PROFESSOR JOHN OSEMEIKHIAN v. CHIEF JOE EDIONWELE & ORS
(2016)LCN/8097(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of January, 2016
CA/B/326/2013.
RATIO
LEGAL SYSTEM: THE COMMON LAW PRINCIPLE OF STARE DECISIS; THE DUTY OF THE LOWER COURT TO FOLLOW AND APPLY THE DECISION OF A HIGHER COURT IN THE CASE BEFORE HIM
It is a settled legal principle that under the common law doctrine of precedent or stare decisis, the decision of a higher court may be criticized by the judge of a Lower Court, but that notwithstanding, the judge of the Lower Court is bound to follow and to apply such decision in the case before him. He has no right to sidestep or disregard it. See Atolagbe vs. Awuni (1997) 9 NWLR (pt 522) 536, Dalhatu vs. Turaki 2003 15 NWLR (pt 843) 310. per. HAMMA AKAWU BARKA, J.C.A.
LAND LAW: TITLE TO LAND; THE DUTY OF ANY CLAIMANT TO A DECLARATION FOR TITLE TO LAND TO PROFFER CREDIBLE AND CONSISTENT EVIDENCE IN PROOF OF HIS CASE
The law is settled in that the duty of any claimant to a declaration for title to land rests squarely on the claimant. It is his duty to proffer credible and consistent evidence in proof of his case. The law is certain
that admission by the adversary is not conclusive proof, as the plaintiffs
claim succeeds upon the strength of the case made by him. In doing so, he must show exactly and precisely a defined area of the land to which
the claim relates. In other words, before a declaration of title to land is granted, there must be credible evidence describing and identifying the
land with certainty. This duty primarily falls on the plaintiff/claimant.
See Salami vs. Oke (1987) 4 NWLR (63) 1, Idundun vs Okumagba
18 (1976) 9 “ 10 SC 227, Arabe vs. Asanlu (1980) 5 “ 7 SC 78, Efetiroroje vs. Okpalafe II (1991) 5 NWLR (pt 193) 517, Addah vs. Ubandawaki (2015) 7 NWLR (pt 1458) 325 at 326. per. HAMMA AKAWU BARKA, J.C.A.
LAND LAW: IDENTITY OF LAND; THE IMPLICATION OF THE FAILURE OF THE PLAINTIFF TO PROVE THE BOUNDARARIES OF THE LAND BEING CLAIMED WITH CERTAINTY
Where the plaintiff fails to prove the boundaries of the land being claimed with certainty, and or fails to properly and satisfactorily describe the land in dispute, or where the description contradicts the plan or the plan produced is inaccurate, the plaintiffs claim will be defeated. See Salu vs. Egeibon (1994) 6 NWLR (pt.348) 23, Okedare vs.
Adegbara (1994) 6 NWLR (pt. 349) 159, Addah vs Ubandawaki (supra) at page 348. Basically the filling of a survey plan becomes necessary only where the identity of the land in dispute is not certain, or is being
disputed, in relation to the area, size or location. See Tanko vs. Echendu (2010) 18 NWLR (pt 1224) 253. per. HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN CIVIL CASES
The position of the law is that the general burden of proof in civil cases rests on the party who asserts the affirmative of the issue. This is by virtue of section 131 (1) and (2) of the Evidence Act 2011, as well as section 132 of the same Act. The principle is that the onus of proof rests upon the party who would fail if no evidence is adduced on the issue. The plaintiffs/appellants claims are for a declaration, general damages and an order of perpetual injunction. It has been established in the case of Onwuama vs. Ezeokoli, that a claim for the declaration of title to land as in the instant case is governed by the general principles governing civil matters, which is proof upon the balance of probabilities. The plaintiff in order to succeed must bring forward cogent evidence capable of tilting the imaginary scale in his favor. The appellant now complains that the judgment of the trial court is against the weight of evidence adduced at the trial. In other words, the appellant is asserting that when the evidence adduced by him is balanced against that of the respondent, the judgment given to the respondent is against the weight which should have been given to the totality of the evidence before him. The commendable practice is as propounded in the case of Mogaji vs. Odofin (1978) LPELR“ 1890 SC. per. HAMMA AKAWU BARKA, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO SUCH EVIDENCE
The settled position of the law is that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses. Where the trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the court of appeal to substitute its own views for the finding of the trial court. What is left for the appellate court in the circumstance is to find out whether there is evidence on which the trial court acted, and once there is such evidence on the record, the appellate court cannot interfere. See Ogundepo vs Olumesan (2011) 18 NWLR (pt 1278) 54, Ikumonihan vs. State (2014) 2 NWLR (pt 1392) 564, Alelu vs. Eze (2015) (pt 1475) 74 at 110. per. HAMMA AKAWU BARKA, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAGWU Justice of The Court of Appeal of Nigeria
Between
PROFESSOR JOHN OSEMEIKHIAN
(for himself and on behalf of the family of Late Venerable E.A.M. Osemeikhian of Idumebo, Ekpoma Appellant(s)
AND
1. CHIEF JOE EDIONWELE
2. GABRIEL IREHOBHUDE
(for himself and on behalf of the Family of Irehobhude of Ujemen, Ekpoma
3. PETER AGBEBAKU
(for himself and behalf of the entire AGBEBAKU OGBEKHILU families occupying Plaintiff?s land at Idumebo Ekpoma) Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of the Edo State High Court of Justice, Ekpoma Judicial Division in Suit No. HEK/58/2004, between Professor John Osemeikhian (for himself and on behalf of late venerable E.A.M Osemeikhian of Idumebo, Ekpoma), Chief Joe Ediomwele, and Gabriel Irehobhude (for himself and on behalf of the family of Irhehobhude of Ujemen, Ekpoma) and Peter Agbebalun, delivered on the 23rd of April, 2013, wherein the Plaintiffs claim was dismissed in its entirety.
The facts generating the instant appeal arose from the action in suit No HEK/58/2004, filed by the plaintiff before the Ekpoma Judicial Division of the Edo State High Court. The plaintiffs claim, as borne in his third further amended statement of claim are for the following reliefs:-
i. A declaration that the expanse of land commonly known as OSEMEIKHIAN ESTATE lying abutting Idumebu village and Ujemen village, Ekpoma more particularly demarcated on the east by Ikhideu Egoro Road, on the west by A.A Ituas property and on the south by
Iruekpen-Eguare Road measuring approximately 6.2362 hectares (15.41 acres) and incorporating both portions of land in dispute (A & B) was, has always been and still is the plaintiffs estate from time immemorial.
ii. A declaration that various acts by the defendants on the portions in dispute ascribed to the defendants specifically amount to gross trespass on the plaintiffs estate.
iii. An order on the first defendant to remove any illegal structure already put on plaintiffs estate or in the alternative an award of general damages of 2 Million for the removal of the illegal structure.
iv. An order on the second and third defendants for the payment of N240,000.00 as special damage for the destruction of the 3,000 cement blocks found on the plaintiffs land.
v. An order for the payment of 500,000.00 general damages by each of the three defendants.
vi. An order of perpetual injunction restraining all the defendants, their agents or privies from ever trespassing either directly or indirectly upon the plaintiffs estate.
vii. An order of forfeiture against the third defendants holdings of his land, for challenging the title of the plaintiff, who is his overlord.
It is the plaintiff`s case at the court below that the respondents physically trespassed on to two portions of his estate. He contends that his grandfather as the original settler founded the land which was originally a virgin forest. In an effort to prove his case, the plaintiff called a total of five witnesses and testified thereafter. On the other hand, each of the defendants testified, and jointly called three witnesses in their defense.
At the close hearing, addresses were filed and adopted by all the parties and on the 23rd of April, 2013, the Lower Court delivered its judgment, the concluding part of which reads thus:
Finally, I have found earlier on in this judgment that the main head of the claim of the claimant is incompetent; as all a party is entitled to under the Land Use Act (which vests ownership on the Governor, its possessory title of either statutory right of occupancy, or customary right of occupancy, it follows that all the other ancillary reliefs in paragraph 17(ii) to 17 (vii) of his third further Amended Statement of claim cannot stand. They all fail. See Awoniyi vs. Registered Trustees of the Rosicrucian Order (AMORC) (2000) 10 NWLR (PT 676) 522, thus dismissing the plaintiff`s case in its entirety.
Dissatisfied and aggrieved with the decision of the Lower Court the
appellant filed a notice of appeal on the 14/6/2013, bearing four
grounds of appeal. This is at pages 155 to 159 of the records. From the four grounds of appeal, Appellant distilled four issues for the courts resolution. They are as follows:
1. Whether the trial Court erred in law, gravely for preferring the
Court of Appeal decision in UBA PLC vs. SAMBA PETROLEUM CO. LTD (2002) 16 NWLR (PT 793) 361, to the Supreme Court decision in ABIOYE vs. YAKUBU (1991) 5 NWLR (PT 190) 150 in declaring the entire suit incompetent because of the couching of relief one.
2. Whether the Trial Court erred in law, gravely and consequently misdirected itself when it preferred and admitted an invalid and legally inadmissible survey plan- Exhibit 3 which completely changed the complexion of the suit perversely.
3. Whether the incidence and components of a customary grant or customary tenancy in Nigeria is now settled law or still deciphered from the parties pleadings only.
4. Whether the entire judgment was not grossly against the weight of valid and admissible evidence adduced at the hearing.
The respondent equally formulated four issues for the courts resolution. They are as follows:-
1. Whether the Trial Court was right when it held that the incompetence of Appellants principal relief adversely affected the ancillary reliefs claimed in the suit. Ground one.
2. Whether the Trial Court was right when it preferred the Respondents litigation plan, exhibit 3, to the discredited plan of the Appellant, exhibit 1. Ground 2.
3. Whether Appellants pleading at the Lower Court sufficiently raised the issue of customary tenancy against the 2nd and 3rd Respondents. Ground 3.
4. Whether the trial Court was not right when it dismissed Appellants claim as unmeritorious. Ground 4.
At pages 3 to 4 of the Respondents brief, the Respondents raised and argued a preliminary objection to the competence of grounds 1 and 2, on the ground that the grounds are argumentative and in breach of the provisions of Order 6 Rule 2(3) of the Court of Appeal Rules 2011.
He argued also that ground 2 of the grounds of appeal, alleged both
error in law and misdirection as the particulars are all lumped together
in the same ground of appeal. The cases of EZEWUSIM VS. OKORO
(1993) 5 NWLR (pt 294) 478 at 493, NWADIKE VS.IBEKWE(1987) 4 NWLR (pt 67) 718 at 744, Alom vs. Amengor (1997) 7 NWLR (pt 514) 578 at 588, Eundu vs. Ekwoaba (1995) 3 NWLR (pt 386) 704 at 733, Udozor vs Egosionu (1992) 1 NWLR (pt 218) 458, Labiyi vs. Anretiola (1992) 8 NWLR (pt 258)139, Oduah vs. Federal Republic of Nigeria (2012) 11 NWLR (pt 1310) 76 at 94 and Incar (Nig) Plc vs. Bolex Enterprises (NIG) (1996) 6 NWLR (pt 454) 318 were cited in support. Learned Counsel for the Respondents pray therefore that the two grounds be struck out for want of competence.
In the reply brief filed on the 28th of January 2015, Learned Counsel for the Appellant urged upon the court to dismiss the preliminary objection in the light of the postulations made in the reply brief. Let me first refer to the statement of the law as posited by my Lord Rhodes Vivour JSC in Lafiya Local Government vs. The Executive Governor of Nassarawa State & ors (2012) (pt 1328) 94 at 124, wherein the Learned jurist stated;
A preliminary Objection can be taken against the hearing of an appeal and not against the competence of the brief of a party to the appeal. The purpose of a preliminary objection is to contend that the appeal is fundamentally defective or incompetent. If it succeeds the hearing of the appeal abates. See Odunukwe vs. Ofomata 44 NSCQR page 379; NEPA vs. Ango (2001) 15 NWLR (pt 737) 627, Husseini & Anor vs. Mohammed & ors (2014) 12 SCM 230.
It flows therefore that where an objection as in the instant case is incapable of terminating the appeal, a motion on notice complaining against the impugned grounds of appeal either for incompetence or
any apparent defect suffices: Madam Adunola Adejumo & Ors vs. Mr
Oludayo Olawaiye (2014) LPELR 22997 SC. In the case quoted, the
Supreme Court had this to say:-
A preliminary objection should only be filed against the hearing of an appeal and not against the hearing of one or more grounds of appeal which are not capable of disturbing the hearing of the appeal. The purpose of a preliminary objection is to convince the court that the appeal is fundamentally defective in which case the hearing of such an appeal comes to an end if found to be correct where the preliminary objection would not be the appropriate process to object or show to the court defects in the process, it is a motion on notice filed complaining about a few grounds or defects would suffice. See the recent decision of this court in Peoples Democratic Party vs. Hon. (Dr) Dakuku Adol
Peterside & Ors (unreported) in Appeal No. CA/A/EPT/659A/2015, delivered on the 16th of December 2015.
All I am trying to say here is that the preliminary objection takenby the respondents against grounds one and two out of the four grounds of appeal, and which does not determine the hearing of the appeal, could have been rightly brought by way of motion on notice as against the preliminary objection employed. Be that as it may, and having scrutinized the two grounds being complained of, I find the wisdom of the Apex Court in Aigbobahi vs. Aifuwa (2006) 6 NWLR (pt 976) 270, where it stated:-
In short the position in my humble view is that once it is possible to make sense out of a ground of appeal that complains both of error and misdirection in fact, the ground of appeal is valid, the defect in its form notwithstanding. The rationale behind this lies in the shift of emphasis from technical justice-from form to substance- that defect alone is not sufficient to have it struck out, provided the complains therein are clear.
I take shelter under the wise legal position established by the
Supreme Court, and dismiss the preliminary objection filed.
On the merit of this appeal, it is my humble view that the issues put forward by the appellant and the issues also formulated by the respondents, seems to me, identical but for the language used. The issues therefore proposed by the appellant in my view would best settle the instant appeal, and I hereby adopt same in the resolution of this appeal, which I intend to consider in sequence.
ISSUE ONE.
Whether the trial Court erred in law, gravely for preferring Court of
Appeal decision in UBA PLC vs. SAMBA PETROLEUM CO. LTD (2002) 16 NWLR (pt 793) 361 to the Supreme Court decision in ABIOYE vs.YAKUBU (1991) 5 NWLR (pt 190) 150 in declaring the entire suit incompetent because of the couching of relief one.
The Learned Counsel for the appellants submits on this issue that the trial court breached the doctrine of stare decisis when it preferred the decision of the Court of Appeal to that of the Supreme Court in arriving at its decision. He submitted that the court couched relief one in line with the case of Abioye vs. Yakubu (supra), but the Lower Court rather relied on the case of UBA PLC vs. Samba (supra), which is unrelated in facts and circumstances thus rendering technical justice long discarded by our courts. Counsel specifically cited the cases of Ojah vs Ogboni (1996) 6 NWLR (pt 454) 272 at 292 per Iguh JSC, Salami vs. Oke (1987) 4 NWLR (pt 63) 1 at 16, Amadi vs. Amadi (2011) 15 NWLR (pt 1271) 437 at 456, and Fasoro vs. Beyioku (1988) 2 NWLR (pt 76) 263 at 273 amongst others. He maintained that the Lower Court gravely erred in law for daring to reject the Supreme Court decision in favor of the decision of the Court of Appeal, and he urged upon the court to allow the appeal on this ground.
In his response on the issue, the Learned Counsel for the respondent, argues that the Lower Court was on a strong wicket when it held that the appellants principal relief contained in paragraph 17(1) of the Appellants further amended statement of claim was in breach of the provisions of Section 1, 5(1), and 6(1) of the Land Use Act, Cap. L5, Laws of the Federation of Nigeria 2004, and thereby incompetent.
Placing reliance on the case of Salami vs. Oke (1987) 4 NWLR (pt 63) 1
at 7, Counsel submitted that under section 5(1) of the Land Use Act, all
that a claimant can claim in court is the entitlement to a statutory or customary right of occupancy and not a declaration of title to land. He opines that the case of Abioye vs. Yakubu (supra) is not helpful to the appellant, same with the case of Ojah vs. Ogboni (supra) filed before the commencement of the Land Use Act.
It is a settled legal principle that under the common law doctrine of precedent or stare decisis, the decision of a higher court may be criticized by the judge of a Lower Court, but that notwithstanding, the judge of the Lower Court is bound to follow and to apply such decision in the case before him. He has no right to sidestep or disregard it. See Atolagbe vs. Awuni (1997) 9 NWLR (pt 522) 536, Dalhatu vs. Turaki 2003 15 NWLR (pt 843) 310.
The understanding is that matters bearing the same facts for which a judicial pronouncement has been made by a higher court should be followed to ensure the certainty of the law. It is not open to the Lower Court, at the pain of being described as judicial rascality to rock the already settled legal position. The facts however have to be the same.
The issue in contention was raised before the Lower Court, wherein the trial court from pages 138 to 141 of the records, highlighted the provisions of section 5(1) of the Land Use Act relative to paragraph 17(1) of the claimants claim. Evidently as it appears, the trial court distinguished the case of Abioye vs. Yakubu (supra), and rather relied on the authority of UBA PLC vs. Samba Petroleum Company Ltd (supra) to the effect that the courts can no longer grant a declaration of title, but a mere declaration of entitlement to right of occupancy; and concluded that the first relief as couched is defective.
I have therefore given an intimate but dispassionate scrutiny to section 5(1) of the Land Use Act, as well as the cases of Abioye vs. Yakubu (Supra), and UBA vs. Samba, vis a vis the submissions of learned counsel on the issue. It seems to me that the appellants claim before the Lower Court, is hinged on traditional history predating the coming into force of the Land Use Act. The apex court in the case of Abioye vs. Yakubu (supra) established the fact that land is still held under customary tenure even though dominion is in the Governor. It further established the fact that the characters in which they hold remain substantially the same, and it is a misstatement of the law to say that the Land Use Act abolished the remedies or reliefs of forfeiture and injunction. The issue in contention to my understanding is whether the trial court based on the relief being claimed under paragraph 17(1) rightly dismissed the case as being in incompetent as claimed or not.
There is no disputing the legal position that relief is the life wire of an action, and where there is no relief sought in an action, the court would
have nothing at the end of the day to grant. Can it then be said that the
appellants` claim under relief 17(1) of his 3rd further amended statement of claim is no claim at all and therefore incompetent, on the premise that section 5(1) of the Land Use Act has denied the appellant any entitlement to ask for the declaration sought? In view of the
decision in Abioye vs. Yakubu (supra), I hold the humble view that the
appellants claim is clearly understood. In the case of Ogboni vs. Ojah
(supra) cited and relied upon by the appellants, the Supreme Court
stated thus;
I think the first point that ought to be made is that the power of the court to make declaratory judgments is now virtually accepted as unlimited see Madumere vs. Okafor (1990) 3NWLR (pt 138) 327. It also seems to me well settled that notwithstanding the coming into force of the Land Use Act, a successful claimant may be entitled to, and the courts are not precluded in appropriate cases from awarding declaration of title, forfeiture and / or injunction in a land case.
From the foregoing therefore, I do not agree with the trial court that the principal claim of the appellant as reproduced above is incompetent. I would rather submit to the reasoning that if the Supreme Court would allow such a claim in the case of Abioye vs.Yakubu (supra), every other court is bound to follow its example. In Dakan vs. Asalu (2015) 13 NWLR (PT 1475) 47 at 70, the propriety of following the decisions of the apex court was once more pronounced;
This is a matter in which the Lower Court should have appreciated that the doctrine of judicial precedent, otherwise referred to as stare decisis is well rooted in our jurisprudence. It ought to be strictly followed by all Lower Courts. There is sense in it to avoid confusion. See Royal Exchange Assuarance (Nig) Ltd vs. Aswani iles Ind. Ltd (1991) 2 NWLT (pt 176) 639 at 672. It is not proper to refuse to follow the decision of a superior court.
A Lower Court should toe the line.
This ordinarily would have been the end of the issue. It is evident however that the trial court, notwithstanding his holding that the claim
was defective, duly proceeded to consider the case on the merit. The attitude of the courts is that it is not every error committed that can lead to the judgment of the court being disturbed, unless the error or misdirection complained of occasioned a miscarriage of justice. See Odunsi vs. Bamgbala (2003) 2 NLLC 973, Okpe vs. Umukoro (2014) All FWLR (pt 760) 1284 at 1299 per Ogunwumiju; and Oreh vs Oreh (2014) All FWLR (pt 759) 1018 at 1053, where the Apex Court held that:-
It is not every error in the judgment of a trial court that vitiates or voids the judgment, unless it is demonstrated that the error had occasioned a miscarriage of justice in the sense that but for the error, the judgment should have been different or otherwise.
In the instant case, the appellant has not demonstrated that the Lower Courts holding to the effect that Appellants claim was incompetent occasioned any miscarriage of justice, the trial court having proceeded to consider the case on the merit. I therefore resolve the issue against the appellant.
Issue 2.
Whether the trial court erred in law, gravely and consequently misdirected itself when it preferred and admitted an invalid and legally
inadmissible survey plan exhibit 3 which completely changed the
complexion of the suit perversely.
It is the contention of the Learned Counsel for the Appellant that the trial court erred in law by admitting an invalid and inadmissible survey plan which perversely changed the complexion of the whole case. Counsel argued that having drawn the courts attention to the legal position that it is the plaintiffs plan determines the land in dispute, and not the defendants survey plan, particularly where the defendant did not file a counter claim, the court ignored the submission and went ahead to prefer and to rely on the defendants plan even though he did not file a counterclaim. He further argued that the trial courts reliance on some Supreme Court authorities is unjustifiable as the cases are distinguishable with the case at hand. He invites the court to see how the courts admission on the defendants plan dominated the defense of the case at the Lower Court, and to expunge same, and to uphold the appeal on this ground.
Responding to the arguments on the issue, the Learned Respondents counsel submitted that the respondents plan was relevant having been pleaded, and therefore admissible. He posits that the defendants chose to tender the plan through the maker in order to have probative value. Counsel further drew the courts attention to why the trial court preferred the respondents plan to that of the appellant, thoroughly discredited as having inaccurate and misleading data.
Specifically, counsel alluded to exhibit one, where it was shown that
appellant share boundary with one A.A. Itua, which was debunked by
the respondents. He contended also that by exhibit 6, a judgment in suit no. HEK/9/82, it was established that Mr Itua lost his claim to the vast expanse of land verged yellow on exhibit 3 to the 2nd respondent.
He further contended that the appellants plan failed to show the wire fence which is an important landmark, and also misleading beacon numbers were planted on exhibit 1. It is the further submission of Counsel that a claimant for declaration of title to land must prove the
identity of the land he claims with certainty, and where he fails to discharge this burden, his claim ought to be dismissed. In the instant case Counsel claims, appellant failed to prove the identity of the land in
respect of which he seeks for a declaration of title, as the appellants
western wall was not established. Furthermore, he contends, exhibit 1 was shown to be incorrect and misleading. He therefore referred to the
Lower Courts holding at pages 147 of the records where the court
conclusively held that the claimant failed to describe with certainty and
accuracy the land he is laying claim to. He submits that the appellant totally misconceived the decision of the Supreme Court in Momoh vs.
Umoru (2011) 15 NWLR (pt 1270) 217 at 247 and Okpaloka vs. Umeh
(1976) 9-10 SC 167 at 180, and finally urged the court to resolve the issue in favor of the respondent.
The law is settled in that the duty of any claimant to a declaration for title to land rests squarely on the claimant. It is his duty to proffer credible and consistent evidence in proof of his case. The law is certain
that admission by the adversary is not conclusive proof, as the plaintiffs
claim succeeds upon the strength of the case made by him. In doing so, he must show exactly and precisely a defined area of the land to which
the claim relates. In other words, before a declaration of title to land is granted, there must be credible evidence describing and identifying the
land with certainty. This duty primarily falls on the plaintiff/claimant.
See Salami vs. Oke (1987) 4 NWLR (63) 1, Idundun vs Okumagba
18 (1976) 9 10 SC 227, Arabe vs. Asanlu (1980) 5 7 SC 78, Efetiroroje vs. Okpalafe II (1991) 5 NWLR (pt 193) 517, Addah vs. Ubandawaki (2015) 7 NWLR (pt 1458) 325 at 326.
Where the plaintiff fails to prove the boundaries of the land being claimed with certainty, and or fails to properly and satisfactorily describe the land in dispute, or where the description contradicts the
plan or the plan produced is inaccurate, the plaintiffs claim will be defeated. See Salu vs. Egeibon (1994) 6 NWLR (pt.348) 23, Okedare vs.
Adegbara (1994) 6 NWLR (pt. 349) 159, Addah vs Ubandawaki (supra) at page 348. Basically the filling of a survey plan becomes necessary only where the identity of the land in dispute is not certain, or is being
disputed, in relation to the area, size or location. See Tanko vs. Echendu (2010) 18 NWLR (pt 1224) 253.
I understand the appellants complaint on the issue being that the trial court gave eminence to the respondents survey plan Exhibit 3, as against the appellants survey plan exhibit 1, even though the respondent did not counter claim. The cases of Momoh vs. Umoru (2011) 15 NWLR (pt 1270) 217 at 247, and Okpaloka vs. Umeh (1976) 9 10 SC 167 at 180 were cited and relied upon.
Curiously the offending Exhibit 3 was tendered by the plaintiff in evidence. From pages 33 to 34D, the PW1 Victor Akhimien tendered
Exhibits 1 3 being the plaintiffs` survey plan as exhibit one, and the defendants` survey plan as exhibit 3, in evidence. He answered questions specifically on Exhibits 1 and 3. He was cross examined on the contents of the two Exhibits by the Learned Counsel for the respondents. I see with the respondents that the plaintiff having adopted that innovative style of prosecuting his case cannot turn round to complain, as a party cannot approbate and reprobate at the same time. It is my candid view that the two parties having made exhibit 3, their case, the trial court was right to have looked at it and to ascribe probative value to its contents. Indeed the case of Archibong & Ors. vs. Ita (2004) 117 LRCN 3801 at 3835, posits that;
An adverse party can only file a counter plan where there is an existing plan. The main purpose of a counter plan is to counter or counteract an existing plan to expose it as incorrect or inaccurate.
In the consideration of the issue, the trial court stated at page 144 of
the records that;
I can see no other purpose for exhibit 3 but to show the incorrect claim of the claimant that A.A. Ituas property boarders his own. I see no reason to discontinue Exhibit 3. In Aighobahi vs. Aifuwa (2006) 136 LRCN 1021 at 1051, Onnoghen JSC said, it is the features on the survey plan (claimant and defendant) and the testimonies by the witnesses that the court evaluates before deciding the matter one way or the other.
I totally find myself in agreement with the trial judge.
From the foregoing therefore the argument by the learned senior counsel that a counter plan is only filed where there is a counterclaim cannot be correct. The position of the law is that each decision is premised upon the particular circumstance of the case and is authority for that same circumstance. I have carefully studied the case of Momoh vs. Umoru (Supra) relied on by the appellants, and my understanding of the case is not available in support of the appellants contention. I also resolve this issue against the appellant.
Issue 3
Whether the incidence and components of a customary grant or customary tenancy in Nigeria are now settled law or still deciphered from the parties pleadings only.
It is the contention of the learned counsel for the appellant on the issue that, the trial court erred in law when it held that the evidence of the temporary settlement, and the grant being subject to their remaining well behaved, is alien to the pleading of the claimant, and that it does not derive its source from the pleading and that it was like a damage repair devise.
He referred to paragraph 9 of the appellants third further amended statement of claim at page 15 of the records and the evidence of PW 2 PW5 establishing customary tenancy, and contends that it is settled law that temporary settlement a tenant remaining well behaved prohibition from alienation not denying overlords title payment of kola payment of tribute where demanded etc are the components and features of customary grants or customary tenancy in Nigeria, and the components need not be specifically pleaded. He makes reference to sections 4 and 7 of the Evidence Act on the point. He further contends that in Etim vs. Essien 16 NLR 43 it was held that once land is granted to a tenant in accordance with Native Law and Custom, full rights of possession are conveyed to the grantee, the only right remaining with the grantor being that of reversion. In the instant case, counsel maintains that the 3rd respondent in collusion with the 2nd and 1st respondents changed the name of the grantors quarters from Idumebo to Ujeme, thus denying the appellants over lordship and thus guilty of gross misbehavior warranting forfeiture. He complains that the trial court rejected the evidence of the components, incidents and features of the customary grant to the third respondent on the ground that they were not pleaded contrary to the authorities of Monier Construction Co. Ltd vs Azubuike (1990) 3 NWLR (pt 136) 74 at 86, Thanni vs. Saibu (1977) 2 SC 89 at 116 and Okonkwo vs. CCB (2003) 8 NWLR (pt 822) 347 at 412 413.
The respondent`s response on the issue can be found at pages 16 to 22 of the respondents brief. Therein Learned Counsel referred to the cases of American Cyanamid vs. Vitality Pharm. Ltd (1991) 1 NSCC 253 at 268, Emegokwe vs. Okagdibo (1973) ANLR 314 at 317 to the effect that parties are bound by their pleadings and any evidence at variance with the pleadings goes to no issue. He contends that whereas the appellant feebly raised the issue of the customary tenancy of the third respondent, he never averted to his pleading at paragraph 9(1) of his 3rd further amended statement of claim. He submits that the pleading is bereft of any materials supporting the customary tenancy as the terms and conditions of the alleged tenancy were not spelt out. He contended further that sections 4 and 7 of the Evidence Act relied upon by the
appellant cannot advance his cause. He further submitted that the trial
court thoroughly evaluated the evidence put forward by the appellant to the conclusion that the appellants` claim was spurious and baseless.
Relying on the cases of Nwosu vs. Uche (2005) 17 NWLR (pt 955) 574
at 591, and Babatunde vs. Akinbade (2000) 6 NWLR (pt 975) 44 at 61, counsel submits that in a claim founded on customary tenancy, the terms and conditions of the tenancy must be sufficiently pleaded and proved. He further submits that by the unchallenged evidence of the 3rd respondent, the appellant is deemed to have accepted the traditional history of ownership of the land in dispute by the 3rd respondent. He states that the appellant failed to plead and to lead evidence to the alleged devolution of the undefined land in dispute from its alleged founder to the appellant. He urged upon this court to resolve the issue in favor of the respondent.
It has been conceded that the issue in contention has been raised though feebly, that being so, this issue is deemed conceded. The appeal succeeds on this ground.
Issue Four.
Whether the entire judgment was not grossly against the weight of valid and admissible evidence adduced at the hearing.
The position of the law is that the general burden of proof in civil cases rests on the party who asserts the affirmative of the issue. This is by virtue of section 131 (1) and (2) of the Evidence Act 2011, as well as
section 132 of the same Act. The principle is that the onus of proof rests upon the party who would fail if no evidence is adduced on the issue. The plaintiffs/appellants claims are for a declaration, general damages and an order of perpetual injunction. It has been established in the case of Onwuama vs. Ezeokoli, that a claim for the declaration of title to land as in the instant case is governed by the general principles governing civil matters, which is proof upon the balance of probabilities. The plaintiff in order to succeed must bring forward cogent evidence capable of tilting the imaginary scale in his favor. The appellant now complains that the judgment of the trial court is against the weight of evidence adduced at the trial. In other words, the appellant is asserting that when the evidence adduced by him is balanced against that of the respondent, the judgment given to the respondent is against the weight which should have been given to the totality of the evidence before him. The commendable practice is as propounded in the case of Mogaji vs. Odofin (1978) LPELR 1890 SC.
The trial judge after a summary of all the facts, must put the two set of facts on an imaginary scale, weigh one against the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiffs. If not, the plaintiff`s case would be dismissed.
At pages 12 18 of the brief, the Learned Senior counsel submits that where exhibit 3 and all the narrations by all the defense witnesses are expunged, the appellants evidence will preponderate. He states that both parties relied on traditional history as their proof of title.
The respondents on their part argued this issue at pages 22 27 of their brief. In his judgment contained at pages 120 154 of the records, the trial court considered the pleadings placed before him, and the evidence rendered; considered the documentary evidence, and at pages 154 concluded by stating that the claimant has been unable to prove his title. Earlier in the resolution of issue three before him, the trial court held that the claimant has not been able to establish his case on traditional evidence, and his claim that the 3rd defendants family are his customary tenants.
The settled position of the law is that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of the trial court which saw, heard and assessed the witnesses. Where the trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the court of appeal to substitute its own views for the finding of the trial court.
What is left for the appellate court in the circumstance is to find out whether there is evidence on which the trial court acted, and once
there is such evidence on the record, the appellate court cannot interfere. See Ogundepo vs Olumesan (2011) 18 NWLR (pt 1278) 54, Ikumonihan vs. State (2014) 2 NWLR (pt 1392) 564, Alelu vs. Eze (2015) (pt 1475) 74 at 110.
It is apparent from the records that the parties relied on proof by traditional history. For the plaintiff to succeed, it is his bounden duty to establish who founded the land, how he founded the land and the particulars of the intervening owners through whom he claims. See
Onwugbufor vs. Okoye (1996) 1 NWLR (pt 424) 252. The appellant as plaintiff before the Lower Court, called five witnesses, and tendered some exhibits, including exhibit 3, the survey plan of the respondents.
He also gave evidence in line with his pleadings. The respondents on the other hand testified and called three more witnesses. The trial court appraised the pieces of evidence put forward at pages 126 to 137 of the records.
On whether the claimant has proved title to the land being claimed, the trial court took pains evaluating the pieces of evidence with regards to the description of the land he lays claim to, and concluded at pages 147 of the record;
This claimant cannot be said to have described with certainty and accurately the land he lays claim to. It is clear from the testimonies of the claimant, CW1, CW3, and the CW4 that the plan exhibit one tells a lie about itself. That the exhibit 1 is inaccurate and evens the description of the claimants western boundary in exhibit 1 contradicts the testimonies of his witnesses.
I have given due consideration to the evidence rendered at the Lower Court, and I am of the considered view that the finding of the court is amply supported by the evidence before it. This being so, this court cannot interfere with the stated finding. There is ample evidence showing that the case of the appellant was discredited by the respondents, thus rendering the appellants case ungrantable. The sum result is that the issue is resolved against the appellant.
Hence having resolved all the issues against the appellant, the inevitable end result is that the appeal is adjudged as lacking in merit and it is hereby dismissed. The decision of the trial court in suit no. HEK/58/2004 delivered on the 23rd of April, 2013 is hereby affirmed. I make no order as to costs.
PHILOMENA MBUE EKPE, J.C.A.: I had a privilege of reading in draft, the judgment just delivered by my learned brother H.A. Barka, JCA. I agree with the entire reasoning and conclusion reached to the effect that the appeal is devoid of merit. I also affirm the judgment of the trial court. I make no order as to costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I had the opportunity of reading in draft, the leading judgment just delivered by my learned brother, Hamma Akawu Barka, JCA. I entirely agree with, and do not desire to add to, the conclusions expressed by my learned brother in the judgment just delivered.
Having also read the Records of Appeal and the Briefs of Argument filed and exchanged by the parties, it is for the sapient reasons articulated in the lead judgment, which I adopt as mine that I concur in the inexorable conclusion that the appeal is devoid of merit and deserving of a dismissal.
Accordingly, I therefore join in dismissing the appeal. The decision of the Lower Court is hereby affirmed.
Appeal dismissed.
Appearances
Pat Onegbedan (SAN) with him, C. Udeh and E. I. IhenhenFor Appellant
AND
K.O. ObamogieFor Respondent
