ARI v. ALLU & ANOR
(2022)LCN/16254(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, September 23, 2022
CA/MK/53/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
ESSON ESELE ARI APPELANT(S)
And
1. SAIDU ALLU 2. BALA ALLU RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE EVIDENCE OF A PARTY THAT WILL DISCREDIT THE CASE
The law is settled that it is not every contradiction in the evidence of a party or witnesses as the case may be that will discredit the case. For contradiction or inconsistencies to affect the credibility of a party’s case, it must be such material contradiction or inconsistency such that it whittle down the evidence of a party and same cannot be believed by an ordinary man.
See the Supreme Court case ofNwokoro & Ors v. Onuma & Anor (1999) LPELR 2126 (SC) Pp 16 – 17, paras E –D where the apex Court said:
“…The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle is, of which the Courts are well familiar with in practice, is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. See Enahoro v. the Queen (1965) NMLR 265. In civil cases, even greater latitude is allowed in respect of such contradictions…” PER HASSAN, J.C.A.
THE PURPOSE OF VISIT TO LOCUS IN QUO
Before delving into resolving this issue, let me state that the purpose of visit to locus in quo is to avail the trial Court the opportunity to see fact and issues contended by parties on the disputed land so as to picture them in reality. This is to enable the trial Court get a better grasp of the evidence adduced before it and not to substitute the eye for the ear as rightly stated by the trial Court while relying on the case of Danjuma v. SCC Nig Ltd (2017) 6 NWLR (Pt. 1561) in his judgment at page 220 of the record.
The Supreme Court in the case of Nwankpu & Anor v. Ewulu & Ors (1995) LPELR 2107 (SC) P. 36, paras A – B has this to say about the importance of visit to locus in quo:
“…It is now an established principle of law that there are certain matters that must be resolved by a visit to the locus in quo, such that at the locus in quo, the trial judge will not avail himself the mere belief but of what he sees there. See Umar v. Bayero University (1988) 4 NWLR (Pt. 86) at 93, Kenon v. Tekam (1989) 5 NWLR (Pt. 121) 366 at 373.” PER HASSAN, J.C.A.
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE DECISION OF A TRIAL COURT IF CARRIED OUT SATISFACTORILY
It is a settled principle of law that where a trial Court has carried out its assignment satisfactory, an appeal Court shall be left with no option but to affirm such a decision. See Sule Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) Page 659 at 674 paras F-G per I.T. Muhammad JSC, Ali v. State (2015) 10 NWLR (Pt. 1466) Page 1 at 31 paras D-H per Ogunbiyi, JSC. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Nasarawa State High Court sitting at Lafia delivered by Hon. Justice Simon O. Aboki in Suit No. NSD/LF63/2010, on the 20th day of November, 2019, wherein the trial Court entered judgment for the Respondents who were Plaintiffs at the trial Court against the Appellant.
The Appellant was the Defendant, while the Respondents were the Plaintiffs at the trial Court. The Appellant being aggrieved with the decision of the trial Court had appealed against same to this Court vide his Notice of Appeal dated 15th day of January, 2020 and filed on the 16th of January, 2020. The Notice of Appeal which challenged the decision of the trial Court on three grounds is found at pages 222 – 225 of the Record. By leave of this Court, the Appellant amended his notice of appeal, and the said Notice of Appeal dated 2nd of March, 2021 and filed on the same date was deemed properly filed on the 9th of March, 2022.
The Record of Appeal was compiled and transmitted to this Court on the 22nd of May, 2020, but deemed proper before this Court on the 9th of March, 2022. The Appellant’s brief is dated 20th of April, 2022, and filed on the same date, while the Respondents’ brief of argument was filed on the 31st of May, 2022. The Appellant did not file reply brief.
At the hearing of the appeal, counsel to Appellant adopted the Appellant brief and urged this Court to allow this appeal and set aside the judgment of the lower Court, while the Respondents counsel equally adopted the Respondents’ brief as well and urged this Court to dismiss the appeal, upon which this Court reserved the appeal for judgment.
The case of the Respondents who were plaintiffs at the trial Court leading to this appeal was commenced by a writ of summons dated 9th of September, 2010, and filed on the same date issued by the Respondents to the Appellant as Defendant. The Plaintiffs’ claim against the Defendant by paragraph 29 of their amended statement of claim is as follows:
“1. A declaration of title to that up and swap land situate and lying at Mile Uku along Lafia-Akwanga road in Lafia LGC Nasarawa State
2. A declaration that the plaintiffs are the rightful customary owners of the farmland situate at Mile uku along lafia-Akwanga road in Lafia LGC Nasarawa State.
3. A perpetual injunction restraining the defendant his servants, agents, privies, heirs or however called from trespassing, entering into cultivating, selling or carrying out any work on the land.
Cost of this action. See page 112 of the record.
BRIEF STATEMENT OF FACTS
The case of the Respondents against the Appellant was basically of title to a piece of land located at Milauku along Nasarawa Eggon Lafia Road of Lafia LGC, Nasarawa State. The claim of the Respondents is that they are customary owners of the piece of land situate as Mile uku along lafia Akwanga road by virtue of inheritance from their father Alu Ala who first deforested the land and was cultivating same for farming.
That when their late father got old and sick and could no longer cultivate the disputed land, he entrusted same to his kinsmen who is defendant/Appellant’s father in 1970, and they were still young them. That when they grew up and are of age, they met the Appellant’s father and asked him to show them their fathers land and its boundary which he did and shortly thereafter died. The Respondents’ case is that they continued farming on the land. That sometime in 2009, the Appellant was laying claims to the land and the Respondents sued him at Upper Area Court B/Sidi. But he pleaded with them to withdraw the suit and they did.
The Respondent’s case is that they were later hit by financial challenges and had to put up part of the land for sale, but before doing so, they approached the defendant if he is willing to purchase same, but he declined. However, the Appellant turned around to be laying claim to the land for reasons unknown to the Respondents, hence this case. See pages 107 – 112 of the record.
The Appellant’s case however in defence of the case of Respondents as defendant is one of clear denial that the Respondents are not the customary owners of the disputed land, and that the father of the Respondents never owned the land, neither did the Respondents handed any land to him, but rather it was his father Asele Ari that deforested the disputed land and farmed on same when he came down from Eggon hill many years ago.
That he and his late father farmed the land all along until his death and the land never belonged to the Respondents at all, nor had he ever loaned the land from the Defendant, but same had been his land all along as he has been farming on same.
The Appellant’s case is that he is in no way related to the Respondents as he first met them or knew them when they served him the writ from the Upper Area Court Bukan Sidi. That the land belongs to him and the claim of the Plaintiffs/Respondents is incompetent. See pages 70 – 73 of the record.
During the hearing the Court visit the locus where the Plaintiff showed the Court the disputed land and the Defendant said his land is same with the one pointed by the Respondents but his land extended across the stream. See pages 184 – 185 of the Record.
Parties filed their respective written addresses and the trial Court in her considered judgment delivered on the 20th day of November, 2019, found at pages 188 – 221 of the Records of Appeal entered judgment in favor of the Plaintiffs who are now Respondents before this Court against the Defendant, hence, this Appeal.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument distilled three issues for determination by this Court as follows:
1. Whether in the face of the inconsistencies, contradictions evident in the respondents’ case of customary ownership and customary trust over the disputed land, the decision of the trial Court declaring customary title in favor of the respondents is sustainable in law. This is distilled from grounds 1 and 3.
2. Whether the holding of the trial Court that the appellant while at the visit to locus in quo confirmed the remains of the respondents’ mother’s grave and other features which were on the land in dispute, same not supported by the evidence on record is perverse? This is distilled from ground 2.
3. Whether the trial Court adequately evaluated the evidence and considered all the issues raised at the trial before arriving at the decision declaring customary title in favor of the respondents. This is distilled from grounds 4, 5 and 6.
The Respondents’ brief of argument also raised three issues for determination of this appeal which is similar to that of Appellant but with little variation thus:
1. Whether on the face of pleadings and evidence led in support of the Respondents have established their claim of customary title to the disputed land as declared by the learned trial judge. (Distilled from grounds 1 and 3).
2. Whether the holding of the trial Court in respect to the proceeding at the visit to locus in quo on the Respondents’ mother grave and other features on the disputed land was supported by evidence. (Distilled from ground 2).
3. Whether or not the trial Court have adequately and properly evaluated the evidence on record by considering all issues raised in pleadings before arriving at its decision in favor of the Respondents. (Distilled from grounds 4, 5 and 6 respectively).
I have examine carefully the record of appeal including the Judgment of the Nasarawa State High Court, and the submissions of Counsel in their respective briefs. I shall adopt the three issues distilled in the Appellant’s brief as the proper issues arising for the just determination of this Appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether in the face of the inconsistencies, contradictions evident in the respondents’ case of customary ownership and customary trust over the disputed land, the decision of the trial Court declaring customary title in favor of the respondents is sustainable in law. This is distilled from grounds 1 and 3.
APPELLANT’S COUNSEL SUBMISSION
Counsel on this issue urged this Court to answer the issue in the negative in resolving that the Respondents whose case is that they are the owners of the disputed land by way of traditional history did not establish their case by cogent, credible and consistent evidence to sustain the Court’s declaration of title in their favour.
Counsel submitted that the case of the respondents was rather contradictory and inconsistent as by the pleadings of the respondents, there is a confusion or broken link as to how the appellant came to repossess the land the respondents’ claim was returned to them by the appellant’s father before he died, as there is nothing from the pleadings suggesting that a second trust was created entrusting the disputed land to the appellant or that appellant reposed the land.
Counsel submitted that secondly, the respondents are misleading the Court on their claim that Appellant pleaded with them to withdraw the case before Upper Area Court as EXH A, the letter of demand was written after EXH B, the ruling of the Upper Area Court, and Appellant upon receipt of EXH A respondent to the said letter denying and challenging the Respondents’ claim of ownership of trust therein.
Counsel submitted further that the evidence of PW2 under cross-examination contradicted himself with his evidence before this Court as to the year his father entrusted the land to the Appellant’s father, the year his father deforested the land, and on issues of evidence to the fact that he was farming the land with his late father whereas the PW2 stated the land was handed to the Appellant’s father when he was small as his kinsmen.
Counsel submitted that PW2’s evidence that he farmed the land for 18 years after the demise of his father does not add up when the letter of demand he wrote is put into consideration. That PW4 in his evidence before the trial Court equally contradicted the evidence of PW2 as he stated that it was his father that gave the Appellant’s father the disputed land in trust. Again, counsel contended that PW4 cannot be believe that he witnessed the trust handed to the Appellant’s father as between 1970 and 2018 when he testified, PW4 is just 48 years of age, which in turn means that when the trust happened, he was just a year old, therefore, he couldn’t had known what happened.
Counsel submitted that the Respondents must succeed in their case on the strength of same, and for the Respondent to get judgment, they must establish their case by their pleaded facts showing who found the land, how the land was found and unbroken chain of succession of same to how they came to be in possession of the land, but same was not demonstrated by their pleadings before the trial Court and same is fatal to the case of the Respondents on customary title. See Iroagbara v. Ufomadu (2009) All FWLR (Pt. 481) 843 at 860 paras F – H, Nwokorobia v. Nwogu (2009) All FWLR (Pt. 476) 1869 at 1884 – 1885, para G – H.
Counsel on that note contended that the trial Court was in error to have discountenanced the contradiction evidenced in the claim which are material to the determination of the veracity of the traditional evidence. That the Respondents having failed to prove their root of title and intervening owners could not had been believed by the trial Court because that is the requirement of the law in proving title by traditional means, the evidence that is acceptable must be conclusive for the Court to accept same. See Ukaegbu v. Nwololo (2009) All FWLR (Pt. 466) 1852 at 1873 paras A – B. See also Oyeniran v. Ajani (2010) All FWLR (Pt. 526) 523 at 540 paras A – B.
Counsel therefore urged this Court to hold that evidence of the Respondents is riddled with contradictions and inconsistencies and same did not assist their claim and accordingly resolve this issue in favor of the Appellant.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel to the respondent while responding on this issue submitted that it is not enough for the Appellant to allege an error on the part of the Court in her judgment, but appellant must convince this Court that the error judicially affected his case. Counsel submitted that the Respondents’ evidence of PW3 and PW4 clearly explained the boundary of the land in dispute and same was not contradicted by the appellant.
Counsel submitted that while the evidence of DW2 and DW3 is at variance with the pleadings of the Appellant, the evidence of DW1 and DW4 supports the appellant’s case as to the identity of the land in dispute. Thus it is rather the evidence of the appellant and not that of the respondents that is contradictory and inconsistent if the submission of appellant counsel is to be considered.
Counsel submitted that in title case, evidence led to prove title must be satisfactory and conclusive as decided in the case of Uchendu v. Ogboni (1999) 5 NWLR (Pt. 603) 337, Atanda v. Ajani (1989) 3 NWLR (Pt. 111) 511, Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. That a party must be consistent in his case and properly describe the subject matter, that is the land in dispute in order to obviate the possibility of future litigation on that same land. See Adeosun v. Jibesin (2001) 14 WRN 106, Nwosu v. Njoku (1990) 3 NWLR (Pt. 140) 570 at 582.
Counsel submitted that on the strength of their case, the respondents established their case with certainty and equally proved the ownership of the disputed land by traditional history by specifically proving who founded the land, how it was founded and particulars of intervening owners through whom they claim. That respondents traced their root of title through their father upon his descent from their ancestral hill and settling at Nasarawa Eggon where he travelled to the present location of land and deforested the disputed land and handed it in trust to the father of the appellant because of ill health.
The respondents’ counsel explained the intervening factors of the story of how the father of the appellant asked appellant to show the disputed land to them and they continued cultivating the land and how they sold the land and gave appellant N100,000.00 for trust keeping of the land which buttress the root of title of the respondents.
Counsel submitted that the demand letter complained by appellant counsel that it came after the withdrawal of the suit at Upper Area Court was because the appellant after settlement and withdrawal of the case and after the respondents sold the land began to lay claims to same, hence the demand letter coming after the suit at Upper Area Court to warn appellant to desist from what he is doing, and upon his refusal, the respondents filled this writ.
Counsel submitted that the trial Court rightfully found and decided the case in favor of the respondents as it was after the trial and establishment of ownership of the land by the respondents plus the selling of the land, that the visit to locus was done where respondents showed the Court the grave of their mother and the remains of the house their father built that Court found in their favor. That the failure of the appellant to joint issues with the respondents on the issue of customary trust of the land and the sale transaction of the disputed land was on the minimal prove of the ownership of the land by the respondents.
Counsel submitted that appellant only made a general traverse of the claims of the respondents in paragraph 2 which is not allowed in law, as every averment must be specifically denied. See Khatoun Enterprises Ltd v. United Nig Textile (2014) 18 NWLR (Pt. 1438) 1 at 26 para F – H. That the appellant did not specifically deny the burial of the respondents’ mother on the land, the sale transaction and the handing over of the land in trust to his father and these facts having been established by PW1 and PW2, they are deemed as established and accepted. See CBN v. Okojie (2015) 14 NWLR (Pt. 1479) P. 231 at 258 paras C – D.
Counsel submitted that the issue made by the appellant in his brief about the age of PW4 is not an issue before the trial Court despite the latitude given by law on issues of cross-examination as the evidence of PW4 was purely one of a boundary man who testified that he shared boundary with the disputed land and that he knew the respondents’ father deforested the land many years ago. Counsel submitted that more so, evidence elicited under cross-examination are only relevant when it concerns matters that issues have been joined on, thus appellant having failed to join issues on the issue, whatever fact is elicited under cross-examination goes to no issue. See Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) P. 1 at 281 paras D – E.
RESOLUTION OF ISSUE ONE
The law is settled that it is not every contradiction in the evidence of a party or witnesses as the case may be that will discredit the case. For contradiction or inconsistencies to affect the credibility of a party’s case, it must be such material contradiction or inconsistency such that it whittle down the evidence of a party and same cannot be believed by an ordinary man.
See the Supreme Court case ofNwokoro & Ors v. Onuma & Anor (1999) LPELR 2126 (SC) Pp 16 – 17, paras E –D where the apex Court said:
“…The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle is, of which the Courts are well familiar with in practice, is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. See Enahoro v. the Queen (1965) NMLR 265. In civil cases, even greater latitude is allowed in respect of such contradictions…”
The complaint of the appellant by this issue is that the trial Court erred in law when it entered judgment in favor of the respondents as their evidence before the trial Court is riddled with inconsistencies and contradictions for same to be accepted by the Court on the area of the root of their title, who founded the land and how the land devolved them. I shall consider the submissions of counsel on both side on this issue vis a vis the pleadings before the trial Court.
Since both parties are ad idem that the proof of title adopted at the traditional Court was by way of traditional history, I shall consider the inconsistencies in the evidence of traditional history establishing the title of the respondents declared by the trial Court as contended by appellant.
Counsel to appellant first contended that the evidence of respondents at the trial Court was contradictory and inconsistent as there is no nexus showing how the respondents reposes the land from the appellant after the trust, since the appellant is in possession of the land. That there was no second trust and appellant denied that he ever loan the land for the 2nd respondent, therefore the missing link which the evidence preferred by the respondents did not address.
First of all, I have read the evidence of the respondents charted by their pleadings in their amended statement of claim and contained in the evidence of PW2 at page 117 – 122 of the record to the effect that their father deforested the land after coming down from Eggon hills and had been farming same until he entrusted same to the appellant’s father who later handed it over to the respondents when they became of age and it was even the appellant that showed respondents the boundary of the land.
The appellant only denied in his defence that the respondents’ father deforested the disputed land and entrusted same to his father by charting, his only evidence is to the effect that it was his father that deforested the disputed land and he had been farming on same with his father till his demise, but the appellant did not deny that he was the one that showed the respondent’s the land when they demanded it from his father.
From the evidence of PW2, there was nowhere the respondents led evidence that after the return of the land to them by the appellant’s father, the land devolved to the appellant again. It is not the case of the appellant either that the land devolved to him after the respondents redeemed the trust, it is only his claim that the land had all along been his and he had possession, thereby making a complete denial of the respondents’ case.
I have looked at the evidence of PW2 as I said, I do not see any broken nexus or link in the evidence of the respondents as contested by appellant to be contradictions or inconsistency bearing on how they reposes the land. The evidence of the respondents was clear that their father deforested the land, he handed over to appellant’s father in trust because they were young, when they came of age, they requested for the land, same was handed over to them and they continued farming on same until due to financial stress, they opted to sell the land, at which point appellant was laying claim to same, hence this suit.
On the contention of counsel that the respondents’ case was riddled with inconsistencies and their evidence is misleading the Court as to EXH A and B, I see no material contradiction there. The fact that the case at Upper Area Court Bukan Sidi was withdrawn before the letter of demand for appellant to desist from trespassing on the disputed land was written does not bring any contradiction to mind. More so, the respondent’s evidence is clear that after withdrawing the case at Upper Area Court, and upon attempting to sale same to the knowledge of appellant, he began to lay claims to same, thereby leading to the letter of demand and subsequently this suit subject of this appeal.
I have read through the contention of counsel on what counsel contends are contradiction as to issue of when the respondents’ father deforested the land, and the evidence of PW2 that he farmed on the land for 18 years now and the evidence of PW1 that he witness the trust between the respondents’ father and the appellant’s father, and I want to say that counsel submission with respect is misconceived. Counsel’s submission is misconceived because, the issues or evidence contended as inconsistencies or contradictions do not show any contradictions at all, but the placement of probative values to be ascribed to the evidence adduced which is purely a duty of the trial Court, and this Court can only intervene when the decision of the trial Court is perverse on her finding on the evidence adduced.
Counsel also contended that there is contradiction as to the intervening events that bordering on the root of title of the respondents and how they came to be in possession of the land. Like I said, the respondents clearly led evidence to how the disputed land was found, how it was given to the appellant’s father, how their mother was buried on the land, how they recovered the land from the appellant’s father and sold same and even gave appellant N100,000 for his faithful stewardship. I agree with the trial Court that the evidence of the respondents established their root of title and how they came to possess the land.
What is worrying is that the appellant did not deny that respondents’ mother was buried on the land, and the receipt of N100,000 upon respondents’ selling the land which is the major reason the respondents sued the appellant at the first place.
I therefore resolve this issue against the appellant and in favour of the respondents as I do not see any material contradiction in the case of the respondents as regards their traditional history establishing their title in the disputed land as contended by counsel.
ISSUE TWO
Whether the holding of the trial Court that the appellant while at the visit to locus in quo confirmed the remains of the respondents’ mother’s grave and other features which were on the land in dispute, same not supported by the evidence on record is perverse? This is distilled from ground 2.
APPELLANT’S COUNSEL SUBMISSION
Counsel submitted that the findings of the trial Court in its judgment that the remains of the grave of the respondent’s mother and features which respondents claimed were on the disputed land clearly contradict the printed record before this Court as the proceedings at locus in quo which is found at pages 184 – 185 of the Record bears nothing stating appellant’s confirms the remains of the respondents’ mother or any other feature of the respondents on the land.
Counsel contended that the trial Court at the visit ought to have led parties to confirm the existence or otherwise of the features they claimed were on the land, but the Court failed to do that and rather confirmed that appellant confirmed the features of the respondents on the land. That the Court holding that appellant failed to show any features on the land conflict with respondents counsel’s submission in his address before the trial Court, as counsel confirmed under introduction of facts in their written address that appellant showed features of trees, and two site built, but the trial Court failed to record same.
Counsel on that note submitted that the holding of the trial Court is perverse as the record did not bear his finding. That it would had been better if the trial judge inferred from the evidence at locus that the remains of the Respondents was on the land, than to hold that the appellant confirmed the features on the land claimed by the respondents. That the appellant having denied the case of the respondents, it is wrong for the Court to hold that appellant did not counter the alleged facts of the respondents claimed in their evidence.
Counsel urged this Court to set aside the holding of the trial Court on the visit to locus in quo as same is perverse.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel submitted on this issue that the printed record before this Court in line 14 and 16 at page 210 does not bear record of the trial judge saying that the respondents’ mother grave and features which respondents claim were on the land in dispute but same is found on page 184 of the record which is the proceedings of the visit of locus in quo.
More so, according to counsel, the appellant having failed to contradict the relics of the grave of the respondents’ mother and the relics of the house built by their father have confirmed the features of the respondents on the land. Counsel submitted that the failure of the Appellant to amend his pleadings to bring it in line with the respondents’ amended pleading with respect to the grave, issue of trust created and the sale of land transaction puts to rest all issues of inconsistency and contradiction that appellant’s counsel submitted on.
Counsel submitted that the procedure at the locus in quo is correct and same was captured in page 184 and 185 of the record and there was no any importation of evidence as alleged by counsel. Hence, counsel urge the Court to rely on the evidence on the visit to locus as cases are not decided on addresses of counsel but on evidence adduced. See Vassilev v. Paas Industry Ltd (2000) 12 NWLR (Pt. 681) 347 at 355 paras E – F. Counsel consistently submitted that since Appellant had failed to join issues with the respondents on the burial of their mother, he cannot make a case on it on this appeal.
Counsel submitted that there is no ground for the appellant challenging the address of the respondents at the trial Court as counsel is doing in his address, and counsel on that note urge this Court to resolve the issue in favor of the respondents.
RESOLUTION OF ISSUE TWO
Before delving into resolving this issue, let me state that the purpose of visit to locus in quo is to avail the trial Court the opportunity to see fact and issues contended by parties on the disputed land so as to picture them in reality. This is to enable the trial Court get a better grasp of the evidence adduced before it and not to substitute the eye for the ear as rightly stated by the trial Court while relying on the case of Danjuma v. SCC Nig Ltd (2017) 6 NWLR (Pt. 1561) in his judgment at page 220 of the record.
The Supreme Court in the case of Nwankpu & Anor v. Ewulu & Ors (1995) LPELR 2107 (SC) P. 36, paras A – B has this to say about the importance of visit to locus in quo:
“…It is now an established principle of law that there are certain matters that must be resolved by a visit to the locus in quo, such that at the locus in quo, the trial judge will not avail himself the mere belief but of what he sees there. See Umar v. Bayero University (1988) 4 NWLR (Pt. 86) at 93, Kenon v. Tekam (1989) 5 NWLR (Pt. 121) 366 at 373.”
I have looked at the proceedings of the visit of locus in quo and the findings of the trial judge on the observation of the Court during the visit. It is clear that Plaintiffs/respondents at the visit identified the remains of their mother’s grave and the remains of the house their father built. The appellant as defendant upon being asked by the Court to identify his land, simply identify that it is the same land but his spans across the stream.
I agree with the appellant’s counsel that there is nowhere on record at the visit to locus in quo where appellant confirmed the relics of the respondents’ mother’s grave and the house built by their father. However it is clear on record that the respondents at the visit clearly identified the features of their mother’s grave and the house built by their father, and when appellant was asked to identify his land, he did not challenge the features identified by respondents on the land, but only identified that his land is same with that of the respondent but same goes beyond the stream.
The trial Court has a duty to ascribe probative value to evidence adduced and to make a finding one way or the other on the evidence adduced as to demeanor and whether he believes or does not believe the case of a party. I agree with the findings of the trial Court that the appellant confirm the remains of the respondents’ mother grave and the house built by their father as the silence of the appellant to the evidence of the respondents on these features on the land leaves so much to be desired. This can only mean admission of these facts which the lower Court can clearly see and make observations regarding same in his judgment as he rightly did.
This issue is equally resolved against the appellant and in favor of the respondents.
ISSUE THREE
Whether the trial Court adequately evaluated the evidence and considered all the issues raised at the trial before arriving at the decision declaring customary title in favor of the respondents. This is distilled from grounds 4, 5 and 6.
APPELLANT’S COUNSEL SUBMISSION
Counsel on this issue submitted that if the trial Court considered all the issues canvassed by the Appellant, the Court would not had come to this erroneous conclusion as in most cases the trial Court misconstrued the law and arrived at wrong conclusions as counsel shall outline here below.
Firstly, the trial Court failed to appreciate the law that in an action for declaration of title to land, the burden is squarely on he who alleges and not on the defendant, as it is immaterial what the defence is, the claimant has the burden alone to prove the claim. But it appears that at the trial Court, the burden was totally placed on the appellant who did not even counter-claimed to disprove the respondents’ inconsistencies before the trial Court. Counsel referred to the Supreme Court authority of Anyafulu v. Meka (supra) 1530 G – H.
That when the case of the appellant is placed side by side with that of the Respondents, the appellant’s case was not discredited, unproved or found unsatisfactory, but that of the respondents was riddled with so much doubt as already shown.
Another major misconception according to counsel by the trial Court is in the holding of the trial Court that the appellant never properly pleaded and showed the Court the area in dispute and as such the respondents proved their case of customary title over the disputed land. That even though the identity of the land in dispute is not an issue, the appellant did not counter-claim for his to be required to identify the land, especially when it was the appellant that shown the respondents the boundaries to the land.
Counsel submits that appellant saying that his land is same as that of the respondents should not amount to him failing to accurately describe the disputed land. That the finding of the trial Court that appellant did not deny that trust was created over the disputed land was erroneous as appellant vehemently denied the claim of trust. That despite the fact that appellant did not file a defence to respondents’ amended claim, same upon being granted dates back to the period the appellant’s defence was filed. That the trial Court in the face of appellant’s denial of the trust erred when it entered judgment a trust was created without any evidence establishing same.
Again, Counsel submitted that trial Court’s failure to hold that the appellant who is in possession of the disputed land by the trust created is the owner erred in its decision. That the trial Court ought to hold that the appellant who is in possession of the land is the owner for the respondents to lead evidence in rebuttal of same since the presumption of the land is that the person in possession is the owner. This is more so in the face of the fact that the evidence of appellant of traditional inheritance was not discredited, thus the facts of the case did not call for the application of the rule of Kojoll v. Bonsie. See Oyeniran v. Ajani (Supra) 540 paras A – C.
Counsel contended also that the holding of the trial Court that respondents sold the land upon appellant surrendering it after the withdrawal of the Upper Area Court was erroneous as the trial Court failed to consider that declaration of title or right of occupancy is not granted or decreed on the inferred admission of a defendant. Counsel referred to the Supreme Court decision of Edward Nkwegu Okereke v. Nweze David Umahi & Ors (2016) 11 NWLR (Pt. 1524) 438 at 489 paras B – G, Animashaun v. Olojo (1991) 10 SCNJ 143.
Counsel submitted that the trial Court failed to appreciate the purport of the Appellant’s defence that he had no relationship with the Respondents until they challenged his possession and occupation of the land. And that the appellant never surrendered the land to the respondents as there is nothing in EXH B suggesting that the appellant surrendered the land to the respondents. That the trial Court failed to consider the inconsistencies in the respondents’ case, but solely believed their case and thus, the judgment is perverse.
That the trial Court equally failed to consider that the respondents’ claim for title being rooted in traditional history once it failed, respondents could not rely not on acts of possession such as the alleged remains of the grave of the respondents’ mother and other features the Court held were confirmed on the disputed land. That the respondents left a yawning gap in the intervening owners of the land and did not lead evidence as to how the appellant’s father and the appellant came to be successive holders by virtue of the alleged trust. That the appellant case failed to show the missing link on how they came to reposes the land after the trust as the evidence of the respondent is not credible and reliable. See Eze v. Atasie (2000) 6 SCNJ 209 at 218.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel under this issue while relying on the authority of Nwabuoku v. Ottih (1961) All NLR 487, submitted that evaluation of evidence is done by putting the evidence called by either party on an imaginary scale and weighing them together, and which ever outweighs the other should be accepted. Therefore if one of the contending parties calls no evidence at all on the issue, the evidence called by the other party ought to be accepted, unless such an evidence is such that no reasonable tribunal should accept it.
Counsel submitted on the strength of the above authority that the appellant on the issues of burial of his mother on the disputed land and the sale of land transaction did not join issues with the respondents, therefore, the Court was right to have accepted the case of the respondents on the issue as putting the issues on the imaginary scale, the trial judge discovered that the evidence of the respondents was alone on the scale, and the law is that when the other side calls no evidence, the onus is discharged on a minimal of proof. Counsel referred to the case of MTN v. Mundra Ventures Nig Ltd (2016) LPELR 40343 P. 33 – 34, paras D – C.
Counsel while relying on the case of Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91 at 93 – 95 submitted that the evidence of the respondents on issues of their claim was led by credible evidence and none was conflicted to it by the appellant, so the evidence stands tall having not being disturbed by any contrary evidence led by the appellant which is superior to that of respondents. Counsel submitted that respondents’ oral evidence was in same accord with their claim before the trial Court.
Counsel submitted that the trial Court simply used the evidence of the respondents as elicited by their amended statement of claim and same was properly evaluated and thus leading to the decision of the Court which Counsel submitted was supported by the evidence of PW1, PW2 and PW 3 and PW4 to quake the foundation of the appellants claim.
On the whole, counsel urged this Court on this issue not to disturb the findings of the trial Court.
RESOLUTION OF ISSUE THREE
The law remains settled that the evaluation of evidence adduced and ascribing probative value to same remains the sole duty of the trial judge and the Court of appeal can only interfere where a party shows that the evaluation done by the trial Court is perverse.
First of all, I do not agree with the appellant that the trial judge in his judgment placed the burden squarely on the appellant in determining the case having read the judgment. This is more so as the appellant had no counter-claim before the trial Court, therefore, his case was purely one of defending the claims of the respondents which he did but failed clearly to joint issues on some critical pleadings of the respondents which arose from the amended statement of claim.
It is indeed clear in this case that the appellant did not counter-claim title to the disputed land, therefore the issue of appellant establishing the boundary to the land does not arise. However, from the judgment, it can be deciphered that the trial Court made reference to appellant’s failure to identify the boundary of the land with specific reference to the evidence adduced at visit to locus in quo. It is important that since appellant was denying the respondents ownership of the land that he properly identified the extent of the land the claims was his and not respondents.
I must say that I agree with appellant’s counsel that appellant clearly denied the existence of any trust between the respondents’ father and his father and claimed that it was his father that deforested the land and he and his father had been farming on same till his demise, however, it is not true that the appellant was in possession of the land. There is no iota of evidence to show possession led by appellant in his evidence to portray that he was in possession of the disputed land when the suit was pending at the trial Court. The evidence of visit to locus in quo does not portray the act of possession by the appellant either.
I have looked at the contending issues and counsel contention that the Court did not appraise the evidence adduced before him with respect to inconsistencies in the case of the respondent, the issues of the proof of their case as it relates traditional history and how the appellant came to be in possession of the land. Like I said, there is no evidence adduced by the appellant that he was in possession when this suit was filed. The evidence adduced is that respondents whom had been farming there sold the land and appellant is laying claims to same, whereas appellant claim also that the land is his simplicitar as he has been farming there.
On the issues of inconsistencies and the establishment of the title of the respondent by traditional history, I had resolved this under issue one and for avoidance of repetition, I hold that the trial judge adequately considered the evidence adduced before him. And in any case, it is not enough to just submit that the trial judge did not adequately considered the evidence before him, counsel must identify the perversity in the failure to properly evaluate the evidence adduced and the injustice occasioned appellant in order for this Court to look into the evaluation of evidence adduced before the trial Court, and that counsel had not done.
On the whole, I resolve this issue in favor of the respondents and against the appellant.
It is a settled principle of law that where a trial Court has carried out its assignment satisfactory, an appeal Court shall be left with no option but to affirm such a decision. See Sule Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) Page 659 at 674 paras F-G per I.T. Muhammad JSC, Ali v. State (2015) 10 NWLR (Pt. 1466) Page 1 at 31 paras D-H per Ogunbiyi, JSC.
In consequence, the Appellant’s appeal is completely lacking in merit having resolved issues 1-3 against the Appellant. The judgment of the lower Court Coram. Simon O. Aboki, J delivered on the 20th day of November, 2020 in Suit No. NSD/LF63/2010 is HEREBY AFFIRMED.
Cost of N50,000.00 (Fifty Thousand Naira only) is awarded against the Appellant in favour of the Respondents.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.
Having issues 1-3 against the Appellant, the appeal is therefore dismissed and the judgment of the lower Court Coram. Simon O. Aboki, J., delivered on the 20th day of November, 2020 in Suit NO. NSD/LF63/2010 is hereby affirmed. I also abide by the order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. My learned brother has elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed.
While also dismissing the appeal, I hereby affirm the decision of the lower Court delivered by Hon. Justice Simon Aboki and dated 20th November, 2020 in Suit No. NSD/LF63/2010. I abide by the order made as to costs.