AIRTEL NETWORKS LIMITED v. MR. SUNDAY AGWALEMERE & ANOR
(2018)LCN/11814(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of July, 2018
CA/OW/107/2015
RATIO
COURT AND PROCEDURE: FINDING OF COURT
“The law is trite, that a finding of the Court not appealed against, remains binding and conclusive. See Ezerioha & Ors v. Mgbeajulu & Ors (2018) LPELR 43811 CA; CPC VS INEC (2011) 18 NWLR (Pt. 1279) 493; Nze Vs Aribe (2016) LPELR 40617 CA.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
AIRTEL NETWORKS LIMITED Appellant(s)
AND
1. MR. SUNDAY AGWALEMERE
(For himself and as the head of Agwalemere Family of Ezialiachara Amaokwe Amiyi Autonomous Community Isuikwuato Local Government Area, Abia State)
2. MR. PAUL IHEDIOHA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of Abia State High Court in Suit No. HS/11/2012, delivered on 16/9/2014 by Hon. Justice Obisike Oji, wherein the Learned Trial Judge gave judgment to the Plaintiff (now 1st Respondent) as follows:
it is:
(1) Declared that the Plaintiff is entitled to the Right of Occupancy over that piece of land at Iheagu, situate at Amaokwe Amiyi in Isuikwuato L.G.A and more clearly delineated in Survey Plan No. MCCO/ABD003/2013, dated 22/01/2013 and therein verged GREEN which is Exhibit E in this proceedings.
(2) The transaction over this land between the 1st and 2nd defendant (sic) is hereby declared null and void.
(3) The defendants shall pay the sum of One Hundred Thousand Naira (N100,000.00) to the Plaintiff being general damages for their trespass to the said land of the Plaintiff.
(4) The defendants are hereby restrained by themselves, their heirs, agents, successors in title and servants from further trespass into Iheagu land of the Plaintiff.
(5) The defendants shall pay cost of this Suit to the Plaintiff assessed at Twenty Thousand Naira (N20,000.00). (See page 348 – 349 of the Records of Appeal).
Dissatisfied with the above decision, Appellant filed Notice of Appeal and later filed Amended Notice of Appeal on 18/4/16, which was deemed duly filed on 27/9/17, disclosing 3 grounds of Appeal. Appellant filed Brief of Argument on 18/4/16, which was also deemed duly filed on 27/9/17. Appellant distilled two Issues for the determination of the Appeal, as follows:
(1) Whether the 1st Respondent (Claimant at the Trial Court) proved his case at the trial Court as required by law as to be entitled to judgment in the Suit?. (Ground 3)
(2) If Issue No. 1 is answered in the affirmative, whether the trial Court did not deny the Appellant a fair hearing/trial by refusing the Appellant’s application to file statement on oath of additional witnesses and to call the said witnesses at the trial? (Grounds 1 and 2)
The 1st Respondent filed his brief on 15/1/18 and the same was deemed duly filed on 1/2/18. He adopted the Issues as distilled by the Appellant for the determination of the appeal. The 2nd Respondent filed no brief.
Arguing the Appeal, on 16/5/18, Appellant’s Counsel, Tochukwu Maduka Esq., (who settled the brief), on Issue one; said the 1st Respondent did not prove his case as required by law, to be entitled to the reliefs he sought. He submitted that, in an action for declaration of title to land, the Plaintiff must succeed on the strength of his own case, not on the weakness of the defence. He relied on Kodilinye Vs Odu (1935) 2 WACA 336 at 337 – 338; Animashaun Vs Olojo (1990) 10 SCNJ 143; Dantata Vs Mohammed (2000) 7 NWLR (Pt. 664) 176; Nwokidu Vs Okanu (2010) 3 NWLR (Pt. 118) 362 and Dumez Nig. Ltd Vs Nwakhoba (2008) 18 NWLR (Pt.1119) 361 at 373 – 374.
Counsel also relied on the case of Idundun Vs Okumagba (1976) NMLR 200 @210, on the five different ways of proving title to land and said that the Plaintiff failed in his bid to establish his claims at the trial by traditional history which he relied on. Counsel further relied on Ezukwu Vs Ukachukwu (2004) SCNJ 189 at 208 ? 209, on evidence of ownership by traditional history, and added that, a party is not bound to plead and prove more than one root of title, to succeed, but that where he relies on traditional history and in addition, acts of ownership and long possession, predicated on traditional history, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession, where evidence of traditional history is unavailable.
Counsel said that 1st Respondent, failed to establish his claims at the trial Court via traditional history, as he failed to lead evidence to establish the names and history of his alleged ancestors, from the alleged deforester of the land, to himself, without any missing link. He relied on the case of Dudu Addah & Ors Vs Hassan Sahi Ubandawaki (2015) LPLER 24266 SC.
Counsel said that, it was averred in paragraphs 8, 9 and 11 of the Amended Statement of claim that Achara (the ancestor and founder) gave birth to Ibezim and brothers and that when Achara died, his heirs, which includes Ibezim, inherited the land and farmed on it; that Ibezim had three sons (Agwalemere, Ogbulagu and Ibegbulam) and when Ibezim died, his three sons and their children inherited his portion of the land (while the descendants of his late brothers inherited their portions as was partitioned to them), and that the portion of the land of the claimant, now in dispute were formerly the land of Ibezim, partitioned for the three families (three sons of Ibezim) in accordance with native law and custom of the people of Ezialachara in Amaokwe Amiyi Autonomous Community, Isuikwuato L.G.A. Abia State, but neither the 1st Respondent nor any of the other 4 witnesses he called, mentioned the name of Ibezim at the trial.
He referred us to the evidence of 1st Respondent, who testified as PW4 on page 11 of the Records of Appeal, and said that, having failed to mention the name of Ibezim in the chain of ownership and devolution of the land, the trial Court was wrong to hold for 1st Respondent. He relied on the case Osuji Vs Ogulaji (2002) 16 NWLR (Pt. 792) 136; Okoko vs Dakolo (2006) K.L.R. (Pt.224) 3099 at 3120.
Counsel said that where a Plaintiff fails to prove his root of title, as in this case, by traditional history, that marks the end of his case, as any alleged act of possession, erected by him would not aid him. He relied on Ukaegbu Vs Nwololo (2009) SCNJ 49 at 66; Ogbechie Vs Onochie (1988) NWLR (Pt.70) 370; Orunengimo Vs Egbebe (2007) 15 NWLR (Pt.1058) 630; Fasoro Vs Beyioku (1988) 2 NWLR (Pt. 76) 263.
Counsel also said there was the issue of the identity of the land and boundaries of the land in dispute, which was not resolved. He relied on the case ofDudu Vs Addah & Ors Vs Hassan Sahi Ubandawaki (supra).
On the Issue 2, Counsel said that Appellant could not file statement of its defence, and was forced to adopt the Statement of defence, purportedly, filed on its behalf by Chief Godwin Okorafor, Counsel for the 2nd Respondent, and that Appellant was unable to file its statement on oath and of its witnesses to effectively defend the Suit; he said that Appellant filed a Motion on Notice dated 17/2/14, praying for extension of time to file its written depositions of two additional witnesses (among other things), but was refused, as the trial Court dismissed the motion, saying it was overreaching the Respondent, who had closed his case, at the time.
Counsel said that infringed on the right of fair hearing of the Appellant; that the Claimant could not have been overreached in the circumstances, since Appellant was not seeking to amend the process, but to call evidence (further witnesses) who would be cross-examined by the 1st Respondent. Counsel relied on NIWA VS SPDC Nig. Ltd (2008) ALL FWLR (Pt. 433) 1402 at 1418, on the meaning of ‘overreach.’
He noted that the 1st Respondent did not oppose the application, and added that, where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regards to such rights or obligations. He relied on the case of Gukas Vs Jos International Breweries Ltd (1991) 6 NWLR (Pt. 199) 614; Mohammed & Anor Vs Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485; Ndukauba Vs Kolomo (2005) 4 NWLR (Pt. 915) 411; Aladetoyinbo Vs Sunmonu (1990) 6 NWLR (Pt. 154) 98; Audu Vs FRN (2013) 53; NSCQR 456 at 469; Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Alabi Vs Amoo (2003) 12 NWLR (Pt. 835) 537; Ojengbede Vs Esan (2001) 18 NWLR (Pt. 746) 771 and Victino Fixed Odds Ltd Vs Ojo (2010) 8 NWLR (Pt.1197) 489.
Counsel urged us to resolve the Issues for Appellant and to allow the Appeal.
Responding, 1st Respondent’s Counsel, Chinedu I. Obialor Esq., (who settled the brief), on the Issue one, said the 1st Respondent had substantiated his claim at the lower Court and had proved his case by traditional evidence, being one of the five ways of proving title to land, as per the case of Idundun Vs Okumagba (1976) NMLR 200 at 210.
He said 1st Respondent’s paragraphs 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Statement of Claim, were not controverted. He added that the evidence led by the claimant had satisfied the Court as to the root of title; that the land was their family land and he had traced same to his ancestors.
Counsel added that identity of the land was not in issue, as same was clearly established and the parties were not in any doubt about identity of the land. Counsel noted that PW3 (Ikwunne Ogwoh) was a member of the 2nd Respondent’s kindred, but he testified for the 1st Respondent on pages 369 – 370 of the Records.
On Issue 2, whether the Appellant was denied fair hearing, by the refusal to further adduce statements on oath, Counsel answered in the negative; he argued that Appellant had earlier told the 2nd Respondent to defend the Suit, when it was served; that Appellant and 2nd Respondent had therefore, filed a joint statement of defence in the Suit, and were represented by a common Counsel; that they later sought to amend their defence and frontloaded depositions on oath and same was granted on 16/12/13, and Appellant refiled the Amended Statement of defence and frontloaded same with his proposed witness – one Ugochukwu Anyanwu, whose written depositions are on pages 235 – 237 of the Records; Counsel said that it was Appellant’s application for additional witnesses, after 1st Respondent had closed his case, that was refused by the Court, as the new evidence sought to introduce issues that had no bearing with the case, and the trial Court said it would be overreaching the 1st Respondent, who had closed his case at the time.
Moreover, Counsel said Appellant did not apply to further amend their pleadings, to accommodate the new witnesses, and wondered how Appellant could have used such witnesses, without amending the list of witnesses!
Counsel urged us to resolve the Issues against the Appellant and to dismiss the Appeal.
RESOLUTION OF THE ISSUES
I think the two Issues distilled by the parties for the determination of this Appeal are apt and I shall consider them, serially.
A brief of facts of this case, at the Court below, shows that the 2nd Respondent leased the piece of land in dispute to the Appellant, on which Appellant erected its communication equipment. The 1st Respondent (as Claimant) sued them (Appellant and 2nd Respondent) claiming title to the land, damages for trespass and injunction. After hearing the case, the trial Court held for the Claimant (1st Respondent). At the trial, Appellant and the 2nd Respondent had a joint defence, and at a point, they sought to file additional witnesses’ deposition, which was refused by the Court, for being overreaching of the claimant, who had closed his case at the time.
Did the 1st Respondent establish his Claim to the land to be entitled to the grant of Right of Occupancy over the land?
Appellant’s main argument appears to be that, whereas that 1st Respondent pleaded traditional history and stated how the land devolved from his ancestor, Achara, to Ibezim to Agwalemere, and right down to him and his relations but in oral evidence, in Court, he skipped Ibezim and never mentioned that name, while tracing the chain of succession to the land in dispute. Hear him (Appellants Counsel):
Thus, while it was averred in paragraphs 8, 9 and 11 of the Amended Statement of Claim at pages 140 – 141 of the Records that Achara gave birth to Ibezim and his brothers and that when Achara died, his heirs which include Ibezim inherited the land and farmed thereon; Ibezim had three sons, namely: Agwalemere, Ogbulagu and Ibegbulam, and when Ibezim died, his three sons and their children inherited his portion of the land? until early 80’s when it was partitioned for the three families (the three sons of Ibezim) in accordance with native law and custom of the people of Ezialachara in Amaokwe Amiyi Autonomous Community, Isuikwuato LGA, Abia State, neither the 1st Respondent nor any of the other four (4) witnesses which he called at the trial mentioned the name Ibezim in their evidence at the trial.” (See paragraph 4.12 of the Appellant’s Brief – pages 9 – 10).
Appellant however admitted that PW4, in his Statement on oath paragraph 8 (Exhibit D), said:
”I and my brothers inherited the said farmland of which portion of it is in dispute, from our forefather late Achara, to our great grandfather (late Agwalemere) to our grandfather (late Monday Agwalemere) and to our father (late Ishmael Agwalemere) whom we inherited directly from.” (See paragraph 4.19 of the Brief of Appellant).
And that PW2 said in Exhibit B, (his statement on oath) that:
”Achara, founder of our kindred Ezialachara, deforested that piece of land and was in possession of same until his demise. Achara gave birth to late Agwalemere, the founder of Agwalemere and his brothers of which their descents are our boundary neighbors at the said piece of farmland, particularly, Paul Ibegbulam and EzeOgbualu.” (See paragraph 4.16 of the Appellant’s Brief).
I cannot see how the lack of specific mention of Ibezim in the oral evidence of the 1st Respondent (and his witnesses) would detract from the sound findings of the trial Court, that the 1st Respondent had established his traditional history over the land. The pleading had acknowledged that Achara gave birth to Ibezim and his brothers, and Ibezim had three Sons including Agwalemere, whom the 1st Respondent said was his great grandfather, and traced himself and family to. In other words, the 1st Respondent had traced himself to Achara the founder of the land in the devolution of the land.
I consider that to be substantial trace of the family tree, in line with the findings of the trial Court, on page 346 of the Records, when it said:
”The traditional history of the Claimant was better brought in his Amended Statement of Claim. It is that the land in dispute was deforested by Achara, the founder of Ezialiachara kindred of the claimant. Achara begat Ibezim who begat three sons, Agwalemere, Ogbulam and Ibeligbu. The Claimant is from the Agwalemere lineage. These three sons of Ibezim shared the Achara lands inherited by Ibezim. Agwalemere begat Monday who begat Ishmael the father of the Claimant and his brothers. The Claimant pleaded and led evidence of how these his ancestors enjoyed the land in dispute as the owners.”
Appellant had relied on the case of Dudu Addah &Ors Vs Hassan Sahi Ubandawaki (2015) LPELR 24266 (SC), and other cases to the effect that, one who places reliance on traditional evidence in the bid to establish their title to the land in dispute, has the onus to plead the root of title, and names and history of his ancestors and lead evidence to establish same, without any missing link.
The evidence led by the 1st Respondent appears to have complied with the above position of law, in my opinion. The pleading had disclosed the names of the ancestors in the chain of successors to the land, including Ibezim, who had three sons, including Agwalemere. The evidence in Court had traced the land from the 1st Respondent up to the Agwalemere and to Achara. Agwalemere having been named as one of the sons of Ibezim in the pleading, is obviously, represented in the line of succession, as he, Ibezim was the link between Achara and Agwalemere, even without stating so in many words, in my view.
The trial Court had held that:
when the evidence adduced by both sides is placed on the imaginary scale of justice, on the side of the Plaintiff will be seen traditional history of acts of continuous exclusive possession, leaving no gap, evidence of credible boundary neighbors, while nothing will be found on the defendants? side.? (See page 348 of the Records of Appeal)
I have not seen where Appellant appealed against such clear findings of the trial Court, expressed above. The law is trite, that a finding of the Court not appealed against, remains binding and conclusive. See Ezerioha & Ors v. Mgbeajulu & Ors (2018) LPELR 43811 CA; CPC VS INEC (2011) 18 NWLR (Pt. 1279) 493; Nze Vs Aribe (2016) LPELR 40617 CA.
Appellant had tried to raise issue about the identity of the land or boundaries of the land in dispute. I do not see how that can arise, in the face of the evidence. We have always stated the law, that there is no more issue of identity of the land in dispute, where the land in dispute (and their boundaries) is well known to the parties, and they asserted that knowledge especially where there is a Survey Plan of the disputed land. See Iroegbu Vs Abazie (2017) LPELR 42617 (CA); Ayuya Vs Yonrin (2011) ALL FWLR (Pt. 583) 1863 SC; Dakolo Vs Dakolo (2011) LPELR 915 (SC).
See also Duru Vs Duru (2017) LPELR 42490 (CA), where this Court held:
the parties knew the exact portion that was in dispute and the Court was never in doubt about it. The law is that, where the parties have identified the land in dispute and each knows the land in contention, identity of the land cannot be an issue again. See Bachirawa Vs Abdullahi (2016) LPELR 41170 CA; Enyinnaya Vs Otikpo & Anor. (2015) LPELR ? 25529 (CA); Edjekpo Vs Osia (2007) ALL FWLR (Pt. 361) 1617; Jimoh & Ors Vs Akande & Ors (2009) LPELR ? 8087 (SC).”
I resolve this issue against the Appellant.
Issue 2 was whether Appellant was denied fair hearing when the application to file further statements on oath (of Additional Witnesses) at the trial, was refused by the trial Court.
It should be appreciated that Appellant defended the Suit, jointly with the 2nd Respondent, by filing a joint Statement of defence and later obtained leave to amend the said joint statement of defence, which they filed, with statements on oath of their witnesses. See pages 202 to 205, 222 – 225 of the Records of Appeal. Appellant was therefore fully heard in the case, and the application to file amended statement of defence was granted 16/12/2013. (Page 326 of the Records)
It was on 18/2/2014 that the Defendants (Appellant and 2nd Respondent) filed a motion, seeking (among other things) an order? extending time within which to file written deposition of additional witnesses, and to deem as properly filed, the said written depositions of Mr. Chidiebere Ozoemena and Emeka Ihedioha. (See pages 257 to 264 of the Records).
The trial Court, while refusing that application on 18/2/14, said:
”It must be noted that the statement of defence was filed on 1/2/2013, about a year ago. Since April 2013 the 1st Defendant had been seeking to amend its statement of defence and eventually by his motion of 2nd November 2013 effected the said amendment and listed the witness it desired to field. The Claimant has closed his case and to wait till the close of the case of the claimant to bring this application, is definitely to overreach the claimant. There is no merit in the application and it is, accordingly, dismissed.” See page 328 of the Records.
Appellant had created the impression that the trial Court denied it right to file Statement of defence, and even forced it to adopt the Statement of Defence, filed by the other Defendant.
Counsel stated on page 15 (paragraph 4.32) of the Appellant’s Brief:
In the instant case, the Appellant could not file a Statement of Defence on her own right but was forced to adopt the Statement of Defence purportedly filed on her behalf by Chief Godwin Okorafor, Counsel for the 2nd Respondent at the Court below, the Appellant was unable to file along with her Amended Statement of Defence, the Statement on oath of her witnesses. Consequently, to effectively defend the Suit, the Appellant filed a Motion on Notice, dated 17th day of February 2014 wherein Appellant prayed? for extension of time to file the written depositions of two witnesses in the Suit
Of course, those claims were completely false and I wonder whether learned Counsel for the Appellant actually read the Records of the Appeal, before resorting to such incorrect and misleading submission. Appellant was fully involved in the case and had filed Amended Statement of Defence, with statement on oath by their lone witness, whom they elected to rely on! The case was handled for Appellant by a Counsel of its choice N.K. Uzoma Esq. (See pages 325 – 329 of the Records of Appeal). The claim of denial of fair hearing is therefore strange.
Appellant’s Issue 2 is therefore, founded on falsehood and pretence. The trial Court did not deny Appellant right of fair hearing, by refusing to allow Appellant to file and use further written Statements on oath after the 1st Respondent (as Claimant) had closed his case. The exercise of that discretion by the trial Court in my opinion was properly done and did not violate Appellant’s right of fair hearing, Appellant having been duly heard before that Order was made, and in the entire case. A party cannot complain of denial of fair hearing, after he had, in fact, been duly heard, or given opportunity to be heard, in a Suit. See the cases of Chevron Nig. Ltd Vs Osigwe (2014) LPELR 23534 (CA); Newswatch Communications Ltd Vs Atta (2006) 12 NWLR (Pt. 993) 144; Nnaji & Anor Vs Alozie (2014) LPELR 24014 (CA); Major James M. Ado (Rtd) Vs Hon. Comm. For Works, Benue State & Ors (2007) LPELR ? 8324 CA; FHA Vs Kalejaiye (2011) ALL FWLR (Pt. 562) 1633.
I therefore resolve this Issue against the Appellant too. On the whole, I see no merit in this appeal and so dismiss it.
Appellant shall pay the cost of this Appeal assessed at N50,000.00 (Fifty Thousand Naira) only to the 1st Respondent.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege and read before now while in draft, the lead judgment just delivered by my learned brother, Hon. Justice Ita George Mbaba, JCA. I endorse the reasoning and conclusion reached in respect of the instant appeal matter. I also adjudge that the appeal lacks merit and it is accordingly dismissed by me. I abide by the order made and or contained in the said lead judgment with regard to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned Brother Ita G. Mbaba JCA.
I am in full agreement with the reasoning and conclusion therein.
I have nothing more to add.
I resolve all the issues formulated against the Appellant.
I award the cost of N50,000 cost in favour of the Respondent.
Appearances:
TOCHUKWU MADUKA, ESQ.
For Appellant(s)
CHINEDU I. OBIALOR, ESQ.- 1ST RESPONDENTFor Respondent(s)
