BENEDICT O. ESEHA & ANOR v. SUNDAY ABOMA
(2019)LCN/13794(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of January, 2019
CA/B/388/2012
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. BENEDICT O. ESEHA
2. MOSES EGBA
(for themselves and on behalf of Ogboho family of Etevie quarters Ozoro) Appellant(s)
AND
SUNDAY ABOMA
(for himself and on behalf of Ogboloka Sub family of Etevie quarters Ozoro) Respondent(s)
RATIO
MEANING OF “CREDIBLE EVIDENCE”
In AGBI V. OGBE (2006) ALL FWLR (PT. 392) 941 @ 969, it was held inter alia thus ?credible evidence means evidence worthy of belief and credit. It must not only proceed from credible sense, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance. PER EKPE, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF RESTS ON THE PARTY WHO ASSERTS THE AFFIRMATIVE OF THE ISSUE
The law is that the burden of proof rests on the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. On the burden of adducing evidence, the burden of proof may shift depending on how the scale of evidence preponderates. Subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence whatsoever or no more evidence, as the case may be, was adduced on either side. See AKANDE V. ADISA (2012) 15 NWLR (PT. 1324) 538; see also OGBUANYINYA V. OKUDO (NO.2) (1990) 4 NWLR (PT. 146) 551. PER EKPE, J.C.A.
WHETHER OR NOT FACTS PLEADED MUST BE PROVED BY EVIDENCE
The law is settled that facts averred in pleadings must be substantiated and proved by evidence. This is because pleadings have no mouth to speak in Court and so, they speak through witnesses. If witnesses do not narrate them in Court, they remain moribund and dead at all times; see OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (PT. 1489) 596; see also ALAO V. AKANO (2005) 11 NWLR (PT. 935) 160. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State sitting at Oleh delivered on the 7th day of May, 2012; where His Lordship dismissed the claim of the Appellants as Plaintiffs and granted the counter claim of the Respondents as Defendants/Counter Claimants.
SUMMARY OF RELEVANT FACTS:
The facts relevant to this appeal can be summarized as follows: By an amended Writ of Summons dated 8th October 1999, the Plaintiffs/Appellants sued the Defendants/Respondents claiming the following reliefs:
a. A declaration of the Honourable Court that the Ogboho family of Etevie Quarters Ozoro is constituted exclusively by Efi, Ekemorie and Onyeore sub-families.
b. A declaration that the Plaintiffs? family is the only family entitled to Statutory Right of Occupancy over that portion known as Ogbeho land in Oboko bush of Etevie Quarters Ozoro within the jurisdiction of the Honourable Court.
AGAINST THE 1ST DEFENDANT ONLY:
i. The sum of N1, 050,400.00 as special and general damages for trespass when sometimes in November 1988, and between
1
December, 1998 and January 1999, the 1st defendant broke and entered into Plaintiff?s portion of Iboko land, felled 12 timber trees or wood valued at N4,200.00 each and cleared and farmed on another portion thereof without the consent of the Plaintiffs first had and obtained.
ii. An order of perpetual injunction restraining him, his agents, servants or privies from further trespassing into Plaintiffs? portion of Iboko bush in Etevie Quarters, Ozoro within the jurisdiction of the Honourable Court.
The matter was fought on the further amended statement of claim and further amended statement of defence. The Respondent in the further amended statement of defence included a counter claim wherein they claimed thus: A declaration of the Honourable Court that Ogboloka sub family where the Defendants come from is a constituent and an integral part of Ogbogho family of Etevie Quarters, Ozoro and is jointly entitled along with sub-families of Ogbogho family to the grant of right of occupancy over the portion of land known as Ogbogho land in Iboko bush of Etevie Quarters Ozoro within the jurisdiction of the Honourable Court.
2
The case of the Appellants essentially is that the land Iboko was founded by their ancestor known and called Ogbogho and over the years the land has devolved on the descendants of Ogbogho. The Appellant contended that Ogbogho family exclusively made up of three sub families, namely: Efi, Ekemorie and Onyore. The Appellants alleged that Ogbogho rescued the ancestress of the Respondents, Ogboloka and gave her a portion of the Iboko land. The Appellant denied that the Respondent is a member of the Ogbogho family.
On their part, the Respondents testified and called other witnesses including one chief Edhegu Egwro (DW2) who is the head of the Ogbogho family. The case of the Respondent is that they are part of the Ogbogho family and have commonly been enjoying the iboko bush jointly with the Appellants family and are therefore jointly entitled to the right of occupancy.
In a considered judgment delivered on 7th day of May, 2012 the learned trial judge dismissed in its entirety the claim of the Appellants and granted the counter claim of the Respondent.
N/B: The Appellants initially sued the 1st Respondent but the 2nd and 3rd Respondents applied to be joined in the suit which request the Court granted.
3
GROUNDS OF APPEAL:
Consequent upon the leave granted by this Court, the Appellants filed a Notice and Grounds dated and filed on 13/3/2017.
The Grounds of Appeal shorn of its particulars are reproduced herein under for ease of reference.
Ground 1:
The Learned trial judge erred in law when it held that the Defendants are members of the Plaintiffs Ogbogho family and the contention of the Plaintiff that the Ogbogho family is constituted by the 3 sub families of Efi, Ekemorie and Onyore to the exclusion of the Defendants Ogboloka branch cannot be sustained.
Ground 2:
The learned trial judge misdirected itself (sic) in law when it (sic) held as follows ?Accordingly in the interest of justice I will hereby discountenance the assertion that the Plaintiff have no authority to institute these proceedings. ? in the circumstances I hold that whereas the 1st Plaintiff failed to prove that he was a member of the Ogbogho family, the Defendants on their own averments contained in paragraph 10d of the further amended statement of claim admitted that the 2nd Plaintiff was a member of the Ogbogho family.
4
Ground 3:
The learned trial judge erred in law when it (sic) held that the Plaintiffs are not entitled to their relief of trespass against the 1st Defendant as the Defendants are members of the Ogbogho family, and the Plaintiffs have failed to prove that the Iboko land have been partitioned.
From the Notice and Grounds of Appeal, the Appellants in an Appellant Brief of Argument filed on 13/3/2017 distilled three issues for the determination of the appeal, to wit:
Issue one: whether the Appellants had established proof of their claim that the Appellants? Ogbogho family is exclusively made up of three (3) sub families namely: Efi, Ekemorie and Onyore.
Issue two: Whether the learned trial judge was right to have made findings on the 1st Plaintiff?s capacity to sue when the Court in the main had decided to discountenance the Respondents assertion pertaining to the Appellants authority to institute the action.
Issue three: Whether the Appellants had established the claim of trespass into the Appellants? Iboko bush has made against the Respondent simpliciter.
5
On their part, the Respondents in a Respondents? Brief of Argument dated 3rd October 2017 but filed on 4th October 2017, distilled five issues for the determination of the appeal, to wit:
a. Whether Respondents are members of the Ogbogho family of Etevie Quarters of Ozoro.
b. Whether the Appellants are members of the said Ogbogho family and whether they have the authority of members of the family to institute this suit against the Respondents.
c. Whether the land in dispute in this suit had been partitioned.
d. Whether Appellants are entitled to the reliefs they claim against Respondents.
e. Whether Respondents are entitled to the reliefs they claim in their counter claim against the Appellants.
N/B: I must say here that the issues as formulated by the Respondents are incongruent with the principles governing formulation of issues in an appeal. The law is trite that a Respondent without a cross appeal or Respondents Notice can only formulate issues for determination from the grounds of Appeal contained in the Appellants notice of appeal. See FCMB V. S.A.I.C. LTD. (2007) ALL FWLR (PT. 363) 133 @ 143 PARAS B-D.
6
I have carefully considered the issues as formulated by the Respondents but I cannot relate them to the grounds of appeal. The Respondents did not also specify the particular grounds from which the issues are distilled. It is elementary law that even though an issue may be distilled from more than one ground of appeal, conversely more than one issue cannot be covered by one ground of appeal; IKEGWUOHA V. UNIVERSITY OF JOS (2005) ALL FWLR (PT. 280) 1573 @ 1581. In this light, there are three grounds of appeal whereas the Respondent formulated five issues.
The Appellants in their Appellants Brief dated and filed on 7th March, 2018 have also pointed out this fact. Learned counsel for the Appellants has cited several authorities and submitted that issues 2, 3, 4, and 5 are incompetent as they are not related to the grounds of appeal.
?In any case, I have taken a second look at the issues, even though counsel to the Respondent was not elegant in formulating the issues, I am of the view that issues 1, 2, and 4 can be said to relates to Grounds 1, 2 and 3 of the Notice and Grounds of Appeal. To that extent, I will endeavour to piece together any meaningful argument from the Respondents Brief that relates to
7
these Issues. However, issues 3 and 5 have no bearing on the appeal and are hereby struck out.
ISSUE ONE:
Learned counsel for the Appellants x-rayed the evidence of the Appellants witnesses at the Court below especially the evidence of the PW1 and stated that from the evidence it is clear that no member of the Respondents Ogboloka family attends the meeting of or makes any monetary contribution towards burials or any activities of the Appellants Ogboho family, hence the two families are not kins or related by affinity. Counsel posited that from the evidence it is without doubt that the Appellants? ancestor married three wives and begat three children, namely: Efi, Ekemorie and Onyore. Counsel added that from the evidence the Appellants? ancestor never married Ogboloka, the Respondents Matriarch as a 4th wife rather she was rescued and given a portion of the Iboko bush.
Counsel contended further that it was common ground among the parties that Ogbogho was the radical owner of the Iboko land. Counsel posited that the trial judge occasioned a miscarriage of justice when the Court believed the evidence of genealogy as traced by the
8
Respondents to the effect that Ebe, the father of Ogbogho founded or owned the land. Counsel was of the view that tracing genealogy of the Respondents to Ebe was extraneous to the issues joined in the pleadings and the Honourable Court ought to have disbelieved the evidence of the Respondents on that ground. Counsel contended that the evidence of DW2 ought to have been treated as that of a false witness, as DW2 after signing the letter of authority for the Appellants to institute the action, later testified against them; counsel cited UKAEGBU V. NWOLOLO (2009) 3 NWLR (PT. 1127) 194 @ 236-237 PARS E-C and CHUKWU V. AMADI (2009) 3 NWLR (PT. 1127) 194 @ 89-90 PARA H-C to buttress the point.
Counsel also quoted excerpts from the evidence of DW2 and contended that it was not pleaded and ought not to have been accepted by the Court; counsel cited ISIKWENU V. IROH (2013) 11 NWLR (PT. 1365) 256 @ 282 PARA G and other cases in support of the contention. Counsel stated that unlike the evidence of DW2, PW1 was consistent and his evidence was cogent. Counsel harped on the fact that the Honourable Court ought to have relied on Exhibit A in
9
holding that the Respondents are not members of the Ogbogho family. Lastly on this issue, counsel urged the Court to reappraise the pleadings and evidence led and resolve the issue in favour of the Appellants.
Reacting to this issue which counsel to the Respondent couched differently in issue one formulated by him, counsel opined that it was because the trial judge was of the view that Exhibits A tendered by the Appellants, and Exhibit B tendered by the Respondents were not exhaustive enough to determine all the members of Ogbogho family, that the Court discountenanced both pieces of evidence.
Learned counsel x-rayed the evidence of Chief Edhegu Egwro (DW2) who is the head of the Ogbogho family which according to counsel proves that indeed the Respondents are members of the Ogbogho family. Counsel picked holes in the evidence of Mr. Usuoyibo Secondy Awho ( PW1) who claimed to have been the secretary of the family since 1973, whereas one E.O. Onojame had earlier testified at the High Court Oleh as the secretary of the family. Counsel then urged that this issue be resolved in favour of the Respondents.
10
RESOLUTION:
It is however imperative to set the tone by considering what credible evidence is. In AGBI V. OGBE (2006) ALL FWLR (PT. 392) 941 @ 969, it was held inter alia thus ?credible evidence means evidence worthy of belief and credit. It must not only proceed from credible sense, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstance?. Having said that, the crux of this appeal is whether or not the Respondents are members of the Ogbogho family. This issue to my mind is the bedrock upon which the whole case rests. It was in a bid to prove this essential issue that the parties called various witnesses. The Respondents in a bid to prove that they are indeed members of the Ogbogho, called Chief Edhegu Egwro (DW2) who incidentally is the head of the Ogboho family. To my mind there cannot be better evidence as to who is a member of the family than that of the family head. The evidence of DW2 is cogent, credible and sufficient for the resolution of this issue.
?
The learned counsel for the Appellants has strenuously tried to challenge the credibility of the evidence of DW2, but to my mind he was not able to show in any way why the
11
evidence should not be believed or discarded. Counsel has also endeavored to show that the trial judge did not evaluate evidence before him properly, but I do not subscribe to that view. In MILITARY GOV. OF LAGOS STATE V. ADEYIGA (2012) ALL FWLR (PT. 616) 396 @ 424 PARAS A-C, the Supreme Court held inter alia ?when the evaluation of evidence by a particular judge is challenged, the principles that are examined are: a. whether the evidence is admissible; b. whether the evidence is relevant; c. whether the evidence is credible; d. whether the evidence is conclusive e. whether the evidence is probable than that given by the other party.? A careful perusal of the evidence of DW2 shows that it satisfies the condition enumerated above.
In my humble and ardent view, the Appellants were not able to prove their claim that Ogbogho family is exclusively made up of three sub families namely: Efi, Ekemorie and Onyeore. By the uncontroverted evidence of DW2, the Respondents are part and parcel of Ogbogho family. This issue therefore is resolved against the Appellants.
12
ISSUE TWO:
In arguing this issue, learned counsel highlighted portions of the pleadings of the parties and stated that it was the Respondents in their pleadings that raised the issue of the 1st Plaintiff not being a member of the Ogbogho family hence the burden of proving same lies on them. Counsel called in aid the case of NNABUIFE V. NWIGWE (2001) 9 NWLR (PT. 719) 698 @ 727 PARS A and ITAUMA V. AKPE-IME (2000) 12 NWLR (PT. 680) 156 @ 168, 177-178 and 180. He posited that the finding made by the trial judge that the 1st Plaintiff had failed to prove that he was a member of the Ogbogho family was not based on proper and dispassionate appraisal of the pleadings and evidence given by the parties in the case; counsel then urged that the finding be set aside or reversed. Counsel cited OMOBORINOLA 11 V. MIL.GOV. ONDO STATE (1998) 14 NWLR (PT. 584) 89 @ 106 PARAS G-B and OGUNRO V. AROWOLO (1998) 6 NWLR (PT. 552) 78 @ 87 PARAS A-C, for this contention.
Further on this issue, counsel contended that the trial judge failed to avert his mind to the totality of the evidence led by the 1st Plaintiff. He submitted that the trial judge failed to state the reason for the finding that the 1st Plaintiff is not a member of the Appellants family;
13
counsel cited SHOJO V. ADEBAJO (2000) 14 NWLR (PT. 686) 121 @ 140 PARAS B-C on the principle that Courts must state reasons for its finding. Lastly on this issue, counsel cited MBAMALU V. MOZIE (2002) 2 NWLR (PT. 751) 345 @ 363 PARAS C-D to the effect that a member of the family can properly represent a family in defending their right in the family. Counsel urged that the issue be resolved in favour of the Appellants.
In response, counsel for the Respondent submitted that the Respondents pleaded and led evidence on the genealogy of the 1st and 2nd Appellants. Counsel stated that while the Appellants denied the pleading and evidence as regards the 2nd Appellant, they did not challenge the pleading and evidence that the 1st Appellant is not a member of the Ogbogho family. Counsel called in aid OKE V. AIYEDUN (1986) 2 NWLR (PT. 23) 548 and UNITED PARCEL SERVICES LTD V. UFOT (2006) ALL FWLR (PT. 314) 337 to the effect that unchallenged evidence is deemed admitted and the Court should accept same.
?
In a further argument, learned counsel referred to the evidence of the 1st Appellant as contained at pages 46-53 of the records and stated that the 1st Appellant never led any evidence as per his genealogy.
14
Lastly counsel cited EJEZIE V. NWABEZE (2008) 165 LRCN 119 to the effect that the onus is on the person who claimed to have sued in a representative capacity to prove same when such authority is challenged.
RESOLUTION:
In resolving this issue, recourse ought to be made to two fundamental principles of law, to wit: (1). The burden of proof in any case is on the party who will lose if no evidence is led by either side; (2). Pleadings or Statement of Claim not supported by evidence is deemed abandoned.
Applying the first principle to this issue, learned counsel for the Appellants has argued that it was the Respondents in their pleadings that asserted that the 1st Plaintiff was not a member of the family and therefore the burden of proof is on them. With due respect to learned counsel I do not subscribe to this view. The law is that the burden of proof rests on the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. On the burden of adducing evidence, the burden of proof may shift depending on how the scale of evidence preponderates.
15
Subject to the scale of evidence preponderating, the burden of proof rests squarely on the party who would fail if no evidence whatsoever or no more evidence, as the case may be, was adduced on either side. See AKANDE V. ADISA (2012) 15 NWLR (PT. 1324) 538; see also OGBUANYINYA V. OKUDO (NO.2) (1990) 4 NWLR (PT. 146) 551. Applying this principle to the instant case, the Plaintiff is the party asserting the fact that he is the arrowhead versed with and has the authority of the Ogboho family to institute the suit. The burden of proving this affirmative assertion therefore rests on the Appellants.
The second principle as I identified above is as regards pleadings not supported by evidence. The law is settled that facts averred in pleadings must be substantiated and proved by evidence. This is because pleadings have no mouth to speak in Court and so, they speak through witnesses. If witnesses do not narrate them in Court, they remain moribund and dead at all times; see OLUYEDE V. ACCESS BANK PLC (2015) 17 NWLR (PT. 1489) 596; see also ALAO V. AKANO (2005) 11 NWLR (PT. 935) 160. The point being made therefore is that pleadings must be proved by evidence, failure of which it goes to
16
nothing as pleadings do not take the place of evidence. See OLASA V. EZIMUO (2003) 17 NWLR (PT. 848) 129 @ 149. Applying this to the instant appeal, even though the 1st Plaintiff pleaded that he is a member of the Ogbogbo family and that he has the authority of the family to sue, the averment in the pleading was not supported by evidence during trial. In my view therefore, the learned trial judge was right in his finding regarding the 1st Plaintiff?s capacity, as same bordered on locus standi which the Court could not have glossed over. This issue therefore is resolved against the Appellants.
ISSUE THREE:
On this issue, learned counsel for the Appellants submitted that in a claim for trespass the plaintiff must prove exclusive possession or a right to such possession and cited OLADIPO V. N.C.S.R. (2009) 12 NWLR (PT. 1126) 536 @ 587 – 588. Counsel contended that the Appellants through evidence established have exclusive right to the Iboko land and that the Respondent had violated that right when he entered the land to fell timber and farm on the land without the consent/approval of the Appellants? family.
17
Counsel posited that the learned trial judge having held that the Iboko land belongs to the Appellants Ogbogho family, ought to have held that the activities of the Respondent in logging and cropping on the land were acts of unlawful interference with possession; counsel cited ODELEYE V. ADEEGHA (2001) 5 NWLR (PT. 706) 330 @ 348 PARA B and AKPADIAGHA V. OWO (2000) 2 NWLR (PT. 669) 439 PARAS C-D in support of the postulation.
Learned counsel for the Respondent argued this issue as issue No. 4 in the Respondents brief. He x-rayed the claims of the Appellants at the Court below. As regards claim one to the effect that the Appellants Ogbogho family is entitled to the statutory right of occupancy over the Iboko land, the Respondent stated that there is no contention as regards this issue since the Court has already held that the Respondent is part of the Ogbogho family.
As relates to claim for damages against the 1st Defendant, counsel contended that the Plaintiffs failed to prove exclusive ownership, which implies that the land is jointly owned. Counsel cited OJIBAH V. OJIBAH (2000) 1 N.L.L.C. 177 @ 203 on the principle that joint ownership by all the male members of a family or community
18
is one of the incidents of communal ownership of land. Counsel contended that having failed to prove partition of the family land and exclusive possession of the land, the Appellants? claim for damages for trespass against the Respondents must fail.
As regards the claim for perpetual injunction, learned counsel cited OLAYIOYE V. OSO (1969) 1 ANLR 281 to the effect that a relief of perpetual injunction cannot succeed where the main claim fails. Counsel stated that from evidence it was shown that the Respondents are members of the Ogboloka sub family which is a part of the Ogbogho family, and that the family land has not been partitioned. Counsel cited AKAYEPE V. AKAYEPE (2009) 175 LRCN 207 to the effect that a Court cannot grant an injunction against a family member in a land that has not been partitioned. Counsel urged that this issue be resolved in favour of the Respondent.
RESOLUTION:
This issue in my view has been taken care of by the resolution of the first issue. It is elementary that trespass is predicated on possession. But in the instant appeal having held that the Iboko bush belongs jointly to the Ogbogho family and that the
19
Respondents are part and parcel of the family, they cannot therefore be held liable for a land which they co-own. Without much ado this issue, in my view should be resolved against the Appellants.
In conclusion, and having resolved all the issues against the Appellants and in favour of the Respondent, this appeal is without merit and ought to be dismissed in its entirety.
Accordingly, this appeal is hereby dismissed and the Judgment of the lower Court in Suit No. HCZ/4/2007 delivered on the 7th day of May 2012 is affirmed. A cost of N50,000.00 is awarded in favour of the Respondent as against the Appellants. Appeal Dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother PHILOMENA MBUA EKPE JCA. I agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. Appeal Dismissed. I abide by the order as to costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
20
Appearances:
P.A. Ezo, Esq. with him, D.G. Olley (Mrs.)
For Appellant(s)
G.A. Izevbigie, Esq.For Respondent(s)
Appearances
P.A. Ezo, Esq. with him, D.G. Olley (Mrs.)For Appellant
AND
G.A. Izevbigie, Esq.For Respondent