MR. IGNATUS ISAIAH NWALA & ORS v. MR. NWAEMEM NWALA & ORS (2019)

FMR. IGNATUS ISAIAH NWALA & ORS v. MR. NWAEMEM NWALA & ORS

(2019)LCN/13454(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2019

CA/PH/287/2011

RATIO

APPEAL: THE APPELLATE COURT CANNOT SUBSTITUTE ITS OWN VIEWS FOR THAT OF THE TRIAL COURT IN HE EVALUATION OF EVIDENCE

It is trite law and now well settled that it is not the function of an appellate Court to substitute its own views for those trial Court in the matter of evaluation or assessment of evidence. It has therefore been generally recognized that the evaluation of evidence and findings of facts thereon are within the confine of the trial Court and where the trial Court has properly carried out the evaluation and has made findings that are not perverse, the appellate Court will not embark on a fresh evaluation of the evidence. See OKUNZUA VS. AMOSU (1992) 7 SCNJ 243; WOLUCHEM VS GUDI (1981) 5 SC 291; ENANG VS. ADU (1981) 11-12 SC 25.PER ISAIAH OLUFEMI AKEJU, J.C.A.

HOW TO RESOLVE CONFLICT IN TRADITIONAL EVIDENCE

The law relating to the traditional evidence of the parties as held in the case of KOJO II VS BONSIE (1957) 1 WLR 1223 is that where there is a conflict of traditional history, the best way to the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the competing histories is more probable. See ALADE VS. AWO (1975) 4 SC 215; LAWSON VS. AJIBULU (1997) 6 NWLR (PT.507)14.PER ISAIAH OLUFEMI AKEJU, J.C.A.

LAND LAW: DECLARATION OF TITLE: BURDEN OF PROOF IS ON THE PERSON CLAIMING TITLE

The law regarding the claim for any declaration, whether of title or not is that the burden is on the person claiming it to establish his claim by concrete, cogent and credible evidence, such relief is not granted even on admission of the parties. See FABUNMI VS ABIGAIL ADE AGBE (1985)1 NWLR (PT.2) 299; KODILINYE VS ODU (1935) 2 WACA 336; BELLO VS EWEKA (1981) 1 SC 101; NDAYAKO VS DANTORO (2004)13 NWLR (PT. 889) 187.PER ISAIAH OLUFEMI AKEJU, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. MR. IGNATUS ISAIAH NWALA
2. MR. MAXWELL OHAKAM NWALA
3. MR. BENSON NWALA
4. MR. JACOB IWEZOR NWALA
(For themselves and as representing the Umuodagu family of Egwi village Etche Local Government Area of Rivers State). Appellant(s)

AND

1. MR. NWAEMEM NWALA
2. MR. EZEBUNWA AMADI
3. CHIEF SUNDAY NWALA
4. MR. IROULOR NWONUGHA AMADI
(For themselves and as representing the Umuodagu family of Egwi village Etche Local Government Area of Rivers State). Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Rivers State delivered on 23rd day of October, 2009 in the matter of Suit NO. AHC/108/84 wherein the Appellants as claimants or plaintiffs through their Writ of Summons and Statement of Claim sought the reliefs as stated in their 2nd Further Amended Statement of Claim as follows:-
1. A declaration that the plaintiffs are the rightful persons entitled to the Customary Right of Occupancy under Egwi, Etche native law and custom relating to land to all that portion of land here above referred to as the land in dispute verged Red and forming part of the entire plaintiffs? land known as and called Ohia Miri Agbara land verged Yellow situate at Egwi village Etche in the Etche Local Government Area of Rivers State with annual rental value estimated at N30.00 as shown in the Plaintiffs survey Plan No. OK/RSD6/84 dated 10th December, 1984.
2. The sum of N4,000.00 (Four Thousand Naira) being general damages for trespass in that some time between December, 1982 and February, 1984, the defendants broke and entered into

the said land in dispute which is part of ?Ohia Miri Agbara? land and which had been in undisturbed and absolute possession of the plaintiffs and constructed a road or foot path along side it and cleared the said land in dispute for farming and wantonly destroyed cassava, plantain suckers and other food crops planted by and belonging to the Plaintiff without the consent, leave or licence of the Plaintiffs.
3. A perpetual injunction restraining the defendant by themselves through their servants and/or agents or privies from committing further acts or acts of trespass upon the land in dispute or from doing any other act or acts inconsistent with the rights or interests of the Plaintiffs over the said land in dispute.

The said 2nd Further Amended Statement of Claim was filed on 25/4/07 and copied at pages 127 -132 of the record of appeal. The Amended Statement of Defence is copied at pages 34-38 of the record of appeal and therein the defendant pleaded the defences of long and undisturbed possession and enjoyment of the land in dispute and any other legal and equitable defences that may be open to them at the trial.

the trial of the suit, the claimants called four witnesses while the Defendants called three witnesses and exhibits were tendered. At the end of the evidence and addresses of the learned counsel to the parties, the learned trial Judge held that the Claimants are not entitled to any of the reliefs sought against the Defendants and therefore dismissed the claim of the claimants. The claimants were dissatisfied with that decision and they gave their notice of appeal dated 27th October, 2009 but filed on 29/10/2009 which notice of appeal was subsequently amended.

The Appellants? Brief settled by R.O. Agbesor Esq. of counsel was filed on 24/6/14 while the Respondents? Brief was settled by C.E. Mmom Esq. and filed on 23/09/15 but deemed on 12/6/18. The Appellants? Reply Brief was filed on 27/6/18. All the briefs were adopted and relied upon at the hearing of the appeal and we were urged by the respective learned counsel to allow or dismiss the appeal.
?
The Appellants have formulated the following issues for determination;
1. Whether the findings of the trial Judge on the traditional histories of the parties root of title to the land

in dispute are not perverse as they are not supported by the evidence on record.
2. Whether the principle of law in the case of KOJO V. BONSIE (1957) 1 WLR 1223 applies to this case where there is only one credible traditional history of root of title to the land in dispute.
3. Whether the Appellants did not merit the declaration of title to the land in dispute based on the preponderance of the evidence of act of ownership and long possession over the land adduced by them and their witnesses.
4. Whether the trial Court correctly approached the assessment of Exhibit ?C? and placed the right probative value on it.

According to the Respondents, the issues in this appeal are the following;
1. Whether the trial Court was wrong in applying the principle of KOJO V. BONSIE (1957) 1 WLR 1223 on the grounds that none of the evidence of traditional history given by both parties in the matter is conclusive or probable or clear.
2. Whether the Trial Court was wrong in holding that the Claimants did not establish in evidence the ownership of this parcel of land as against the evidence of the defendants who have led a more credible

evidence of their ownership of the land in dispute, particularly as it relates to recent acts of ownership and possession, evidence of boundary neighbours and evaluation of the verdict of E.B. N. Opurum arbitration which is exhibit ?C?.
3. Whether the trial Court was wrong in holding that the everdict of E.N.B. Opurum arbitration Exhibit ?C? is binding on the parties in this case.

I have closely examined the issues raised by the parties and I am of the view that this appeal will be adequately considered and determined upon the issues raised by the appellants particularly based on the grounds of appeal and to ensure that nothing of substance is omitted or lost in the appeal. Those issues as formulated by the appellants are therefore adopted.

On the first issue by the Appellants, the learned counsel contended that the parties in this case relied on traditional history of title to establish their ownership of the disputed land with both parties claiming that their ancestor founded the land in dispute.

It was contended by the appellants that the lower Court relied on evidence that was not pleaded and not given in evidence

before the trial Judge that evaluated the evidence of the parties which makes the finding of the trial Court to be perverse being counter to the evidence and pleadings of the respondents before that Court with respect to the root of title; MUMOH VS. UMOREN (2011) VOL. 6 (PT. 111) MJSC 1.

It was submitted that a Court should confine itself to the evidence on matters that have been pleaded before it and cannot go into enquiry outside the pleaded matters; AKOLEDOWO VS. OJUBUTU (2012) 16 NWLR (PT. 1325)1, MOHAMMED VS. MOHAMMED (2012) ALL FWLR (pt.655) 363; OVERSEAS CONSTRUCTION LTD VS. CREEK ENTERPRISES LTD. (1985) 3 NWLR (PT. 13 427; EHIRIM VS. IMO STATE INEC (2012) 9 SCM 1; IHEANACHO VS. CHIGERE (2004) 11 MJSC 35, MARTCHEM INDUSTRIES VS M.F. KENT LTD (2005) NSLR (PT.6) 78; ORIZU VS. ANYAEGBUNAM (1978)5 SC 21.

The learned counsel contended that the trial judge did not correctly evaluate the evidence of traditional history before him. It was submitted that the trial Court has the preeminent duty of evaluation of evidence and the appellate Court should not disturb its findings unless it is not supported by evidence on record, EYO VS. ONUOHA (2011) 39 WRN

1; OKEZIE VS CHAIRMAN MED DENT PRACT DISCP TRIB. (2010) 26 WRN 140.

Issue 4 is also about assessment of evidence and ascription of probative value thereto with reference to Exhibit C. The learned counsel contended that the lower Court did not correctly asses exhibit C and did not place the right probative value thereon thereby making erroneous findings. It was contended that Exhibit C does not have the binding effect as to create estoppels res judicata against the case of the Appellants to prevent them from litigating the matter in a competent Court. It was submitted that for a customary arbitration to be valid and binding on the parties, the five ingredients laid down in OHIAERI VS. AKABEZE (1992) 2 SCNJ (PT.1.) 76 must be pleaded and established by the party relying on it. It was contended that the conditions were not fulfilled in this case and the appellants who had the right to reject the award actually did and it was therefore not binding on them i.e (the appellants) especially that under Etche native law and custom, ownership of land is vested on the person that deforested it and will be inherited by his

descendants and the arbitration panel was wrong to have divided the land between the appellants and the respondents.

The learned counsel submitted that the appellants tendered the report of the panel of arbitrators as Exhibit ?C? to support their traditional history that Chief Nwala Egwi was the founder and first settler on the disputed land and that it passed on to them by inheritance.

On the matter of evaluation of evidence, which he argued under issues 2 and 3 of the Respondents Brief the learned counsel for the Respondents did a review of the evidence adduced by the witnesses for the parties and opined that they were properly reviewed, assessed and evaluated by the learned trial judge who also was correct to have concluded that exhibit ?C? was binding on the parties. It was contended that the evidence of Chief Sunday Nwala that members of the defendants family granted land to members of the claimant family in consideration for which members of claimants family gave one tin of palm wine, one bottle of gin and other things to members of the defendants? family was neither contradicted nor challenged. It was submitted

that where evidence which is related to a matter in controversy is neither denied nor successfully controverted, such evidence ought to be relied upon by the Court; ABRAHAM VS. A.B.T. LTD (2005) 24 NSCQR 520.

On the exhibit C in this case, the learned counsel for the Respondent submitted that the ingredients of a binding arbitration were complied with; DIKEOCHA VS. DIKE (2006) FWLR (PT.312) 2534; EGESIMBA VS. ONUZURUIKE (2002) 9-10 SC 47; WALTER VS. VS. SKYLL NIG. LTD (2004) FWLR (PT.13) 2244.

It is not in

doubt in this case that the learned trial judge has comprehensively and properly appraised and evaluated the evidence of the witnesses and the documentary evidence tendered thereon including exhibit ?C? as a result of which a fresh or another round of evaluation is not desirable.

I resolve the two issues against the appellants.

On the issue of application of the Rule in KOJO VS BONSIE which is commonly raised by the parties the learned counsel for the appellants argued in his issue 2, that both parties relied on traditional history as their root of title to prove ownership of the land in dispute and gave evidence thereon. It was contended that the evidence of the Respondents on traditional history as given by the DW1 was not corroborated and therefore unsafe to rely on and inadequate to support the history or root of title ODUBOTE VS. OKAFOR (2012) WRN 8 142; EYO VS. ONUOHA (2011) 39 WRN 1; AJIBARE VS. AKOMOLAFE (2012) 10 WRN 62.

It was contended by learned counsel that the lower Court did not evaluate the evidence of traditional history of the respondents that the founder of the land in dispute was their ancestor and also did not

consider the evidence of the respondents before him when he evaluated the evidence of the root of title of the parties. It was submitted that the Rule in KOJO VS. BONSIE is not applicable to this case because of the contradictions in the traditional evidence of the root of titled of the respondents; TAIWO VS OGUNDELE (2012) 9 SCM 196; ONIGBEDE VS BALOGUN (2002) 9 NSCQR 308.

For the respondents it was argued in their issue one that a critical evaluation of the evidence of the parties on traditional history makes the principle in KOJO VS BONSIE applicable. The learned counsel made copious reference to the evidence of the witnesses on the matter of traditional history and submitted that it is the trial Court that saw and heard the witnesses that can assess their credibility;MOMOH VS UMORU (2011) 46 NSC QR 292.

The learned counsel argued that in the instant case the evidence of the parties were not cogent, clear and conclusive, and when the trial Court was faced with the difficulty of which traditional history to believe, he applied the principle in KOJO VS. BONSIE.

The law relating to the traditional evidence of the parties as held in the case of

KOJO II VS BONSIE (1957) 1 WLR 1223 is that where there is a conflict of traditional history, the best way to the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the competing histories is more probable. See ALADE VS. AWO (1975) 4 SC 215; LAWSON VS. AJIBULU (1997) 6 NWLR (PT.507)14.

In the instant case the lower Court stated at page 244 of the record of appeal that;
In the instant case both parties are relying on evidence of traditional history. They pleaded and adduced evidence of their root of title to the land in dispute. However, the traditional history on how Claimants and defendants came to own and preserve the land in dispute as passed on to them by their ancestors is not very clear. Therefore the principle of law as laid down in the case of KOJO II VS BONSIE (1957) 1 WLR 1223?… should be applied.?

The above finding of the lower Court shows that the parties pleaded their traditional history and gave evidence thereon which evidence is conflicting and inconclusive thereby making the resort to the Rule in KOJO II VS. BONSIE inevitable.

I therefore agree with the lower Court and resolve this issue against the appellants.

On the fourth issue which is whether the Appellants did not merit the declaration of title to the land in dispute on the preponderance of the evidence of acts of ownership and long possession adduced by the witnesses, the Appellants? counsel submitted that the trial Court was wrong to have resorted to recent acts of ownership and possession to resolve the issue of ownership of the land in dispute. It was contended that the Appellants merit the declaration of title to the land in dispute based on the preponderance of their evidence. It was submitted that the failure of the Appellants to contradict or controvert some averment by the respondents does not make them uncontroverted. WOHEREM VS EMEREUWA (2004) VOL. II MJSC 108; OLLY VS. TUNJI (2012) ALL FWLR (PT. 654) 39.

299; KODILINYE VS ODU (1935) 2 WACA 336; BELLO VS EWEKA (1981) 1 SC 101; NDAYAKO VS DANTORO (2004)13 NWLR (PT. 889) 187.

I had already found and held in a part of this judgment that the lower Court did a correct and satisfactory evaluation of the evidence of the parties. The lower Court thereupon held that the appellants failed to establish their claim and dismissed same.

I do not belief I should say otherwise here as I find no cause to do so.

I should state that I have read the Appellants? Reply Brief and it does not constitute an answer to any new issue but rather a re-argument of the appeal. It is therefore otiose and it is discountenanced. See H.H. EZE UMEJI VS. ATTORNEY GENERAL OF IMO STATE (1995)4 NWLR (PT.391)552; DUZU VS YUNUSA (2010) LPELR 8982 (CA); BASINCO MOTORS LTD VS. WOERWANN LINE (2009) 13 NWLR (PT. 1157) 149.

On the whole and based on my resolution of the issues. I hold that this appeal is lacking in merit and it is dismissed by me.
I make no order as to costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had a preview of the lead judgment of my learned brother, Akeju, JCA.
I agree

with his reasoning and conclusion that this appeal is devoid of any merit
I too dismiss it and order N50,000 costs against the Appellant in favour of the Respondents

CORDELIA IEEOMA JOMBO-OFO, J.C.A.: I was availed the opportunity of reading in draft the lead judgment just delivered by my learned brother, ISAIAH OLUFEMI AKEJU, JCA.
I agree with his reasoning and conclusion that this appeal for lacking merit should be dismissed and it is hereby dismissed by me.

Appearances:

R.O. AgbesorFor Appellant(s)

C. E. MmomFor Respondent(s)

Appearances

R.O. AgbesorFor Appellant

AND

C. E. MmomFor Respondent