CHIEF EDWIN EBIAFA v. AKOMBO YENDIEBOFA & ORS
(2019)LCN/12640(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/PH/441/2014
RATIO
APPEAL: LEAVE OF COURT
“The authority of CON OIL PLC V ITF GOV COUNCIL supra referred to by Learned Counsel for the Appellant is clearly distinguishable from the case at hand, not least because the case relied upon is on an interlocutory decision of the High Court, involving issues of mixed law and facts, while this Appeal relates to a final decision.
Having said that, as rightly submitted by Learned Counsel for the Appellant, by the provisions of Section 241(1) (a) of the 1999 Constitution, as amended, a final decision of the High Court does not require Leave before an Appeal can be filed, because an Appeal would lie as of right in such circumstances; see FADIORA V. GBADEBO (1978) LPELR-1224 (S.C.), (1978) ALL NLR 42 and GOMEZ & ANOR V. CHERUBIM AND SERAPHIM SOCIETY & ORS. (2009) LPELR-1331 (SC).
Accordingly this issue is resolved in favour of the Appellant, against the Respondents without much ado.” PER MOHAMMED MUSTAPHA, J.C.A.
LAND LAW: TRADITIONAL PROOF OF LAND
“It is now settled that a Plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; and this includes how his ancestor had come to own the land in the first place and how the land devolved over the years on the Claimant?s family until it got to the Claimant; see NKADO V OBIANO (1997) 5 NWLR part 503 page 31. The burden is on the Plaintiffs to satisfy the Court by their evidence that they are entitled to the declaration of title to the land, and in so doing they must rely on the strength of their case not on the weakness of the Defendants’ case; see ODUNZE V NWOSU (2007) 13 NWLR part 1050 page 1.” PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
CHIEF EDWIN EBIAFA Appellant(s)
AND
1. AKOMBO YENDIEBOFA
2. KALAEBIERE YENDIEBOFA
3. THANKGOD AKOMBO, Esq. Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Bayelsa State sitting at Sagbama, presided by Hon Justice E. T. Ineif, in Suit No SHC/17/2008.
The Plaintiff sought the following reliefs at trial:
a) A declaration that the Plaintiff is entitled to a Statutory Right of Occupancy over all that lands to wit: i) Okokpdp Aegbepou, ii) Oforilgbaepou, iii) Maroegbepou, iv) Omonidibiasa, v) Torububou, vi) Baadumo, vii) Olotuegbapou i.e. Orupou, viii) Ikanegbepou, ix) Awalabapou, x) Awalabaupou, being the landed property of Agba family lying at Toru-Ebeni community within the Sagbama local government area of Bayelsa State to the exclusion of the Defendants.
b) An Order of this honorable Court compelling the 3rd defendant to refund forthwith to the Plaintiff’s family the sum of nine hundred thousand naira (N900, 000.00) which he fraudulently received on behalf of the Agba’s family compensation from the Setraco Nigeria Ltd sometime in the 2006 without the Leave or permission of the said family.
c) An Order of perpetual injunction restraining the Defendants by themselves, their privies, heirs, and/or whoever claims through them from further acts of trespass into the landed property of Agba family in possession of the Plaintiff lying within Toru-Ebeni community, Sagbama local government area of Bayelsa State.
d) N10,000,000.00 only being general damages suffered by the Plaintiff’s family (Agba family) for a continuous trespass and/or deprivation of their land by the Defendants.
Dissatisfied with the decision of the trial Court, the Appellant appealed by a Notice of Appeal filed on the 17th of February 2011 on the following grounds:
GROUNDS OF APPEAL:
The Learned trial Judge erred in fact and misdirected himself when he held that: Plaintiff is entitled to that statutory right of occupation over all that lands to with:-
I. Oforiegbapou
II. Torububuo
III. Olotugbapou
IV. Awalabapou
V. Maroegbepou
VI. Baadumo
VII. Ikanegbepou
VIII. Awalabauwou
Expect OKOKODIAEGBEPOU AND OMONIDIBASA, which has been acceded to the Defendants, being the landed property of AGBA FAMILY lying at Toru-Ebeni Community within the Sagbama Local Government Area of Bayelsa State to the exclusion of the Defendants.
PARTICULARS OF ERROR:
1.The reasoning of the Court in reaching this decision appealed against is in line with the reasoning of the Sagbama Customary Court in the decision reached in Suit No: SCC/4/1993 which was admitted AS EXHIBIT D.
2. Page 9, second paragraph in EXHIBIT D states that the two portions acquired through litigation in Okodia pou and the forcibly acquired land and ponds be the exclusive ownership of the Defendant.
3. The Court in page 9 of this Judgment appealed against cited and adopted the decision of Sagbama Customary Court in EXHIBIT D.
4. EXHIBITS D did not include Omonidibasa as one of the lands acquired by the Defendant.
5. That as such, the Plaintiffs have never ceded Omonidibasa to the Defendants.
6. EXHIBIT D did not state that the whole of Okokodiaegbepou has been ceded to the Defendents. It was only two portions in Okokodiaegbepou that was ceded to the Defendants.
7. The Plaintiff admitted under cross examination that some portions of land was given to the Defendants by the 8 man panel report which is EXHIBIT A, but he never mentioned that the whole of Okokodiaegbepou and Omonidibasa was given to the Defendants.
8. There is no place where it is mentioned in the Defendants’ Statement of Defense or any other Court process that the Whole of Omonidibasa and the whole of Okokodiaegbepou has been ceded to the Defendants.
From these Ground, M. A. Abidolu Esq., of Counsel to the Appellant formulated the following issues for the determination of the Court in the Amended Brief filed on the 9th February 2018:
1. Whether the trial Judge has not misdirected himself to have relied on Exhibit D more particularly at page 9 lines 14 to 17 therein, and awarded the pieces of land lying at Okokodiaegbepou and Omonidibisa to the Defendant in his Judgment in the absence of a Counter Claims thereof.
2. Whether the refusal of the trial Judge to award title in the pieces of land at Okokodiagbepou and Omonidibisa to the Plaintiff in his Judgment does not amount to miscarriage of justice.
In response, Stanley Damabide Esq., of Counsel to the Respondents formulated the following issues for determination in the brief filed on the 19th July 2017 but deemed properly filed on the 6th of February 2018:
1. Whether the Appellant proved his claim of title in respect of the Okokodiaegbepou and Omonidiabiasa parcels of land that were conceded by the trial Court as the Respondents?
2. Whether the Appellant’s failure to Appeal against the Judgment of Sagbama Customary Court in suit No SCC/4/1999 which awarded the Respondents parcels of land in Okokodiaegbepou and other land and ponds is not fatal to the Appellant’s case?
3.Whether the Appellant’s failure to seek and obtain Leave to argue his Appeal does not affect the jurisdiction of this honorable Court to hear and determine this Appeal?
In response to issue three of the Respondents, which borders on the jurisdiction of this Court to hear this Appeal, Learned Counsel to the Appellant filed an amended reply brief on the 9th of February, 2018.
This Appeal will be decided on the issues formulated for the Respondents, not least because they encompass that of the Appellant, and raised a further issue of jurisdiction which ought to be settled one way or the other first.
ISSUE THREE:
Whether the Appellant’s failure to seek and obtain Leave to argue his Appeal does not affect the jurisdiction of this honorable Court to hear and determine this Appeal?
It is submitted for the Respondents that the Grounds of Appeal are not based purely on law, because they require questioning the evaluation of the facts before the application of the law, as a result they can be said to be grounds of mixed law and fact; Learned Counsel referred the Court to CONOIL PLC V I.T.F GOV COUNCIL (2015) 9 NWLR part 1464 page 399; that where Leave is required to prosecute an Appeal, failure to seek Leave will render the Appeal incompetent; he relied on NJC V AGUMAGU (2015) 10 NWLR part 1467 page 365 and NWAIZU V TORONTO HOSPITAL LTD (2016) 15 NWLR part 1534.
It is submitted in response that by reason of Section 241 (1) (a) of the 1999 Constitution, as amended an Appellant as of right requires no Leave; he referred this Court to SPDC NIG. LTD V KATAD NIG. LTD & ANR (2005) ALL FWLR part 263 page and DAVID IKPAMAKU V PRINCE OKORARE MAKOLOMI (2006) ALL FWLR PART 319 PAGE 881.
RESOLUTION:
The authority of CON OIL PLC V ITF GOV COUNCIL supra referred to by Learned Counsel for the Appellant is clearly distinguishable from the case at hand, not least because the case relied upon is on an interlocutory decision of the High Court, involving issues of mixed law and facts, while this Appeal relates to a final decision.
Having said that, as rightly submitted by Learned Counsel for the Appellant, by the provisions of Section 241(1) (a) of the 1999 Constitution, as amended, a final decision of the High Court does not require Leave before an Appeal can be filed, because an Appeal would lie as of right in such circumstances; see FADIORA V. GBADEBO (1978) LPELR-1224 (S.C.), (1978) ALL NLR 42 and GOMEZ & ANOR V. CHERUBIM AND SERAPHIM SOCIETY & ORS. (2009) LPELR-1331 (SC).
Accordingly this issue is resolved in favour of the Appellant, against the Respondents without much ado.
ISSUES ONE & TWO:
It is submitted for the Appellant that the Respondents? claim of relationship to the Plaintiff/Appellant?s family (Agba family) through one Boloumepregha is nebulous, as no witness was presented to substantiate the alleged facts; and also that the burden of proof in civil cases shifts from one party to the other Learned Counsel
7
referred the Court to OGUNYADE V OSHUNKEYE & ANR (2007) ALL FWLR part 389 page 1179.
That Exhibit D does not give title of Okokodiagbepou land to the Defendants, rather two unidentified portions within the Okokodiagbepou land was given to the Defendants and not the whole as the trial Court erroneously did in its Judgment.
Learned Counsel further submits that the trial Court misdirected itself and erroneously concluded that the two portions referred to implied Okokodiaegbepou and Omonidibiasa land, thus perverting the cause of justice; he referred the Court to LARMIE V D.P.M. & SERVICES LTD (2006) ALL FWLR part 296 page 775.
That the Appellant proved his title by traditional evidence through Exhibits A, B and D; the traditional evidence of the Appellant being more probable, yet the trial Court failed to find in favour of the Appellant, in spite also of the fact that the Respondents failed to lead evidence in support of their pleadings. A failure which he argued meant averments of the Appellant not supported by evidence ought to have been deemed abandoned, he referred this Court to NIGERIAN DREDGING & MARINE LTD V GOLD (2007) ALL FWLR part 355 page 505 and MANSON V H.E.S NIG. LTD (2007) All FWLR part 358 page 1067.
Learned Counsel also submitted that the error in the Judgment of the trial Court is substantial and has occasioned a miscarriage of justice, capable of leading this Court to interfere; he referred this Court to APROFIM ENGR. CONST NIG. LTD V BIGOURET (2012) All FWLR part 622 page 1740.
In response it is submitted for the Respondents that the Appellant failed to prove his claim of title to Okokodiapou/Okokodaiegbepou and Omonidibiasa parcels of land, and also that the Appellant’s failure to appeal the Judgment of the Customary Court is fatal his to case; Learned Counsel referred this Court to ORLU V GOGO ABITE (2010) 1 SCNJ page 322.
That by Exhibit D portions of land were ceded to the Respondents; and the Appellants failed to appeal that decision as such that decision remains binding until set aside; Learned Counsel referred to EMODI V EMODI (2015) 2 NWLR part 323 page 329 and K.R.K. HOLDINGS NIG. LTD V FBN LTD (2017) 3 NWLR part 1552 page 326.
It is argued for the Respondents that the Appellant?s admission under cross examination supported the Respondents’ case and was the basis for the refusal by the trial Court to award title to the Appellant in respect of the said Omonidibiasa and Okokodiaegbepou parcels of land; Learned Counsel referred this Court to AKOMOLAFE V GUARDIAN PRESS (2010) 1 SCNJ page 283.
RESOLUTION:
It is now settled that a Plaintiff who relies on traditional history in proof of a claim for declaration of title to land must lead evidence to show the root of his title; and this includes how his ancestor had come to own the land in the first place and how the land devolved over the years on the Claimant?s family until it got to the Claimant; see NKADO V OBIANO (1997) 5 NWLR part 503 page 31. The burden is on the Plaintiffs to satisfy the Court by their evidence that they are entitled to the declaration of title to the land, and in so doing they must rely on the strength of their case not on the weakness of the Defendants’ case; see ODUNZE V NWOSU (2007) 13 NWLR part 1050 page 1.
The Appellant’s failure to prove his claim of title particularly in respect of Okokodiapou and Omonidibiasa parcels of land, and the failure to appeal the decision of the Customary Court, i.e Exhibit D, especially on the issue that some plots of land in Okokodiapou and the ponds belong to the Respondent sealed the fate of the Appellant in this regard, and as rightly observed, is the basis of the trial Court’s finding, in favour of the Respondent.
Even though the Defendant at trial only filed a Statement of Defense and witness deposition without attending Court throughout the trial, as rightfully found by the trial Court that would not automatically entitle the Plaintiff/Appellant to Judgment in his favour. So contrary to Learned Counsel to the Appellant’s contention, the trial Court was right to hold that notwithstanding the apparent paucity of Plaintiff/Appellant’s evidence it must still be subjected to an evaluation and appraisal by the Court, see page 88 of the Record of Appeal.
By Exhibit D, pages 53-54 lines 27-29 and 1-5 the Appellant admitted that portions of land in Okokodiapou were ceded to the Respondent; this clearly supported the case of the Respondents, along with the evidence of PW2 under reexamination, at page 60 lines 8-12 of the Record of Appeal, that the Respondents were farming on the disputed lands, and that formed the basis of the trial Court?s decision not to grant title to the land in dispute to the Appellant.
After admitting the Respondent’s right to Okokodiaegbepou and Omonidibiasa, and failing to prove superior title, the Appellant cannot expect the decision of the trial to be in his favour, especially in view of the fact that Exhibit D is binding on the parties because the Appellant has not appealed that Judgment; see NNAJI VS ALOZIE (2014) LPELR 24014 CA, OJEABUO VS FRN (2014) LPELR 22555 AND AMALE VS SOKOTO L.G. (2012)5 NWLR (PT.1292)181.
It is for these reasons that issues one and two are resolved in favour of the Respondents, against the Appellant.
Even though issue three is resolved in favour of the Appellant, issues one and two are the threshold issues and having resolved them in favour of the Respondents, against the Appellant, the appeal as a result fails for lack of merit and is accordingly dismissed.
Judgment of the trial Court is hereby affirmed in Suit No SHC/17/2008 .
No order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had a preview of the Judgment of my learned brother, MOHAMMED MUSTAPHA JCA just delivered. I agree that the appeal has failed for lack of merit. I dismiss the appeal and abide by the consequential Order.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the priviledge of reading in draft the judgment just delivered by the learned brother Mohammed Mustapha, JCA. I agree with his reasonings and the conclusions reached thereon. I too dismiss this appeal and affirm the decision of the trial Court. I abide by all other consequential orders including order as to costs.
Appearances:
M. A. Abidolu, Esq. with him, E. J. Eweke, Esq. and S. M. Ebenezer, Esq. For Appellant(s)
Stanley Damabide, Esq.For Respondent(s)
