AKPAN NTUKIDEM AKPAN v. ELDER UBONG OBOT & ANOR
(2019)LCN/12826(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/134/2017
RATIO
EVIDENCE: COURTS AVAILABLE FOR THE EVALUATION OF DOCUMENTARY EVIDENCE
“It is germane to place on record, that the law, in order to remedy and expel injustice from proceedings, 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. Yonrin (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. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.” PER OBANDE FESTUS OGBUINYA, J.C.A.
EVIDENCE: CREDIBILITY OF EVIDENCE
“A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the respondents, based on their qualitative nature, preponderated over those of the appellant.” PER OBANDE FESTUS OGBUINYA, J.C.A.
LAND LAW: THAT A DOCUMENT OF TITLE DOES NOT ENTITLE A PARTY TO OWNERSHIP OF LAND
“..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 (supra); 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 (supra); 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.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
Between
AKPAN NTUKIDEM AKPAN Appellant(s)
AND
1. ELDER UBONG OBOT
2. UBOTEX NIGERIA LIMITED Respondent(s)
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment):
This appeal probes into the correctness of the decision of the High Court of Akwa Ibom State, sitting at Uyo (hereinafter addressed as ?the lower Court?), coram judice: Augustine D. Odokwo, J., in Suit No. HU/735/2013, delivered on 8th July, 2016. Before the lower Court, the appellant and the respondents were the claimant and the defendants respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. Sometime in 2002, the appellant claimed that he bought the land in dispute, which is lying and being at Afaha Ikot Obio Nkan in Ibesikpo Asutan Local Government Area of Akwa Ibom State, from one Effiong O. Akpan. The vendor issued him with an irrevocable power of attorney to prove the sale. The appellant alleged that, on or about the 13th August, 2013, the respondents forcibly entered the land in dispute, cleared, destroyed the appellant?s 500 plantain stands on it, displaced the appellant and took possession of it. The appellant reported the incidents to the police who turned him to an accused and arraigned him in Court. Sequel to these, the appellant beseeched the lower Court, via a writ of summons filed on 27th November, 2013, and tabled against the respondents, jointly and severally, the following reliefs:
(1) The Claimant is entitled to the Statutory Right of Occupancy over the pieces or parcels of land lying being and situate at Afaha Ikot Obio Nkan in Ibesikpo Asutan Local Government Area which said parcel of land is particularly described and delineated on Survey Plan No. BUTS/AK/2002/17.
(2) N1.5M (One Million, Five Hundred Thousand Naira) only being the specific damages of 500 stands of plantain planted by the Claimant and which were destroyed by the Defendants on the said land.
(3) N10,000,000.00 (Ten Million Naira) only being general damages for trespass against the Defendants in that the Defendants without the knowledge and consent of the Claimant broke into the said parcel of land and destroyed all the plantain stands planted by the Claimant.
(4) And Order of perpetual injunction restraining the Defendants from further entering upon the said parcel of land.
In reaction, the respondents joined issue with the appellant and denied liability. The respondents asserted that one Sunday Jonah Ibanga, the Auditor General of the Local Government, detailed the appellant, a staff under him, to purchase the disputed land which he did. All the documents were in the appellant’s name. Later on, he conveyed it to Sunday Jonah Ibanga who sold same to the respondents and who took possession of it. They alleged appellant broke into it and removed/uprooted the gate installed by them. Consequently, they counter-claimed and solicited against the appellant the following reliefs:
(1) Declaration of Statutory Right of Occupancy over the piece and parcel of land, lying, being and situate at NDON ANKOR, AFAHA IKOT OBIO NKAN in Ibesikpo Asutan Local Government Area of Akwa Ibom State of Nigeria.
(2) N10,000,000.00 (Ten Million Naira) being General Damages for TRESPASS and malicious damage to the Defendants’ Gate in that sometime in the month of June, 2013 the Claimant without the knowledge and consent of the 1st and 2nd Defendants broke into the said parcel of land above described and uprooted Defendants’ gate, stole same to his residence and converted to his own use.
(3) Perpetual injunction restraining the Claimant, his agents and servants from further entry into the said parcel of land.
Following the rival claims and denials, the lower Court had a full-scale determination of the case. In proof of the case, the appellant testified as PW1. In disproof of the case, the respondents fielded two witnesses, DW1 and DW2. Tons of documentary evidence were tendered by the parties. At the closure of evidence, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 8th July, 2016, found at pages 274-287 of the record, the lower Court dismissed the appellant’s claim and granted the respondents’ counter-claim.
The appellant was dissatisfied with the judgment. Hence, on 28th September, 2017, he lodged a 5-ground notice of appeal, copied at pages 288-291 of the printed record, and prayed this Court: ‘To allow this Appeal, set aside the judgment of the Trial Court and enter judgment in favour of the Appellants’ (sic). Thereafter, the parties filed and exchanged their briefs of argument in line with the procedure governing the hearing of civil appeals in this Court. The appeal was heard on 21st January, 2019.
During its hearing, learned counsel for the appellant, Chief Assam E. Assam, SAN, adopted the appellants brief of argument, filed on 27th September, 2017 and deemed properly filed on 28th September, 2017, as representing his arguments for the appeal. He urged the Court to allow it. The respondents? brief of argument, settled by Samuel Ikpo, Esq., was filed on 6th March, 2018 and deemed properly filed on 21st January, 2019. The respondents were duly, served for the hearing but they neither appeared nor were represented by counsel on that day. The Court treated the said brief as duly argued and adopted under Order 19 Rule 9(4) of the Court of Appeal Rules, 2016. In the brief, the respondents? counsel, Samuel Ikpo, Esq, urged the Court to dismiss the appeal.
In the appellants’ brief of argument, learned counsel distilled a single issue for determination to wit:
Whether on the totality of the documentary and oral evidence adduced at the trial, the learned trial Judge was right in dismissing the claim of the claimant, and allowing the counter-claim and in the process in putting his evidence and relying on same as a basis for his judgment.
Admirably, the respondents’ counsel adopted the sole issue crafted by the appellant’s counsel.
Arguments on the issue
Learned counsel for the appellant enumerated the lower Court?s reasons for dismissing the appellant?s claim and granting the respondents. He submitted that both parties based their claim to title to the disputed land on production of document and possession over it. He listed the conditions for reliance on documents as proof of title. He relied on Anyawande v. Odusanmi (2011) 12 SC (Pt. 111) 59/(2011) 18 NWLR (Pt. 1273) 328; Romaine v. Romaine (1992) 4 NWLR (Pt. 238) 650. He noted that exhibit 13, the deed of conveyance, did not satisfy those conditions to be regarded as valid and could not transfer title to Sunday Jonah Ibanga. He observed that the execution portion of exhibit 11 showed a different donee of the disputed land and not the second respondent. He cited Edilco Nig. Ltd. v. UBA Plc (2001) 2 NWLR (Pt. 698) 492. He described the evidence of Sunday Jonah Ibanga (DW2) on the donee in exhibit 11 as contradictory and inadmissible. He cited Ogbu v. State (sic) FWLR (Pt. 147) 1102; Onisaodu v. Elewuyu (2006) 13 NWLR (Pt. 998) 517. He classified the evidence of DW2 as against the interest of the respondents that called him and should not be given any weight. He referred to Iyalla v. Offo (2004) 35 SCM 170.
Learned counsel posited that the appellant was consistent in his evidence. He stated that exhibits 1, 2 and 3, which the respondents gave him notice to produce the originals, were registered. He insisted that the lower Court did not properly evaluate the evidence.
It was learned counsel’s contention that the lower Court descended into the arena in its finding on possession. He reproduced some portions of the judgment to support the contention. He persisted that the lower Court ought to have found for the appellant on possession as the respondents tendered no valid documents. He cited Osu v. Nwadialo (2009) 12 NWLR (Pt. 1155) 285. He stated that the appellant had a better title to the disputed land and should have been given possession. He referred to Olohunde v. Adeyoju (2000) 10 NWLR (Pt. 676) 562. He asserted that exhibits 11 and 13 were not registered as required by the Land Instrument Registration Law of Akwa Ibom State. He added that an unregistered registrable instrument would be admissible to prove purchase money and equitable interest. He relied on Okoye v. Dumez (1985) 1 NWLR (Pt. 4) 783/(1985) 6 SC 3; Ogunjumo v. Ademolu (1995) 4 NWLR (Pt. 389) (sic); Haruna v. Salau (1998) 7 NWLR (Pt. 559) 653. He claimed that the principle would not apply because the evidence tendered to prove a fact would not be used for a different purpose. He citedOdinkenmere v. Impresit Bakolori (Nig.) Ltd. (1995) 8 NWLR (Pt. 411) 52; Egwu v. Nnaji (1991) 5 (sic); A.-G, Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 (sic); Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt. 401) 255.
On behalf of the respondents, learned counsel listed the five ways of proving title to land in Nigeria. He relied on Omolayo v. Cooperative Supply Association (2011) vol. 202 LRCN 134. He stated that in an action for declaration of title the plaintiff must succeed on strength of the case and not on the weakness of defence. He referred to Kodilinye v. Odu (1934) 2 WACA 40; Arase v. Arase (1981) 5 SC 33. He noted that a plaintiff must establish a prima facie case before a defendant?s case would be considered. He cited SSG v. Tunji Dosunmu Ind. Ltd. (2011) vol. 194 LRCN 192. He summarised the testimonies of the witnesses of the parties. He explained that the appellant signed his signature in the open Court which was admitted as exhibit 7.
He said that the signature in exhibit 7 was in tandem with those in exhibits 1, 13 and other processes. He maintained that the lower Court was right to compare the signatures under Section 101(1) and (2) of the Evidence Act. He insisted that the lower Court was right to hold that the appellant having executed exhibit 13 in favour of DW2 Sunday Jonah Ibanga (DW2) had nothing over the disputed land. He took the view that the lower Court’s finding was based on its evaluation of evidence before it. He cited Iwuoha v. NIPOST (2003) vol.110 LRCN 1622; Olodo v. Josiah (2011) vol. 190 LRCN 34. He claimed that the appellant failed to prove his assertion that exhibit 13 was a forgery.
Learned counsel argued that the respondents proved acts of ownership for a long time over the disputed land. He urged the Court to look at the documents attached to interlocutory application as documents in its file. He cited Uzodinma v. Izunaso (2012) vol. 211 LRCN 154. He stated that the respondents proved possession when they lodged report of acts of trespass and stealing against the appellant to the police. He noted that the appellant approbated and reprobated in respect of exhibit 13 and his act deceitful. He referred to Mbadinuju v. Ezuka (sic) Vol. 22 LRCN 1. He postulated that the principle of pari delicto est condittio portio est deferendi operated against the appellant. He explained the relationship between the respondents and insisted that the evidence of DW2 was consistent. He said that exhibit 13 was properly admitted and the respondents acquired equitable interest from it. He relied on Etajata v. Ologbo (2018) vol. 159 LRCN 120. He reasoned that the appellant should have lodged a report of exhibits 1, 2 and 3 in the hands of a third party as required in Section 167(a) of the Evidence Act, 2011. He concluded that the appellant’s evidence that the respondents were in possession was in tandem with that of the respondents.
Resolution of the issue
A clinical examination of the solitary issue, including the dazzling arguments of learned counsel for the feuding parties, clearly, reveals that documentary evidence form the foci of it. Incidentally, sea of documentary evidence were tendered by the contending parties. It is germane to place on record, that the law, in order to remedy and expel injustice from proceedings, 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. Yonrin (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. I will tap from this co-ordinate jurisdiction in the appraisal of the army of documents in the appeal.
It is foremost to observe, that the parties hedged their radical root of title on production of duly authenticated document. While the appellant pegged his on exhibit 1, the respondents anchored/erected theirs on exhibits 11 and 13. 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 (supra); 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.
Now, the appellant’s chief grievance, indeed his trump card on the issue, is against the validity of exhibits 13 and 11. Learned counsel chastised them as impotent to bestow title of the disputed land on the respondents.
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 (supra); 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 (supra); 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 13 and 11, sought to be 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. Notably, the meat of the appellant?s onslaught on them centres on their inadmissibility on the footing of non-registration as registrable instruments.
A dispassionate consideration of this necessarily requires the invitation of the provision of the Land Instrument Registration Law. Cap. 70, Laws of Akwa Ibom State, 2000 (hereunder abridged to ?the Law?). Section 10of the Law reads:
15. No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same has been registered in the proper office as specified in Section 1, and a survey plan certificate of deposit in the lands registry are annexed as specified in Section 6.
Section 28 of the Law defines an instrument. It is therefore, imperative to pluck it out, ipissima verba, where it is ingrained in the law thus: ‘Instrument’ means a document affecting land in the State whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to or interest in land in the State and a certificate of purchase and a power of attorney under which any instrument may be executed, but not a will.
I have given a microscopic examination to the two documents, exhibits 13 and 11, which are in the heat of expulsion from the appeal. Exhibit 13 is the deed of conveyance between the appellant (vendor) and the Sunday Jonah Ibanga (the Purchaser/vendee), made on 2nd September, 2002. Exhibit 11 is an irrevocable power of attorney donated by Sunday Jonah Ibanga (DW2) to the second respondent of 27th April, 2011. Undeniably, both instruments affect land and transfer interest to a party. In view of these inherent features, they come, squarely, within the perimeter of instrument as contemplated in Section 28 of the Law.
It is settled law, based on the interpretation placed on these provisions, that any instrument, within the wide definition in Section 28 of the Law, which purports to transfer or extinguish any right, title or interest in land will not be pleaded and admissible in evidence unless it is duly, registered in consonance with its sacrosanct provisions. This ancient cardinal principle of land law, which is elastic, is however, better appreciated in its legally-accepted exception. In other words, it is a qualified rule of law. The law with its rider was graphically, captured by Bello, JSC, as he then was, in Okoye v. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt. 4) 783 at 790 in these scintillating words:
It is trite law that a purchaser of land or a lessee in possession of the land by virtue of a registrable instrument which has not been registered and has paid the purchase money or the rent to the vendor or lessor, then in either case the purchaser or the lessee has acquired an equitable interest in the land which is as good as a legal estate and this equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. A Registrable instrument which has not been registered is admissible to prove such equitable interest and prove payment of purchase of money or rent. See, also, Ogumbambi v. Abowab (1951) 13 WACA 22; Oni v. Arimoro (1973) 1 All NLR (Pt. 1) 189; Adesanya v. Aderonmu (2000) 6 SC (Pt. 11) 18/(2000) 9 NWLR (Pt. 672) 370/(2000) 2 SCNQR (Pt. 2) 1180; Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321)/1994) 1 SCNJ 106; Nsiegbe v. Mgbemena (2007) 10 NWLR (Pt. 1042) 364; Akinduro v. Alaya (2007) 15 NWLR (Pt. 1057) 312; Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554; Zaccala v. Edosa (2018) 6 NWLR (Pt. 1616) 528.
On payment of the sum of money stated in exhibit 13 and taking of possession, Sunday Jonah Ibanga (the purchaser therein) acquired equitable right over the disputed land. The same, mutatis mutandis, applied to exhibit 11. Equitable interest denotes ‘An interest held by virtue of an equitable title or claimed on equitable grounds, such as the interest held by a trust beneficiary’, see Blacks Law Dictionary, 8th edition, page 816. In the eyes of the law, equitable interest run pari pasu with legal interest. The former can only bow to the superiority of the latter in the presence of bonafide purchaser for value without notice of the prior equitable interest, see Best (Nig.) Ltd. v. B. H. (Nig.) Ltd. (2011) 5 NWLR (Pt. 1239) 95. Thus, the two documents, exhibit 13 and 11, though unregistered registrable instruments, were admissible in proof of the said equitable interest and payment of purchase money, see Zaccala v. Edosa (supra). It must be underscored, that they cannot be pleaded nor admitted to prove legal title in land. The lower Court’s admission of exhibits 13 and 11 are saved/salvaged by the single exception which the law has taken cognizance of in the ex cathedra authorities chronicled above. Put differently, the lower Court did not, in the least, fracture the adjectival law when it admitted the two instruments as exhibits 13 and 11. I also, take shelter under the sanctuary of the qualification to coronate them with the toga of genuineness and validity. In consequence, I decline the appellant’s enticing invitation to ostracise them from the appeal. Contrariwise, I welcome them as usable instruments in the determination of the appeal.
Again, in a spirited bid to castrate the potency of exhibits 13, the appellant castigated the lower Court’s finding on the appellant’s execution of it. In the crucible of cross-examination, the respondents, through counsel, extracted the specimen signature of the appellant and same was received in evidence as exhibit 7. The lower Court matched the sample signature, exhibit 7, with the appellant’s signature in other documents before it, especially exhibit 13 and his sworn deposition. In that juridical exercise, the lower Court took umbrage under the canopy of Section 108 of the Evidence Act, 2011. Incontestably, the law grants the Court the unbridled licence, under the provision of Section 108(1) and (2) of the Evidence Act, 2011, former Section 101(1) of the Defunct Evidence Act, 2004, to engage in such adjudicative exercise of comparison of signatures, see Ndoma-Egba v. ACB Plc (2005) 14 NWLR (Pt. 944) 79; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354) 52.
I have, reaping from the concurrent jurisdiction vis-a-vis documentary evidence, married exhibit 7 with the other documents, exhibit 1, exhibit 13 and sworn deposition of the appellant. The appellant?s signatures therein mirror one another.
Indeed, the appellant’s signatures in exhibits 7 and 13 appear like Siamese twins. Having regard to this autograph symmetry, the lower Court did not insult the law in its solemn finding that the appellant signed exhibit 13. By the same token, the lower Court’s consequential finding that the appellant, by his endorsement of exhibit 13, rendered him destitute of any proprietary right over the disputed land is immaculate and unimpeachable. It will smell of judicial sacrilege to tamper with a finding that is not hostile to the law. In effect, I endorse, in toto, those findings of the lower Court as they are in alignment with the injunction of the law.
Furthermore, the appellant accused the lower Court of improper evaluation of the evidence of the parties. 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 (1978) 3 SC 91; Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (2009) 5 NWLR (Pt. 1163) 11; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311.
I have placed the decision of the lower Court with the positions of law displayed above with a view to deciphering their infractions or compliance.
One of the appellant’s grouses on evaluation relates to the lower Court’s finding on possession in favour of the respondents. Learned appellant?s counsel tagged the finding as descending into the arena of conflict. After the appellant, PW1, had testified, he was subjected to the furnace of cross-examination. To begin with, the object of cross-examination, which resides in adjectival law, is to test the credibility of an opponent?s case, see Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460. Indisputably, cross-examination occupies an Olympian position in our adversarial system of adjudication. It has been described as a ?noble art? which ?constitutes a lethal weapon in the hands of the adversary to enable him effect demolition of the case of the opposing party,? see Oforlete v. State (2000) 3 NSCQR 243 at 268 per Achike, JSC. Indeed, if well utilised, it has the potential to perforate an opponent?s case.
In the crucible of cross-examination, the appellant, as PW1, at pages 245 and 246 of the record answered: ?The defendant is the possession of the land now and using it for personal business?. 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 pieces of evidence, garnered/procured from cross-examination, are deeply rooted in the province of admission. In law, admission: ‘is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgement made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action’, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; N.B.C.I. v. Integrated Gas (Nig.) Ltd. (2005) 4 NWLR (Pt. 916) 617; Omisore v. Aregbesola(supra); N.A.S. Ltd v. UBA Plc. (2005) 14 NWLR (Pt. 945) 421; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. It is classified, in the stratification of evidence, as the best evidence against the party making it, see Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 133.
It constitutes a concession against the interest of a party making, see Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391. By dint of this undiluted admission, the appellant, by his own ipse dixit, conceded that the respondents were in possession of the disputed land. In the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499; Orianzi v. A.-G., Rivers State (2017) 6 NWLR (Pt. 1561) 224. The lower Court, acting ex debito justitiae, merely endorsed the admission which binds the appellant in law.
This brief legal anatomy, conducted in consultation with the law, with due respect, exposes the poverty/emptiness of the learned appellant’s counsel’s accusation of partiality against the lower Court on the issue of possession. It is lame and unsustainable in law.
In due allegiance to the desire of the law, I have visited the record, the touch stone of the appeal, especially at the residence of the viva voce testimonies of the witnesses of the parties, wrapped between pages 241-271 of it. I have, also, given an indepth study to the battery of documentary evidence professed by the contending parties. At once, I have perused the 15-page judgment of the lower Court which monopolizes pages 274-287 of the record. I have read all with the finery of a tooth comb. Admirably, they are submissive to easy comprehension. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, oral and documentary, proffered by the warring parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondent?s pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence.
A piece of evidence is credible when it is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikeazu (2017) 15 NWLR (Pt. 1589) 345. In the same vein, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found, rightly in my view, that the evidence of the respondents, based on their qualitative nature, preponderated over those of the appellant.
In the light of this juridical survey, the lower Court did not insult the law as to be guilty of the allegation of perfunctory evaluation of evidence. On this score, I dishonour the appellant?s enticing invitation to crucify the decision of the lower Court on the underserved altar/shrine of improper evaluation of evidence. In consequence, all the strictures, which the appellant rained against the decision of the lower Court, are idle and peter into insignificance. In all, I have no choice than to resolve the singular issue against the appellant and in favour of the respondents.
On the whole, having resolved the mono issue against the appellant, the fortune of the appeal is obvious. It is, highly, unmeritorious and deserves the penalty of dismissal. Consequently, I dismiss the appeal. Accordingly, I affirm the judgment of the lower Court, delivered on 8th July, 2016, which dismissed the appellant’s claim and granted the respondents’ counter-claim. The parties shall bear the respective costs they expended in the prosecution and defence of the ill-fated appeal.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my brother Obande Festus Ogbuinya, JCA. I agree with the reasoning and conclusion. I also affirm the judgment of the Court below delivered on 8th day of July, 2016 which dismissed the claim and granted the Respondents’ counter claim. I also dismiss the appeal. I abide with the order as to costs.
YARGATA BYENCHIT NIMPAR J.C.A.: I was given the privilege of reading in draft the judgment just delivered by my brother, OBANDE FESTUS OGBUINYA, JCA and I am in complete agreement with the reasoning and resolution of the appeal as demonstrated in the lead judgment. The appeal lacks merit and must be dismissed. I also abide by the other orders made therein.
Appearances:
Chief Assam E. Assam, SAN with him, Michael Nkwam, Esq., Assam Assam (Jnr.), Esq. and Emana Essam, Esq.For Appellant(s)
No legal representationFor Respondent(s)
