NTOE ANDREW O. ANSA & ORS v. UNITED AFRICA CO. PLC & ANOR
(2014)LCN/7012(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of May, 2014
CA/C/146/2011
RATIO
WHETHER EVEN IF UNCHALLENGED, THE PLAINTIFF IS STILL TO SATISFY THE REQUIREMENT OF PROOF ON THE BALANCE OF PROBABILITY IN A CLAIM FOR TITLE TO LAND
The claim for title to the land by the Appellant was by and through traditional history and evidence, which was not challenged or even in dispute at the trial before the High Court. Though unchallenged, the evidence by the Appellants had to meet the strength of their case and satisfy the requirement of proof on the balance of probability for it to sustain the claims made by them against the Respondents. See Michael v Yousuo (2004) 15 NWLR (895) 90; Adelekan v Oruku (2006) ALL FWLR (308) 1360; Iniama v Akpabio (2008) 17 NWLR (1116) 225. Per MOHAMMED LAWAL GARBA, J.C.A.
WHETHER THE PLAINTIFF IN CLAIM FOR TITLE TO LAND CAN SUCCEED ON THR WEAKNESS OF THE DEFENDANT’S CASE
A plaintiff in a claim for title to land succeeds on the strength of his case, and not on the weakness or even absence of a defence. The fact that the Respondents called no evidence in defence is thus immaterial. See: Bello v Eweka (1981) NSCC 48; Ashabi Eya v Olopade (2011) CLR 5(e) (SC). Per ONYEKACHI A. OTISI, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. NTOE ANDREW O. ANSA
2. HON. STEPHEN BASSEY
3. MADAM MARGARET ISO
4. ASSIM O. A. ITA Appellant(s)
AND
1. UNITED AFRICA CO. PLC (UAC)
2. MR. BIGG’S RESTAURANT Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Cross River State, sitting at Calabar in Suit No. HC/452/2006, delivered on the 11/5/2010 by which the Appellants’ case against the Respondents, was dismissed. The Appellants had sued the Respondents before the High Court for damages for trespass and injunction in respect of Kasuk land. At the trial, only the Appellant called a sole witness in support of the claims and at the end of trial, the High Court entered the aforementioned judgment.
Being aggrieved with the dismissal of their case, the Appellants brought this appeal vide a notice of appeal dated 17th but filed on the 21/7/2010, which was amended with leave of the court. The amended notice of appeal was filed on the 29/7/2011 but deemed on the 14/01/2013.
In the Appellants’ brief, settled by Chief Orok I. Ironbar, of counsel filed on the 17/10/2013, the following issues were submitted for decision in the appeal:-
“B1. Whether in the absence of the judgment in C/88/76 and the linking of the land in dispute to the land in that suit, the lower court was justified to dismiss the Appellants’ claims. (This issue the Appellants believe is supported by Grounds 1, 2 and 4, of the amended notice of appeal)
B2. Whether the lower court, with respect, did not misunderstand the case put forward by the Appellants leading to its suo motu scrutinizing exhibits to produce evidence not produced by the Respondents. (This ground is supported by ground 3 of the amended notice of appeal.)”
The Respondents’ brief was settled by C. O. Bassey, Esq., counsel for the Respondents, and was filed on the 28/2/2013, but deemed on the 16/1/14. Like the Appellants’ learned counsel, Bassey also raised two (2) issues which are said to arise for determination in the appeal. They are in the following terms:-
“1. Whether the trial court was right in dismissing the claim of the plaintiff?
2. Whether the filing of the suit in the High Court against the defendants did not amount to an abused in the face of the pending appeal at the Supreme Court in suit No. C/88/76 in respect of the same land? ”
An Appellants’ Reply brief was filed on the 21/01/14 to complete the settlement of briefs in the appeal.
The learned counsel for the Appellants has raised an objection to the 2nd Issue formulated in the Respondents’ brief on the ground that it did not arise from any of the Appellants’ four (4) grounds of the appeal and so incompetent, relying on Okpala v Iheme (1989) 2 NWLR (109) 208.
Looking calmly at the Appellants’ grounds of appeal, the issues formulated by the learned counsel for the Appellants are more precise on the complaints against the judgment by the High Court and so germane for decision in the appeal.
My intention is to consider and determine the appeal on the basis of those issues which accurately and clearly represented the real grievances of the Appellants against the judgment by the High Court. This position has adequately answered and taken care of the objection by the learned counsel for the Appellants to the Respondents’ Issue 2.
I would now proceed to consider the submissions by the learned counsel for the parties on the Appellants Issues. Both counsel argued their two (2) issues together.
Appellants’ Submissions
The learned counsel for the Appellants’ had referred to the portion of the High Court’s judgment at pages 80 – 81 of the record of appeal and paragraph 7 of the Appellants’ Amended statement of claim as well as paragraph 5 of the Respondents’ statement of defence, and argued that the Respondents’ did not deny the Appellants’ paragraph 7 by their paragraph 5 of the statement of defence. He relied on Adimora v Ajufo(1988) 3 NWLR (80) 1 at 11 and Order 25, Rule 9 of the High Court Rule, 1987. It was the submission of counsel that the Appellants’ pleading was that they believed wrongly that the Respondents were put in possession of the land in dispute by the parties in suit No. C/88/76. He referred to the evidence of PW1 at page 69 of the record of the appeal and the definition of the word “wrong” in Webster’s Dictionary of the English Language, International Edition, and contended that reliance by the High Court on Exhibit 5 which was written when the Appellants held the wrong belief and before they filed their case, led to the dismissal of their case. Relying on Imonkhe v Unity Bank Plc (2011) 12 NWLR (1262) 624 at 644, learned counsel queried that if the Respondent was not put on the land by the parties in Suit No. C/88/76 as pleaded by the Appellants and admitted by the respondents, why then should the High Court require the Appellants to place the judgment in that case before it? He then said it was wrong for the High Court to hold that the Appellants were caught by the provisions of Section 149(d) of the Evidence Act, 2004 since there was no need to link the land in dispute to the land in dispute in this case No. C/88/76,as the parties did not join any issue on it. Tanko v Mai-Waka (2010) 1 NWLR (1176) 466 at 488; Karibo v Green (1992) 3 NWLR (230) at 443; and Nwaniba v Enemuo (1988) 2 NWLR (78) 581 at 595 on the law that a court should not make a case for the parties and that evidence elicited under cross examination on unpleaded facts, goes to no issue, respectively. In further argument, learned counsel said that from the pleadings before the High Court, case No. C/88/76 required no proof and that it was wrong for it to have suo motu scrutinized Exhibits 5, 6 and 7 which were accepted by the Respondents who abandoned their pleadings by failure to call evidence at the trial. Also, that the High Court was wrong in the statement at page 82 of the record of the appeal on paragraph 3 of the statement of defence which was contrary to the law as stated in the case of Trade Bank Plc v Moremikeji (2005) 6 NWLR (921) 309. In addition, it was submitted that even if the statement of defense was live in the case, the Appellants had in paragraph 2 of the Reply to the statement of defence, stated that the said Chief did not own the land in dispute nor had the authority to deal with it, which the evidence of PW1 supported. That the Appellants had pleaded and given evidence of the finding and occupation of the land in dispute which was not controverted and instead of the High Court relying thereon, it suo motu embarked on analyzing speculative evidence, in breach of the law enunciated in the case of West African Breweries Ltd. v Savannah Ventures Ltd. (2002) 10 NWLR (775) 401 and did not advert to sections 73 and 74(i)(m) of the Evidence Act, 2004. That there was no pleading by the Respondents that the title to the land in dispute was in litigation in the case before the Supreme Court and no issue was joined by the parties on it and so any evidence given by the Respondents on the issue would go to no issue in the case. The case of Aregbesola v Oyinlola (2011) 9 NWLR (1253) 458 at 557 was referred to by counsel who said “the heavy weather made of non-tendering of judgment in SUIT NO. C/88/76, is by the trial court and not the parties.”
In conclusion, we are urged to set aside the judgment of the High Court and substitute it with a judgment granting the Appellants’ claim.
RESPONDENTS’ SUBMISSIONS
It was submitted for the Respondents that the law is that a plaintiff who claims damages for trespass and also injunction, has put his title to the land in question, in issue and that he has to rely on the strength of his case and not the weakness of the defence, in order to succeed. The cases of Akinterinwa v Oladuntoye (2000) FWLR (10) 1690 at 1692; Elema v Akenzua (2000) FWLR (19) 534 at 535 and Ibadan L.G.P.C. Ltd. v Okunade (2005) 3 NWLR (911) 45 at 49 were cited on the position of the law stated by counsel. Learned counsel then referred to the evidence of PW1, under cross examination, at page 65 of the record of the appeal, that:
“I understand what it means, the appeal referred to in Exh. 5 was decided. The decision on the appeal is not before this court, the land in dispute here is part of the land I dispute in the case on appeal.”
He submitted that the decision or judgment in the case mentioned by the witness is necessary to enable the High Court determine the Appellants claim to the land in dispute. Such judgments are tendered in evidence to show the issue decided therein and in their absence, the High Court could not decide the claims before it. Learned counsel referred to the case of Itauma v Akpe-Ime (2000) FWLR (16) 2813 on the submission and said that section 167(d) of the Evidence Act, 2011 applied since the Appellants did not produce and tender the judgment mentioned by their witness, placing reliance on NERDC V Gonze Nig. Ltd. (2000) FWLR (21) 842 at 848. Furthermore, that where a court finds that its process was abused, the proper order to make is that of dismissal, on authority of, inter alia, African Reinsur. Corp v J.D.P. Construction (2003) 13 NWLR (838) 609 and Usman v Baba (2005) 5 NWLR (917) 113 at 117.
Learned counsel then said that a defendant who did not adduce evidence in a trial may be entitled to judgment where:-
(a) The plaintiff failed to produce evidence on material elements of his case or;
(b) The evidence tendered by the plaintiff is so patently or palpably discredited and rendered unreliable that no reasonable tribunal or court can accept to act on it or;
(c) Through cross examination of the plaintiff and his witnesses and tendering documentary evidence through them, the defendant destroys the plaintiff’s case and establishes a valid defence.
Among others, the cases of Ofomaja v Education (sic) (1995) 2 NWLR (411) 69 and Tenarewa Nig. Ltd. v Arzai (2005) 5 NWLR (919) 593 at 607 were cited for the submission. It was further submitted that the Appellants did not show that the decision by the High Court is perverse and that where the evidence led by a plaintiff was unsatisfactory and unreliable, the proper order is for dismissal of the case. Reliance was placed on Aja v J.N. Okoro (1999) 6 – 9 NRAC, 82 and we are urged, in conclusion, to dismiss the appeal and affirm the decision by the High Court.
In the Appellants’ Reply, it was submitted that the Respondents did not show that any of the situations in which a defendant is entitled to judgment when he did not call evidence, exists in the Appellants’ case. Once more, we are urged to allow the appeal and set aside the decision by the High Court.
From the submissions by the learned counsel for the Appellants on the 2 issues he raised in the appeal, the fulcrum of the Appellants’ case is that they had adduced unchallenged evidence in proof of the claims they made against the Respondent but the High Court had relied on the appeal in case No. C/88/76, which was said not to be relevant, to dismiss their case. The claims made by the Appellants in their Amended statement of claim dated 6/11/2009 but filed on the 10/2/2010, against the Respondents are in paragraphs 2, 4, 5, 7 – 10 and 18. They are as follows:-
“2. The defendants have broken into the claimants land being the land in dispute without the claimants’ consent and authority.
4. Many generations out of memory the claimant’s ancestors founded Kasuk lands including the land-in-dispute herein. The claimants’ ancestors came from Ekoi in a place called Mbakang. They were the first to arrive in the lands including the land in dispute under the leadership of Ntoe Odo Edem, popularly known as Kasuk from whom the claimants’ clan derives its name.
5. Kasuk Qua Town is bounded in the North by the land of Ikot Ansa, in the South by the land of Big Qua, in the East by the Qua River and in the West by the Calabar River. Part of this land is shown in Plan No. DAACO/SE/455/LD dated 28/5/1977, made by Dien Aniyom, Land Surveyor, and used in suit No. C/88/76.
7. The defendants were unknown to be on Claimants’ lands until claimants became aware of strange persons thereon and pasted notices believing wrongly that they were put there by the parties to suit No. C/88/76. Thereafter other notices were also pasted. These strangers including the defendants herein refused to respond to these notices which are hereby pleaded.
8. The defendants have used force to prevent the claimants from surveying the land in dispute but it is bounded by Murtala Mohammed Highway in front, a living home at the back and on both sides by vacant lands now being occupied by Mr. Iki and Chief A. Ekpenyong. It can be identified as No. 41, Murtala Mohammed Highway, Calabar. The defendants in their lease agreement identify it as No. 42, Murtala Muhammed Highway, Calabar, and in Plan No. MA/CR/003/003 dated 04/02/2003.
9. The claimants apart from the notice caused their Solicitors to write letter dated 12th February, 2003, to the defendants. Even though the defendants did not reply in writing, a gentleman called the Solicitors on phone on their behalf but he refused to leave his name. This letter which was sent by counsel is hereby pleaded.
10. The claimants aver that at no time did they or their ancestors sell/lease or in anyway part with the ownership/possession of the land in dispute nor did they authorize anyone to act on their behalf to do so.
18. The claimants have suffered damages and claim against the defendants jointly and severally as follows:-
i) An order that the claimants are entitled to the Certificate of Occupancy over the land in dispute identified as No. 41/42, Murtalla Mohammed Highway, Calabar, and identified in Plan No. MA/CR/003/003.
ii) An order of Perpetual injunction restraining the defendants by themselves, their agents, servants and assigns from further interfering in any whatsoever with the claimants’ possession of the land at Murtala Muhammed Highway, Calabar, bounded by the said Highway in front, a living house at the back and on both sides Skye Bank Plc and Davandy Finance Building. It is identified as No. 41/42, Murtala Muhammed Highway, Calabar and in Plan No. MA/CR/003/003 dated 04/02/2003.
iii) N25 million damages for trespass”.
Put briefly, the facts averred in the above paragraphs are that the Respondents had trespassed in to the land belonging to the Appellants, as a result of which they claim injunction and damages.
The 2nd Appellant testified as the sole witness in proof of the claims and in the case, as the Respondents did not only abandon their statement of defence by choosing not to call evidence, but also rested their case on the evidence given by him. In order to determine whether the Appellants had indeed proved their claims as required by law to be entitled to judgment in their favour, it is expedient to set out the relevant evidence of the only witness in the case as follows:-
“PW1: Sworn on Bible and states in English language.
Hon. Stephen Bassey, 100 Odukpani Road, Ikot Ansa, Businessman and Secretary of Kasuk Lands Committee.
I know 1st plaintiff as Clan Head of Kasuk.
3rd plaintiff is a principal member of Kasuk.
4th plaintiff is a Secretary of Kasuk.
I know defendants. 1st defendant owns 2nd defendant, 2nd defendant broke into plaintiffs’ land, 2nd defendant is a fast food outfit.
Ntoe Odo Edem founded Kasuk. He came from Ekoi in Mbakang and deforested the area including the land in dispute. He was a.k.a Kasuk.
Ikot Ansa bounds Kasuk land in the North.
Big Qua bounds Kasuk land in the South.
Great Qua River bounds Kasuk land in the East.
Calabar River bounds Kasuk land in the West.
Part of Kasuk land was surveyed by Aniyom in Plan No. DAACO/SE/455/LD for use in C/88/76 when Kasuk sued its tenants on the land.
Kasuk lands are controlled by Ntoe in Council. Sometime ago Kasuk tenants on the land ganged up to sponsor a rival claimant to the Ntoeship stool of Kasuk. Government instituted an inquiry into that dispute called Atuaka Commission of inquiry. At the end of the exercise Government issued a white paper who produced late Ntoe Maurice Iso Eta Agbo as Ntoe of Kasuk. Ikot Ishie testified at that Commission of Inquiry.
Ntoe Odo Edem succeeded Maurice as Ntoe
Ntoe Andrew Ekpo Ansa succeeded Odo as Ntoe (1st plaintiff).
Founder was succeeded by Odo Edem II
Odo Edem II was succeeded by Eta Agbo Iso I
Iso I was succeeded by Eta Agbo Iso II
Iso II was succeeded by Ntiero Effiom
Ntiero Effiom was succeeded by Maurice Iso Eta Agbo.
In C/88/76 the plaintiff sued their tenants on the land when plaintiff saw people working on the land in dispute plaintiff believed they were put there by one of the parties n C/88/76.
Plaintiff put up notices which did not elicit any response.
The land in dispute is on Murtalla Mohammed Highway, Calabar. Behind it is a living house, and WAPI which are plaintiffs’ tenants to the left is Davandy House, to the right is Skye Bank; it is called No. 41 Murtalla Mohammed Highway, Calabar.
Ironbar: Applies to substitute Exhibits 2 and 3 with photo copies since they have other matters in other courts.
Koofreh: Confirms that indeed they are copies of Exhibits 2 and 3.
Court: Certified true copies be handed over to the witness which their photo copies be marked as exhibits. These are notices we pasted on the land in dispute when work/building started thereon.
We served defendants notice to produce.
Koofreh: We do not have the document we never saw it. These are copies of what we pasted.
Court: Exhibits 4 and 4A.
This is copy of a letter plaintiffs’ solicitor wrote to plaintiffs. We have served them notice to produce. Seeks to tender their own copy of the letter.
Koofreh: No objection.
Court: Exhibit 4.
Plaintiff never leased the land to the defendant nor did plaintiff permit anybody to do so.
I know that Ishie Presbyterian Church has been using a document in Suit No. 8/31 to lease out our lands to strangers. I believe they put defendant on our land. The document is forged and registered at Calabar Lands Registry as 35/35/360. We so informed the defendant but defendant forcefully continued constructing a building on the land. We confirmed our suspicion on the statement of defence.
I don’t know Chief Ekpenyong Out Abasi in respect of this land.
I don’t know Essien Town Community in respect of this land.”
Under cross examination, the witness had testified, after reading paragraph 2 of Exhibit 5; the Appellants’ Solicitor’s letter to the Respondents in respect of the land in dispute, that:-
“I understand what is i(sic) means. The appeal referred to in Exhibit 5 was decided. The decision on the appeal is not before this court. The land in dispute here is part of the land in dispute in the case on appeal?”
Clearly, by their pleadings and evidence, the Appellants had claimed ownership and title to the land in dispute and had the initial burden of proof of the claims as required by law if they were to succeed and be entitled to judgment. The Appellants’ case would fail if no evidence at all were given on either side, for they desired that the High Court give them judgment based on the assertion of the right of ownership and title to the land in dispute based on the facts they set out in the Amended statement of claim. By virtue of the combined provisions of Sections 131, 132 and 133(1) of the Evidence Act, 2011, the Appellants bear the burden of legal proof of their claims on the balance of probabilities or preponderance of evidence, to the satisfaction of the High Court before judgment could be entered in their favour. See Opeola v Falade (1991) 2 NWLR (173) 303; Ezemba v Ibenema (2004) 7 SC (Pt. 1) 45; Owie v Ighiwi (2005) 1 SC (Pt. II) 16; Dana Impex Ltd. v Aderotoye (2006) ALL FWLR (308) 1338. The law is also well known that in claims for title to a land, the plaintiff is to succeed on the strength of his own case and not on the weakness or even admission by the defendants. Since declaratory reliefs are not granted on admission, ordinarily, but on satisfactory proof of entitlement through evidence, thereto. See Okelola v Adeleke (2004) 7 SC (Pt. I) 35; Sorungbe v Motunwase (1988) 12 SCNJ, 166; Elegushi v Oseni (2005) 7 SC, (Pt. III) 205; Ezeigwe v Awudu (2008) 9 MJSC, 61; Dakolo v. Dakolo (2011) 6 MJSC (Pt. II) 34.
In addition, the law is firmly established that title to land may be proved in any of five (5) ways enumerated in a plethora of decision of the Supreme Court as follows:-
(a) By traditional evidence – Ezenwa v Agu (2004) 3 NWLR (86) 431 at 456; Ezekabekwe v Emenike (1998) 62 LRCN, 4855;
(b) By documents of title- Nnabife v. Nwigwu (2001) 9 NWLR (719) 710 at 723-4; Dabo v Abdulahi (2005) 2 SC (Pt. 1) 75.
(c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership – Oladipupo v Olaniyan (2000) 1 NWLR (624) 556.
(d) By acts of long enjoyment and possession of the land under (now) section 35 of the Evidence Act, 2011- Agbara v Amara (1995) 7 NWLR (410) 712 at 734.
(e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such adjacent land would in addition, be the owner of the disputed land. See Idundun v Okumagba (1976) 9 – 10 SC, 227; Piaro v Tenalo (1976) 12 SC, 31; Okafor v Idigo (1984) 1 SCNLR, 481; Mogaji v Odofin (1985) 2 NWLR (7) 393 at 431; Atanda v Ajani (1989) 3 NWLR (111) 511; Adeniran v Alao (1992) 2 NWLR (223) 350.
The claim for title to the land by the Appellant was by and through traditional history and evidence, which was not challenged or even in dispute at the trial before the High Court. Though unchallenged, the evidence by the Appellants had to meet the strength of their case and satisfy the requirement of proof on the balance of probability for it to sustain the claims made by them against the Respondents. See Michael v Yousuo (2004) 15 NWLR (895) 90; Adelekan v Oruku (2006) ALL FWLR (308) 1360; Iniama v Akpabio (2008) 17 NWLR (1116) 225.
As seen in the evidence in chief and under cross examination, the Appellant case is that the land in dispute is part of their land which was surveyed and title to which was in dispute in the case No. C/88/76 in respect of which an appeal was decided by the Supreme Court. Put another way, the appeal decided by the Supreme Court involved dispute as to the Appellants’ title to a larger land which the land in dispute before the High Court, was a part of. However, the decision/judgment by the apex court in respect of the Appellants’ title to the larger land which included the land they claimed title to in the case against the Respondent was not put in evidence before the High Court. Although the Respondents were not parties to the case No. C/88/76 which culminated in the appeal before the apex court, the Appellants’ case was that they had sued the Respondents on the basis of their belief that the Respondents were put on the land in dispute by the parties to that case. Since the foundation of the Appellants’ case against the Respondents was the case No. C/88/76 in which the title to the land which included the portion in dispute in the case before the High Court, the decision by the apex in the appeal in respect of that case is relevant in the final determination of title to the land claimed by the Appellants against the Respondents.
Because the issue of title was to the larger land, of which the land claimed by the Appellants against the Respondents, is a part, the decision of the apex court in the appeal in respect of the case No. C/88/76, being final and in rem, would necessary affect the outcome of the case before the High Court no matter who the Appellants sued in respect of the land. It was in the circumstances, material and crucial in the determination of the Appellants’ claim for title to the land in dispute. If the Supreme Court had in fact decided the issue of the Appellants’ claim of title to the larger land which included the piece or parcel in dispute before the High Court, that court, by virtue of the provision of Section 287 of the Constitution of the Federal Republic of Nigeria, 1999 as altered, was constitutionally, judicially and legally bound to enforce the decision in respect of the land in question, against the whole world, so to say; all persons or authorities, whether parties or not in the appeal as far as title to the land was concerned. See Dike v Obi Nzeke II (1986) NWLR (34) 144; Ogbahon v Reg. Trustees of CCCG (2001) FWLR (80) 1496 at 1505; Ogboru v Iboriu (2005) 13 NWLR (942) 319.-The fact and evidence that the appeal in case No. C/88/76 involved the issue of the Appellants’ claim to the title of land which included the land in dispute before the High Court, was part of the Appellants’ case. It would be imprudent for the High Court to have been satisfied with the proof of the Appellants’ claim for title to a piece or portion of the larger land, title to which was the subject of or an issue in the appeal, decided by the apex court, without the benefit of seeing a copy of the said decision or judgment to be guided by it. Although the High Court agreed with the learned counsel for the Appellants that it was to take judicial notice of judgments of all courts, more so of the apex court in Nigeria, Section 122(2) of the Evidence Act, 2011, does not include judgments of courts in the country among the matters a court shall take judicial notice of in its proceedings. The provisions are thus:
“122(2)-The court shall take judicial notice of-
a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria,’
b) all public Acts or Laws passed or to be passed by the National Assembly or estate House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed;
c) the course of proceeding of the National Assembly and of the Houses of Assembly of the States of Nigeria;
d) the assumption of office of the president, a State Governor or Chairman of a Local Government Council, and of my seal used by any such public officer,.
e) the seals of all the courts of Nigeria, the seals of notaries public, and all seals which any person is authorized to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;
f) the existence, title and national /lag of every state or sovereign recognized by Nigeria;
g) the divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act;
h) the territories within the Commonwealth;
i) the commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;
j) the names of the members and officers of the court and of their disputes and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorized by law to appear or act before it;
k) the rule of the road on land or at sea;
l) all general customs, rules and principles which have been held to have the force of law in any court established by or under the constitution and all customs which have been duly certified to and recorded in any such court, and
m) the course of proceeding and all rules of practice in force in any court established by or under the Constitution.”
Not being part of the matters in respect of which a court is required to take judicial notice of, judgments of courts, whenever in issue in proceedings before a court, need or have to be proved in accordance with and as required by the Evidence Act, as a matter of fact. In this regard, Section 128(1) of the Evidence Act, has the following provisions:
“128-(1): When a judgment of a court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
Under the above provisions, a judgment of a court in Nigeria, whenever an issue in a case, has to be proved by the production of the judgment itself or secondary evidence thereof, where admissible and no oral evidence may be given of such judgment as to its contents. See Attorney-General. Plateau State v Attorney-General, Nasarawa State (2005) 4 SC, 55 at 65.
In the above premises, the High Court was right when it stated in its judgment at page 85 of the record of appeal, that:-
“Judicial notice does not and cannot require a court to go in search of the fact to be judicially noticed. If that were the case it will be almost impossible of achieving. How, for instance, will a court be expected to go in search of the Judgment of a court in say Ghana or Australia which I am also enjoined to take Judicial notice of, No. The judgment of the relevant court has to be brought into court by this party seeking to rely on it for it to be judicially noticed”.
The Appellants had the legal duty and burden to adduce sufficient, credible and cogent evidence to prove the claims they made before the High Court against the Respondents and the absence of the Supreme Court decision in respect of their claim for the title to the land in case No. C/88/76 leaves the claims in want of proof as required by the law. In addition, the invocation of the provisions of Section (now 167(d) of the Evidence Act, 2011 by the High Court to presume that the judgment in the appeal decided by the apex in respect of case No. C/88/76, which could be, could have been, but was not produced by the Appellants, would, if produced, be unfavourable to them, was right in the circumstances of the Appellants’ case.
From the pleadings and evidence adduced before it by the Appellants, the High Court had correctly and properly understood and appreciated the case put forward by the Appellants in the judgment appealed against. The judgment depicts and shows a clear and undoubted understanding and appreciation of the real and genuine case put forward by the Appellants in both pleadings and evidence and it was right to have put a stop to the multiplicity of actions by the Appellants in respect of the claim for title to the land in both cases No. C/88/76 and the case before it, though against different parties. The learned counsel for Appellants had also strenuously pointed to the fact that the evidence before the High Court was not contradicted or even unchallenged by the Respondent who did not call evidence. I have before now, restated the law that the Appellants were to succeed on the strength of their case and not on the weakness, admission or even absence of a defence by the Respondents. Having failed to produce the judgment which have finally, at least judicially, proved their title to the land in dispute, which was subject of the case or at least in issue in case No. C/88/76, the Appellants cannot fall back and rely on the absence of a defence by the Respondent to claim proof of the title to the land in dispute. See Shasi v Smith (2009) 12 MJSC (Pt. 1) 150; Elegushi v Osein (supra); Efetiroroje v Okpalefe II (1991) 5 NWLR (193) 517.
Since the Appellants had failed to prove the title they claimed in respect of the land in dispute, the High Court was right to have dismissed their case against the Respondents.
In the final result, I find no merit in the appeal and dismiss it consequence, the decision by the High Court appealed against by the Appellants, is hereby affirmed.
Parties shall bear their respective costs of the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree with his reasoning and final conclusions. I have nothing more to add.
I abide by all the consequential orders contained in the lead judgment.
ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the lead Judgment of my learned brother, Mohammed Lawal Garba JCA in this appeal. The issues raised in this appeal have been, characteristically, comprehensively addressed by my learned brother. I am in complete agreement with his reasoning and conclusion; dismissing this appeal.
From the clear evidence of PWI under cross examination, the land in dispute in this appeal is part of the land in dispute in Appeal No C/88/76 decided on by the Supreme Court. As rightly noted in the lead Judgment, it would have been imprudent for the High Court to have been satisfied with the proof of the Appellants’ claim before it without the benefit of seeing a copy of the said decision in C/88/76 in order to be guided by it. The said judgment ought to have been produced before the lower court. See also: Section 128(1) of the Evidence Act.
A plaintiff in a claim for title to land succeeds on the strength of his case, and not on the weakness or even absence of a defence. The fact that the Respondents called no evidence in defence is thus immaterial. See: Bello v Eweka (1981) NSCC 48; Ashabi Eya v Olopade (2011) CLR 5(e) (SC).
The Appellants having failed to prove title to the land in dispute, the trial court was right to have dismissed their claims.
I also dismiss this appeal, being unmeritorious. I abide by the Orders made in the lead Judgment.
Appearances
Orok Orok IronbarFor Appellant
AND
C. O. BasseyFor Respondent
