EDWIN IKHINMWIN & ANOR v. PRINCE FRIDAY ELEMA & ORS
(2014)LCN/7361(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of July, 2014
CA/B/170/2006
RATIO
EVIDENCE: PROVING TITLE TO LAND; WAYS OF PROVING TITLE TO LAND
It is settled law that title to land can be proved in any one or more of five ways namely –
a) By traditional evidence
b) By production of title documents
c) By proving acts of ownership, such as leasing, renting out all or part of the land or farming on it or on a portion of it.
d) By acts of long possession and enjoyment of the land
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See THOMPSON vs. AROWOLO (2003) 4 SC (PT 2) 108 at 155 – 156, NGENE vs. IGBO (2000) 4 NWLR (PT 651) 131, AWARA vs. ALALIBO (2003) 3 MJSC 157 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 18. Any of the five ways of proving title to land, if established is sufficient to grant title in a claimant. See IDUNDUN vs. OKUMAGBA (1976) 9 – 10 SC 227 and OTUNLA vs. OGUNOWO (2004) 6 NWLR (PT 868) 184 at 198. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: TITLE TO LAND; THE PRINCIPLES GOVERNING THE ACQUISITION OF VALID TITLE TO LAND IN ACCORDANCE WITH BINI CUSTOMARY LAW
The question of what are the principles governing the acquisition of valid title to land in accordance with Bini customary law has been considered and determined by this court in many cases. See Okeaya v. Aguehor, (1970) 1 All NLR 1 at pp. 9 & 10; Awoyeghe v. Ogbeide, (1988) 1 NWLR (Pt.73) 695; Agbonifo v. Aiwereoha, (1988) 1 NWLR (Pt. 70) 325; and Finnih v. Imade, (1992) 1 NWLR (pt. 219) 511. In Okeaya’s case, supra, the principles of customary law were said to be as follows:
‘(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;
b) in respect of Benin City itself; the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;
c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;
d) One of the several functions of a Ward Plot Allotment Committee is to recommend plot applications to the Oba of Benin for approval;
e) an applicant for land in Benin City as from 1961 has to direct his application in writing to the Ward Plot Allotment Committee of his choice;
f) the Ward Plot Allotment Committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their Ward and they in turn would report back to the Committee on their inspection “the purpose of the inspection” being “to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone;”
g) upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is ‘dispute free’, the ward Plot Allotment Committee would endorse the application with the above facts and forward it to the Oba of Benin as recommended;
h) the Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;
i) an approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;
j) it is contrary to Benin custom to set aside an approval made in error upon an ex parte application by one of the affected parties. In other words, to set aside an approval made in error, the two parties affected by the conflicting grants must be present before the Oba at the same time and his decision must be communicated to them after an open hearing at the Oba’s palace. Such decision must also be communicated to the ward Allotment Committee from which the two conflicting recommendations had emanated.’ per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
LAND LAW: PRIVY; THE MEANING OF PRIVY AND THE KINDS OF PRIVY
Now, the term privy has been defined as that person whose title is derived from and who claims through a party. There are said to be three kinds of privies:
(a) privies in blood, such as testator and heir,
(b) privies in law such as testator and executor or in the case of intestate succession, a successor and administrator and
(c) privies in estate such as vendor and purchaser, lessor and lessee.
See NWOSU vs. UDEAJA (1990) 1 NWLR (PT 125) 188, MAYA vs. OSHUNTOKUN (2001) 11 NWLR (PT 723) 62 at 82, AGBOGUNLERI vs. DEPO (2008) ALL FWLR (PT 408) 240 at 245 and MAKAMI vs. UMARU (2013) LPELR (20799) 1 at 12 – 13. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEEDINGS: PARTIES TO A PROCEEDING; WHO ARE PARTIES TO A PROCEEDING
It is settled law that parties to proceedings includes not only those named on the record of proceedings but also those represented and who had an opportunity to attend and protect their interest in the proceedings. See EKENNIA vs. NKPAKARA (1997) 5 NWLR (PT 504) 152 and MAYA v. OSHUNTOKUN (supra) at 82. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: EVALUATION OF EVIDENCE; WHAT AMOUNTS TO EVALUATION OF EVIDENCE AND WHAT IS NECESSARY IN DECIDING WHAT GOES INTO THE IMAGINARY SCALE IS THE VALUE, CREDIBILITY AND QUALITY AS WELL AS THE PROBATIVE ESSENCE OF THE EVIDENCE
The necessary starting point is what amounts to evaluation of evidence. This is a question that was admirably dealt with and answered by Oputa, JSC (of most blessed memory) in ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 where he stated:
“What does not evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc…
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. MOGAJI & ORS VS. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93:
‘When an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…… Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’
The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…..Even in Mogaji’s case……this court held at P. 94: –
‘Therefore in determining which is heavier, the Judge will naturally have regard to the following:
a) whether the evidence is admissible;
b) whether it is relevant;
c) whether it is credible;
d) whether it is conclusive; and
e) whether it is more probable than that given by the other party.'”
Now it seems that evaluation of evidence is basically the assessment of the facts by the trial court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other. See AKINTOLA VS. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT AND WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE
The appraisal of evidence and the ascription of probative value thereto is the primary function of the trial court. The accrediting of one witness or set of witnesses and discrediting the other is the primary function of the trial court which had the advantage of watching the witnesses testify and not the duty of the appellate court. Where the trial court as in this matter has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of the appellate court to interfere and to substitute its own views for the view of the trial court. See ADEBAYO vs. A-G OGUN STATE (2008) ALL FWLR (PT 412) 1195 at 1197 and 1211, SAGAY vs. SAJERE (2000) 4 SC (PT I) 187 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 622) 174. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. EDWIN IKHINMWIN
2. MAGNUS IKHINMWIN Appellant(s)
AND
1. PRINCE FRIDAY ELEMA
2. MILITARY ADMINISTRATOR, EDO STATE
3. ATTORNEY GENERAL, EDO STATE Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): In the High Court of Edo State, holden at Benin City, in Suit No. B/242/96, the plaintiff, who is the Respondent herein, commenced an action against the Appellants, then the 1st and 2nd Defendants, claiming the following reliefs:
1. A declaration that the Plaintiff is the owner and in lawful physical possession of all that parcel of land comprising of approximately 2.2176 hectares within Elema Estate delineated in Survey Plan No. MWC/840/85 of 27th December, 1985 attached to a land instrument dated 16th September, 1988 and registered as No. 25 at page 25 in Volume 754 of the Lands Registry in the office at Benin City.
2. A declaration that the entry and commencement of building operations on my land by the 1st and 2nd defendants is without lawful authority and therefore illegal.
3. A declaration that the certificate of occupancy No. EDSR 12056 dated 5th May, 1995 granted by the 3rd defendant to the 1st & 2nd defendants was obtained by fraud and therefore liable to be cancelled.
4. An order of this Honourable court cancelling the said Certificate of Occupancy No. EDSR 12056 issued to the 1st and 2nd Defendants.
5. The sum of N50, 000.00 being damages for trespass.
6. An order of perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from further trespassing on the said parcel of land.
(see pages 39-40 of the Records)
Pleadings were filed and exchanged by the parties and the Appellants herein counterclaimed against the Plaintiff/Respondent for the following reliefs:
1. In the premises the 1st and 2nd Defendants have suffered losses and general damages as follows:
PARTICULARS OF LOSSES AND GENERAL DAMAGES
SPECIAL DAMAGES
(i) Estimated cost of the wall fence damaged – 110,000.00
(ii) Cost of the mortar destroyed – 13,300.00
(iii) 4 shovels at N1,500.00 each – 6,000.00
(iv) 4 headpans at N600.00 each – 2,400.00
(v) 2 metal buckets at N200 each – 400.00
(vi) Total payment already made to the contractor – 450,000.00
(vii) 2 trips of granite at N15, 000.00 per trip – 30,000.00
(viii) 2 trips of sand at N5,000.00 per trip – 10,000.00
(ix) 2,000 6 inch blocks at N30.00 each – 60,000.00
General damages – 600 000.00
N1, 282,100.00
2. Wherefor the 1st and 2nd Defendants claim against the plaintiff as above.
(see pages 61-62 of the Records)
The case was subjected to a full dressed plenary trial and in a considered judgment delivered on 21st December 2001, the learned Trial Judge (Idahosa, J.), found in favour of the Plaintiff/Respondent in the following terms:
1. It is hereby declared that the Plaintiff is the owner and in lawful physical possession of all that parcel of land comprising of approximately 2.2176 hectares within Elema Estate delineated in Survey Plan No. MWC/840/85 of 27th December 1985, attached to a land instrument dated 16th September, 1988, and registered as No. 25, at page 25 in Vol. 754 of the Lands Registry in the office at Benin City, which Land is verged yellow in Exhibit H in this proceedings.
2. It is also hereby declared that the entry and commencement of building operations on the said land by 1st and 2nd Defendants is without lawful authority and therefore illegal.
3. It is hereby declared that the Certificate of Occupancy No. EDSR 12056 i.e. exhibit N (also Exhibit A) dated 5th May 1995, granted to 1st and 2nd Defendants by 3rd Defendant is null and void, and it is hereby set aside.
4. The 3rd Defendant is hereby ordered to cancel the said certificate of occupancy.
5. The 1st and 2nd Defendants are hereby restrained by themselves, their servants, agents and or privies from further trespassing on the said parcel of land.
6. The 1st and 2nd Defendants shall pay N250, 000.00 as damages to Plaintiff for the trespass.
7. The 1st and 2nd Defendants shall pay costs assessed and fixed at N5, 000 to the Plaintiff.
(see page 251 of the Records)
The 1st and 2nd Defendants/Appellants being dissatisfied with the decision of the lower court lodged an appeal against the same. The Notice of Appeal is at pages 254 – 257 of the Records.
In precise terms, the case made out by the Plaintiff/Respondent is that the land in dispute forms part of a larger expanse of land which was granted to his late father in 1963 by the then Oba of Benin, Oba Akenzua II. The Plaintiff/Respondent made out the case that upon the death of his father he and his brothers were granted Letters of Administration in respect of their late father’s Estate and that subsequently the Administrators of the Estate of his late father allocated the disputed land to him. The Plaintiff/Respondent further made out the case that there had been previous proceedings in respect of the larger portion of the land and that in the said action which culminated in the Supreme Court, it was held that his late father had valid title to the land.
The 1st and 2nd Defendants/Appellants defence at the trial court was that the land was granted to them by the present Oba of Benin, Omo N’Oba Erediauwa, and that they were duly issued a Certificate of Occupancy in respect thereof.
They maintained that it was the plaintiff/Respondent who trespassed onto the land and destroyed the perimeter fence they were erecting on the land.
In prosecution of the appeal after the Records of Appeal were transmitted, briefs of argument were filed and exchanged between the 1st and 2nd Defendants/Appellants and the Plaintiff/Respondent. The 3rd and 4th Defendants at the trial, who are Respondents in this appeal, did not file any processes in respect of the appeal and also did not attend Court. Being merely official and nominal parties, they were content to let the principal gladiators fight their battle.
The Appellants’ Brief of Argument is dated 29th September 2006 but filed on 5th October 2006. In the said brief of argument which was settled by Chief C. O. Okpiabhele, three issues were distilled as arising for determination as follows:
1. Did the Plaintiff/Respondent satisfactorily show by credible evidence in this Suit, his root of title from his late father who the Plaintiff/Respondent claims was originally granted the land in dispute by the Oba of Benin, His Royal Highness Akenzua II, on the recommendation of Ward A Plot Allocation Committee, Benin City, on the basis of which the Learned Trial Judge could have legally granted the Plaintiff/Respondent the declarations, injunctions and damages, claimed by him?
2. Whether the Learned Trial Judge was right in finding for the Plaintiff/Respondent on the basis of the previous Court Judgments, Exhibits K – K2 and L – L2 tendered by the Plaintiff/Respondent when it was clear from the evidence before the Trial Judge that the Defendants/Appellants and Ugiokhuen Village community, Ward 36 A Plot Allocation committee, where the land in dispute resides, were not at anytime parties in the said judgments?
3. Whether the judgment of the Learned Trial Judge was not against the weight of evidence in view of the Defendants/Appellants positive evidence given through DW2, DW3, DW5 and DW6 which pieces of relevant evidence were not evaluated by the Learned Trial Judge even in the face of paragraph 19 of the Joint Statement of Defence at Page 59 of the Record of Appeal which pieces of evidence the Plaintiff/Respondent half-heartedly responded to during hearing of this suit.
The Plaintiff/Respondent’s Brief of Argument is dated and filed on 22nd November, 2006. In the said brief of argument which was settled by S. Iredia Osifo, Esq., two issues were formulated as arising for determination as follows:
1. Whether it was necessary for the Plaintiff/Respondent to prove afresh his root of title having regard to the judgments of the High Court, the Court of Appeal and the Supreme Court which had earlier on in other cases upheld the root of title of Plaintiff’s father in respect of that part of Elema Estate covered by Plan No. OM 1690.
2. Did the learned trial judge adequately evaluate the evidence of the parties in accordance with the principles laid down in MOGAJI vs. ODOFIN (1978) 4 SC 91.
It seems to me that the issues for determination distilled by the parties, though differently worded, are in their true purport and essence the same. Issue numbers one and two of the Defendants/Appellants, just like issue number one of the Plaintiff/Respondent deals with whether the plaintiff/Respondent established his case in order to be entitled to the reliefs sought and granted; while the Defendants/Appellants issue number three, just like the Plaintiff/Respondent’s issue number deals with the evaluation of evidence and ascription of probative value thereto by the lower court. In view of this, it is on the basis of the issues as formulated by the Defendants/Appellants that I will consider and resolve this appeal, taking the submissions on issue numbers one and two together.
When the appeal came up for hearing, the Appellants’ Counsel who was on notice of the fixture for hearing was not in Court. The Court upon being satisfied that the Appellants’ counsel was duly served invoked the provisions of order 18 Rule 9 (4) of the Court of Appeal Rules 2011 and deemed the Appellants’ Brief as having been argued.
In his argument at the hearing, S. Iredia Osifo, Esq., learned Counsel for the Plaintiff/Respondent adopted the submission in the Respondent’s Brief and he urged the Court to dismiss the appeal.
SUBMISSIONS ON ISSUE NUMBERS ONE AND TWO
The gravamen of the submission of the Defendants/Appellants is that the plaintiff/Respondent failed to prove his root of title and that the lower court was in error to have relied on the previous judgment, Exhibits L – L2, an action in which they and the Ugiokhuen Community were not parties. The Defendants/Appellants maintained that it behoved the Plaintiff/Respondent to prove his root of title as pleaded, especially in the light of the fact that they had pleaded that the Ward A Allocation Committee from which the Plaintiff/Respondent’s father was allocated the land never had authority over the land.
The Defendants/Appellants further submit that judgments for declaration of title are judgments in personam binding only parties to it and would not bind any person or community that is neither party to the judgment nor privy to a party involved in the judgment. It was contended that the lower court shifted the burden which was on the Plaintiff/Respondent to prove his title to the Defendants/Appellants when the lower court held that it was for the Defendants/Appellants to have filed a survey plan to show that the land was outside the authority of Ward A which made the allocation to the Plaintiff/Respondent’s father.
In his submission, the Plaintiff/Respondent while agreeing that a judgment in a case for declaration of title to land was a judgment in personam, stated that the Ugiokhuen village was sued in the previous suit, but that the action against them was discontinued when they stated that they did not trespass into the Estate belonging to the Plaintiff/Respondent’s father. The testimony of the Plaintiff/Respondent and the DW3 called by the Defendants/Appellants as well as the judgment of the trial court in the previous action, Exhibit L, were referred to. (See pages 84 lines 19 – 29 and page 148 lines 12 – 17 of the Records). It was posited that Ugiokhuen Community having stated that they did not trespass into the Estate belonging to the plaintiff/Respondent’s father meant that they conceded the title of the Plaintiff/Respondent’s father as they did not utilise the opportunity to defend their rights to the land.
The Plaintiff/Respondent submitted that the land in dispute was carved out of the land previously litigated and that the Defendants/Appellants who traced their title to Omo N’Oba Erediauwa, who testified as DW2 at the trial, cannot seriously contend that they are not privies in estate to Ugiokhuen Community since Omo N’Oba Erediauwa testified that it was from the Elders of Ugiokhuen Community, who conceded the title of the Plaintiff/Respondent’s father, that he acquired the land which he gave to the Defendants/Appellants. It was further submitted that the admission of DW3 that the representatives of Ugiokhuen community applied for their names to be struck out in the previous action was sufficient to create estoppel by conduct.
The Plaintiff/Respondent maintained that the previous judgment, Exhibits L, L1 and L2 constitute acts of possession on the part of the Plaintiff/Respondent and that the issue of whether Ward A had the right to allocate the land was effectively settled in the judgment in the previous action. It was finally submitted that from the testimony of the Surveyor, who testified as the PW3, the disputed land fell within the larger area litigated in the previous action.
RESOLUTION OF ISSUES
It is settled law that title to land can be proved in any one or more of five ways namely –
a) By traditional evidence
b) By production of title documents
c) By proving acts of ownership, such as leasing, renting out all or part of the land or farming on it or on a portion of it.
d) By acts of long possession and enjoyment of the land
e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See THOMPSON vs. AROWOLO (2003) 4 SC (PT 2) 108 at 155 – 156, NGENE vs. IGBO (2000) 4 NWLR (PT 651) 131, AWARA vs. ALALIBO (2003) 3 MJSC 157 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 18.
Any of the five ways of proving title to land, if established is sufficient to grant title in a claimant. See IDUNDUN vs. OKUMAGBA (1976) 9 – 10 SC 227 and OTUNLA vs. OGUNOWO (2004) 6 NWLR (PT 868) 184 at 198.
In proof of his case before the lower court, the Plaintiff/Respondent tendered Exhibit B, through the PW1, being the instrument by which a part of his late Father’s Estate was assigned to him. The land in dispute herein is the land assigned to the Plaintiff/Respondent, vide Exhibit B. This was in 1985. The Surveyor, PW3, tendered as Exhibit A, the Survey Plan he prepared which contained a superimposition of the plan comprising the Estate of the Plaintiff/Respondent’s late father, the land litigated in the previous action and the land assigned to the Plaintiff in Exhibit B. The PW3 testified that the disputed land in this case fell within the Estate of the Plaintiff/Respondent’s father which is known as Elema Estate.
In the judgment in the previous action, Exhibit 12, the Supreme Court upheld the concurrent findings of fact of the trial court and this court that the late father of the Plaintiff/Respondent had valid title to Elema Estate which comprises both the land disputed in the previous action and the land being litigated herein.
At pages 246 – 247 of the Records, the trial court made the following findings:
“I therefore find and hold as follows:
That the area in dispute in this case verged red in Exhibit H is within the area originally acquired by the late father of the Plaintiff;
2. That the said area verged red is part of a larger area verged blue in Exhibit H, which was adjudicated upon in Exhibits K – K2 and L – L2 in favour of Plaintiff and his co-Administrator to his late father’s estate;
3. That the area verged Yellow on Exhibit H, was granted to the Plaintiff by the Administrators to his late father’s estate vide Exhibit B.
4. That the area in dispute verged red in Exhibit H, is within the area verged Yellow in Exhibit H and thus within the area granted to the Plaintiff.”
The Defendants/Appellants have not challenged any of the above findings in their grounds of appeal.
Earlier at pages 243 – 245 of the Records, the lower court held as follows:
“The Plaintiff herein built his case on three grounds viz:
a) That his late father had acquired title to an area much larger than the land in dispute, within which lies the land in dispute;
b) Earlier acts of trespass to this larger area and in connection with the land in dispute had been determined by the courts in Exhibits K – K2 and L – L2 (especially exhibit L – L2);
c) Documents of title, in which the land now in dispute was granted to him i.e. Exhibit B by the Administrators of the Estate of his late father.
The Plaintiff led evidence in support of these three grounds. He relied on the judgments of the High Court, Court of Appeal and Supreme Court to buttress the fact that his late father had acquired a good title to the area now in dispute. He then commissioned P.W.3, a registered land Surveyor to show in a litigation survey plan:
a) the area acquired by his late father;
b) the area over which he and his co-administrator of his later (sic) father’s estate, successfully defended their father’s title in Suit No. B/105/83 and CA/B/167/92 and SC/133/1996;
c) the area assigned to Plaintiff by the Administrators and
d) the area now in dispute.
The litigation survey plan is Exhibit H. The litigation survey plan in B/105/83 is exhibit G.
The evidence by P.W.3, which in my view is most crucial, could not be assailed under cross-examination.
Plaintiff testified that some time ago, after the death of their late father, himself and his two other brothers obtained letters of Administration to his real and personal estate – Exhibit J is a certified true copy of the letters of Administration.
After the death of one of his brothers Jonathan Elema, the two surviving Administrators i.e. the Plaintiff and another then assigned a part of the land acquired by their late father to the Plaintiff vide Exhibit B.
Within the area assigned to the Plaintiff, lies the land now in dispute. Also within the area successfully defended in Suit No. B/105/83, CA/B/167/92 and SC/133/1996, lies the area granted to Plaintiff, within which lies the area in dispute.
I agree with the submissions of Plaintiff’s Counsel that in view of the decisions in Exhibit K – K2 and L – L2 there is no need for Plaintiff to prove all over again, his late father’s root of title. All he needs to do in the circumstances is to produce the judgments and show to the court that the area affected by the judgments is the area now in dispute. This has been done in Exhibit H.”
The main grouse of the Defendants/Appellants is the holding by the lower court that there was no need for the Plaintiff to prove all over again his late father’s root of title.
Let me reiterate that the Defendants/Appellants did not appeal against the finding of the lower court that the land disputed in this matter is part of a larger area which was adjudicated upon in Exhibits K- K2 and L – L2 in favour of the Plaintiff and his co-administrator of his late father’s estate.
The Defendants/Appellants have argued that ward A Allocation Committee did not have the jurisdiction and authority to allocate the disputed land to the Plaintiff/Respondent’s father and that the Plaintiff/Respondent had the burden of establishing that it was Ward A Plot Allocation Committee that had jurisdiction over the land granted to the Plaintiff/Respondent’s late father.
In view of the fact that it has not been contested that the land being litigated herein is part of the land litigated in Exhibits L – L2, it will suffice to redact the decision of the Supreme Court, per Adio, JSC in Exhibit L2, in this regard. The learned jurist of blessed memory stated as follows:
“The question was whether the land, including the land in dispute, was within the jurisdiction of the Ward ‘A’ Allotment Committee and the question was resolved in favour of the respondents. In my view, in any case, there was evidence, which was uncontradicted that there was no Ward Allotment Committee constituted for the area at the material time. It was, for that reason, that the Oba of Benin directed that ward A Allotment Committee should take necessary action and that some elders in the community should join the Ward A Allotment Committee in dealing with the matter.
Next is the question raised under the third issue which was whether if the answer to the second issue was in the affirmative, the Court of Appeal was right in upholding the decision of the trial court to the effect that the late Chief Felix Owen Elema had valid title at all material times to the land in dispute according to the Bini Customary Law. There was evidence before the learned trial Judge that the deceased submitted an application Exhibits ‘A’ & ‘A1’ to the Ward A Allotment Committee for the allocation to him of the land which included the land in dispute; that pursuant to the application some members of the Committee inspected the land to which the application related to ascertain the dimension of the land and to find out if it was free from dispute; that the Committee was satisfied about the exact location of the land and that it was dispute free; that the Committee endorsed the application accordingly and recommended the application to the Oba of Benin for approval; and that the Oba of Benin approved the application and granted the land to the deceased. The recommendation and the approval of the Oba are all reflected on the application. The learned trial Judge accepted the evidence and held that the deceased acquired a valid title to the land, which included the land in dispute, under the Bini Customary Law. The court below having been satisfied about the various steps, mentioned above, taken by the deceased and the appropriate authorities in relation to the acquisition of valid title to land, which included the land in dispute, in accordance with Bini law, stated, inter alia, as follows:-
‘I am in total agreement with the learned counsel for the respondents, that on the pleadings and the evidence adduced, the learned trial Judge was justified in holding that Chief Elema had acquired a valid title under the Bini customary law of the land in dispute around Oko Village area. The evidence is overwhelming and it was abundant, that Chief Elema immediately went into possession and caused the land to be surveyed. The learned trial Judge believed the evidence of the grant of the land in dispute to Chief Elema and that he was before his death in actual possession.’
The question of what are the principles governing the acquisition of valid title to land in accordance with Bini customary law has been considered and determined by this court in many cases. See Okeaya v. Aguehor, (1970) 1 All NLR 1 at pp. 9 & 10; Awoyeghe v. Ogbeide, (1988) 1 NWLR (Pt.73) 695; Agbonifo v. Aiwereoha, (1988) 1 NWLR (Pt. 70) 325; and Finnih v. Imade, (1992) 1 NWLR (pt. 219) 511. In Okeaya’s case, supra, the principles of customary law were said to be as follows:
‘(a) all lands in Benin Division are vested in the Oba of Benin who is thus trustee or legal owner thereof on behalf of the people of Benin who are beneficiaries in respect thereof;
b) in respect of Benin City itself; the Oba of Benin had by 1961 appointed Ward Allotment Committees in respect of 12 wards into which the City had been divided shortly before this for the purpose of plot allocation;
c) whereas any grantee of land in Benin City before 1961 might not be able to produce the approval in respect thereof reduced by the Oba of Benin into writing, such a grantee after this period must be able to produce such evidence;
d) One of the several functions of a Ward Plot Allotment Committee is to recommend plot applications to the Oba of Benin for approval;
e) an applicant for land in Benin City as from 1961 has to direct his application in writing to the Ward Plot Allotment Committee of his choice;
f) the Ward Plot Allotment Committee upon receipt of the application would delegate some of their members to carry out an inspection of the land acquired within the area of their Ward and they in turn would report back to the Committee on their inspection “the purpose of the inspection” being “to ascertain the plot to be granted with certainty and also to ascertain if it is free from dispute or has not been previously granted to someone;”
g) upon being satisfied about the exact locations, the dimensions and the fact that the desired plot is ‘dispute free’, the ward Plot Allotment Committee would endorse the application with the above facts and forward it to the Oba of Benin as recommended;
h) the Oba of Benin would, as a rule, accord his approval in writing to a recommended application and an applicant whose application is approved by the Oba of Benin becomes the beneficial owner of the land as approved for him;
i) an approval once given remains valid until set aside by the Oba of Benin when evidence is subsequently produced of a prior approval for the same land, the second approval being bona fide and in ignorance of the existence of an earlier one;
j) it is contrary to Benin custom to set aside an approval made in error upon an ex parte application by one of the affected parties. In other words, to set aside an approval made in error, the two parties affected by the conflicting grants must be present before the Oba at the same time and his decision must be communicated to them after an open hearing at the Oba’s palace. Such decision must also be communicated to the ward Allotment Committee from which the two conflicting recommendations had emanated.’
Having regard to the evidence before the learned trial Judge, which he accepted and on the basis of which he made the relevant findings, that were upheld by the court below, it can reasonably and justifiably be said that the conclusion of the learned trial Judge that the deceased had acquired a valid title under Bini Customary Law to the land in dispute which the court below said was justified can be sustained. The aforesaid findings included the findings: that the deceased forwarded his application for allocation of land to the Ward Allotment Committee; that the Ward Allotment Committee through some of its members inspected the land to ascertain its Location and dimension and to determine whether it was not subject of any dispute; that the Committee, in view of the favourable report on the aforesaid matters, after endorsing the application accordingly, recommended it to the Oba of Benin for approval; and that the Oba of Benin approved the application of the deceased. The court below was, therefore, right in upholding the decision of the learned trial Judge to the effect that the deceased (Chief Felix Owen Elema) had valid title at all material times to the land in dispute according to Bini customary law”.
Exhibits L – L2 contain concurrent findings by the courts that the larger area of land of which the land in dispute forms part was allocated to the Plaintiff/Respondent’s late father by the Ward A Plot Allocation Committee. In view of this I agree with the lower court that it was not necessary for the Plaintiff/Respondent to prove this afresh especially as it would amount to judicial impertinence in the light of the Supreme Court decision for any court to now make any finding that the Plaintiff/Respondent’s late father does not have title to any part of the land litigated in Exhibits L – L2.
The Supreme Court endorsed and confirmed the title of the Plaintiff/Respondent’s late father over the large expanse of land, of which the land presently in dispute forms a part; that is endorsement and confirmation at the top by the apex court. By the doctrine of stare decisis all other courts can do no more than kowtow to that decision in so far as it relates to the same land.The matter does not end here. The Defendants/Appellants contended that neither they nor the Ugiokhuen Community were party or privy to the judgment in the previous action which judgment is in personam and not in rem. see DOSUMU vs. JOTO (1987) 4 NWLR (PT 65) 297 at 312. The Defendants/Appellants trace their title to Omo N’Oba Erediauwa, who, testifying as the DW2 before the lower court stated that he got the land which he gave to the Defendants/Appellants from the elders of Ugiokhuen community. See page 108 lines 14 – 19 of the Records.
In his testimony, the Plaintiff/Respondent stated that the Irhirhi and Ugiokhuen Communities were sued in the action in Exhibits L – L2 but that the Ugiokhuen Community filed an application stating that they did not trespass into the Estate belonging to the Plaintiff/Respondent’s late father whereupon the case was discontinued against them. (See page 84 lines 19 – 29).
The testimony of the Plaintiff/Respondent finds support in the testimony of the DW3 who testified under cross-examination that the Ugiokhuen Community was sued in the previous action but that they applied to have their names struck off. (See pages 148 lines 12 – 17 of the Record).
This testimony if nothing else clearly shows that the Ugiokhuen Community was aware of the previous action but they chose not to defend the action.
Now, the term privy has been defined as that person whose title is derived from and who claims through a party.
There are said to be three kinds of privies:
(a) privies in blood, such as testator and heir,
(b) privies in law such as testator and executor or in the case of intestate succession, a successor and administrator and
(c) privies in estate such as vendor and purchaser, lessor and lessee.
See NWOSU vs. UDEAJA (1990) 1 NWLR (PT 125) 188, MAYA vs. OSHUNTOKUN (2001) 11 NWLR (PT 723) 62 at 82, AGBOGUNLERI vs. DEPO (2008) ALL FWLR (PT 408) 240 at 245 and MAKAMI vs. UMARU (2013) LPELR (20799) 1 at 12 – 13.
From the evidence before the lower court, it is beyond dispute that the Defendants/Appellants are the privies of the Ugiokhuen Community since Omo N’Oba Erediauwa who gave the land to them stated that he got the land from the elders of Ugiokhuen Community.
It is settled law that parties to proceedings includes not only those named on the record of proceedings but also those represented and who had an opportunity to attend and protect their interest in the proceedings. See EKENNIA vs. NKPAKARA (1997) 5 NWLR (PT 504) 152 and MAYA v. OSHUNTOKUN (supra) at 82. The testimony of the DW3 who is a member of Ugiokhuen Community clearly established that the Community was aware of the previous action but chose not to protect their interest, if any. In the eyes of the law, they were clearly parties to the action in Exhibits L – L2.
In the unlikely event that I am wrong in the view I hold that in the eyes of the law, the Ugiokhuen Community were parties in Exhibits L – L2, it seems to me that at the very least the Plaintiff/Respondent can use the judgment to show acts of possession over the land in dispute. In AKPAN vs. OTONG (1996) 10 NWLR (PT 476) 108 at 122 Onu, JSC stated as follows:
“If a previous judgment cannot, for one reason or the other, operate as estoppel per rem judicata, it can properly constitute an act of ownership and possession in an action for declaration of title to land.”
See also OGUNBIYI vs. ADEWUNMI (1988) 5 NWLR (PT 93) 215 at 221.
In all therefore, the evidence adduced by the plaintiff/Respondent clearly established his root of title based on Exhibits L – L2 whether as being binding on parties and privies or by virtue of being an act of ownership and possession which predated the interest of the Defendants/Appellants in the disputed land. These issues are accordingly resolved against the Defendants/Appellants.
SUBMISSIONS ON ISSUE RELATING TO EVALUATION OF EVIDENCE
The Defendants/Appellants submit that the lower court ignored the relevant and critical testimony of the DW3, DW5, DW6 and DW7 and failed to evaluate the same especially as it relates to the fact that no allocation of Ugiokhuen land was made before the Irhirhi-Ugiokhuen Land Allocation committee was set up in 1965. It was then posited that the failure by the lower court to consider and evaluate the evidence led to denial and miscarriage of justice and was tantamount to denial and lack of fair hearing.
The Plaintiff/Respondent in reply submitted that the lower court duly reviewed, assessed and considered the evidence that was adduced and gave due weight to the same.
The Plaintiff/Respondent maintained that the lower court properly evaluated the testimony of the witnesses called by the defendants/Appellants and further submitted that there is no challenge to the findings of facts made by the lower court as a result of which there can be no justification for the complaint about evaluation of evidence.
RESOLUTION OF ISSUE
The complaint here is in respect of evaluation of evidence and ascription of probative value thereto. The necessary starting point is what amounts to evaluation of evidence. This is a question that was admirably dealt with and answered by Oputa, JSC (of most blessed memory) in ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 where he stated:
“What does not evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc…
Now talking of scale naturally leads one to the famous dictum of Fatayi-Williams, JSC (as he then was) in A.R. MOGAJI & ORS VS. MADAM RABIATU ODOFIN & ORS (1978) 4 SC 91 at 93:
‘When an appellant complains that a case is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which has been given to the totality of the evidence before him, (the trial judge)…… Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after a summary of all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it…’
The scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence…..Even in Mogaji’s case……this court held at P. 94: –
‘Therefore in determining which is heavier, the Judge will naturally have regard to the following:
a) whether the evidence is admissible;
b) whether it is relevant;
c) whether it is credible;
d) whether it is conclusive; and
e) whether it is more probable than that given by the other party.'”
Now it seems that evaluation of evidence is basically the assessment of the facts by the trial court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See OYADIJI vs. OLANIYI (2005) 5 NWLR (PT 919) 561 and AMEYO vs. OYEWOLE (2008) LPELR (3768) 1 at 9. The evaluation involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other.
See AKINTOLA VS. ADEGBITE (2007) ALL FWLR (PT 372) 1891 at 1898.
In the instant case, the lower court reviewed the evidence of each witness, it considered the submissions of learned counsel on the issues agitated and with respect to the testimony of the DW3, DW5, DW6 and DW7 who testified with respect to the allocation of the land in dispute, whether by Ward A or Ward 36A, which forms the fulcrum of the complaint about evaluation of evidence; the court found that their testimony was contradictory and not in consonance with the testimony of the DW2. See page 245 of the Records.
The lower court then proceeded to give its reasoned preference of the case of the Plaintiff/Respondent when at page 246 of the Records it held as follows:
“Any allocation thereafter…….by the Ugiokhuen Plot Allocation Committee of the same parcel of land, will be deemed null and void, because after the grant by the Oba, there is nothing left to be allocated. This much was decided in the cases retied on by Plaintiff i.e. B/105/83, CA/B/167/92 and SC/133/1996, wherein all these points were examined by the High Court and Court of Appeal…
Since the Plaintiff has been able to show that the land adjudicated upon is part of the area acquired by his late father and that it encompasses the land now in dispute, the only way to thwart Plaintiff’s claims will be to show that the Plaintiff survey plan… is technically wrong and that the land in dispute cannot be or is not within the area adjudicated upon in Exhibit L – L2.”
It is after this reasoning for its preference of the Plaintiff/Respondent’s evidence that the lower court proceeded to make findings and hold that the Plaintiff/Respondent was entitled to the declaration and injunction sought.
From the records it is apparent that the lower court duly evaluated the evidence adduced and ascribed probative value thereto. It is a different thing if the Defendants/Appellants do not agree with the finding of facts made, but in any event no ground of appeal complains about the findings of facts made by the lower court. Since the lower court properly evaluated the evidence, no miscarriage of justice or denial of fair hearing was occasioned to the Defendants/Appellants.
The appraisal of evidence and the ascription of probative value thereto is the primary function of the trial court. The accrediting of one witness or set of witnesses and discrediting the other is the primary function of the trial court which had the advantage of watching the witnesses testify and not the duty of the appellate court. Where the trial court as in this matter has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of the appellate court to interfere and to substitute its own views for the view of the trial court. See ADEBAYO vs. A-G OGUN STATE (2008) ALL FWLR (PT 412) 1195 at 1197 and 1211, SAGAY vs. SAJERE (2000) 4 SC (PT I) 187 and ODIBA vs. MUEMUE (1999) 10 NWLR (PT 622) 174.In a summation, the lower court duly and properly evaluated the evidence adduced before the court especially as it related to the evidence on the allocation of the disputed land. The finding of the lower court premised on the decision in exhibits L and L1 and given judicial imprimatur by the Supreme Court in Exhibit L2 cannot be faulted. This issue is therefore resolved in favour of the Plaintiff/Respondent.
CONCLUSION
I have duly considered the issues for determination in this appeal. The concatenation and conflating of the totality of the evidence before the lower court was consistent with the plaintiff/Respondent having established his entitlement to a declaration of title to the disputed land, by the production of his document of title, Exhibit B, which predated the Defendants/Appellants Certificate of Occupancy, Exhibit N, and was valid and subsisting when the said Certificate of Occupancy was issued. The law remains that any Certificate of Occupancy issued when there is a valid and subsisting title over the same land is incompetent: OGUNLEYE vs. ONI (1990) 2 NWLR (PT 135) 745 at 784.
Furthermore, the effect of Exhibits L- L2, even if not binding on the Defendants/Appellants was an act of possession and the fact that the land adjudicated upon in Exhibits L – L2 encompasses the disputed land is pointer to the fact that Whoever owns the larger land litigated in Exhibits L – L2 also has title to the disputed land.
The plaintiff/Respondent traced his root of title to the owner of the said larger expanse of land in exhibits L – L2.
In a summation, from the totality of the foregoing, this appeal is totally devoid of merit and it is accordingly dismissed. The judgment of the lower court is hereby affirmed. The Plaintiff/Respondent is entitled to the costs of this appeal which I assess and fix at N50, 000.00.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, of a whole, I have no hesitation in concurring with the reasoning and conclusion reached in the Judgment ably written and just delivered by my learned brother, the Hon, Justice U.A. Ogakwu, JCA, to the effect that, the appeal is totally devoid of merits.
Hence, I accordingly dismiss the appeal and affirm the Judgment of the High Court of Edo State, delivered in Suit No. B/242/96 on 21/12/2001 by C.O. Idahosa, J (as he then was). I abide by the order of costs of N50, 000.00 awarded in favour of the Respondent.
HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in advance the judgment delivered by my brother UGOCHUKWU ANTHONY OGAKWU JCA. My learned brother has adequately resolved the issues that arose for determination in this appeal. I agree with his reasoning and conclusion thereon. I have nothing useful to add.
For the reasons stated in the judgment, I too will dismiss this appeal as lacking in merit. I abide by the order as to costs.
Appearances
For Appellant
AND
S. Iredia Osifo, Esq.For Respondent
