MR. DOMINIC ASUQUO UDOSEN v. PASTOR EMMANUEL EFFIONG NDE
(2019)LCN/12936(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of March, 2019
CA/C/163/2015
RATIO
APPEAL: WHEN A DECISION IS OPPOSED ON THE GROUND THAT A JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE, AND IS COUCHED AS AN OMNIBUS GROUND
A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court.PER OBANDE FESTUS OGBUINYA, J.C.A.
COURT: WHAT A TRIAL COURT MUST CONSIDER IN DETERMINING THE WEIGHT OF EVIDENCE
In ascertaining the weight of evidence, the trial Court is enjoined by law to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.PER OBANDE FESTUS OGBUINYA, J.C.A.
COURTS: THE PRIMARY DUTY OF THE TRIAL COURTS AS PRESCRIBED BY THE LAW
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings.PER OBANDE FESTUS OGBUINYA, J.C.A.
COURTS: HOW THE TRIAL COURT DISCHARGES IT’S PRIMARY DUTY
To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value.PER OBANDE FESTUS OGBUINYA, J.C.A.
COURTS: HOW THE TRIAL COURTS APPRAISES EVIDENCE
It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (supra); Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (supra); Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 LR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 11.PER OBANDE FESTUS OGBUINYA, J.C.A.
LAND LAW: THE PRODUCTION OF DULY AUTHENTICATED DOCUMENT IS ONE OF THE 5 WAYS OF PROVING TITLE TO LAND UNDER THE NIGERIAN LEGAL SYSTEM
Indisputably, production of duly authenticated document is one of the five recognised ways of proving title to land within the corpus of the Nigerian legal system. The apex Court had sanctioned these modes in loads of judicial authorities, see Idundun v. Okumagba (1976) 9-10 SC 227; Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 393; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332; Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22; Iseogbekun v. Adelakun (2013) 2 NWLR (Pt. 1337) 140; Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374.PER OBANDE FESTUS OGBUINYA, J.C.A.
DOCUMENTARY EVDIENCE FURNISHED BY THE LOWER COURT IS A VERY IMPORTANT PART OF THE CASE AT THE APPEAL COURT
To begin with, documentary evidence, furnished before the lower Court, form an integral part of the casus belli in this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544.PER OBANDE FESTUS OGBUINYA, J.C.A.
THE COURT OF APPEAL AND TRIAL COURTS HAVE CONCURRENT JURISDICTION IN THE EVALUATION OF DOCUMENTARY EVIDENCE
Admirably, the law donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487.PER OBANDE FESTUS OGBUINYA, J.C.A.
LAND LAW: THE COURT MUST INVESTIGATE ANY DOCUMENT OF TITLE PRESENTED TO IT BY A PARTY
It cannot be gainsaid, that a document of title does not automatically entitle a party, armed with it, to ownership of land. A partys production and reliance on such an instrument, inevitably, carries with it the necessity for the Court to inquire into some number of questions viz: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by its holder, see Agboola v. UBA (2011) 11 NWLR (Pt. 1258) 375; Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312; Romaine v. Romaine (1992) 4 NWLR (Pt. 238); Dabo v. Abdullahi (2005) 7 NWLR (2005) 7 NWLR (Pt. 923) 181; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412; Jolasun v. Bamgboye (2010) NWLR (Pt. 1225); Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477.PER OBANDE FESTUS OGBUINYA, J.C.A.
CUSTOMARY ARBITARTION CAN BE USED AS ESTOPPEL PER REM JUDICATA
The law sanctions the use of customary arbitration as estoppel per rem judicata, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 470.PER OBANDE FESTUS OGBUINYA, J.C.A.
ARBITRATION: WHAT IT CONNOTES
An arbitration connotes a reference to a decision of one or more persons, with or without an umpire, of a particular matter in dispute between the parties, see Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; NNPC v. Lutin Invest. Ltd. (2006) 2 NWLR (Pt. 965) 806; Agala v. Okusin (2010) 19 NWLR (Pt. 1202) 412.PER OBANDE FESTUS OGBUINYA, J.C.A.
ARBITRATION: PARTIES ARE BOUND BY CUSTOMARY ARBITRATION EXCEPT IN SOME OTHER CIRCUMSTANCES
In law, parties are bound by a customary arbitration provided: (a) there must have been a voluntary submission of the dispute to the non-judicial body; (b) the parties must have agreed to be bound by the decision of the non-judicial body; (c) the decision must be in accordance with the custom of the people or their trade or business; and (d) the arbitrators must have reached a decision and published same, see Ohiaeri v. Akabeze (1992) 2 SCNJ 76; Agu v. Ikewibe (supra); Agala v. Okusin (supra); Onwu v. Nka (1996) 7 SCNJ 240; Ojibah v. Ojibah (1991) 6 SCNJ 156; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826); Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514; Egesimba v. Onuzurike (2002) 15 NWLR (Pt. 791) 466; Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20; Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130. These pre-conditions must co-exist before an award by a customary arbitrator(s) will be binding on the parties.PER OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE PROCURED FROM CROSS EXAMINATION HAS MORE WEIGHT IN LAW THAN EVIDENCE IN EXAMINATION IN CHIEF
As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.PER VOBANDE FESTUS OGBUINYA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
MR. DOMINIC ASUQUO UDOSEN – Appellant(s)
AND
PASTOR EMMANUEL EFFIONG NDE – Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offshoot of the decision of the High Court of Akwa Ibom State, holden at Uyo (hereinafter addressed as ?the lower Court?), coram judice: I. E. Ukana, J., in Suit No. HU/492/2008, delivered on 21st November, 2014. Before the lower Court, the appellant and the respondent were the plaintiff and the defendant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. The land in dispute, lying and being at Adaha Ata Street in Use Offot, Uyo, Akwa Ibom State, originally belonged to late Nde Akpaibo. The appellant alleged that he purchased it, under native law and custom, in 1976 for the sum of N6,000.00, from one Joseph Effiong Edem who inherited it from his late father, Nde Akpaibo, on his demise. The transaction was reduced into writing. On purchase, the appellant took possession by cultivating it and planting economic trees thereon without let or hindrance. In 2003, the respondent unlawfully entered into it and destroyed the crops and economic trees planted on it.
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In 2005, the Use Offot Village Council, at the instance of the respondent, arbitrated over the dispute and found in the appellant?s favour. The respondent made other attempts to claim it before the same Council and District Court, Offot, but failed. Sequel to these, the appellant beseeched the lower Court, via a writ of summons filed on 11th November, 2008, and tabled against the respondent the following reliefs:
1. A Declaration that the plaintiff is the owner and is accordingly entitled to the Statutory Right Occupancy over the piece or parcel of land lying and situate at Adaha Ata Street in Use Offot, Uyo, Akwa Ibom State of Nigeria, the said land which is bounded on the North by Chief Eyo Okon Obong?s Land: on the South, East and West by Mr. Denis Edem Nde?s land and which forms the subject matter of an agreement of sale dated the 15th day of April, 1976.
2. An Order for the payment of the sum of N2 million as special and General Damages for trespass against the Defendant.
3. An Order of perpetual injunction restraining the Defendant or his against from further trespass on the Plaintiff?s land.
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In reaction, the respondent joined issue with the appellant and denied liability. The respondent claimed that the land in dispute was a patrimony from his late father which was under the management of the appellant?s vendor?s father, his late uncle. The Eniong Offot Village Council arbitrated over the dispute and ruled in the respondent?s favour. Consequently, the respondent counter-claimed and solicited the following reliefs:
1) A declaration that the Defendant is entitled to deemed Statutory Right of Occupancy over the land lying situate at Use Offot, Uyo.
2) The sum of N20,000,000.00 being general damages for trespass to the land of the Defendant.
3) Perpetual injunction restraining the Plaintiff from trespassing unto the land of the Defendant lying situate at Use Offot, Uyo.
Following the denials and rival claims, the lower Court had a full-scale determination of the case. In proof of the case, the appellant fielded five witnesses, PW1 ? PW5. In disproof of the case, the respondent called three witnesses, DW1 ? DW3. Six documentary evidence, Exhibits A-F, were tendered.
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At the closure of evidence, the parties through counsel, addressed the lower Court. In a considered judgment, delivered on 21st November, 2014, found at pages 244-261 of the record, the lower Court refused the appellant?s claim, but granted the respondent?s counter-claim.
The appellant was dissatisfied with the decision. Hence, on 31st December, 2014, he lodged a one-ground notice of appeal, copied at pages 262 and 263 of the record, which prayed this Court: ?To allow the appeal and set aside the Judgment of Akwa Ibom State High Court.? Thereafter, the parties filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 4th February, 2019.
During its hearing, learned counsel for the appellant, Ndubuisi Obinwogu, Esq., adopted the appellant?s brief of argument, filed on 16th October, 2015 and deemed properly filed on 14th November, 2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Ubochi Stella, Esq., adopted the respondent?s brief of
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argument, filed on 3rd June, 2016 and deemed properly filed on 14th November, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant?s brief of argument, learned counsel distilled three issues for determination to wit:
1. Whether the learned trial Judge was right in holding that, ?the term of the judgment of the Eniong Offot Village Council destroyed the Plaintiff?s root of title?, which term is contained in Exhibit ?D? tendered by the Respondent despite over-whelming evidence to show that Appellant was the bona fide owner of the land in dispute.
2. Whether this Court is in the same position as the trial Court to evaluate documentary evidence tendered by the parties where the trial Court failed to do so.
3. Whether the trial Court was right in granting statutory right of occupancy in respect of the land in dispute to the Respondent in that the Respondent had a better title.
In the respondent?s brief of argument, learned counsel crafted two issues for determination viz:
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1. Whether the Appellant had proved titled to the land to have been entitled to the declarations and reliefs sought by him.
2. Whether the Respondent had successfully proved title to the land to have been entitled to the counter-claim sought.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondent?s issues can be, conveniently, subsumed under the appellant?s. In view of the sameness, I will decide the appeal on the issues formulated by the appellant; the undoubted owner of the appeal.
Arguments on the issue:
Issue one
Learned counsel for the appellant submitted that there were overwhelming evidence that the appellant proved his case by preponderance of evidence. He noted that by Exhibit A, the written agreement, the appellant showed how he came to the land in dispute and needed not prove more than one way of establishing title to land. He relied on Nkado v. Obiano (1997) 50 LRCN 1084. He analysed the evidence of the appellant?s witnesses to show that he proved his case. He stated that the purported admission by Dominic Ifiok Edem was not made by him and the assertion was not proved.
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He cited Olodo v. Josiah (2011) vol. 190 LRCN 34. He reasoned that Exhibit D was withheld from the arbitration panel as it was unfavourable to the respondent. He cited Section 167(d) of the Evidence Act, 2011. He insisted that the judgment was against the weight of evidence. He explained the implications of omnibus ground as noted in Akpan v. UBN Plc. (2003) 6 NWLR (Pt. 816) 279. He asserted that the lower Court wrongly held that Exhibit D destroyed the appellant?s title to the land in dispute.
On behalf of the respondent, learned counsel listed the five ways to prove title to land. He relied on Idundun v. Okumagba (1976) 9-10 SC 223; Ajibulu v. Ajayi (2013) 12 KLR (Pt. 337) 4153; Matanmi v. Dada (2013) 2 KLR (Pt. 324) 721. He enumerated the ingredients of reliance on traditional history. He cited Lebile v. Reg. Trustees Cherubim and Seraphim Church (2003) 13 NSCQR 19; Eze v. Atasie (2000) 10 NWLR (Pt. 6790; ) 47Akinloye v. Eyilola (1968) NWLR 92. He reasoned that the respondent proved traditional history especially by Exhibit D, but the appellant did not.
Learned counsel outlined the questions to be used to test document of title.
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He referred to Olaniyan v. Fatoki (2013) 7 KLR (Pt. 335) 3828; Kachalla v. Banki (2001) FWLR (Pt. 73) 1; Dabo v. Abdullahi (2005) 7 NWLR (Pt. 923) 181; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412. He asserted that the grantor in Exhibit A had no capacity to make the grant and did not have what he purportedly granted. He maintained that the appellant failed to prove ownership by means of document of title. He described the acts of ownership exercised by the appellant?s vendors, as administrators, as adverse to the interest of the respondent ? the beneficiary of the land. He citedIbrahim v. Osunde (2009) 6 NWLR (Pt. 1137) 382. He added that the appellant failed to prove that his vendor had good title to transfer to him. He referred to Adole v. Gwar 2 LLAC; Ajibulu v. Ajayi (supra).
Learned counsel contended that the appellant?s vendors were administrators of the land in dispute and had no ownership of it. He referred to Ibrahim v. Osunde (supra). He observed that a person would not benefit from his own wrong. He cited B. Manfag (Nig.) Ltd. v. M/S O. I. Ltd. (2007) 14 NWLR (Pt. 1053) 120.
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He persisted that a person would not give what he never had. He referred to Abba v. SPDCN (2013) 11 NWLR (Pt. 1364) 86; Ibrahim v. Osunde (supra); Ekpendu v. Erika (1959) SCNLR 186; Angbazo v. Sule (1996) 7 NWLR (Pt. 461) 479. He reasoned that Exhibit D was subsisting until it was set aside. He cited NIWA v. SPDC (Nig.) Ltd. (2007) 1 NWLR (Pt. 1015) 305; Okwaranonobi v. Mbadugha (2013) 17 NWLR (Pt. 1383) 255. He stated that admitted fact needed no proof. He referred to Section 123 of the Evidence Act, 2011; Bendel Pilgrim Welfare Board v. Irawo (1995) 1 NWLR (Pt. 369); Narindex Trust Ltd. v. NICMB Ltd. (2001) FWLR (Pt. 49) 1546. He persisted that the lower Court considered the evidence before it with the necessary factors. He relied onUkeje v. Ukeje (2014) 4 KLR (Pt. 345) 1627; Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659;
Issue two:
Learned counsel for the appellant submitted that the lower Court did not evaluate Exhibits A and B. He stated that an appellate Court is in the same position with a trial Court in the evaluation of oral and documentary evidence. He referred to Kamalu v. Umunna (1997) 50 LRCN 1344.
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He analysed the purports of Exhibits A, B and D. He claimed that the respondent was bound by decision of the arbitration panel in Exhibit B. He relied on Ume v. Okoronkwo (1996) 43 LRCN 2068. He reasoned that the respondent made a general denial about Exhibit B which amount to admission and admitted fact needed no further proof. He cited Jolasun v. Bamgboye (2011) 190 LRCN 1.
For the respondent, learned counsel argued, per contra, that the lower Court properly evaluated Exhibits A and B. He took the view that an appellate Court would interfere with finding of trial Court where it was perverse. He citedAdebesin v. State (2014) 4 KLR (Pt. 345) 1489; Obidike v. State (2014) 3 KLR (Pt. 343) 1211; Olonade v. Sowemimo (2014) 5 KLR (Pt. 347) 1963; Usman v. State (2014) 5 KLR (Pt. 348) 2189; Nguma v. A.-G., Imo State (2014) 2 KLR (Pt. 342) 955. He insisted that the decision was not perverse to warrant such interference. He stated that a plaintiff must succeed on the strength of his case, not on the weakness of the defence except where the defence supported his case. He relied on Nruamah v. Ebuzoeme (2013) 12 KLR (Pt. 332) 1333; Ajibulu v. Ajayi (2013) 12 KLR (Pt. 337) 4153; Onovo v. Mba (2014) 6 KLR (Pt. 351) 2761.
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Issue three:
Learned counsel for the appellant adopted the arguments on issues one and two as his submissions on the issue. He concluded that the judgment of the lower Court was against the weight of evidence.
Resolution of the issues:
A clinical examination of the three issues, clearly, reveals that they are interwoven in that they share a common target: to puncture/perforate the lower Court?s decision on the premise of perfunctory evaluation of the evidence. Given this intertwined judicial relationship, I will, in order to conserve the scarce juridical time and space, amalgamate them and fuse their consideration.
Now, the appellant?s chief grievance on the conjoined issues is submissive to comprehension. The appellant chastised the lower Court?s evaluation of evidence in the suit. Put starkly, the appellant accused the lower Court of improper evaluation of evidence because the judgment was against the weight of evidence. A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an
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omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined by law to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010) 3 NWLR (Pt. 1181) 362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov., Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009)15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412.
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The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (supra); Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (supra); Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje
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(2013) 7 LR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 11. I have married the decision of the lower Court with the positions of law displayed above with a view to deciphering their infractions or compliance.
It is foremost to observe, that the parties hinged their radical roots of title on production of duly authenticated documents. Whereas the appellant pegged his on Exhibit A, the respondent erected his on Exhibit D. Indisputably, production of duly authenticated document is one of the five recognised ways of proving title to land within the corpus of the Nigerian legal system. The apex Court had sanctioned these modes in loads of judicial authorities, see Idundun v. Okumagba (1976) 9-10 SC 227; Ewo v. Ani (2004) 3 NWLR (Pt. 861) 610; Balogun v. Akanji (2005) 10 NWLR (Pt. 933) 393; Yusuf v. Adegoke (2007) 11 NWLR (Pt. 1045) 332; Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404; Momoh v. Umoru (2011) 15 NWLR (Pt. 1270) 217; Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22; Iseogbekun v. Adelakun (2013) 2 NWLR (Pt. 1337) 140; Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374.
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It is decipherable from the dazzling submissions of both learned counsel, that each party attacks the opponent?s document of title as impotent to bestow title on the adversary over the land in dispute.
To begin with, documentary evidence, furnished before the lower Court, form an integral part of the casus belli in this appeal. Interestingly, the case-law gives the Courts the nod to evaluate documentary evidence, see Fagunwa v. Adibi (2004) 17 NWLR (Pt. 903) 544. Admirably, the law donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yorin (2011) 10 NWLR (Pt 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc. v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529, C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487.
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I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.
It cannot be gainsaid, that a document of title does not automatically entitle a party, armed with it, to ownership of land. A party?s production and reliance on such an instrument, inevitably, carries with it the necessity for the Court to inquire into some number of questions viz: (i) whether the document is genuine and valid; (ii) whether it has been duly executed, stamped and registered; (iii) whether the grantor had the authority and capacity to make the grant; (iv) whether the grantor had in fact what he purported to grant; and (v) whether it has the effect claimed by its holder, see Agboola v. UBA (2011) 11 NWLR (Pt. 1258) 375; Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312; Romaine v. Romaine (1992) 4 NWLR (Pt. 238); Dabo v. Abdullahi (2005) 7 NWLR (2005) 7 NWLR (Pt. 923) 181; Kyari v. Alkali (2001) 11 NWLR (Pt. 724) 412; Jolasun v. Bamgboye (2010) NWLR (Pt. 1225); Ayanwale v. Odusami (2011) 18 NWLR (Pt. 1278) 328; Olaniyan v. Fatoki (2013) 17 NWLR (Pt. 1384) 477.
I have, in due loyalty to the dictate of the law, situated the Exhibits A and D, sought to be
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impugned, with the questions catalogued above. The raison d?etre for the juxtaposition is plain. It is to discover whether those documents respected or defiled the law.
An indepth study of Exhibit D, dated 21st September, 2002, amply, demonstrates that it hosts the proceedings and judgment of Eniong Offot Village Council in respect of the settlement of the dispute between the respondent and Dominic Ifiok Edem over the disputed land. Put simply, it wears the features of a customary arbitration. The law sanctions the use of customary arbitration as estoppel per rem judicata, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 470.
An arbitration connotes a reference to a decision of one or more persons, with or without an umpire, of a particular matter in dispute between the parties, see Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385; NNPC v. Lutin Invest. Ltd. (2006) 2 NWLR (Pt. 965) 806; Agala v. Okusin (2010) 19 NWLR (Pt. 1202) 412.
?
In law, parties are bound by a customary arbitration provided: (a) there must have been a voluntary submission of the dispute to the non-judicial body; (b) the parties must have agreed to be bound by
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the decision of the non-judicial body; (c) the decision must be in accordance with the custom of the people or their trade or business; and (d) the arbitrators must have reached a decision and published same, see Ohiaeri v. Akabeze (1992) 2 SCNJ 76; Agu v. Ikewibe (supra); Agala v. Okusin (supra); Onwu v. Nka (1996) 7 SCNJ 240; Ojibah v. Ojibah (1991) 6 SCNJ 156; Okereke v. Nwankwo (2003) 9 NWLR (Pt. 826); Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) 514; Egesimba v. Onuzurike (2002) 15 NWLR (Pt. 791) 466; Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20; Iheanacho v. Chigere (2004) 17 NWLR (Pt. 901) 130. These pre-conditions must co-exist before an award by a customary arbitrator(s) will be binding on the parties.
The appellant made heavy weather of the point that his vendor in Exhibit A, Joseph Effiong Edem, was not a party to the proceedings of Exhibit D. To start with, the defendant in Exhibit D, Dominic Ifiok Edem, traced his paternity to the same progenitor with Joseph Effiong Edem as they were sired by Nde Edem. Dominic Ifiok Edem signed as a witness in the transaction in Exhibit A. The appellant, as PW1, in the crucible of cross-examination,
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at page 181, lines 4 and 5, of the record, admitted that the vendor sold the disputed land to him ?in collaboration with his brothers Patrick Edem Ndeh, Dominic Edem Ndeh and Joseph Edem Ndeh.? PW2, the sister to the vendor, in the furnace of cross-examination, at the bottom of page 192 of the record, conceded that when the respondent?s father died, their father was keeping his property for him. Those pieces of evidence, elicited under the cross-fire of cross-examination, are potent and co-equal with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the cross-examiner, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross-examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321.
Those critical pieces of evidence open the gate of inference: ?A conclusion reached by considering other facts
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and deducing a logical sequence from them,? see Muhammed v. State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the Courts the nod/latitude to make inferences, see Okoye v. Kpajie (1992) 2 SCNJ 290 reported as Okonkwo v. Kpajie (1992) 2 NWLR (Pt. 226) 633; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421; Adebayo v. PDP (2013) 17 NWLR (Pt. 1382). I will act in due fidelity to the unbridled licence granted to the Court by the law. The irresistible inference, on the footing of the viva voce testimonies of the appellant, PW2 and Exhibit A, is that the vendor, Joseph Effiong Edem was a privy to the proceedings in Exhibit D in that Dominic Ifiok Edem represented his interest in it.
I have married Exhibit D with the conditions for the applicability of customary arbitration displayed above. The defendant therein, Dominic Ifiok Edem, duly presented his case before the customary arbitration panel/council after requesting for an adjournment to ?enable him prepare well for his defence.? He cross-examined the plaintiff therein, the respondent herein, in extenso after his presentation. These are concrete evidence of voluntary
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submission to the adjudication of the non-judicial body and consent to be bound by its decision. There is no evidence that the panelists/arbitrators were not versed in the custom of the feuding parties. The Council reached a decision which was published in Exhibit D. Thus, Exhibit D met the conditions ? precedent for its application/enforceability for and against the parties.
Now, the effect of Exhibit D over the land in dispute is imperative and far-reaching. It divested the appellant?s vendor of any proprietary interest in it ab initio. In other words, the vendor was, from time immemorial, derobed of any right to bequeath to the appellant even before the 15th April, 1976: the birthday of Exhibit A. The consequence is dire/caustic on Exhibit A. The vendor, Joseph Effiong Edem, was drained of the authority and capacity to make the alienation purportedly made in Exhibit A. Put bluntly, the vendor/grantor was disabled from passing the property in the disputed land to the appellant by dint of Exhibit A. Exhibit A, is an orphan in that there was no legal right in the vendor to parent or give birth to it.
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This finds deep anchorage in the ageless legal maxim, Nemo dat quod non habet – no one gives out what he does not have, see Ashiru v. Olukoya (2006) 11 NWLR (Pt. 990) 1; Dadi v. Garba (1995) 9 SCNJ 232; Omiyale v. Macaulay (2009) 7 NWLR (Pt. 1141) 597; Ilona v. Idakwo (2003) 11 NWLR (Pt. 830) 53; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Oronti v. Onigbanjo (2012) 12 NWLR (1313) 23; Abba v. SPDCN Ltd. (2013) 11 NWLR (Pt.1364) 86; Gbadamosi v. Akinloye (2013) 15 NWLR (Pt. 1378) 455; Chiadi v. Aggo (2018) 2 NWLR (Pt. 1603) 175. It is therefore safe to conclude that Exhibit A transferred nothing, in terms of proprietary rights, to the appellant. Alas, Exhibit A, which the appellant brandished about as the heart of his title, was/is a quintessence of a nudum pactum devoid of any potency in the realm of acquisition of proprietary right over the disputed land.
Indubitably, in the presence of the pseudo title of the appellant?s vendor, Exhibit A is robbed of any substratum to perch and command any validity. It is a notorious principle of law that no one puts something on nothing and expects it to stand, see UAC v. Macfoy Co. Ltd. (1962) AC 152;
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CCB Plc. v. Ekperi (2007) 3 NWLR (Pt. 1022) 493; Alsthom v. Saraki (2005) 3 NWLR (Pt. 911) 208; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592. In the Latin days of the law, it was encapsulated in the maxim: Lex non cogit ad impossibila ? the law does not command the impossible, see Lasun v. Awoyemi (2009) 16 NWLR (Pt. 1168) 513. In sum, the phantom/non-existent title in Joseph Effiong Edem and his brothers taints/smears exhibit A with invalidity.
In the twilight of the decision, sought to be impugned, at page 260 of the record, the lower Court found:
The decision of that council diverse (sic) the plaintiff vendor of any pretence to title they had. If (sic) left them empty handed. The result is that they had nothing to give?. The term of judgment of the Eniong Offort (sic) Village Council destroyed the plaintiff?s root of title.
In the light of the juridical survey conducted above, in due consultation with the law, the finding, though not built on a thorough evaluation of Exhibits A and D, is, nonetheless, correct and unimpeachable. It will smell of judicial sacrilege to interfere with an ultimate
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finding that has not fractured the law. In effect, all the castigations, which learned appellant?s counsel rained against the finding/decision, are lame and peter into insignificance. I therefore dishonour the learned appellant?s counsel?s enticing invitation to crucify the decision on the undeserved altar/shrine of improper evaluation of evidence. In the end, I have no choice than to resolve the conflated triple issues against the appellant and in favour of the respondent.
On the whole, having resolved the conjoined three issues against the appellant, the destiny of the appeal is plain. It is devoid of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 28th November, 2014. The parties shall bear the respective costs they expended in the prosecution and defence of the doomed appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree with the reasoning and conclusion and I also resolved the
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triple issues in the appeal against the Appellant. The Appeal lacks merit and I also dismiss the appeal.
I abide with the order as to costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, Obande F. Ogbuinya, JCA has afforded me an opportunity of reading in draft the lead judgment just delivered. I find myself in agreement on the crucial issue identified and resolved therein, that the appeal is wanting in merit.
?
I hereby dismiss the appeal and abide by the consequential orders in the lead judgment
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Appearances:
Ndubuisi Obinwogu, Esq.For Appellant(s)
Ubochi Stella, Esq.For Respondent(s)
Appearances
Ndubuisi Obinwogu, Esq.For Appellant
AND
Ubochi Stella, Esq.For Respondent
