KINGSLEY EMESIANI v. LEVI EMESIANI (2013)

KINGSLEY EMESIANI v. LEVI EMESIANI

(2013)LCN/6738(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2013

CA/E/321/2007

RATIO

WHETHER A GROUND OF APPEAL CAN ALLEGE BOTH ERROR IN LAW AND MISDIRECTION

CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT

The standard of proof is beyond reasonable doubt since the commission of a crime is alleged. This is expressly provided for by subsection (1) of the said S. 135 which provides that: “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” The Supreme Court in BABATUNDE & ANOR V. BANK OF THE NORTH & ORS (supra) held 8 per Adekeye JSC this court in OWOR V. CHRISTOPHER & ORS (2008) LPELR 4813 held that it is trite law that an allegation of crime in a civil proceedings must be proved beyond reasonable doubt. Per EMMANUEL AKOMAYE AGIM, J.C.A.

BURDEN OF PROOF ON HE WHO ASSERTS

“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.” Per EMMANUEL AKOMAYE AGIM, J.C.A.

Before Their Lordships

ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

Between

KINGSLEY EMESIANIAppellant(s)

AND

LEVI EMESIANIRespondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 26th July, 1999, the respondent herein, as plaintiff commenced suit N0. OT/40/99 in the High Court of Anambra State in the Otuocha Judicial Division against the appellant herein as defendant, claiming for:
1. A declaration that plaintiff is entitled to the statutory right of occupancy of the land in dispute whose annual rental value is N100.00
2. N10,000.00 damages for trespass
3. Perpetual injunction restraining the defendant whether by himself, agents, privies or workmen from committing further acts of trespass on the land.
Both sides filed and exchanged pleadings. After the conclusion of evidence and address of both sides, the trial court per P.A.C Obidigwe J on the 22nd March, 2005 rendered Judgment in favour of the plaintiff granting him the claims as reproduced above.
Dissatisfied with this judgment, the defendant on the 9th April, 2005 commenced this appeal NO CA/E/321/2007 by filing a notice of appeal containing 6 grounds. The appellant’s brief of argument was filed on 5-6-2008 and deemed filed on 29-6-2009. The brief filed had 40 pages. The appellant filed a modified brief on 17-1-2013 not exceeding 30 pages as required by Order 18 Rule 6(a) of the Court of Appeal Rules 2011. The respondent’s brief of argument filed on the 19th of August, 2009 was deemed filed on 11th October, 2010. This brief was settled by O.R. Ulasi SAN. Following change of Counsel by respondent, a second respondent’s brief was filed by Dr. G.O. Okafor on 14-6-2011. For the determination of this appeal, I will rely on the modified appellant’s brief of argument, the respondent’s second brief filed on 14-6-2011 and the appellant’s reply brief. The appellant’s reply brief was filed on 21-6-2011. Both sides have adopted their briefs of argument. The appellant in his brief of argument raised the following issues for determination:
1. Whether the Learned trial Judge was right when he admitted and relied on Exhibits A, B & C, purportedly made by an illiterate, in proof of the alleged sale/purchase of the land in dispute on the ground that the Exhibits were 20 years old when they were being admitted pursuant to Section 130 of the Evidence Act.
2. Whether Exhibit E & F contained valid arbitration decision, if not, whether there was any other valid arbitration decision between the parties.
3. Whether the learned trial Judge correctly evaluated the evidence tendered before him when he entered judgment by saying: “Both parties agree that the three contiguous pieces of land were purchased.”
4. Whether the learned trial Judge was right in awarding title to the land in dispute to the Respondent in view of the pleadings and evidence.
5. Whether the learned trial judge was right in granting the perpetual injunction to the respondent and awarding damages for trespass against the appellant in view of the fact that the parties have lived together and in common on the land in dispute for many years.
The respondent in his brief of argument raised five issues for determination as follows:
“1. Whether the Learned trial Judge was right when he admitted and relied on exhibit A, B and, purportedly made by an illiterate, in prove of the alleged sale/purchase of the land in dispute on the ground that the exhibits were 20 years old when they were being admitted pursuant to section 130 of the Evidence Act.
2. Whether exhibits E and F contained valid arbitration decision, if not, whether there was any other valid arbitration decision between the parties.
3. Whether the Learned trial Judge correctly evaluated the evidence tendered before him when he entered judgment by saying: “both parties agree that the three contiguous pieces of land were purchased.”
4. Whether the Learned trial Judge was right in awarding title to the land in dispute to the respondent in view of the pleadings and evidence.
5. Whether the Learned trial Judge was right in granting the perpetual injunction to the respondent and awarding damages for trespass against the appellant in view of the fact that the parties have lived together and in common on the land in dispute for many years.”
Considering the judgment of the trial court, the grounds of appeal, the issues for determination raised by both sides and the arguments of same, I prefer to couch the issue for determination thus – whether the trial court was right to have held that the respondent proved his case, and was entitled to judgment granting him all the reliefs claimed in the statement of claim.
The decision of the trial court that the respondent has proved his case on a preponderance of evidence and is entitled to judgment followed its finding that “from the totality of the evidence before the court, including the exhibits tendered, there is no doubt that the LAND in dispute was acquired by the plaintiff’s father. He was then in the Army and acted through his elder brother, Akpe, the defendant’s father who represented him and thumb printed exhibits A, B, & C on his behalf.” The trial court had before this finding also found that exhibits E and F “were unequivocal that the land in dispute was acquired by the plaintiff’s father and that it is landed property of the plaintiff’s father, Julius Emesiani, “A further basis for the judgment of the trial court is its finding that “there is no evidence that the plaintiff’s father at any time set his abode any other place than on the land in dispute. It could, therefore be said that the plaintiff has shown acts of ownership and possession numerous and positive enough extending over a sufficient length of time to warrant the inference of exclusive ownership of the land in dispute.”
Learned Counsel for the appellant under issue No.1 of his brief has argued that the trial court was wrong to have admitted and relied on exhibits A, B, and C. The reasons he gave in support of this argument are that:
1. the exhibits are forged and so are not authentic but false documents
2. the exhibits did not comply with S. 3 of the Illiterates Protection Law of Anambra State.
3. the exhibits were unregistered registrable instruments.
4. the trial court was wrong to have presumed them to be sufficient evidence of the truth of the facts therein.
Let me start with the argument that exhibits A, B, and C are forgeries and so are not genuine or authentic. Learned Counsel opened his argument of this issue by stating that where a document is challenged and impugned as unauthentic, the maker of the document must be called by the party who tendered the document to give evidence in support of the document. I will straight away point out here that the need to call the maker of a document to prove the authenticity of the document, can only arise when it has been successfully challenged or shown not to be authentic. The need cannot just arise on the mere assertion that it is forged or not authentic.

It is trite law that he who alleges must prove. It is for the party alleging that a document is forged to prove that it is forged.

The duty to disprove such allegation can only arise when the party so alleging has discharged the burden to prove it. It is the appellant who raised the issue of the authenticity or genuineness of the document and wants the court to believe that it is not authentic. By virtue of S. 136(1) of the Evidence Act 2011:
“The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other.”

Subsection (2) of the same S. 136 provides that:
“In considering the amount of evidence necessary to shift the burden of proof regard shall be had by the court to the opportunity of knowledge with respect to the fact to be proved which may be possessed by the parties respectively.”

The appellant testifying as DW5 said that the exhibits may have been forged by the respondent’s father and that they are forgeries. Being the person alleging or asserting that the respondent’s father committed forgery, which is without doubt a crime or wrongful act, the appellant, by virtue of S. 135(2) of the 2011 Evidence Act has the burden to prove that the respondent’s father or the respondent forged the said exhibits. It provides that “The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it, whether the commission of such act is or not directly in issue in the action.” See BABATUNDE & ANOR V. BANK OF THE NORTH & ORS (2011) LPELR 8249 held 1 per Adekeye JSC.

Furthermore, it is clear from the evidence in the record of this appeal that exhibits A, B and C were more than 20 years old before the 7th of May 2002 when they were tendered and admitted as evidence in court. The exhibits were produced by the respondent from his custody. It is clear from the evidence that his father had custody of the documents. It is natural that they should now be in the respondent’s custody following his father’s death. By virtue of the age of the exhibits and the fact that they were tendered by the respondent, they can be presumed by virtue of Ss. 155 and 156 of the Evidence Act 2011 to have been duly executed and attested by the appellant’s father and any other person by whom it purports to be attested. Section 155 provides that:
“Where any document purporting or proved to be 20 years old or more is produced from any custody which the court in the particular case consider proper, the court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.”

Section 156 provides that the duty to rebut this statutory presumption rests on the party who alleges that it was not duly executed and attested by the persons by whom it purports to be executed and attested. Since this presumption of due execution enures to the respondent’s advantage, he had no duty to prove its validity or authenticity or due execution. In OJIBA V. OJIBA (1991) 6 SCNJ 156, the Supreme Court held that “a plaintiff who based his claim to title upon a document has the necessary duty upholding its validity by proving its due execution and attestation, unless in a situation where a presumption of due execution enures to his advantage.” See also AKINDURO V. AKAYA (2007) 6 SC (pt 11) 120

Finally, quite apart from the presumption of regularity of official acts there is the general presumption of regularity that where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is often expressed in the latin maxim, omnia praesumuntur rite esse acta, which is often used in respect of official acts. See SHITTA BEY V. ATTORNEY GENERAL OF FEDERATION & ANOR (1998)7 SC (pt 11) 121. Therefore the burden to rebut the presumption, of due execution of the documents and their regularity was on the appellant who was alleging that they were forged.

The trial court held that the appellant “merely contended that the documents were forged. No evidence of forgery or fraud was given.” There is no ground of appeal against this holding in the judgment of the trial Court. As restated by the Supreme Court in a long line of cases including NWABUEZE V. OBI-OKOYE (1988)3 NSCC 53 at 63, ONWUKA & ORS V.EDIALA & ORS (1989)11 NSCC 65 at 84 and OGUNBIYI V. ISHOLA (1996) 5 SCNJ 145 at 154, a finding of law or fact not challenged on appeal stands rightly or wrongly, for the purpose of the appeal in question regardless of the merit of what the trial court might have said on the point. Such unchallenged findings or decision remain binding and final and cannot be competently argued against on appeal.
The only ground of appeal touching on exhibits A, B and C is the first ground. For ease of reference I reproduce it here. It states that:
“The learned trial Judge erred in law and thereby came to a wrong decision which occasioned a miscarriage of justice when he held that the production of documents (Exhibit A, B, and C) twenty years old without more entitled the plaintiff/respondent to the declaration he sought.
Particulars of Error
(i) The production of Exhibits A, B and C does not preclude the plaintiff from the necessity of showing good title.
(ii) The plaintiff did not prove due execution of the said Exhibits A, B and C.
(iii) The evidence of the defence witnesses is that none of the customary law transactions was evidenced in writing.
(iv) Exhibits A, B and C did not comply with S. 3 of the Illiterates Protection Law.
(v) The trial court said in its judgment, “It is most unlikely that any of the witnesses to the said transactions are still living.”
This ground of appeal is complaining about the trial courts reliance on those exhibits as sufficient evidence of the facts in them because the documents were more than 20 years. In other words the ground is challenging the trial courts invocation of the statutory presumption as to statements in documents 20 years old. The ground did not complain about the decision of the trial court that the appellant merely alleged forgery of exhibits A, B and C and did not elicit evidence to prove the forgery. Therefore the arguments of Learned Counsel for the appellant at paragraph 3,1,7 at pages 10-11 of the appellants brief that the trial court was wrong to have relied on the said exhibits because the appellant had shown that they were forged and therefore not authentic cannot validly be made. This argument is incompetent as it does not derive from any issue for determination or any ground of this appeal. Arguments in an appeal must be based on the issues raised for determination in the appeal and derived from a ground or the grounds of appeal. Any argument not based on an issue arising for determination in an appeal and derived from a ground of appeal is incompetent and will accordingly be disregarded and struck out.
Learned counsel for the appellant at paragraph 3.1-10 pages 11 to 12 of the appellants brief argued that:
“In the instant case, the appellant pleaded and gave evidence that his father who allegedly thumb-printed exhibit A, B and C was an illiterate. However, the said exhibits did not contain any jurat as required by law. They were therefore inadmissible against his said father or his privy (the appellant). Besides, there is nothing on the face of exhibits to show that they were executed in the presence of a magistrate or justice of peace or that a magistrate or justice of peace subscribed thereto as a witness. As such, the said exhibits were inadmissible by the operation of law. The trial judge was therefore wrong in admitting and relying on them.”
There is no ground of this appeal complaining that the trial court was wrong to have admitted and relied on the exhibits for the reason that they had no illiterate jurat and were not executed before a Magistrate or Justice of Peace. Ground 1 which is the only ground touching on these exhibits did not raise such a complain. One of the particulars of the alleged error in the said ground, states that “Exhibits A, B and C did not comply with S. 3 of the Illiterates Protection Law.” This clearly does not constitute a ground of appeal challenging the admissibility and reliance of the exhibits for lack of jurat or execution before a Magistrate or Justice of Peace. The complain in ground 1 of this appeal is that the trial court was wrong to have simply relied on the age of the exhibits to hold that the respondent was entitled to the declaration sought. The ground did not complain about the admissibility or validity of the exhibits or that they did not comply with the Illiterate Protection Act. It clearly complained only about the trial court’s reliance on the statutory presumption as to statements or facts in documents 20 years old.
Particulars of error or misdirection do not on their own constitute a ground of appeal. They are just particulars of the complain in the ground. They cannot therefore raise a complain or issue different from that in the ground of appeal. They derive from and therefore support the ground of appeal. They amount to a further explanation of the error or misdirection complained of in the ground. Any particulars of error or misdirection that raises an issue different from the ground of appeal is not valid.

An issue for determination must derive from a ground of appeal as a whole and not from a particular of the error that is different from the main ground.
This trite position has been restated by the Supreme Court in many cases including MBA & ORS V. AGU & ORS (1999) LPELR and OSOSANYA V. AJAYI (2004)4 NWLR (pt.894)527 at 545.

In DIAMOND BANK LTD. V. PARTNERSHIP INVESTMENT CO. LTD & ANOR (2009) 18 NWLR (pt 1172) 67, the Supreme Court per Ogbuagu JSC held that “It is now settled that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make it clear, how the complaint, is going to be canvassed in an attempt to demonstrate the flow in a relevant aspect of the judgment.”
For the above reasons I hold that the argument of Learned Counsel for the appellant that the trial court was wrong to have admitted and relied on exhibits A, B and C which had no illiterate Jurat and not made before a Magistrate or Justice of Peace is incompetent as it is not based on any issue deriving from any ground of this appeal. It is hereby struck out.
The argument of Learned counsel for the appellant in paragraphs 3. 1. 15 to S. 3.1.18 at pages 13-14 of the appellants brief that “exhibits A, B and C which were unregistered registrable instruments, cannot be relied upon as evidence of payment of purchase price of the land in dispute because they did not show on their face that the purchase price was ever paid by the purchaser or that the vendor ever acknowledged receipt of the purchase price is not based on any issue raised for determination in this appeal or any ground of this appeal. It is clearly incompetent. The entire argument is hereby struck out.
Learned counsel for the appellant argued in paragraph 3.1.5 at pages 9-10 of the appellants brief that “In any event, exhibits A, B and C do not contain any contract nor do they refer to any contract as required for the application of the presumption under Section 130 of the Evidence Act. It is therefore clear that the Learned trial Judge was wrong in invoking the presumption in Section 130 of the Evidence Act on exhibits A, B and C.” This argument does not derive from any ground of appeal. Ground 1 of this appeal which complains about the invocation of the presumption in S. 130 Evidence Act Cap 112 (now S. 162 Evidence Act 2011) merely states that the trial court erred in law to have relied on the age of the exhibits without more to hold that the respondent was entitled to the land. The ground did not show the error of law in the trial court’s invocation of this presumption. S. 162 of the Evidence Act 2011 prescribes this presumption in the following words-
“Recitals, statements, and descriptions of facts, matters, and parties contained in deeds, instruments, Acts of the National Assembly, or statutory declarations 20 years old or more at the date of the contract in which such deed, instrument or other document is sought to be relied upon shall, unless and except so far as they may be proved to be inaccurate, be taken to be sufficient evidence of such facts, matters and descriptions.”
Non of the particulars of the error in support of the ground contends that the trial court should not have invoked the above presumption because some requirement of the above Section for its invocation does not exist on the facts of this case. Rather the particulars of error stated thereunder allege matters that have no relationship with the requirements for the invocation of the presumption under S. 162. They rather state matters that are totally irrelevant to the requirements for the application of that presumption as expressly prescribed by S. 162. The particulars of error did not state that the exhibits are not deeds, instruments, Act of the National Assembly, or statutory declarations. Non of the particulars contends that they do not contain recitals, statements, and description of facts, matters and parties or that the exhibits are not up to 20 years as at the date when the respondent sought to rely on them in evidence. The particulars of error did not allege that the exhibits are inaccurate in any respect.
The trial court clearly determined the issue that the requirements for the application of the presumption was established by the evidence. This is clear from the portion of its judgment as follows-
“There is no doubt that exhibits A, B and C are each over twenty years old. Therefore, the presumption under Section 130 of the Evidence Act shall enure to the benefit of the plaintiff. Under the Section, such documents may be proved to be inaccurate, but the burden of such proof lies upon the person that alleges his inaccuracy. In the instant case the defendants did not make any effort at proving that the documents were inaccurate. They are, therefore presumed accurate and taken to be sufficient evidence of the truth of their contents.”
This findings of fact of the trial court have not been challenged by any ground of this appeal. The trial court’s application of this presumption is clearly based on the above findings of facts. Its reliance on the exhibits on the basis of this presumption cannot be validly challenged without the challenge of these findings of facts. Ground 1 of this appeal clearly did not challenge these findings of fact. The finding remains valid, binding and final.
It is clear from the foregoing that the entire issue no 1 of the appellant’s brief and the arguments of same cannot be sustained.
Learned Counsel for the appellant stated in the appellant’s brief of argument that number two of the issues raised therein for determination derive from ground 2 of this appeal which complains about the decision of the trial court that exhibits E and F were unequivocal that the suit land was acquired by the respondent’s father and it was the personal property of the respondent’s father. The said ground reads thus –
“The learned trial judge erred in law and misdirected himself in the following passage of his judgment, “Exhibits ‘E’ and ‘F’ answer the questions in issues 1 and 2 above. In other words the decision of Ozzu Community Development and the Ichie Owelle Cabinet were unequivocal that the land in dispute was acquired by the plaintiff’s father and that it is landed property of plaintiff’s father Julius Emesiani.”
PARTICULARS OF ERROR
(i) The evidence of DW4 (Chairman of Ichie Owelle Cabinet) with reference to Exhibit ‘E’ induce belief.
(ii) The disparity in the signatures of Walter Okonkwo (Secretary) on Exhibit ‘E’, ‘F’ and ‘H’ affect the weight of the documents.
(iii) The inconsistencies in the evidence of PW3 makes the authenticity of Exhibit ‘F’ doubtful.
(iv) Exhibit ‘E’ and ‘F’ are spurious documents. The learned trial judge misconstrued the documents.”
issue No. 2 as couched by Learned Counsel for the appellant does not reflect the complain in the said ground of this appeal. The issue that arises from that ground is whether exhibits E and F show that the suit land was acquired by the respondent’s father and that the acquired land was his personal property. Issue No. 2 is rather dealing with the question of whether exhibits E and F contain valid arbitration decision. The question of the validity of a document is completely different from the question of what factual inferences or conclusions can be drawn from the facts (valid or invalid) that it contains. The above decision that ground 2 challenged, clearly dealt with the question of what factual inference or conclusion could be drawn from exhibits E and F as they were. The particulars of error under the said ground 2 deal with the validity of exhibits E and F and not the conclusion or inference that can be drawn from them. The particulars conflict with and do not support ground 2 of this appeal. As I have already held herein any particulars of a ground that conflicts with and does not support the complain in the ground is incompetent.
As it is, ground 2, effectively has no particulars of error. Without the particulars it becomes general and vague without showing how and in what respect the finding or decision is said to be an error of law. Order 6 Rule 3 of the Court of Appeal Rules 2011 provide that:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”

The vagueness or ambiguity of ground 2 is increased by its complain of error in law and misdirection. An error in law is different from a misdirection. See AIGHOBAHI & ORS V. AIFUWA & ORS (2006)6 NWLR (pt.976) 270. A misdirection occurs when the court wrongly directs its mind as to what is the relevant consideration in a case or as to the issue that has arisen for determination or as to the applicable law. In a trial by a court constituted by Judge Jury, a misdirection occurs when the Jury is wrongly directed as to the relevant factual or legal considerations or to the issue for determination or as to the applicable law. See CHIDIAK V. LAGUDA (1964)1 All NLR 160 per Taylor JSC (as he then was) at 162, OYINLOYE V. ESINKIN (1999) 6 SCNJ 278 at 287 and AIGHOBAHI & ORS V. AIFUWA & ORS (supra). An error in law occurs when there is a mistake about the legal effects of an established fact. The common example is drawing the wrong legal conclusions or inferences from proven facts.

The general rule is that a ground of appeal should not allege both error in law and misdirection. The objective of this rule is that a ground of appeal should be clear, specific and precise in stating the issue it has raised concerning the judgment appealed against. So where the duplicitous nature of a ground of appeal has not disabled the clarity specificity and preciseness of the issue it has raised, the current judicial approach is to treat the duplicity of issues as a defect in form resulting from inelegant drafting. This approach was prescribed by the Supreme Court in AIGBOBAHI & ORS V. AIFUWA & ORS (supra) per Onnogen JSC following its decision in ADERONMU V. OLOWU (2000)4 NWLR (pt. 652) 253 at 265-266 per Ayoola JSC. As earlier held herein the said ground 2 is vague and ambiguous because of the difference between the ground and its particulars and because without the particulars the ground itself did not state in what respect the trial court erred in law and misdirected itself in deciding that exhibits E and F show that the suit land was acquired by the plaintiff’s father and it is his property.
The duplicity increased this ambiguity and lack of specificity and clarity leaving one in doubt and without adequate information of the actual complain of the appellant about the said part of the judgment. For all these reasons I hold that ground 2 is incompetent. It is hereby struck out.
Quite apart from the incompetence of ground 2, issue No 2 and the entire argument of the issue deal with the validity of exhibits E and F and do not derive from the said ground 2 or any other ground of this appeal. The said issue and the argument of same are incompetent and are hereby struck out. The issues and arguments in an appeal cannot hang in the air. There must be anchored on a valid ground of appeal. It is the ground of appeal that defines the issues that have arisen and have been brought before the appellate court for its determination. Its appellate jurisdiction to determine the appeal is limited to only the issues that the grounds of appeal have thrown up for consideration. It has no jurisdiction to deal with any matter not arising from or forming part of any ground of the appeal before it. So the grounds of appeal define the scope of its appellate jurisdiction in the appeal. If an appellant raises an issue for determination in an appeal, such issue must derive from a ground of the appeal or else the appellate court will lack jurisdiction to deal with it.

If the appellant purports the issue to be derived from a particular grounds, then the issue as framed and the arguments of same must deal with the complain as contained in the ground of appeal from which it is derived. An issue for determination of the appeal cannot derive from the particular of error that is inconsistent with the main ground of appeal.
Although ground 4 is duplicitous in nature in that it alleges misdirection and error in law, it is clear and specific as to the part of the decision it is challenging and the issue it is raising against that decision. It is challenging the part of the decision that both parties have agreed that the three parcels of land comprised in exhibits A, B and C were purchased.
Therefore it does not leave one in doubt concerning what the appellant is complaining about. In line with the Supreme court decision in AIGHOBAHI V. AIFUWA (supra) I will treat its duplicitous nature as a defect in form that has not affected the competence of the ground. The complain of the appellant in ground 4 is that the decision of the trial court that “both parties agree that the three contiguous pieces of land were purchased” is not supported by the evidence in that the evidence of the defence witnesses is that one piece of the land belong to Simon Anwusi (exhibit C) was a gift to the Emesiani family through the appellant’s father.
I agree with the submission of the Learned counsel for the appellant in paragraph 3.3.2.2 at pages 19 – 20 of the appellant’s brief that the evidence of the defence witnesses show that they do not agree that exhibit C was purchased. DW1, DW2, DW3 and DW5 (appellant) were consistent that the piece of land comprised in exhibit C was a gift from one Simon Anwusi to the Emesiani family through the appellants father. It was wrong therefore for trial court to find or hold that all parties agreed that the three pieces of land (which includes the one in exhibit C) were purchased. It is obvious that the admitted evidence on record does not reflect such agreement. Both parties agree that the two pieces of the suit land in exhibits A and B were purchased. With respect to the one in exhibit C, the case of the respondent is that it was purchased, while the case of the appellant is that it was a gift. For the above reasons, the finding or holding of the trial court that “both parties agree that the three contiguous pieces of land were purchased is hereby set aside.
This is the only argument of Learned Counsel for the appellant under issue No. 3 that comes within the scope of that issue. All other arguments under the banner of issue No. 3 do not derive from the said issue No. 3 and ground 4 of this appeal on which issue No. 3 is based. The arguments are as follows –
(i) The argument in paragraph 3.3.2.1 paragraphs 19 – 19 against the part of the decision of the trial court that “neither the plaintiff nor the defendant called any of those who witnessed the transaction.”
(ii) The argument in paragraph 3.3.2.3 at page 20 against the finding of the trial court that “Exhibit A and C were written by Donald Ndukife while Exhibit B was written by Willy Nwaora”
(iii) The argument in paragraph 3.3.2.4 at pages 20 – 21 contending that the trial judge used exhibit H for a purpose other than that for which it was pleaded and tendered.
(iv) The argument in paragraph 3.3.2.5 at pages 21 – 22 against the finding of the trial court that the appellant “merely contended that the documents (exhibits A, B and C) were forged. No evidence of forgery nor fraud was given.”
(v) The argument in paragraphs 3.3.2.6 to 3.3.2.7 at pages 22 – 23 against the part of the judgment that “the plaintiff has shown acts of ownership and possession numerous and positive enough extending over a sufficient length of time to warrant inference of exclusive ownership of the land in dispute.”
(vi) The argument in paragraph 3.3.2.8 at pages 23 – 24 against the holding of the trial court that “the payment of purchase money and the delivery of possession created a valid title native law and custom.”
All the above listed arguments, do not derive appeal from which issue No. 3 of the appellants brief is derived. For ease of reference and to make this point clearer I reproduce the said ground 4 here as follows –
“The learned trial judge erred in law and misdirected himself when he said in his judgment, “Both parties agree that the three contiguous pieces of land were purchased.”
PARTICULARS OF ERROR
(i) The defence witnesses maintained that part of the land in dispute belonging to Simon Anwusi was a gift to the Emesiani family through the defendants father, not a purchase.
(ii) If Exhibits A, B and C were expunged the decision of the trial court would have been different.”
Secondly, the arguments do not come within the scope of issue No. 3 as framed in the appellant’s brief. The challenge of the trial court’s evaluation of the evidence under issue 3 is limited to the part of the judgment that “both parties agree that the three contiguous pieces of land were purchased.” The argument of any issue raised for the determination of an appeal must be within the scope of that issue. A party cannot under the guise of arguing an issue, argue other issues that are not part of the issue under consideration. For the above reasons I strike out all the above listed arguments as incompetent.
Finally, the issue No. 3 as couched by the appellant does not reflect the complain in ground 4 from which it is denied. Ground 4 complains that the trial court erred in law and misdirected itself when it held that “both parties agree that the three contiguous pieces of land were purchased.” Issue No. 3 questions whether the trial court correctly evaluated the evidence before it when it entered judgment in favour of the respondent that “both parties agree that the three contiguous pieces of land were purchased.”
A complain of error in law and misdirection is clearly different from one of improper evaluation of evidence on the point. As it is, I have however in the interest of substantial justice, disregarded this serious flaw and rather dwelt on the substance of the arguments under that issue to find out whether they derive from or relate to ground 4 of the ground of appeal. That is exactly what I have done here. If the substance of any argument under that issue is not derived from the said ground, it is struck out as being incompetent. I therefore strike out all the arguments of Learned Counsel to the appellant under issue No. 3 in the appellant’s brief except the argument against the decision that both parties agree that the three parcels of land were purchased.
I will now consider whether the trial court was right in awarding the respondent title to the suit land in view of the pleadings and the evidence. This issue was raised and argued by the appellant as issue No. 4 of his brief. In the determination of this issue, it is important to call to mind the well settled principle that a plaintiffs claim for declaration of title can only succeed on the strength of his own case and not on the weakness or absence of a defence. He is however entitled to rely on any part of the defendant’s case that supports his case. The trial court reminded itself of this trite principle in dealing with the claim for declaration of title. Learned Counsel for the appellant opened his argument of this issue with a similar reminder and rightly relied on the very instructive statement of the Supreme Court in UMEOJIAKO V. EZENAMUO (1990)1 NWLR (pt. 126) 253 at 267 that:
“In all civil cases, the person who asserts must prove. In the case of the plaintiff, it is he that must first prove his case and make it strong enough to support his pleading. Should he fail to do this, his case will remain unproved, however elegant his pleadings. The failure of the defendant to prove, even his refusal to testify, cannot alleviate the primary burden on the plaintiff to prove his case.”
The trial court after putting the pleadings and evidence of both sides side by side, considering and weighing them on the imaginary judicial scale concluded that the respondent “proved his case on a preponderance of evidence and on a balance of probabilities.”
Let me recap the case presented by both sides in their pleadings and evidence which the trial court considered in its judgment. Both sides in their pleadings and evidence agree that the Suit land consisting of different but contiguous parcels of land originally belonged to three different persons. Their evidence show that the land comprised in exhibit A belonged to Ekwunife Okafor, the land in exhibit B belonged to Nwaka Madi and the one in exhibit C belonged to Simon Anwusi. Both sides in their pleadings and evidence agree that the parcels of land were acquired from their said original owners. Both sides agree that the lands in exhibits A and B were purchased while the evidence of the respondent is that the land in exhibit C was purchased, the evidence of the appellant is that the said land in exhibit C was a gift.
The respondent in his pleading and evidence stated that his father purchased the three parcels of land from the persons mentioned above. He tendered documents he described as receipts issued to his father when he paid the purchase price for each land as evidence of the purchase. The documents were tendered as exhibits A, B and C. The documents were thumb printed by the appellants’ father on his behalf. The respondent testified that upon purchase of the parcels of land his father built a residential house one part and was farming in the remaining part without any interference or challenge from any body. This was the situation until 1988, when the appellant approached the respondent’s father for a portion of the land to build a house thereon. Respondent’s father refused. The defendant reported the matter to the Ozzu Community meeting. The community after hearing both sides on 4-12-1988 decided that the land belonged to the respondent’s father but the community asked the respondent’s father to give the appellant a portion of the land to build a house. Respondent’s father rejected the request. The decision of the community of Ozzu is contained in exhibit E. After the respondent’s father death, the appellant approached the respondent to give him a portion of the land. Respondent refused. Appellant reported the matter to the cabinet of Ichie Owelle which again decide that the land belonged to the respondent’s father. The decision is contained in exhibit F. Thereafter the appellant forcefully entered the suit land erected structures thereon. The respondent resisted the entry and destroyed the structures. The evidence of the defence witnesses including that of the appellant is that it was the appellant’s father who purchased the lands in exhibit A and B from the original owners named above. The land in exhibit C was a gift from the owner to him on behalf of Emesiani family and that the transaction was not in writing and was attended by traditional rites and ceremonies. The appellant’s father acquired the said parcels of land for himself and on behalf of the Emesiani family. The appellant testified that exhibits A, B and C are forged. DW3 said he was present when appellant’s father purchased the lands but would not know if the vendors issued any “paper” to the purchaser, appellant’s father. DW1 in examination-in-chief said the purchase was made in 1994 and that he was in school then, but in cross-examination said he was present when appellant’s father paid for the lands.
The appellant testified that both he and the respondent have been residing in the suit land and their parents also resided together in the said land. But DW1 who is an uncle to both appellant and respondent testified in cross-examination that the appellant’s father lived at another place called Okpuno and not on the land in dispute. He further stated that his children were living on the land in dispute. The appellant testified that he took the matter to Ozzu Community who decided that the land be partitioned between him and the respondent and that the decision is contained in exhibit H. He took the matter further to the Ichie Owelle Cabinet who confirmed the decision of the Ozu Community. He testified that exhibit E and F are forgeries. DW1 and the appellant testified that when the brother of Ekwunife Okafor, the former owner of the land in exhibit A wanted to take the land back on the ground that he gave appellant’s father farm land and not a residential land, it was respondent’s father that took oath that it was purchased as residential land. Exhibit D is a survey plan of the suit land tendered by the respondent. Exhibit G is the survey plan of the suit land tendered by the appellant.
It is clear from the statement of claim and the evidence led by the respondent in support thereof that the respondents claim of title to the suit land is based on the claim that his father purchased the three parcels of land in 1944 as his personal property. He relied on documents which on their face express the fact that his father purchased the three parcels of land. These documents were tendered as exhibits A, B, and C. The respondent stated that the father asked the appellants father to handle the purchases on his behalf. The said exhibits on their face show that the appellants father purchased the lands on behalf of the respondent’s father. On the face of the exhibits it is shown that the appellant’s father thumb impressed and thereby executed and attested the documents.
Exhibits A, B and C constitute the only evidence adduced by the respondent to show that his father purchased the said parcels of land. The documents were over 40 years old when the respondent tendered them in evidence in the trial proceedings. On account of their age, the trial court relied on S. 130 Evidence Act Cap 112 (now S. 162 2011 Evidence Act) to presume that they are accurate and are sufficient evidence of the truth of their contents. As I have held herein, there is no appeal against this part of the judgment of the trial court. It remains valid, binding and final.
The appellant in his statement of defence and evidence in support thereof, conceded that his father did acquire the parcels of land. But the main plank of his defence is that the father did not transact on behalf of or as agent of the respondents father and that the father acquired the parcels of land for himself and on behalf of the Emesiani brothers (which includes appellant’s father, respondents father and DW1). The appellant testified that the transaction his father engaged in was not in writing DW1 was equivocal as to whether he was present when the transaction for the acquisition of the land took place. In examination-in-chief, he said he was in school then, but in cross- examination said he was present when appellant’s father paid for the lands. DW3 who said he was present when the purchase took place stated that he would not know if the vendors issued any “paper” to the appellant’s father. So the only eye witness of the transaction could not say if it was in writing or not. The appellant in his testimony alleged that the respondent’s father may have forged the exhibits. This testimony show clearly that the appellant was not sure or certain about the truth of the allegation. It is clearly speculative. The trial Court held that the appellant “merely contended that the documents were forged. No evidence of forgery or fraud was given.” As I have already held herein, there is no ground of appeal against this holding. It therefore remains valid, binding and final. Exhibits A, B and C remain the only evidence that the transactions for the acquisition of the parcels of land were in writing and remain the only evidence of the nature and content of the transaction. The face of the documents indicate that appellants father thumb impressed them. The said appellant’s father had long died before the documents were tendered in evidence and so was not available to be called as a witness to disown or accept the thumb impression as his. In the light of the evidence I have highlighted above particularly the testimony of DW1 and DW3 there is no basis to hold that the thumb impression on each of the exhibits is not that of the appellant’s father. As I have already held herein the presumption of due execution and attestation enures to the benefit of the respondent. The preponderance of evidence therefore, establish that the transactions for the acquisition of the parcels of land were put in writing and that exhibits A, B and C were the written documents showing that respondent’s father through his brother (appellant’s father) paid for the purchase of these lands.
The respondent also relied on the long and exclusive possession of the suit land by his father and himself to support the claim that the lands were purchased as his fathers personal property and not Emesiani family property. In the statement of claim and the evidence in support thereof, the respondent established long and exclusive possession including acts of ownership of the suit land from the 1945 to date. His evidence is that his father lived and farmed on the three parcels of land till his death and that the appellant’s father did not live on the land. He testified that it was only in 1988, that the appellant started making move to secure a portion of the land to build a house. It is the refusal of this request by the respondent’s father that caused the community arbitration in exhibit E. After the respondent’s fathers death, appellant resumed his bid by approaching the respondent (who by inheritance was now the occupier and holder of the title to the land) with the same request. It was the respondent’s refusal that caused the arbitration by the cabinet of Ichie Owelle in exhibit F. The two arbitrations acknowledged that the lands belonged to the respondent’s father but however advised that the appellant be given a portion of the suit land. He testified that the appellant had at some point lived with the respondent’s father just like his son in the respondent’s fathers house on the suit land. He said his father then stood in loco parent’s to the appellant.
The appellant testified acknowledging the long possession of the suit land by the respondent and his father but maintained that it was not exclusive. He testified that his father and appellant’s father lived together on the suit land. But this claim was punctured by his uncle DW1, who testified on behalf of the appellant that the appellant’s father resided at another land called okpuno and not on the suit land. The DW1 however testified further that, while appellant’s father resided at okpuno, his children were living at the suit land. The appellant has not led any evidence to show that the respondent ejected him from the suit land. Rather his moves to have a portion of the suit land and this whole dispute commencing in 1988 and the arbitrations in exhibit E and F show that appellant was not in possession of the land. He is trying to go into possession of a portion of the suit land.
The preponderance of evidence therefore establish that the respondent’s father and the respondent have been in long and exclusive occupation of the parcels of lands for over 45 years before the suit was commenced at the trial court. The trial court rightly held that:
“There is no evidence that the plaintiff’s father at any time set his abode any other place than on the land in dispute. It could, therefore, be said that the plaintiff has shown acts of ownership and possession numerous and positive enough extending over a sufficient length of time to warrant the inference of exclusive ownership of the land in dispute.”
Learned Counsel for the appellant rightly submitted, relying on the Supreme Court decisions in IDUNDUN V. OKUMAGBA (1976) 10 NSCC 445, 454, IRAGUNIMA V. R.S.H.P.D.A (2003) 12 NWLR (pt. 834) 427 at 442 and THOMPSON V. AROWOLO (2003) 7 NWLR (pt 818) 163 at 226-277, that ownership of title to land can be established in one of several ways.
The supreme Court in ADEWUYI V. ODUKWE (2005)7 SC (pt 11) 1 at 15 per Katsina – Alu JSC held that “It has been laid down in IDUNDUN V. OKUMAGBA (1976) 9-10 SC 227 that there are five different ways of proving ownership of any land in dispute, namely: 1. Traditional evidence. 2. Production of document of title. 3. Acts of ownership and possession by a person e.g. selling, leasing, renting, farming etc. extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner. 4. Acts of long possession and enjoyment under section 145 of the Evidence Act raising prima facie evidence of ownership. 5. The probability raised under section 45 of the Evidence Act.”

It is clear from the statement of claim and the evidence in support thereof that the respondent relied on production of documents of title, acts of ownership and acts of long possession to prove his title to the suit land. It has been restated in a plethora of cases that ownership of title to land can be proved by any of these methods. So that as held by the Supreme court in ONWUKA & ORS V. EDIALA & ANOR (1989)1 SC (pt 11) 1 per Wali JSC where traditional evidence is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant, and, where, even this fails, then proof of exclusive possession without permission can be relied on to prove title.
It is clear from the statement of defence and the evidence in support thereof that the appellant’s defence to the respondent’s claim, is that the suit land was jointly owned by the respondent’s father and his father and now jointly owned by the respondent and himself as their children. The appellant thereby conceded that the respondent is an owner of the suit land, whether singly or jointly. What is also clear from the defendant’s case is that he concedes that the respondent’s father and the respondent have been in long occupation and enjoyment of the “suit land. Finally defendant also conceded that the respondent’s father was the one who successfully challenged the attempt by Ekwunife Okafor’s son to collect back the land in exhibit A on the ground that it was granted by his father as a farm land. The respondent’s father was the one who took an oath that the land was sold to be used as residential land and on the basis of this oath Ekwunife’s son abandoned his claim to the land.
Now, let me consider the legal consequence of these concessions by the appellant. There is no doubt that in a civil case, the burden is on the plaintiff to prove his case on a preponderance of evidence or balance of probabilities. Even though in doing so, he has to rely on the strength of his own case and not on the weakness or absence of the defence, nothing in law precludes him from relying on or taking advantage of any part of the defendant’s case that supports his case.
The above highlighted admissions of the appellant support the respondent’s case. Even if exhibits A, B, and C were not in evidence, the respondent would still have succeeded on his pleading and evidence supported by these admissions of the appellant. Without exhibits A, B and C, the respondent was entitled to succeed on the evidence of long and exclusive possession of the suit land.
As held by the Supreme Court in ADEGBITE V. OGUNFAOLU & ANOR (1990)7 SC (pt 11) 123 per Karibi Whyte JSC “The principle is well established that where a plaintiff in an action for declaration of title has proved sufficient acts of possession, he has established a prime facie case that he is the owner. The onus is therefore on the defendant under Section 145 of the Evidence Act to rebut if he must avoid judgment for the plaintiffs.”The above admissions of the appellant demonstrate clearly that he could not rebut the presumption of ownership in favour of the respondent.
Learned Counsel for the appellant has argued under issue No. 5 of the appellant’s brief that the grant of injunction and award of damages for trespass by the trial court against the appellant was wrong because the respondent was not in exclusive possession. In the light of my earlier holding herein, that the respondent had long exclusive possession of the suit land, there is no foundation or basis for the said argument under issue No. 5. The respondent testified that following his refusal to give the appellant a portion of the suit land, the appellant forcefully entered the said land erected some structures there. The respondent demolished them. Thereafter the appellant has continued to forcefully enter and erect structures thereon and the respondent has continued to destroy them with each attempt. This is clear evidence of trespass. It is trite law that trespass is an injury to possession and it is constituted by the slightest disturbance to possession by a person who cannot show a better title. See OSHO & ANOR V. FOREIGN FINANCE CORPORATION & ANOR (1991) 5 SC 59 and FAGUNWA & ANOR V. ADIBI & ORS (2004) 17 NWLR (pt 903) 544. The Supreme court in FASIKUN II & ORS V. OLURONIKE II & ORS (1999) 1 SC 16 held that “it is trite law that generally speaking a claim for trespass to land is rooted in exclusive possession. All that a plaintiff needs therefore to establish to succeed in such a claim is that he has exclusive possession or the right to such possession of the land in dispute.” See AMAKOR V. OBIEFUNA (1974) 3 SC 67.
There is evidence that the appellant is persisting in his acts of trespass in a claim of right to the co-ownership and possession of the suit land. It is clear that unless he is restrained by an order of injunction, he is likely to continue his acts of trespass. As already held herein, the respondent has established a better title to the land and his exclusive possession of land. I therefore uphold the grant of perpetual injunction and award of damages for trespass against the appellant. As the Supreme Court held in AYANWALE V. ODUSAMI (2011) LPELR 8143 per Rhodes-Vivour JSC, “once the court finds that a party has a better title to the land, a claim for trespass and injunction are easily sustained.”
On the whole, I hold that this appeal lacks merit. I uphold the judgment of the trial court. This appeal is accordingly dismissed. Appellant to pay the cost of N50,000.00 to the respondent.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read the judgment delivered by my Learned brother, EMMANUEL AKOMAYE AGIM, JCA. I agree that this appeal lacks merit and is accordingly dismissed. I abide by all the orders made including the order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

Appearances

Dr. E.S.C Obiorah with F.G. Ofojekwu Esq.For Appellant

AND

Dr. G.O. Okafor with C.C. Nebo Esq.For Respondent