CALISTUS NWANJOKU v. ALEXANDER MBONU & ORS.
(2013)LCN/5953(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/PH/377/2005
RATIO
“It is also the law that evaluation of evidence remains essentially the function of the trial Judge, where it is found that the trial Judge has unquestionably evaluated evidence, and justifiably appraises the facts, it is no longer the business of the appellate court to interfere with such findings, or substitute its own views for the views of the trial court, see Onuoha vs. State (1998) 5 NWLR (pt.548) at 118.; Wolvafera vs. Gudi (1981) 5 SC 291; Enang vs.Adu (1981) 11-12 SC 25.” Per ABUBAKAR, J.C.A.
“The Court of Appeal may interfere with findings of a trial court if the conclusion reached by the trial Judge is perverse, in the instant appeal, I hold the view that the learned trial Judge evaluated the materials before him and came to just and appropriate conclusion.” Per ABUBAKAR, J.C.A.
“It is settled, that appeal Court must consider all issues for determination submitted to it, except where it is satisfied that consideration of one or more of such issues shall sufficiently dispose of the appeal. See Tumbi vs. Opawole (2000) 1 S.C.” Per ABUBAKAR, J.C.A.
“… reply brief becomes necessary and relevant when the Respondent’s raise and argue fresh issues of law or argument, and such reply must be limited to addressing the fresh points arising from Respondent’s brief. The main purpose of reply brief is to answer any new points arising from the Respondent’s brief, it is filed when an issue or law or argument calls for reply, a reply brief cannot be used to strengthen the appellant’s brief by way of repeating the arguments made in appellant’s brief, a reply brief is not a recitation of appellant’s brief, where there are no new points in a Respondent’s brief a reply brief is otiose. see Olafisoye vs. FRN (2004) 4 NWLR [pt.864] 1.” Per ABUBAKAR, J.C.A.
“It is settled that facts on any issue before the court in a civil matter are assessed and evaluated by holding the evidence called by both sides to the conflict on an imaginary balance weighing them together, which ever out weights the other ought to be accepted by the court. See A. R. Mogaji vs. Rahiatu Odofin (1978) 4 SC 91 Pages 94 to 96.” Per ABUBAKAR, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
CALISTUS NWANJOKU Appellant(s)
AND
1. ALEXANDER MBONU
2. MONDAY MBONU
3. EMMANUEL NWOKOMA Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice F. I. E. Ukattah of the Imo State High Court sitting at Oguta delivered on 28th January 1988 in Suit No. HOG/51/84.
The Respondents in this appeal took out writ of summons against the Appellant in writ number HOG/51/84, seeking for the following reliefs:
“1. Declaration, that the plaintiffs are entitled to the customary right of occupancy to that piece or parcel of land known as and called “Onyeabialangam” situated and lying at Umukene waterside Umuagwo Ohaji and verged yellow in the plaintiffs plan no TLD/16/84 filed with this statement of claim.
2. Perpetual injunction retaining the defendant, his servants, agents or his workman from trespassing into the said “Onyeabiakangam land.”
The facts of the case are briefly that, the plaintiffs at the trial Court took out writ of summons against defendant over dispute on a piece of land founded by plaintiffs ancestor “Ikenyirionwu.” The land in dispute devolved to the Plaintiffs/Respondents in this appeal. The plaintiffs/Respondents said, the land in dispute was pledged to one Nwanjoku, the father of the Defendant/Appellant. Plaintiffs said, the pledge was for a period of twenty years from 1952 to 1972. Upon expiration of the pledge the land reverted to the plaintiffs in 1973, and the plaintiffs took over possession in 1973.
The Defendant/Appellant said, contrary to plaintiffs claim, the land in dispute was sold to his father in 1961 by some members of Plaintiffs/Respondents family. That the said transaction was executed by two deeds of conveyance admitted at the trial as exhibits E and F.
Four witnesses testified on the side of the plaintiffs. The defendant testified as DW1 and called one witness.
At the close of hearing both counsel for the plaintiffs and defendant addressed the court. The learned trial judge delivered judgment on 28th January 1988 in favour of the plaintiffs/Respondents.
Dissatisfied with the judgment of the court the Defendant/Appellant filed notice of appeal with six grounds of appeal on 11th October 2006, this Court granted the Appellant leave to file three additional grounds of appeal, the Appellant therefore had nine grounds of appeal.
Learned senior counsel for the Appellant Chief Amaechi Nwaiwu SAN, filed Appellants brief on 9th November 2006, while Respondents brief of argument was settled by learned counsel N. A. Nnawuchi.
Learned counsel Nwaiwu SAN, formulated and argued five issues for determination arising from Appellants grounds of appeal. The issues are:
“1. Whether the learned trial judge was right holding that the Plaintiffs/Respondents family pledged the area in dispute to the Defendant/ Appellant’s father from 1952 to 1972, when the pledge expired.
2. Whether the learned trial judge was right in holding that, Plaintiffs/Respondents established that Hyacinth Mbonu was the head of Plaintiffs/Respondents family until he died in 1974 and that, he was such a head in 1961.
3. Whether the learned trial judge was right in holding that, alienating documented in Exhibits “E” and “F” were made without the knowledge and or concurrence of Hyacinth Mbonu as head of family, and therefore a nullity ab-initio, and of no legal Effect under the customary law of Umukeno the plaintiffs people.
4. Whether the learned trial judge was right in holding that the Plaintiffs/Respondents are entitled to customary right of occupancy over the land in dispute, and that neither the defendant/Appellant nor his father has been in possession of the land in dispute, finding him liable in trespass on granting an order of injunction from further entry upon the land in dispute.
5. Whether the learned trial judge properly considered the case put forward by the defendant/Appellant before arriving at the findings it made.”
Learned Counsel N. A. Nnawuchi for the Plaintiffs/Respondents identified only one issue for determination:
“Whether it was a pledge or a sale transaction that took place between the father of the appellant and the family of the Respondents.”
While learned counsel for the Appellant distilled five issues from Appellants grounds of appeal, learned counsel for the Respondents nominated just one issue.
It is settled, that appeal Court must consider all issues for determination submitted to it, except where it is satisfied that consideration of one or more of such issues shall sufficiently dispose of the appeal. See Tumbi vs. Opawole (2000) 1 S.C.
Let me add that, Appellant’s issues for determination are so pluralized and fragmented some gallivant or flirt in the brief, while some over-lap. Respondents brief of argument and issue for determination, specifically captured the pivot of the appeal, having encapsulated Appellants issues, I will therefore adopt and resolve Respondents issue which I believe will determine this appeal.
The issue to resolve in this appeal is therefore:
“Whether the transaction that took place between the Plaintiffs/Respondents and the father of the Defendant /Appellant was a pledge or sale of family land of the Plaintiffs/Respondents.”
The Appellant filed a reply on March 2011.
The Appellant nominated five issues as against Respondents sole issue for determination, I will take Appellant’s argument on his entire issues, deal with Respondents issue and then resolve the entire issues.
Learned senior counsel Nwaiwu married issue number 1 to ground of appeal number 7.
He said, the learned trial judge was in error in finding and holding at pages 71 and 72 of the record of appeal, that the Plaintiffs/Respondents pledged the land in dispute to the defendant’s father from 1952 to 1972. Learned counsel said, the learned trial judge failed to show the basis, criteria and parameters for arriving at such conclusion.
Learned counsel said, from page 69 of the record of appeal, the learned trial judge started considering the issues raised up to page 70 of the record, that the learned trial judge did not consider the issue of pledge, he suddenly came to the conclusion that he preferred the evidence of the plaintiffs, and rejected the evidence of the Defendant and his witness.
Learned senior counsel Nwaiwu said, the conclusion reached by the trial judge without properly evaluating the evidence of the defendant and pledge cannot be justified, he referred this Court to Akibo vs. Opaleye (1974) 11 S.C. 189 at 203. seismograph service vs. Akporuouo (1974) 6 S. C. 119 at 140.
Chief Nwaiwu said, the failure by the learned trial judge, to actually evaluate both oral and documentary evidence on pledge, appraise same, ascribe probative value to them resulted in substantial miscarriage of justice to the Appellant because he was denied the benefit of having such evaluation and appraisal of evidence to his benefit. Learned counsel relied on Samuel Bozin vs. The State (1985) 7 S. C 450 and Grace Akinpe vs. the State (1988) 3 NWLR(sic).
Learned senior counsel Nwaiwu said, the learned trial judge has a duty to conduct proper evaluation of the evidence before him, before coming to a conclusion. He said, the learned trial judge failed to make proper use of the singular advantage of seeing and hearing the witness.
Chief Nwaiwu urged this court to resolve this issue in favour of the Appellant.
Addressing the court on issue number two, Chief Nwaiwu said, the issue relates to ground two of Appellant’s original ground of Appeal and grounds six and seven of appellant’s additional grounds of appeal.
Learned counsel for the Appellant said, the learned trial judge was wrong in holding that Hyacinth Mbonu was the head of the plaintiffs family until his death in 1974, and that he was such head in 1961. Learned counsel said the trial judge in his judgment relied on facts that were not pleaded, that the trial judge was wrong in relying on facts not pleaded to arrive at a decision, he said it is now firmly established that evidence on facts not pleaded goes to no issue. NIDB vs. Olalomi IND Ltd. (2002) 5 NWLR (pt.761) 532 at 550; Nwaranta vs. Egboka (2005) 10 NWLR (pt.933) 241 at 273; that Plaintiffs/Respondents are bound by their pleadings and evidence; in respect of matters not pleaded go to no issue, counsel relied on Ocoshe vs. Ogonbode (2004) 1 NWLR (Pt.749) 611 at 630. Learned counsel Nwaiwu urged this Court to hold that the evidence on which the trial judge arrived at the findings complained of was based on facts not pleaded and ought to have been pleaded.
Chief Nwaiwu referred to the reference made by the trial judge to the evidence before the trial Court, he said what the trial judge referred to as overwhelming evidence cannot amount to such. He said the Plaintiffs failed to establish their assertion that Hyacinth Mbonu was the head of the Plaintiffs/Respondents family until he died in 1974.
Learned counsel Nwaiwu said, Hyacinth Mbonu was head of the family in 1961; counsel said the plaintiffs failed to establish this assertion, he said the land in dispute was lawfully conveyed to the Defendant/Appellant as found at page 45 lines 7 to 33 of the record of appeal; counsel also referred to the evidence of the Defendant/Appellant at page 47 tines 26 to 32, and page 49 lines 14 to 19 of the record of appeal.
Learned counsel Nwaiwu said, from the above pages of the record of appeal, the defendant/Appellant challenged the Plaintiffs/Respondents case that Hyacinth Mbonu was the head of the family until 1974, and was such in 1961 when the land was conveyed. Counsel said the law is settled that in a civil action the burden of proof is on the party who subsequently asserts the affirmative(sic) of an issue, and who would fail if no evidence were adduced, counsel said the Plaintiffs/Respondents woefully failed to establish that Hyacinth Mbonu was the head of the family as at 1961. He said the Plaintiffs/Respondents produced nothing to show any living acts of Hyacinth Mbonu in 1961.
Counsel said, plaintiffs produced nothing before the court to show that Hyacinth Mbonu died in 1974, citing acts of proof of death like death certificate, funeral program or something credible to establish death of Hyacinth Mbonu. Chief Nwaiwu said, the plaintiffs failed to discharge the burden of adducing further evidence, for this reason therefore plaintiffs claim ought to have failed. He referred this Court to Phipson on evidence page 40 paragraph 92; Atane vs. Amu (1074) 10 S. C. 237 at 243 – 44 Section 135 to 139 evidence Act.
NMS Ltd vs. Afolabi (1978) 2 S.C. 79, Onyema vs. Amad (1988) NWLR (pt.73), Imana vs. Omo-Bare (1982) 5 S. C. 25 and urged the court to resolved this issue in favour of the Defendant/Appellant.
Appellants issue number three relates to grounds 1, 2 and 3 of the original ground of appeal and grounds 6, 7 and 8 of the additional grounds. Learned senior counsel Nwaiwu said, the learned trial judge was wrong in holding that the alienations documented in Exhibits “E” and “F” were made without the knowledge and or concurrence of Hyacinth Mbonu as head of the family and therefore a nullity ab-inition. He said the two separate deeds of conveyance were lawfully conveyed to the Defendant/Appellant. At page 49 lines 14 to 18 to the effect that Luke Mbayi was the head of the plaintiff’s family in 1961 and that Hyacinth Mbayi died in the 50s. He tendered two deeds of conveyance evidencing the transaction and the documents were admitted without objection as exhibits “E” and “F” and that second plaintiff in this suit Monday Mbonu was one of the vendors in Exhibits E & F. Learned counsel said the Plaintiffs/ Respondents lacked capacity to institute this action as exhibits “E” & “F” were executed to bind them, their heir and privies; he relied on Black’s Law Dictionary 7th Edition page 1218 on definition of privy, and Law and practice relating to evidence in Nigeria London sweet and Maxwell by Dr. Akinola Aguda page 284 paragraphs 22 – 10 on the term parties.
Learned counsel for the Appellant said the trial Court was wrong in declaring alienation of exhibits “E” and “F” as null and void as the Plaintiffs/Respondents never asked for the relief declaring exhibits “E” and “F” as void having been made without the concurrence of Hyacinth Mbonu. He relied on Ekpenyang vs. Inyang (1975) 2 SC 71; Nig Housing Deu Soc vs. Momuni (1977) 2 S. C; Onion Beverages Ltd vs. Owolabi (1988) 1 NWLR (Part 68) 128 at 133; Egonu vs. Egonu (1978) 11 & 12 SC 111.
Chief Nwaiwu said, the learned trial judge was wrong in awarding the land in dispute to the Plaintiffs/Respondents when there was credible evidence before the Court, that following the transaction contained in exhibits “E” and “F”, the defendant/Appellant’s father took possession of the two adjoining pieces of land the subject matter of exhibit E and F, which included the portion in dispute, and without any interference exercised all acts of ownership and including farming, letting, and renting out same, on the understanding that he had good title till his death in 1981.
Upon the death of Defendant’s/Appellant’s father in 1981, Defendant and his brother inherited the said two pieces of land to the knowledge of the Plaintiffs/Respondents. Learned counsel Nwaiwu said, the doctrine of laches and acquiescence has caught up with the Plaintiffs/Respondents; he said the defence is pleaded in Defendant’s/Appellant’s amended statement of defence page 45, 25 to 33 and page 46 lines 1 to 23 of the record of appeal; the Defendant inherited the land in 1981 and continued exercising all rights of ownership and possession and plaintiffs did nothing until 1984 a period of 23 years; counsel said the Plaintiffs/Respondents are caught up by the doctrine of laches acquiescence and standing by; counsel relied on Ramsden vs. Dyson (1966) LR HL 129, Morayo vs. Okiode & Sons (1942) 8 WACA 46 at 47; Akanni vs. Makanju (1978) 11 & 12 SC 13. Kaiyaoja vs. Egunla (1974) 12 S.C. 55.
On the alleged custom of Umukene, on consent of head of family and disposition of family land, Chief Nwaiwu said, no Chief or other persons having knowledge of same were called in proof.
Issue number 4 relates to grounds 2, 4 and 5 of the original grounds of appeal, and 6, 7 and 8 of the additional grounds of appeal. learned senior counsel for the Defendant/Appellant said, the learned trial judge was wrong in holding that, plaintiffs/Respondents are entitled to the customary right of occupancy over the land in dispute. Learned counsel said, the Defendant/Appellant established acts of ownership and possession by the production of documents of title duly authenticated and executed that is “Exhibits “E” and “F”. He said, the acts of ownership extending over sufficient length of time is enough to warrant inference of true ownership, he relied on Idundun vs. Okumagba (1976) 9 – 10 SC 227. Balogun vs. Akanji (2005) 10 NWLR (pt.933) pg 394 to 409; Adeniran vs. Alao (2001) 18 NWLR (Pt.745) page 361; Duru vs. Onwumelu (2001) 18 NWLR (Pt.746) page 672; Echi v. Nnamani (2000) 8 NWLR (Pt.667), Achiakpa vs. Nduka (2001) 14 NWLR (Pt.734) page 361.
Chief Nwaiwu said, the learned trial judge was wrong in holding that, neither the defendant nor his father has been in possession of the said land. He said, it is difficult to appreciate the basis of the reasoning of the learned trial judge when there was preponderance of evidence of possession of the land in dispute, from Defendant/Appellant’s father up to the defendant/Appellant. He said, the findings of the learned trial judge that, Plaintiffs/Respondents family re-entered the land in dispute in 1973 and have since owned and possessed it, and that neither the Defendant nor his father has been in possession of the said land, and that defendant trespassed upon the said land and was challenged by the plaintiffs cannot be supported, and therefore constitute perverse findings.
Learned senior counsel Nwaiwu said the learned trial judge failed to recognize that the plaintiffs failed to establish by the evidence they called that they were in possession of the lands in dispute at the time of the acts of trespass complained of. He relied on Obijuru vs. Ozims (1985) 2 NWLR 6 page 167; Nzekwu vs. Nzekwu (1989) 2 NWLR (Pt.104) page 373; Ogundipe vs. Awe (1988) 1 NWLR (Pt.68) page 118; Aromire vs. Awoyemi (1972) 2 S. C. 1 at 7.
Learned counsel for the Appellant said the order of injunction restraining the defendant, his servants, agents or privies from entry upon or interference with the said land cannot be justified. He therefore urged this court to resolved this issue in favour of the Appellant.
lssue 5 relates to Appellants additional ground of appeal 8.
Learned counsel for the Appellant said, the learned trial Judge failed to properly consider the case put forward by the Appellant, there was improper evaluation and appraisal of the evidence, which prejudiced the Appellant and resulted in substantial miscarriage of justice. Counsel said appellant was denied the benefit derivable from careful consideration of the issues raised by him at the trial; that had the issues been properly and carefully analyzed, the decision arrived at by the trial Judge would have been different.
I must admit at this point that, learned counsel Nwaiwu shuffled facts and issues in this appeal, there is therefore little or no wonder, some areas challenged by the Appellant keep recurring; may be learned counsel’s generosity in repeating the alleged errors in the judgment is to demonstrate the force with which the appeal is fought, I think Chief Nwaiwu finally resolved to set out instances of failure by the trial Judge to consider appellant’s evidence in the following way.
1. Failure to consider numerous acts of ownership possession, especially farming, occupation since 1961 of the area in dispute, renting out portions of the land in dispute planting “ube”, raffia palm, and “ugba” without interference by the respondents, and other members of plaintiffs family.
2. Failure to consider the unchallenged evidence of DW2.
3. Failure to consider the issue of acquiescence and laches raised by the Defendant following transactions contains in Exhibits ‘E’ and ‘F’ the Defendants father, in 1961 to the knowledge plaintiffs took possession of the two adjoining pieces of land the subject matter of Exhibits ‘E’ and ‘F’ which included the portion in dispute without interference and hindrance exercising all acts of ownership and possession on them including farming on the understanding that he has good title, till he died in 1981.
4. Failure to consider the issue of legal capacity of those who sued, and their being privy to the makers at Exhibit ‘E’ and ‘F” which bind the plaintiffs, assigns, successors-in-title.
5. Failure to properly weigh and examine the case of the Defendant, and put same on the imaginary scale of justice established, and shown in the case at Mogaji vs. Odofin 1978 4 SC 91.
6. Failure to consider the admission of PW2 under cross-examination at page 32 of the record, he knows Cyril who lives on a house built by Nwanjoku on the land they granted to Nwanjoku and PW2’s admission that Nwanjoku planted ube where he was granted.
7. The learned trial Judge had barely set-out the submissions of counsel for the parties when suddenly at page 69 of the record, and without considering the case put forward by the Defendant/Appellant along-side that of the plaintiffs/Respondents evaluating and weighing them started malice findings.
8. There was no claim or relief by Respondents to set-aside the transaction in Exhibits ‘E’ and ‘F’ as null and void ab-initio. It cannot be said that, there was proper and dispassionate consideration and evaluation of the case presented by the Plaintiffs /Respondents.
Chief Nwaiwu urged this Court to set aside and reverse the findings. He also urged that this issue be resolved in favour of the Defendant/Appellant.
Learned counsel for the Plaintiffs/Respondents filed Respondents brief on 12th September, 2008, deemed filed in this Court on 2nd March 2011.
Learned counsel N.A. Nnawuchi identified only one issue for determination, that is
“Whether it was pledge or a sale transaction that took place between the father of the Appellant and the family of the respondents.”
Learned counsel for the Respondents said all other issues are subsumed into the issue nominated by the Respondents. He said, if this court finds that the land in dispute was sold to Appellant’s father, that will effectively determine the appeal, if it finds otherwise, that will also determine the appeal.
Learned counsel for the Appellant said a Plaintiff claiming title to a particular piece of land must succeed on the strength of his case but where defendant’s case presents features of weakness, the plaintiff will be allowed to exploit the weakness. Counsel relied on Nwaeseb vs. Nwaeseb (2000) 3 NWLR [pt. 649] page 391 at 401; Madu Banwu vs. Nnalue (1999) 11 NWLR [Pt.628] page 673.
Learned counsel for the Respondent said PW1 testified to the effect that plaintiffs ancestors deforested the land in dispute, he referred the court to page 24 lines 32 and page 25 lines 1 to 4, counsel said the defendant did not dispute this assertion. At page 66 lines 17 to 20, of the record of appeal the court made this finding too that parties are in agreement that land in dispute originally belongs to plaintiffs family of Ikenyirionwu. That there is no ground of appeal attacking this finding, learned counsel said parties are bound by this finding; he relied on Calabar Central Cooperative Thrift & Credit Society LTD & 2 Ors vs. Ekpo (2008) All FWLR [pt.418] page 218.
Learned counsel referred this court to Ekpendu vs. Erika (1959) 4 PSC 79, and said, it is now an acceptable principle of customary law, that sale of family land made without the consent of the head of the family is null and void. He said the plaintiffs pleaded and proved this custom at the trial and the court found this as a fact page 69 lines 26-28 of the record of appeal.
Learned counsel for the Appellants pleaded that, their fore-bear one Nwanjoku Onwuchuruba bought the land in dispute from the Respondents family in 1961 and that representatives of Respondents family executed the deeds of conveyance over the land in dispute. On their part, the Plaintiffs/ Respondents pleaded that the pledge had been redeemed. Counsel said Respondents evidence is more probable. Learned counsel said, no transaction took place between Plaintiffs/Respondents family and the Defendant’s/Appellant’s father, he said even if there were such transaction, it would not confer title on the appellant because it was null and void.
On death of Hyacinth Mbonu, learned counsel for the Respondents said the burden was on appellant to show that Hyacinth Mbonu was not alive in 1961, when the sale transaction took place. Learned counsel referred us to paragraph 14A of their amended statement of claim, and said no proper alienation of any common property could be effectively demised or conveyed, leased or sold without the prior consent or knowledge of Hyacinth Mbonu. Learned counsel Nnawuchi said, it is erroneous to contend that a particular witness be called. He relied on NSC Nig Ltd vs. INNIS PACMER (1992) 1 NWLR [pt.218] that appellant had the opportunity to traverse paragraph 14 (a) of the amended statement of claim, counsel said the Defendant/Appellant having failed to traverse the said paragraph is deemed to have admitted the custom. Counsel said this custom is notorious and the courts must take judicial notice of same on the principles of Ekpendu vs. Erika; counsel also relied on Oyewumi vs. Ogunesan (1990) 3 NWLR [pt.137] page 182 at 215.
Oyebanji vs. Okunola (1968) NMLR 221; Akerele vs. Atunrase (1968) All NLR 201; Lukan vs. Ogunsusi (1972) All NLR 41.
Mr. Nnawuchi said, a party alleging that a customary pledge took place must establish the following facts.
a. The consideration for the pledge
b. the presence of witnesses
he said the Plaintiffs/Respondents proved all the above listed essential elements of customary pledge. He relied on Nwaojini v. Adu (2001) 5 NWLR (Pt.705) page 192 at 200, Akuute v. Nwamadi (1992) 8 NWLR (Pt.258).
On laches and acquiescence raised by the learned senior counsel for the appellant, counsel said the issue was not considered at the trial, the issue cannot therefore be considered in vacuo.
Mr. Nnawuchi said, appellant did not prove that the land in dispute was sold to his father; that the Respondents proved by preponderance of evidence that the transaction that took place was a pledge which had been redeemed. That Plaintiffs/ Respondents did not alienate their land to the appellant.
Learned counsel therefore urged this Court to dismiss the appeal, and affirm the judgment of the court below.
Before I proceed to resolve the issue for determination, let me mention that I read appellant’s reply brief, the reply is basically a repeat of the issues already canvassed before this court, reply brief becomes necessary and relevant when the Respondent’s raise and argue fresh issues of law or argument, and such reply must be limited to addressing the fresh points arising from Respondent’s brief.
The main purpose of reply brief is to answer any new points arising from the Respondent’s brief, it is filed when an issue or law or argument calls for reply, a reply brief cannot be used to strengthen the appellant’s brief by way of repeating the arguments made in appellant’s brief, a reply brief is not a recitation of appellant’s brief, where there are no new points in a Respondent’s brief a reply brief is otiose. see Olafisoye vs. FRN (2004) 4 NWLR [pt.864] 1. I hold the same view in this appeal.
Appellant embarked on swinging exercise to return to same point. Let me go to the issue for determination in this appeal, even though earlier stated, let me repeat this issue for purpose of making the start off point in resolving issue.
“Whether it was a pledge or a sale transaction that took place between the father of the appellant and the family of the Respondents.”
To resolve the above sole issue, it is proper to examine the evidence of both the plaintiffs and the Defendant at the trial.
PW1 Alexander Mbane gave evidence on 23 June, 1987 he swore on the Holy Bible, part of his evidence before the trial court is reproduced as follows. (page 23 of the record of appeal).
“….The type of pledge my father made to the father of the defendant is called in our delect “Arocha Ahafuo”, meaning when the period is completed the pledge leaves the land; the pledge was for E93,9,9d. This was a peculiar pledge in that the amount paid, was for the use of the land for the period in this case 20 years.
At the end of the period, no money is refunded to the pledge, and he must leave the land.
According to our custom, even at the time the defendant’s father had the use of the land, for 20 years period, the land was still owned by my father. During the period of 20 years he used the land, we were enjoying all timber trees on the land, we buried any member of our family who died on the land, if we so desired.
During the period the defendant’s father paid tribute of yams annually to my father after harvesting his yams on the land…”
PW1 went further to state that the pledge ended in 1972 and his father entered upon the land which reverted to him pursuant to their agreement and took possession in 1974, he said as follows:-
“…The pledge ended in 1972, and in 1973, my father entered upon the land which had reverted to him according to the agreement, and in accordance with our custom. since we re-entered upon the land, we have been farming upon the land…”
PW1 said, in 1994 Defendant made attempts to re-enter the land in dispute and take possession, this attempt resulted in reporting the matter to the police and the juju priest “Amadioha Ozuzu” PW1 again said, as follows:
“…The land was in my possession at the time we appeared before the juju priests. A date was fixed for the oath taking …….the juju priest then decided that if land belonged to us…” also complained to the Ojiofors of Umuoswo and Umukone…..”.
PW2 Emmanuel Nwakama testified on 13th July, 1987. Page 32 of the record of appeal. He also stated as follows:
“…In 1972, Hyacinth Mbanu, Andrew Nwaokoma my father, went with me to the father of the Defendant, and Hyacinth our head, told him that, the lease for 20 years granted to him of the land in dispute had expired. The father of the Defendant asked to be allowed to farm on the land in that 1972 and we allowed him. In 1973, we entered upon the land, and took possession of it, and the Defendant’s father ceased to go on the land as agreed. Since then, we have continued to be in possession of the land without let or hindrance until the present case…”
Boniface Oloko testified as PW3. He said defendant’s father entered the land in dispute in 1952. He said.
“…I am 55 years old, Nwanjoku entered on the land in 1952. That was the year I started seeing him. I knew Hyacinth Mbonu of the plaintiffs family. I do not know when he became the head of his family, but he became family head before me.
I became my family head in 1969, when the pledge was made in 1952 Hyacinth was the head of the Plaintiffs family.
I knew the father of PW2 and Luke Mbonu, when they were alive. Hyacinth Mbonu was the head of their family. According to our custom, it is the head of the family who is the custodian of family land, He shares out family land for farming. There can be no pledge, no sale no transfer of any kind of family land without his consent and conscience…”
PW4 Nze Hilary Ihueze, said he bought a piece of land from plaintiffs in 1977, he executed a deed, he also obtained certificate. He said the land he obtained from the plaintiffs share common boundary with the land in dispute. The plaintiffs own the land in dispute he said.
“….it is owned by the plaintiffs. I have been seeing them wony on the land, I have been seeing them working on the land. I have never seen the defendant on the said land, infact I am seeing him for the first time in court today…”
The Defendant/Appellant, Calistus Nwanjoku testified on 4th November 1987 page 47 of the record of appeal.
He said the land in dispute is called “Onyeabialangam”, He said in 1961, his father entered into pledge with the fathers and relations of the plaintiffs. He said the transactions were in writing he identified exhibits “E” and “A” covering separate pieces of land. He said as follows:
“..Before my father purchased these lands, my father was farming on them even before I was born in 1952.
Before the purchase the two pieces of land were leased to my father by one Ikenyinanwu of the plaintiffs family. After the purchase, my father continued to farm on the land, and to rent portions to other persons for farming purposes. My father died in 1981. I inherited the lands covered by Exhibits “E” and “A”. With my younger brothers under Mbaise customary law…”
Defendant/Appellant said, nobody disturbed his father when he purchased the land and started farming. He said in 1984 plaintiffs chased away his workers, he wrote a letter of warning to them. He said he entered upon the land as of right and he has been in possession.
The Defendant/Appellant called Nze Justin Ozumba Asugua Surveyor who tendered exhibits “A” and “G”.
With the above evidence before the trial court, the Defendant/ appellant said, the evidence was not properly evaluated by the trial court.
It is settled that facts on any issue before the court in a civil matter are assessed and evaluated by holding the evidence called by both sides to the conflict on an imaginary balance weighing them together, which ever out weights the other ought to be accepted by the court. See A. R. Mogaji vs. Rahiatu Odofin (1978) 4 SC 91 Pages 94 to 96.
It is also the law that evaluation of evidence remains essentially the function of the trial Judge, where it is found that the trial Judge has unquestionably evaluated evidence, and justifiably appraises the facts, it is no longer the business of the appellate court to interfere with such findings, or substitute its own views for the views of the trial court, see Onuoha vs. State (1998) 5 NWLR (pt.548) at 118.; Wolvafera vs. Gudi (1981) 5 SC 291; Enang vs.Adu (1981) 11-12 SC 25.
The learned trial Judge at page 66 of the record of appeal found that the Plaintiffs/Respondents owned the land in dispute. That a pledge was entered into by Plaintiffs family head Hyacinth Mbonu. That the said pledge expired in 1972, that plaintiff re-entered and took possession exercising maximum acts of ownership.
The learned trial Judge said as follows page 69 record of appeal.
“…Both parties in this case agree that the land in dispute belonged to the family of the plaintiffs as at 1961. At least the Defendant did not say that the vendors in exhibits “E” and “A” were the personal owners of the land…”
The learned trial Judge also said the plaintiffs established that by their custom, sale of family land without the consent of the family head is void.
In my humble view there is seeming consistency in the evidence of the plaintiffs. The Court of Appeal may interfere with findings of a trial court if the conclusion reached by the trial Judge is perverse, in the instant appeal, I hold the view that the learned trial Judge evaluated the materials before him and came to just and appropriate conclusion.
I am of the view that this appeal lacks merit it is hereby dismissed. For the avoidance of doubt, the decision of the High Court of Imo State Oguta, dated 28th January, 1988 is affirmed by me.
I make no order as to cost.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned brother T. ABUBAKAR, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.
HARUNA SIMON TSAMMANI, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my Learned brother Tijjani Abubakar, JCA.
I agree with his reasoning and conclusion that the appeal has no merit. It is accordingly dismissed. I also abide by the consequential orders made therein.
Appearances
Dr, A. Nwaiwu SAN for Appellant with O. E. Asiawuchi (Mrs.), S. C. Enwere, L.O. Unanwa (Miss), C. R. Onwuegbuchuhem (Mrs.)For Appellant
AND
N. A. Nnawuchi for the Respondents with M.A. Anike Esq, J. A. OkerekeFor Respondent
