (1) The submission of an issue for decision. (2) The acceptance or adoption of a disputed point as the basis of argument in a controversy – Also termed joinder in issue, similiter (3) The taking up of the opposite side of a case, or of the contrary view on a question.” PER MOJEED ADEKUNLE OWOADE, J.C.A
WORDS AND PHRASES: MEANING OF AN OBITER DICTUM
The phrase “Obiter dictum” means statement constituting the opinion of the Judge which do not embody the resolution of the court. It is not binding on courts as it is mere statement made in passing.
In fact, the word “Obiter” simply means “in passing” “incidental” or “Cursory”. PER MOJEED ADEKUNLE OWOADE, J.C.A
WORDS AND PHRASES: MEANING OF RATIO DECIDENDI
Conversely, “ratio decidendi” represents the reasoning, principle or ground upon which a case is decided. It is the legal principle formulated by the court which is necessary in the determination of the issues raised in the case.
See, Mallam Ibrahim Mohammed v. Mrs. R.O. Lawal & Anor. (2006) 9 NWLR (Pt. 985) 400 at 417, Afro Continental (Nig.) Ltd. V. Anyantuyi (1995) 9 NWLR (Pt. 420) 411 at 435, UTC (Nig.) Ltd. V. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 293, Ede v. Omeka (1992) 5 NWLR (Pt. 242) 428 at 435 Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 429 and 431. PER MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
DONATUS UZODINMA ODOEMELAM Appellant(s)
AND
1. LINUS OPOKO NDUKA
2. PIUS CHINEDU NDUKA Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Obisike Orji sitting in the High Court of Umuahia Abia State of Nigeria in Suit No. HU/87/2001.
In his Amended statement of claim filed on 21/7/2003, the Appellant as plaintiff claimed from the Respondents jointly and severally as follows:
“(i) A Declaration that the Plaintiff is entitled to the statutory Right of occupancy in respect of the piece or parcel of land known as and called Ezi Odoemelam verged Green in Plaintiff plan situate at Umule Okaiuga in Umuahia North Local Government Area within the jurisdiction of the Honourable Court.
(ii) An order of court compelling the Defendants to complete the oral agreement entered into between the Plaintiff’s father and the defendant’s father by showing to the plaintiff another piece or parcel of land in place of that which plaintiff’s father allowed defendants father to build a residential house which piece or parcel of land plaintiff’s father got by exchange with one Boniface Nwosu.
(iii) N50, 000.00 (fifty thousand Naira) exemplary damages for trespass, and
(iv) Perpetual injunction restraining the Defendants, their servants, workmen and or agents from further trespass upon or in any manner whatsoever is interfering with the said land.”
The Respondents filed an Amended Statement of Defence which incorporated paragraphs 1 to 57 of their Statement of Defence filed on 24/2/2003 together with the Defendants survey Plan Nos. UDI/AB/D.09/2002 dated 27/6/2002.
The facts of the case are as follows. The Appellant claimed that the Respondents are on the land in dispute as mere licensees. That Anyamaele the mother of Odoemelam (the grandfather of the Appellant) and Okorienta (the father of the Respondents), mysteriously disappeared from Umule in Okaiuga Alike Ohuhu Umuahia and that it was then felt that she had been sold to slavery. That later, on one of the trading trips of Odoemelam (the grandfather of the appellant) to Bende, he found Anyamaele who told him that she was at that time married to a man from Arochukwu called Okorie. That Odoemelam later went to Arochukwu and brought back his mother Anyamaele together with four children she had for Okorie the Arochukwu man. The said children according to him included Okorienta the father of the Respondents. That Odoemelam upon having brought them back from Arochukwu, settled them on the land in dispute as a temporary abode and gave them a piece of land outside from the land in dispute for their permanent residence, whenever they could afford it.
On another score, it is equally the Appellant’s claim that there was an uncompleted land exchange transaction between his late father Micheal Odoemelam and the late father of the Respondents – Okorienta. That the Respondents as their late father, refused to complete the land exchange transaction which had remained uncompleted and/or unconcluded at the instance of Okorienta.
The Respondents on the other hand claimed that they live on the land in dispute just like they are on all other lands that they have in Umule not as licensees of the Appellant’s late grandfather but as the owner of the lands by inheritance of same from their late father Okorienta who was a direct son of Ayoka the common father of Odoemelam, Okorienta and Ihueze from Umule Okaiuga Alike Ohuhu. That the story of the sudden disappearance of Anyamaele from Umule and her later being brought back by Odoemelam to Umule with her four children by an Arochukwu man called Okorie (which children included Okorienta) was the Appellant’s fabrication as it never ever happened. And, that the land exchange transaction between Okorienta and Michael Chikwendu Odoemelam was concluded in their life time, each of them saw and knew the land expected to be exchanged and the exchange was subsequently and accordingly concluded.
In proof of his case before the lower court, the Appellant as plaintiff testified and called two other witnesses. On their part, the 1st Respondent also testified and called two other witnesses. The learned trial Judge, Obisiki Orji J, in a considered judgment delivered on 9th February 2005 found no merit in the Appellant’s case and accordingly dismissed it. Some of the salient reasons given by the learned trial Judge in dismissing the Appellant’s case could be found from pages 140 – 143 of the printed record. Starting from the last paragraph of page 140 to page 142.
“The plaintiff has called in support of his story disappearance of Anyamaele his step uncle PW 2, Godwin Odoemelam. Both himself and his witness did not give eye witness account of the story they presented. The defendants on the other hand called as witnesses the direct uncle of the plaintiff Benjamin Odoemelam (DW 4) sic (DW 1) and Isreal Onuoha (DW 3) the son of Odomelam’s brother Onuoha. Both DW 1 and DW 3 are old men and spoke of personal knowledge of Anyamele.
Apart from my finding their evidence convincing and reliable, I find a lacuna in the Anyamele disappearance story of the plaintiff. The plaintiff failed to show what arrangement a man, whose mother remained, (sic) remarried is entitled to bring her back together with the children she had at the 2nd marriage. He failed to show by what arrangement such children bear the name of the family of their mother’s 1st marriage and not that of their biological father. Neither in his pleading nor in evidence did the plaintiff supply this missing link……………..
Plaintiff’s contention is that the habitation given to Okorienta and Ihueze was of a temporary nature. Now it is agreed that the defendant’s father and the plaintiff’s father had a land exchange. The land the plaintiff’s father gave to the defendant’s father is the land beside the defendant’s father’s land which he added to his own and erected a permanent block house.
The question that comes to mind is: If the defendant’s father was allowed only temporary occupation at the compound, would the plaintiff’s father give him land to meet his need for a permanent residence at the compound? The case of the plaintiff is that Odoemelam showed the defendant’s father land where he would build his permanent residence. If that is so, one would have expected the plaintiff’s father, when the defendant’s father sought to exchange the land beside his land, to tell the defendants father to go to the land already given him by Odoemelam for habitation. That he did not, casts a big doubt on the story of the plaintiff. Again, it is inconsistent with temporary habitation to erect permanent block house. And the evidence is that the defendant erected block house complete with zinc on the land their father got from the plaintiffs father which they added to their own without either the plaintiff or his father protesting.”
Still on page 142 to the first paragraph of page 143, the learned trial Judge had this to say on the separate and second claim of the Appellant.
“Plaintiff has contended that the defendant’s father did not complete the exchange transaction with his father.
I find it strange that a man would give out his land in exchange to another without knowing what land he would get from that other in return. The normal practice is for people to know the lands involved in the transaction and each side would be satisfied that he is getting a fair deal before proceeding with the exchange transaction.
I find the evidence of the defendants and their witnesses more credible on this issue. The plaintiff’s contention that the DW 1 contradicted the evidence of the other defence witnesses on this matter when he stated that the land the defendant’s father gave to the plaintiff’s father in the exchange falls outside Ezi Odoemelam, does not have any merit. In the first place, DW 1 maintained that the compound is called “Ezi Odoemelam na Okorienta Nduka” and not Ezi Odoemelam, so that if Okorienta was giving land it must be land outside “Ezi Odoemelam and within “Ezi Okorienta Nduka” of “Ezi Odoemelam na Okorienta Nduka compound. Again the defendant’s case is that the land their father gave the plaintiff’s father in exchange is part of where Okorienta’s wife had her mud house. In exhibit ‘A’, the plaintiff’s plan, the plaintiff showed the mud house of Anyamele as overlapping the area verged Green as the compound of Ezi Odoemelam. Even though the verging of Green in this area vary in the two plans, the area shown as the mud house of Anyamele approximate in the two plans.”
And finally in dismissing the Appellant’s case, the leaned trial concluded at page 143 as follows:
“It is my holding that if the plaintiff’s father and grandfather treated the defendants father as part and parcel of the family it does not lie on the plaintiff to, by any imagined fairy story, disrupt that and cast the defendants away. I hold that the defendants are on the land in dispute as their inheritance from their father. Their possession of that land is admitted by the plaintiff who has not shown that he had a better right to possession which has not shown been disturbed… There is no merit in the plaintiff’s case which is accordingly dismissed…”
Dissatisfied with this judgment, the appellant on 17/3/2005 filed a Notice of Appeal containing seven (7) grounds of appeal before this court.
Appellant’s brief of argument dated 24/5/2006 was filed on 26/5/2006. Respondent’s brief of argument dated 15/10/2007 and filed on the same date was deemed filed on 16/4/2008.
Appellant’s reply brief dated 10/8/2008 and filed on 25/9/2008 was deemed filed on 7/6/2010.
This appeal was first heard based only on the above briefs in April, 2011. On 14th April, 2011, this Honourable Court caused Hearing Notices to issue to the parties through their counsel to further address this court on the question.
“Whether the plaintiff’s/Appellant’s claim for declaration ought not to be dismissed (in any event) in view of the evidence led and the description of the land in Umule, Okaiuga verged Green in Plaintiff’s/Appellant’s survey plan which contained portions of land admittedly belonging to other people including the Defendants/Respondents.”
The parties to this appeal through their counsel unnecessarily delayed this appeal by their failure to answer the question posed by the court on time.
Eventually, by 16th May 2011 the Appellant filed a further Address on the question formulated by the court which further Address was deemed properly filed on 24/1/2012.
On 18/4/2012, this appeal was re-heard and the parties adopted their respective briefs of argument. Learned counsel for the Appellant in addition adopted the further Address on the question formulated by the court. The Respondents did not file any Address on the question formulated by the court.
The effect if any of the question formulated by the court on this appeal shall be determined at a later stage in the appeal.
The Appellant nominated two (2) issues for the determination in this appeal as follows:
“1. Whether the learned trial Judge was not in error in holding that the Respondents are on the land in dispute as their inheritance from their father.
2. Whether the learned trial Judge was not in error in holding that the land exchange between Appellants father and Respondents father was completed.”
The Respondents on the other hand formulated the following issues for determination:
1. Whether the learned trial Judge was in error holding that the Defendants/Respondents are on the land in dispute as their inheritance from their father and not licensees/squatter.
2. Whether the learned trial Judge was in error, holding that the land exchange between the Plaintiff’s/Appellant’s late father and the Defendants/Respondents later father was completed during their life times.
3. Whether this Appeal is competent having regard to the Grounds of Appeal and issues formulated therefrom.”
Respondents issue No. 3 is in the nature of preliminary objection. The provision of order 10 Rule (1) of the court of Appeal Rules 2011 enjoins a respondent intending to rely upon a preliminary objection to the hearing of the appeal to give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies with the Registrar within the same time. The Respondent in this case has failed to comply with the provision of order 10 of the court of Appeal Rules. Consequently, issue No. 3 which is in the nature of preliminary objection shall not be entertained by virtue of the provision of order 10 Rule (3) of the same Rules.
The two other issues formulated by the Respondents are the same as those formulated by the Appellant. The appeal shall be based on the issues formulated by the Appellant.
In arguing issue No. 1, learned counsel for the appellant reviewed the evidence of the Appellant’s witnesses and made submissions in support of his contention that the appellant was able to prove by credible evidence that the Respondents father Okorienta and his brother Ihueze were mere licensees/squatters on the land in dispute.
The rather muddled up submissions of the Appellant’s counsel would be numbered in the aforegoing paragraphs for ease of reference.
1. That, Okorienta was not buried on the land in dispute upon the intervention of PW 2 Godwin Odoemelam that the land did not belong to Okorienta.
Okorienta was rather buried in one of the rooms 1st Respondent built on the exchanged land Okorienta got from Appellant’s father. The fact that Okorienta was not buried on the land in dispute was admitted in Respondents pleading paragraph 33 (ii) DW 2’s evidence that his father Okorienta was buried on the land in dispute is therefore conflicting. This piece of evidence of DW2 was not pleaded and the trial court failed to expunge it from its record. It is trite law that parties to a suit are bound by their pleadings and a party will only be permitted to call evidence in support of his pleadings since evidence which is contrary to pleadings must be ignored or expunged when considering the case.
On this, counsel relied on the cases of Oseni v. Dawodu (1994) 4 SCNJ 197 at 217, Oredoyin v. Arowolo (1989) ANWLR (Pt. 14) 172 Magnusson v. Koiki (1999) 69 LRCN 1278 at 1291.
Respondent’s evidence that Okorienta was buried in the land in dispute should have been expunged from the record. If that had been done by the trial court the evidence of PW 1 and PW 2 would have been treated as conclusive proof that Respondents father was on the land in dispute as a mere licensee/squatter. The act of burying Okorienta outside the area in dispute is proof that the land does not belong to him.
2. That it is DW2’s contention that the original “Ezi Odoemelam na Okorienta” was the inheritance of Odoemelam, Okorienta and Ihueze as per their mother (Anyamele) kitchen of Ayoka estate at Obiohuru where the land in dispute is situate. If one is to believe that the original “Ezi Odoemelam na Okorienta” was the joint inheritance of Odoemelam, Okorienta and Ihueze then it would be absurd and preposterous for DW 2 (1st Respondent) to state as he did in paragraph 39 of their pleadings and evidence that it was his father Okorienta who stood in for Godwin Odoemelam (PW 2) when the children of Odoemelam i.e. (Appellant’s father) Chikwendu, Benjamin and Godwin shared the estate of Odoemelam. And that during the sharing exercise Benjamin Odoemelam got the piece of land North of the area verged Green in both Exhibits A and B while Godwin Odoemelam got the piece of land South of the area verged Green in both Exhibits. It follows therefore that the area verged Green in both Exhibit A and B is the share of the Appellant’s father Chikwendu (as the first son of Odoemelam). If therefore Odoemelam, Okorienta ad Ihueze inherited the original “Ezi Odoemelam na Okorienta” as their joint inheritance, why then should Respondents father Okorienta standby and watch the 3 (three) children of Odoemelam partition and/or share the alleged “Ezi Odoemelam na Okorienta” amongst themselves. It points to only one conclusion, that, Okorienta and Ihueze never inherited “Ezi Odoemelam” with Odoemelam (Appellant’s grandfather). And that these facts strengthen PW1 assertion that before Okorienta and Ihueze were brought to Umule Ohuhu Umuahia the children of Ayoka (appellant’s great grandfather) had already shared his estate. And that the insignificant land in dispute was the land Okorienta and Ihueze were sheltered by Odoemelam upon their coming to Umule Ohuhu, Umuahia.
3. That Okorienta, Respondents father was present and never challenged Appellant’s father Chikwendu when he exchanged part of the area verged Green in both Exhibits A and B with one ASP Boniface Nwosu (PW 3). And, it was this piece of land Appellant father got from ASP Boniface Nwosu in exchange that Respondents father acquired from the Appellant based on an inchoate land exchange. It was equally this piece of exchanged land of ASP Boniface Nwosu that Respondents father was buried upon his death. If the original land of the alleged “Ezi Odoemelam Okorienta” was the joint inheritance of Odoemelam, Okorienta and Ihueze why then should the proportionate size of the share of Okorienta and Ihueze be the insignificant size of the land in dispute. The Appellant has therefore proved that Respondents father Okorienta and Ihueze his brother were on the land in dispute as licensees/squatters.
4. That the Respondents failed woefully to highlight in Exhibit B the specific inherited portion of Okorienta, their father and Ihueze.
Odoemelam begat Chikwendu (Appellant’s father Benjamin (DW 1) and Godwin (PW 2). And upon the death of Odoemelam the specific portions of Appellant’s father Benjamin and Godwin are clearly shown in both Exhibit A and B. The Respondents and children of Okorienta specific inheritance from their father Okorienta were conspicuously absent in their Exhibit B because their father inherited nothing to bequeath to them.
On this, Counsel referred to the case of Anyanwu v. Mbara (1992) 6 SCNJ 22 at 35.
5. That, the cause of action was when the Respondents pulled down the mud thatched house left on the land in dispute and started erecting a concrete block house thereon that Appellant challenged and halted them from so building, consequent upon which the Appellant sued them at the High Court of Abia State of Nigeria. Therefore, it was wrong for the lower court to hold that there was a zinc house on the land in dispute. The lower trial court failed to evaluate these facts adumbrated by the Appellant above and therefore reached a wrong conclusion.
6. That the lower court visited the case with palpable sentiments when it said that.
“It is my holding that if the plaintiff father and grandfather treated the defendants as part and parcel of the family it does not lie on the plaintiff to by any imagined fairy story disrupt that and cast the defendants away.”
Counsel submitted on the above, that it is clear from the findings of the lower trial court that the Respondents father was a stranger element in Appellants home and that the fact that Appellants forebear accepted the Respondents father in their home that Appellant’s institution of the suit tantamount to “casting the Respondents away.”
7. That, the trial court failed to make findings of facts on the twin issues of whether succession in Umule Ohuhu Umuahia is per male or per kitchen in a polygamous family and whether the name “Okorienta” is a name in Umule Ohuhu Umuahia or not.
On the first point counsel elaborated that appellant proved that in Umule Ohuhu Umuahia, succession in a polygamous family is per male surviving and not per kitchen as the Respondent alleged. That, DW 3 (Isreal Onuoha) lied when he maintained that succession in Umule Ohuhu Umuahia is per kitchen in a polygamous family. Counsel said, the witness failed under cross-examination to tell the Honourable court the reason why he had 2 (two) separate portions of land abutting the area verged Green in both Exhibits A and B. He denied the 2 (two) piece of land being separate but later admitted so.
Counsel submitted that a look at both Exhibits A and B show that the land of Benjamin Odoemelam (DW1) separated DW 3’s 2 (two) pieces of land abutting the area verged Green.
Counsel submitted that when DW3 was asked why his 2(two) piece of land abutting the area verged Green are separated, he denied knowing the reason.
Counsel suggested that the 2 (two) pieces of land of DW 3 are separate because Ikeji the elder brother of DW3’s father Onuoha got their share of their fathers’ estate per male. If it had been per kitchen as Respondents witnesses stated both the share of Ikeji and Onuoha would have been at the same sport, since they come from the same mother, hence the same kitchen.
Counsel submitted further that when Odoemelam died, his sons Chikwendu, Benjamin and Godwin shared his estate per male; though he had 2 (two wives). And, when Appellants great grandfather Ayoka died his children Nduka, Odoemelam, Ikeji and Onuoha shared his estate per male, though Ayoka had 3 (three) wives. Respondent’s father Okorienta and Ihueze his brother, said counsel are not children of Ayoka and they inherited nothing and that accounts for the reason why there are no ascertainable portions of Okorienta and Ihueze in both Exhibit A and B.
On the issue of whether Okorienta is a name known in Umule, Ohuhu Umuahia – counsel submitted that the name Okorienta is a name common, distinct and peculiar to Arochukwu clan of Abia State and that, that was the reason Respondents witnesses (particularly DW2) were unable to mention anybody living or dead in Umule Ohuhu Umuahia that bears Okorienta as a name in Umule. That DW 2 stated that only his father bear the name Okorienta.
Counsel submitted that the failure of the lower trial court to make findings on these 2 (two) determinant issues, alongside its failure to properly evaluate the evidence before it led the court to reach a wrong decision.
Learned counsel for the Respondents replied on issue No. 1 and submitted that the Respondents established by credible, cogent and most probable evidence that Okorienta their late father was a direct and biological son of Nduka Ayoka just like Odoemelam, the grandfather of the Appellant.
Respondents submitted further that there is evidence that:-
(i) Odoemelam and Okorienta were elder and younger brothers respectively from the same parent their father being late James Nduka Ayoka.
(ii) That the larger compound which include the land in dispute known as and called “Ezi Odoemelam and Okorienta” was the joint and/or common inheritance and in joint possession of Odoemelam and Okorienta all through their life times.
(iii) That the particular land in dispute is the inheritance of the Defendants/Respondents from Okorienta their father.
(iv) The Defendants/Respondents have lands by inheritance in all the places the descendants of Ayoka have land.
(v) The Plaintiff/Appellant’s story of sudden disappearance of Anyamaele, her subsequent marriage to an Arochukwu man for whom she had four (4) children including Okorienta the father of the Defendant/Respondents is not true.
(vi) The father of the Defendants/Respondents was born, brought up, died and was buried in Umule on the family land.
(vii) That the father of the Respondents had land in all the places the descendants of Anyoka (sic) Ayoka had and still have land and such places include Uhuochie, Oforo Anyoke, Azulo Oforo Ochie, Okpapiti etc.
(viii) The sister of the Okorienta the daughters of Anyamaele were given out in marriage by Nduka the head of the family of Odoemelam and Okorienta.
(ix) Nobody in Umule apart from the appellant has contested or claimed that the Respondents are not from Umule.
Learned counsel for the Respondents submitted further that the learned trial Judge effectively and correctly evaluated the evidence of the parties and predicated his judgment on clear and sound findings of fact. Counsel said, there is nothing questionable and/or unjustifiable in the evaluation and/or appraisal of all the evidence. That, in that regard, the learned trial Judge made the following findings:
(i) The evidence of Benjamin Odoemelam (DW1) who is a direct son of Odoemelam and Isreal Onuoha (DW 3) who is a direct son of Ayoka are those of old men who spoke from personal knowledge of Anyamaele and as such are convincing and reliable.
(ii) There is a lacuna in the Anyamaele disappearance story told by the Appellant.
(iii) The Appellant failed to show by what arrangement a man, whose mother married is entitled to bring her back together with the children she had at the second marriage.
(iv) He failed to show by what arrangement such children bear the name of the family of the mother’s first marriage and not that of their biological father.
(v) That Odoemelam the grandfather of the appellant all through his life never contested the membership of the Respondents family.
Based on the above findings, Respondents counsel submitted further that the learned trial Judge had the advantage of hearing the parties and seeing their witnesses. That, the court having unequivocally evaluated the evidence of parties before him and justifiably appraised the facts, its findings ought not to be interfered with or his views substituted by the view of an appellate court.
On this, counsel referred to the cases of Ivienagbor v. Buzuaye (1988) 70 LRCN 2256 at 2260, Oparaji v. Ofidereji (1999) 90 LRCN 1822 at 1828 and Akpagbue v. Ogu (1976) 6 SC 63 at 72.
The totality of the Appellant’s complaint on issue No. 1 borders on evaluation of evidence or perhaps the lack of evaluation of evidence. In finding an answer, it is pertinent to ask the question what is evaluation of evidence? Evaluation of evidence is the art of consciously considering the totality of evidence proferred by all the parties, assess, make findings of fact, assign probative value unto them and put them on an imaginary scale of justice in order to determine the party in whose favour the balance tilts.
In short, a trial Judge in a civil case before him sets out the issues joined by the parties in the pleadings, assembles the evidence adduced by either side on the issues so joined, weighs that evidence on an imaginary scale and finds out which evidence outweighs the other by the quality or probative value of the testimony of the witnesses and documents.
See, Mogaji v. Rabiatu Odofin (1978) 4 SC 91 (per Fatai Williams, JSC as the then was), Chief Victor Woluchem & ors. (1981) 5 SC 291 at 294 (per Idigbe JSC, of blessed memory) Vincent Bello v. Magnus Eweka (1981) 1 SC 101 (per Eso JSC). Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) 432 Olufosoye vs. Olorunfemi (1989) 1 NWLR (Pt.95) 26, 27, Onwuka vs. Ediala (1989) 1 NWLR (Pt. 96) 182, 208 – 209. Duru & Anor. V. Jonathan Nwosu (1989) 4 NWLR (Pt. 112) 14, 41, 50, 55.
In the instant case, I have no doubt in my mind that the learned trial Judge properly evaluated the evidence before him in coming to the conclusion that the Respondents are on the land in dispute as their inheritance from their father. The learned trial Judge gave sufficient reasons why he preferred the traditional history of ownership proffered by the Respondents to that preferred by the Appellant’s in this case, First, he found that the Appellant’s story of Anyamaele did not derive from their personal knowledge. Second, he preferred the evidence of Benjamin Odoemelam (DW1) who is a direct son of Odoemelam and Israel Onuoha (DW3) who is a direct son of Ayoka as evidence of old men who spoke from personal knowledge of Anyamaele and as such are convincing and reliable. Second, the learned trial Judge found a lacuna in the Appellant’s Anyamaele disappearance story as the Appellant failed to show by what arrangement a man, whose mother married is entitled to bring her back together with the children she had at the second marriage and by what arrangement such children bear the name of the family of the mother’s first marriage and not that of their biological father. Third, the learned trial Judge recognized that Odoemelam the grandfather of the Appellant all through his life never contested the membership of the Respondents in the family. As if the above reasons were not enough, the learned trial Judge provided further logical reasoning in debunking the idea that the Respondents were only given temporary habitation on the land in dispute while at the same time reminded the Appellant that it is not in dispute that the Respondents were in possession of the land in dispute.
First, at pages 140 – 142 of the record that:
Plaintiff’s contention is that the habitation given to Okorienta and Ihueze was of a temporary nature. Now, it is agreed that the defendant’s father and the plaintiff’s father had a land exchange. The land the plaintiff’s father gave to the defendant’s father is the land beside the defendant’s father’s land which he added to his own and erected a permanent block house.
The question that comes to mind is: lf the defendant’s father was allowed only temporary occupation at the compound; would the plaintiff’s father give him land to meet his need for a permanent residence at the compound? The case of the plaintiff is that Odoemelam showed the defendant’s father land where he would build his permanent residence. If that is so, one would have expected the plaintiff’s father, when the defendant’s father sought to exchange the land beside his land, to tell the defendant’s father to go to the land already given him by Odoemelam for habitation.
That he did not, casts a big doubt on the story of the plaintiff. Again, it is inconsistent with temporary habitation to erect permanent block house. And the evidence is that the defendant erected block house complete with zinc on the land their father got from the plaintiff’s father which they added to their own without either the plaintiff or his father protesting.”
At page 143 of the record, in finally dismissing the Appellant’s case the learned trial Judge observed:
“…..I hold that the defendants are on the land in dispute as their inheritance from their father. Their possession of that land is admitted by the plaintiff who has not shown that he had a better right to possession which has not been shown to be disturbed…………………………….”
Still on Appellant’s issue No. 1, it must be noted that in a claim for declaration of title to land, the onus is on the plaintiff to establish his claim upon the strength of his own case and not upon the weakness of the case for the defendant. The plaintiff must therefore satisfy the court upon the pleadings and evidence adduced by him, that he is entitled to the declaration sought.
See, Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. Dada vs. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 SC. Onissaodu v. Eleweju (2006) 13 NWLR (Pt. 998) 517 SC. Ajiboye v. Ishola (2006) 13 NWLR (pt. 998) 628 SC.
The parties in this case relied on traditional history but the credibility of the evidence of traditional history offered by the Appellant was shaken by what the learned trial Judge called a lacuna in the Anyamaele disappearance story. This in itself would have made the traditional history offered by the Appellant to be inconclusive and his case would have definitely failed.
Adebo v. Omisola (2005) 2 NWLR (Pt. 909) 149 C.A.
In the instant case, the learned trial Judge went further knowing fully well that the Appellant and the Respondents anchored their case on traditional evidence in proving ownership, he followed the injunction laid down by the Supreme Court in the case of Okoko v. Dakolo (2006) 14 NWLR (pt. 1000) 401 SC. by weighing their evidence on the imaginary scale and determine which evidence of the two is weightier.
In the process of evaluation, the learned trial Judge discovered and held first, that the evidence of Benjamin Odoemelam (DW1) who is a direct son of Odoemelam and Isreal Onuoha (DW3) who is a direct son of Ayoka are those of old men who spoke from personal knowledge of Anyamaele and as such are convincing and reliable. Also, that Odoemelam the grandfather of the Appellant all through his life never contested the membership of the Respondents in the family.
Furthermore, the trial Judge was right in determining which of the parties traditional histories is more probable, to take into consideration the facts of use and possession in recent years as established by evidence and by seeing which of two competing histories is more probable.
See, Archibong v. Edak (2006) 7 NWLR (Pt 980) 485 C.A. Okoko v. Dakolo (supra) page 401.
Therefore, in the instant case, there was no question that the trial Court adequately considered the evidence of both parties and was right to conclude that the Respondents established their claim to the land in question, and that the traditional history of the Respondents was probable and more credible than that of the Appellant.
See e.g. J. A. Ilori & Ors. V. Musibau I.A. Tella & Ors. (2006) 18 NWLR (Pt. 1011) 267 CA.
Having successfully concluded its primary duty of evaluation of and ascription of probative value to the evidence adduced by the parties, it is not proper for an appellate court to interfere, since the duty has been properly carried out by the trial court.
Okino v. Obanebira (1999) 13 NWLR (636)535. Alhaji Sobalaje Eleran & Ors. V. Dr. Atiku I. Aderonpe (2008) 11 NWLR (Pt. 1097) 50.
Before closing the discussion on issue No. 1 it is pertinent to mention that the learned counsel for the Appellant raised three, perhaps two new issues for consideration in this appeal. Let us start from the two issues that are clearly new.
The first is that the learned trial Judge failed to make any pronouncement on whether succession in Umule Ohuhu is per male or per kitchen in a polygamous family. The second is on whether Okorienta is a name known to Umule Ohuhu. On the question whether succession in Umule Ohuhu is per male or per kitchen in a polygamous family, it is obvious that the learned trial Judge accepted the pleaded evidence of the Respondents on the matter that succession is per kitchen when he said at pages 140-141 that ”The defendants on the other hand called as witnesses the direct uncle of the plaintiff Benjamin Odoemelam (DW1) and Isreal Onuoha (DW3) the son of Odoemelam’s brother Onuoha. Both DW1 and DW4 are old men and spoke of personal knowledge of Anyamaele. Apart from my finding their evidence convincing and reliable, I find a lacuna in the Anyamaele disappearance story of the plaintiff…”
On the second question on whether Okorienta is a name known to Umule Ohuhu, I have carefully gone through the pleadings of the parties on that issue and did not see that the parties ever joined issues on that question. A trial court is only bound to pronounce on issues joined by the parties in their pleadings. Parties are said to join issues, when they take up the opposite side of a case or when they jointly submit an issue for decision. The 8th Edition, of the Black’s Law Dictionary at page 854 defines “joinder of issues” (1) The submission of an issue for decision. (2) The acceptance or adoption of a disputed point as the basis of argument in a controversy – Also termed joinder in issue, similiter (3) The taking up of the opposite side of a case, or of the contrary view on a question.”
In the instant case it would be recalled that the learned trial Judge went as far as to observe that the burden of proving that Okorienta was an Arochukwu man lied on the Appellant, and that burden was not discharged. The trial court would not have pronounced on whether or not Okorienta is a name known to Umule Ohuhu because there was no joinder of issues on that fact in the pleadings of the parties.
Finally on this score, the learned counsel to the Appellant made heavy weather of the underlined passage at page 143 of the record:
“it is my holding that if the plaintiff’s father and grandfather treated the defendant’s father as part and parcel of the family it does not lie on the plaintiff to by any imagined fairy story, disrupt that and cast the defendants away. I hold that the defendants are on the land in dispute as their inheritance from their father. Their possession of the land is admitted by the plaintiff who has not shown that he has a better right to possession which has been disturbed. See Fabunmi v. Agbe (1985) 3 SC 28, Jiaza v. Bamgbose & Anor. (1999) SCNJ 167, Oyoubiare & Ors v. & Omamurhonu (1997) 7 SCNJ 60
Learned counsel for the Appellant frowned on the above underlined portion of the judgment of the court from which he drew the conclusion that the findings of the trial court that the Respondent’s father was a stranger element in Appellant’s home and that the fact the Appellant’s forebear accepted the Respondents father in their home that Appellant institution of this suit tantamount to “casting the Respondents away” Second, Appellant’s counsel believed that the trial Judge decided the case against the Appellant on ground of sentiments since he saw the institution of the suit against the Respondents as amounting to “casting them away.”
On this, it is not the case that a trial Judge could not express personal opinion in a case or matter before him and if as in this case the opinion is not the basis or ground of the decision it is said to be an aside or Obiter such Obiter dictum is not a matter for appear or a ground of appeal. The phrase “Obiter dictum” means statement constituting the opinion of the Judge which do not embody the resolution of the court. It is not binding on courts as it is mere statement made in passing.
In fact, the word “Obiter” simply means “in passing” “incidental” or “Cursory”. Conversely, “ratio decidendi” represents the reasoning, principle or ground upon which a case is decided. It is the legal principle formulated by the court which is necessary in the determination of the issues raised in the case.
See, Mallam Ibrahim Mohammed v. Mrs. R.O. Lawal & Anor. (2006) 9 NWLR (Pt. 985) 400 at 417, Afro Continental (Nig.) Ltd. V. Anyantuyi (1995) 9 NWLR (Pt. 420) 411 at 435, UTC (Nig.) Ltd. V. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 293, Ede v. Omeka (1992) 5 NWLR (Pt. 242) 428 at 435 Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 429 and 431.
The above underlined portion contained at page 143 of the record in the judgment of the learned trial Judge is obiter and could not constitute an issue in this appeal.
Having resolved the main issue and the sub-issues raised by the learned counsel for the Appellant as against the Appellant, Issue No. 1 is resolved against the Appellant.
Issue No.2 deals with the separate and distinct claim of the Appellant against the Respondents in respect of a land exchange. On this, learned counsel for the Appellant reviewed the evidence of the parties in the trial court and sought to point out contradictions in the evidence of the witnesses for the Respondents. Counsel argued that DW1 (1st Respondent) was a bunch of contradiction when on one part he alleged that he entered a land exchange with Appellant’s father and on the other alleged that his father did. That DW2 and DW3 said it was part of 1st Respondent mother’s kitchen that 1st Respondent’s father exchanged with Appellant’s father. That DW1 said the piece of land Respondents father gave Appellant’s father in exchange was outside “Ezi Odoemelam”. Appellant’s counsel submitted that the only conclusion the trial court should have reached was to discard the contradicting pieces of evidence in toto and hold that the land exchange was inchoate.
Counsel relied on the case of Nwokoro v. Onuma (1999) 72 LRCN 3005 at 3032 and said that it is not open to the trial court to pick and choose which of the witnesses to believe when their evidence materially contradicted one another and contrary to Respondents pleadings.
Learned counsel for the Respondents on the other hand, submitted that there was proper evaluation of evidence in this regard and that the learned trial Judge’s conclusion cannot be faulted. He said that Respondent as DW1 together with his witness DW2, the direct son of Odoemelam, maintained that the land exchange was concluded in the life times of the late fathers of the Appellant and the Respondents.
Counsel said, the evaluation of evidence and ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses. The Appellant, said counsel, has not shown that the evaluation of the evidence by the trial Judge and his findings are perverse or that they are not reasonably supported by evidence.
He referred to the cases of Okolo v. Nzuka (1978) 4 SC 77 at 86, Ebba v. Ogodo (1984) 4 SC 84 at 98 and urge us not to interfere with the findings of the learned trial Judge and to hold that there was no error in the conclusion of the learned trial Judge.
Here again, as it was the case with Appellant’s issue No.1, the learned trial Judge properly evaluated the evidence proffered by the parties on the exchange of land between the Appellant’s father and the Respondent’s father and for good reasons preferred the evidence of DW1 and DW2.
Truly, the evaluation of and ascription of probative value to the evidence adduced by the parties is the primary duty of the trial Judge. It is not proper for an appellate court to interfere when the duty has been properly carried out by the trial Judge. See, Salinu Okino v. Yakubu Obanibera & Ors. (1999) 12 SCNJ 27, (1999) 13 NWLR (Pt.636) page 535, Dan Awaza Bashaya & 7 Ors. V. The State (1998) 5 NWLR (Pt. 550) page 351. Second, the contradiction if any alleged by the Appellant’s counsel in relation to the evidence of the Respondents witnesses are not material knowing fully well that the burden of proving that the land exchange was inchoate or uncompleted lied on the Appellant who cannot rely on the weaknesses if any in the Respondents case to prove his case.
See, Ephraim Okoli Dim v. Isaac Enumuo (200) 10 NWLR (Pt. 1149) 353 (SC).
Issue No. 2 is resolved against the Appellant.
On the question formulated by the court, learned counsel for the Appellant submitted that the Appellant’s claim for declaration ought not to be dismissed in view of evidence led and the description of the land in Umule Okaiuga verged Green in the Appellant’s Plan.
Counsel submitted that apart from the land of ASP Boniface Nwosu given to him by the Appellant’s father verged blue in exchange for the land verged violet on the Appellant’s plan, there is no other person owning land in Ezi Odoemelam land verged Green that is not a member of Appellant’s family.
That, as a matter of fact it is only Onwuka Odoemelam, Appellant’s younger brother that would be seen on the said plan while all other features are either economic trees of Appellant, property of Appellant’s late father or those of Appellant’s brothers.
Counsel submitted that the description of the above features does not stand against the Appellant’s case as the entire Ezi Odoemelam land (verged Green) by the case of Appellant is the share of Odoemelam from the land of his late father. The Appellant is the head of his family presently and by their custom should control the land of his father and other properties as an inheritance.
Counsel submitted further that the state of evidence presupposes that the suit is fought in a representative capacity and that it behooved of the court to give judgment to reflect the capacity in which the suit is prosecuted. He referred to the case of Re. Adeosun (2001) FWLR (Pt. 48) 1223 at 1240.
Counsel submitted that from the state of pleadings all that the defendants have on land within Ezi Odoemelam land is possessory right and not exclusive ownership. Hence, the Appellant’s plan and the description therein ought not to lead to the dismissal of Appellant’s claim for declaration in this appeal.
Learned counsel for the Appellant submitted further that assuming without conceding, the Appellant’s plan included the other person’s this ought not lead to dismissal of the claim.
In such instance, said counsel, the court ought to grant declaration in respect of the area proved to be that of the appellant even thought he claim borders on larger portion of land. This is more so when the parties are agreed that the area verged red is the area in dispute. On this counsel referred to the cases of:
Udeze v.BChidebe (1990) 1 NWLR (Pt. 125) 141 at 157. Aweni v. Olorunkosebi (1991) 7 NWLR (Pt. 203) at 357.
The learned counsel for the Appellant was right to have said that even though their claim relates to a larger area, the court could indeed grant declaration if they succeed on the smaller area, agreed by the parties to be in dispute.
In the case of Raphel Udeze and 2 ors V. Paul Chidebe and 4 ors. (supra) the Supreme Court (per Nnaemeka – Agu JSC) made a distinction in between the case of an appellant as in the case before it who did not show an ascertainable boundary of the land in dispute and an appellant or party who claims title over a smaller piece of land than what they initially claimed.
At page 159 of the report the erudite Justice had this to say:
“Let me not be misunderstood to be saying that if the appellants claimed a larger piece of land, called Nneofia, but succeeded in proving the boundaries and title to a smaller piece of land, Ude Nneofia, they were bound to fail. To say so would be against the principle of decided cases in which it was decided that in such a case a plaintiff would be entitled to a declaration in respect of the smaller part of the land originally in dispute, the title and boundaries of which they had proved with certainty. In short, the court was entitled and bound to have granted a declaration of title over the smaller piece of land if the evidence so justified. See on this: Okon Owon v. Eto Ndon & Ors. 12 W.A.C.A. 71 Titus Sogunle & Ors. V. Amusa Akerele & ors. (1967), N.M.L.R. 58 and Ajide Araba v. Ogunbiyi Asanlu (1980) 6-7 SC 78 at pp. 85 – 87.”
In the instant case, I agree with the learned counsel for the Appellant in answer to the question formulated by the court that the appellant’s case would not (in any event) be dismissed on account of the Appellant’s plan which lay claim to a larger area of land than the smaller area of land in dispute between the parties.
The question formulated by the court is resolved in favour of the Appellant.
The two issues in this appeal have been resolved against the Appellant. Notwithstanding the resolution of the question formulated by the court in favour of the Appellant, the appeal lacks merit and it is accordingly dismissed.
There shall be no orders as to costs.
UWANI MUSA ABBA AJI, J.C.A: I have had the advantage of reading in draft the lead judgment just delivered by my learned brother M. A. Owoade, JCA. I am entirely in agreement with the reasoning and conclusions contained therein which I also adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal lacks merit notwithstanding the resolution of the issue formulated by the Court in favour of the Appellant.
I dismiss the appeal and endorse the consequential order as to costs.
HARUNA M. TSAMMANI, J.C.A: I had the privilege of reading in advance the judgment just delivered by my learned brother M. A. OWOADE; JCA.
The issues arising from this appeal have been comprehensively considered by my learned brother. I totally agree with the reasoning and conclusions reached thereon. I have nothing else useful to add.
In that respect, I too hold that the appeal has no merit and should be dismissed. It is accordingly dismissed by me.
I abide by the order on costs.
Appearances
S. A. Asuru, Esq.For Appellant
AND
Chika Udeozor holds the brief of Nkwo Victor O’Brien Esq.For Respondent
