BERNARD NWANA & ANOR v. ANTHONY EMEFEROM OKOYEOCHA & ORS
(2016)LCN/8518(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of April, 2016
CA/E/50/2007
RATIO
APPEAL: EFFECT OF UNAPPEALED DECISION
There is no ground of this appeal against the decision of the trial Court that:- “the plaintiffs having failed to prove their root of title, which they pleaded and relied upon they cannot fall back and rely on acts of possession.” The respondent abandoned the respondents’ notice, they filed and did not cross appeal against the said decision. By not challenging this part of the trial Court’s judgment by an appeal or other legal process, both parties accepted it as correct valid and binding upon them. See Iyoho v. Effiong (2007) 4 SC (Pt.111) 90, SPDC Nig. Ltd v. XM. Federal Ltd & Anor (2006) 7 SC (Pt.11) 27 and Biariko v. Edeh-Ogwile (2001) 45 (Pt.11) 96. PER EMMANUEL AKOMAYE AGIM, J.C.A.
LAND LAW: TITLE TO LAND; EFFECT OF RELIANCE ON LONG POSSESSION AND ACTS OF OWNERSHIP NOT PROVEN
it is settled law that where long possession and acts of ownership are based on a traditional title such as a customary grant, and the traditional title is not proved, as in this case, the long possession and acts of ownership cannot be relied on to successfully claim for declaration of title to the land. See Eronini & Ors v. Iheuko (1989) LPELR-1161 (SC) where the Supreme Court held that “where a plaintiff relies on long possession following traditional evidence and fails to prove the traditional title upon which the possession is based he cannot get a declaration of title.” In Owhonda v. Ekpechi (2003) 9 – 10 SC 1 the Supreme Court held that “in an action for declaration of title to land where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he cannot be entitled to the declaration sought. He cannot also fall back on long possession and acts of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession. See Kalio v. Woluchem (1985) 1 NWLR (Pt 4) 610 at 628.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE; DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
It is on the basis of the above stated principles that a proper evaluation of the evidence adduced by both parties should proceed. The trial Court is bound by law to first evaluate the evidence adduced by the respondents to find out if they discharged the primary legal burden on them to prove their case. In doing this they ought not evaluate the evidence of the appellants and compare same with that of the respondents to determine which is more reliable. It is after the trial Court has evaluated the evidence of the respondents and is reasonably satisfied that the fact sought to be proved is established, that it will now evaluate the evidence of the appellants, placing it side by side with the evidence of the respondents, to find out if it has successfully rebutted the case established by the respondents evidence. See S. 133 of the Evidence Act 2011. PER EMMANUEL AKOMAYE AGIM, J.C.A.
EVIDENCE: EVIDENCE OF WITNESSES; WHETHER THE LAW PROHIBITS THE ADMISSION OF EVIDENCE OF A WITNESS WHO SAT IN COURT WHILE OTHER WITNESSES WERE TESTIFYING
There is no law prohibiting the admission of evidence of a witness who sat in Court while other witnesses were testifying. While the probative value of the evidence of such witness may be diminished depending on the circumstances of the case, it cannot provide justification for the wholesale disregard of such evidence. Even where the Court holds that the probative value of any part of the evidence is diminished due to the witness’ presence in Court, there must be evidence of how his presence in Court may have influenced his subsequent testimony in Court and the injustice it has caused or is likely to cause the other party. An error of procedure during trial proceedings cannot vitiate any part of the proceedings unless it can be shown that such error has caused or is likely to cause injustice to the other side. PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. BERNARD NWANA
2. SIMEON NWANA
(for themselves and on behalf of the other members of the Ukabia family of Umueze village, Amawbia) Appellant(s)
AND
1. ANTHONY EMEFEROM OKOYEOCHAI
2. INNOCENT OKOYEOCHA
3. RAPHAEL OKOYEOCHA Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 11-10-2001, the respondents herein as plaintiffs filed a claim and caused a writ of summons to issue on the same date against the appellants herein as defendants commencing suit No A/234/2001 in the High Court of Anambra State at Awka.
The plaintiffs claimed for the following reliefs:
“1. Declaration of Court that the plaintiffs are the persons entitled to the statutory right of occupancy over the piece or portion of land called “ana ngam/apiti” Okoyeocha situate at Umueze village, Amawbia town in Awka South Local Government Area of Anambra State, which is more particularly described and delineated in the plaintiffs’ plan No. SSC/AN/D/03/2002.
2. The sum of N500,000.00 damages for trespass on the land aforesaid.
3. Court’s order of perpetual injunction restraining the defendants, agents, and/or servants from further trespass on the land aforesaid.”
The suit was tried on the basis of the following pleadings- the plaintiffs’ further amended statement of claim filed on 13-5-2005 and the defendants’ amended statement of defence filed on 31-5-2005.
?The plaintiffs
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adduced evidence in support of his case through PW1, PW2 and PW3. The defendants adduced evidence in defence through DW1, DW2 and DW3.
After conclusion of evidence by both parties and following their filing, exchange and adoption of written final addresses, the trial Court on 28-3-2006 rendered its judgment granting all the reliefs claimed for by the plaintiffs.
Dissatisfied with this judgment, the defendants on 12-4-2006, commenced this appeal NO. CA/E/50/2007 by filing a notice of appeal containing seven grounds for the appeal. An amended notice of appeal was filed on 9-3-2006.
On 14-6-2006 the plaintiffs as respondents herein, filed a respondents’ notice of intention to contend that the judgment of the trial Court be affirmed on grounds other than those relied on by the trial Court. They however raised no issue from it and did not argue it. It is deemed abandoned. It is accordingly struck out.
The parties herein have filed, exchanged and adopted their respective briefs as follows – amended appellants’ brief filed on 9-3-2015, respondents’ brief filed on 11-3-2015 and amended appellants’ reply brief filed on 11-3-2015.
?The amended
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appellants’ brief raised the following issues for determination-
“1. Whether the Customary arbitrations by Isisiakpu Umueze village, Amawbia and Isisiakpu Amawbia are binding on the parties?
2. Whether the respondents proved title to the land in dispute?
3. Whether the learned trial judge properly evaluated the evidence before him and arrived at a correct decision?”
The respondents’ brief raised the following issues for determination ?
“1. Whether the customary arbitration of Isisiakpu customary arbitration of Umueze village, Amawbia and Isisiakpu customary arbitration of Amawbia town are binding on the parties.
2. Whether from the preponderance of Evidence, the respondents proved acts of long possession and enjoyment of the land to entitle them to judgment.
3. Whether the appellants joined issues with the respondents on the ownership of the land in dispute.”
I will determine this appeal on the basis of the issues for determination raised in the appellants. But I would reframe them thus-
“1. Whether the trial Court was right to hold that the respondents proved their title to the Suitland.
2. Whether the
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trial Court was right when it held that the three Isisisiakpu Customary arbitrations were binding on the appellants
3. Whether the trial Court properly evaluated the evidence before it and arrived at a correct decision?”
I would consider issues 1 and 2 together. The trial Court held that the respondents who relied on oral traditional history of how they derived title to the Suitland in their claim of title to the Suitland did not prove the said traditional history. The exact holding of the trial court reads thusly- “The plaintiffs have failed to prove the title of Okeke Ojagali from whom the land devolved on the grantors of the land to their father, the root of title of Okeke Ojagali or their grantors having not been admitted by the defendants and same was not established in evidence.
From all that I have said above, I find that the plaintiffs have not proved in evidence, that the land in dispute was originally owned by Okeke Ojagali. I am satisfied that the plaintiffs have not established the traditional history of the land in dispute, which they relied on as root of title.”
Further in the judgment it held that: ?It is clear
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from the evidence on record that the plaintiffs have failed to prove their root of title to the land in dispute.”
The respondents’ long possession of the Suitland and numerous and positive acts of ownership of the Suitland were predicated on and derived from the alleged grant of the said Suitland by Okeke Ojagali to their grandfather Okoyeocha Nwadije. It is glaring from the evidence adduced by the respondents that their said long possession commenced in 1921 after the alleged grant of the Suitland by Okeke Ojagali to their grandfather Okoyeocha Nwadije. The trial Court made this finding in the following words- “It is also in evidence that upon the grant of Okeke Ojagali’s lands verged red and green in exhibit A to the plaintiffs father, he took ownership and possession of the entire land which includes the land in dispute in 1921 and started exercising acts of ownership of same by farming the land.”
It made the same finding further in its judgment thusly- “It was shown in evidence that the plaintiffs started to exercise various acts of ownership numerous and positive on the land in dispute. Since 1921 by their late father and themselves until 1985
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when the defendants for the first time challenged their ownership of the land in dispute.”
One of the acts of exercise of ownership of the land allegedly granted Okoyeocha Nwadije is the sale of part of it to Chika Ekwueme by the plaintiffs. Paragraph 8b of the further amended statement of claim states thusly- “the decision by the Umunwomalum family to give out land to those who brought money for treatment and burial of Okeke Ojagali was taken with the consent of Vincent Akubude. In 1921 that plaintiffs’ father took possession of his plot immediately he was granted ownership and possession of an expense of land which includes the land in dispute the land sold by the plaintiffs to Chika Ekwueme and the road that passes in between the land in dispute and the land sold to Chika Ekwueme by the plaintiffs.”
The said portion of that land sold to Chika Ekwueme by the plaintiffs is verged green in exhibit A (the respondents’ survey plan of the Suitland). The trial Court found as a fact that: “On the 5th method, it has been established by the plaintiffs that the area verged green in exhibit A is part of the land in dispute, but it is not in itself in dispute.
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PW1 who is the first plaintiff testified that he sold the area verged green in exhibit A to one Chika Ekwueme in 1992 to the knowledge of the defendants. The defendants admitted that the first plaintiff has sold the piece of land sharing common boundary with the land in dispute which has since been fenced, I find that the land sharing common boundary with the land in dispute on the southern part of the land in dispute is the area verged green on exhibit A.”
It further found that – “I have earlier found that the area verged green in exhibit A is one contiguous land with the area demarcated by a road and the area verged red in exhibit A which is the land in dispute, but both lands are now demarcated by a road and the area verged green in exhibit A shares common boundary with the land in dispute, I find that the plaintiffs have proved possession of connected and also adjacent land which are the areas verged green and brown on exhibit A, admitted by the defendants as sharing common boundary with the land in dispute on the northern and southern parts of the land in dispute, in the circumstances rendering it probable that the owner of such connected or adjacent
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land would in addition, be the owner of the land in dispute. It is clear from the evidence on record that the plaintiffs have failed to prove their title to the land in dispute.”
It is glaring from the foregoing that the respondents’ long possession of the Suitland, their exercise of acts of ownership therein and their ownership of land contiguous and boundaried with the Suitland are all predicated on or derived from the alleged grant of part Okeke Ojagali’s land to the father of the plaintiffs.
The question that arises at this juncture is, having held that the respondents failed to prove their traditional history of how they were granted land said to be owned by Okeke Ojagali, was the trial Court right in holding that the respondents proved their title to the Suitland.
It is obvious from the judgment that the trial Court was agitated by this question and reflected at length on it. The trial Court held that: ?In the instant case, the origin of Umunwomalum family’s title to the sort claimed was pleaded but the plaintiffs failed to prove or establish it in evidence. This failure is fatal to the plaintiffs’ claim.”
After this holding it
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proceeded to consider if the respondents could rely on their long possession and exercise of acts of ownership of the Suitland and the ownership of the land adjacent and connecting to it to prove their title as alternative methods of proving title to land to the Suitland. It held that:- “It seems to me that since failure of the plaintiffs to prove root of title of his grantors where he relied on grant is fatal to his claim, it does not really matter if he proves any of the other five methods of proving title to land. His claim to the land must obviously fail and be dismissed. However, since these five methods of proving title to land are independent of each other, I would have thought that where a party fails to prove the root of title of his grantors which means that he has failed to prove traditional evidence or history, but proves title to land by any of the other established method for proving title to land, his claim will not be dismissed.
For this view the trial Court relied on the Supreme decisions in Atanda v. Ajani (1989) 3 NWLR (Pt.111) 511 at 533, Nkado & Ors v. Obiano & Anor (1997) 5 SCNJ 33 and Idundun v. Okumagba (1976) 10 NSCC 445.
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The trial Court then held that it is completely bound by Supreme Court decisions and the decisions of this Court that where a party pleads and proves more than one root of title, proof of one single root of title is sufficient to sustain their title to the land claimed. After the above considerations, the trial Court finally decided the point thusly- “In the instant case, the plaintiffs based their title to the land in dispute on a grant of the sort claimed according to the custom of Amawbia town. He pleaded the origin of title of their grantors but failed to prove it in evidence,
How Okeke Ojagali formerly owned the land in dispute was not proved.
I have made specific findings on the issue of traditional history and the other four methods of proving title to land.
It seems to me however, that the plaintiffs having failed to prove their root of title, which they pleaded and relied upon, they cannot fall back and rely on acts of possession,
See Benedict Otanma v. Kingdom Youdubagha (2006) 2 N.W.L.R. Part 964 page 337 at 359.
In that circumstance he cannot be entitled to declaration sought. He cannot also fall back on long possession and
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act of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession.
See John Owhonda v. Alphonso Chukvuemeka Ekpechi (2003) 17 NWLR Pt.849 Pg.326 at 344 paras. D-F.
Following the above cited authorities, it is clear to me that since the plaintiffs have failed to trace their title to the land in dispute to that of the established owner, it follows that the plaintiffs are not entitled in law to a decree declaring them the owners of the land.
On that alone, the plaintiffs case ought to be dismissed, but I have earlier in this judgment found that the award of the customary arbitration of Isisiakpu Umeze, which was upheld by Isisiakpu Amawbia in respect of the land in dispute, which found in favor of the plaintiffs is binding on the parties. The Defendants are estopped by the first decision of the customary arbitration Umeze village, Amawbia from disputing the title of the plaintiffs to the land in dispute. The plaintiffs in view of the reasons (issue of estoppel) that I have given above are entitled to the statutory right of occupancy to the land in dispute.”
There is no
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ground of this appeal against the decision of the trial Court that:- “the plaintiffs having failed to prove their root of title, which they pleaded and relied upon they cannot fall back and rely on acts of possession.” The respondent abandoned the respondents’ notice, they filed and did not cross appeal against the said decision. By not challenging this part of the trial Court’s judgment by an appeal or other legal process, both parties accepted it as correct valid and binding upon them. See Iyoho v. Effiong (2007) 4 SC (Pt.111) 90, SPDC Nig. Ltd v. XM. Federal Ltd & Anor (2006) 7 SC (Pt.11) 27 and Biariko v. Edeh-Ogwile (2001) 45 (Pt.11) 96.
In any case, it is settled law that where long possession and acts of ownership are based on a traditional title such as a customary grant, and the traditional title is not proved, as in this case, the long possession and acts of ownership cannot be relied on to successfully claim for declaration of title to the land. See Eronini & Ors v. Iheuko (1989) LPELR-1161 (SC) where the Supreme Court held that “where a plaintiff relies on long possession following traditional evidence and fails to prove the traditional
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title upon which the possession is based he cannot get a declaration of title.” In Owhonda v. Ekpechi (2003) 9 – 10 SC 1 the Supreme Court held that “in an action for declaration of title to land where a plaintiff fails to discharge the burden of proving his root of title to the land as pleaded by him, he cannot be entitled to the declaration sought. He cannot also fall back on long possession and acts of ownership to prove title. He must first prove a valid root of title to be able to claim title on acts of ownership or long possession. See Kalio v. Woluchem (1985) 1 NWLR (Pt 4) 610 at 628.”
The respondents’ long possession and acts of ownership of the Suitland were pleaded and proved as incidents of the grant of the Okeke Ojagali’s land to their father and commenced after such grant. Only one root of title was pleaded by the respondents. The root of title is the said customary grant of Okeke Ojagali’s land to their father. Having failed to prove that root of title, their long possession and acts of ownership of the Suitland which they pleaded as incidents of the said root of title cannot be relied on as alternative roots of title. To do so would be
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contrary to the case presented by them in their pleading and evidence. As held by the Supreme Court inUde & Ors v. Chimbo & ors (1998) 9 – 10 SC 97 where a party pleads and relies on a particular mode of acquisition as his root of title, he is under a duty to prove such mode of acquisition to the satisfaction of the trial Court before his claim on declaration of title can succeed. Where however, the radical title pleaded is not proved, it is long settled that it is not permissible to substitute a pleaded particular root of title that has failed with other matters such as acts of possession, numerous and positive to warrant an inference of the ownership not pleaded as root of title.”
The trial Court after holding that the respondents failed to prove their title to the Suitland, that they were not entitled to a decree declaring them owners of the land and that their case ought to be dismissed, held that because the decisions of the Isisiakpu Customary arbitration were in favour of the respondents, they were entitled to the statutory right of occupancy to the Suitland. The question that arises at this point is whether the trial Court was right in
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holding that even though the respondent’s claim ought to have been dismissed because they failed to prove title to the Suitland, they were nevertheless entitled to the statutory right of occupancy of the Suitland on the basis of the three Isisiakpu Customary arbitrations that found in their favour.
My view is that having held that the respondents did not prove their title to the suit properly and so were not entitled to be declared owners of the Suitland, the trial Court was wrong to have relied on the decision of the three Isisiakpu Customary arbitrations to declare the respondents’ entitlement to the statutory right of occupancy to the Suitland, when they were not in exclusive possession of the Suitland for 20 years from 1985 to 2006 when the trial Court rendered its judgment. PW1 (1st respondent herein) testified that they were in exclusive occupation of the Suitland from 1921 to 1985 and that appellants have contained to exclusively occupy the land since 1985. His testimony on this issue reads thusly- “After the death of my father, my mother was farming on the entire land my father got from the lands of Okeke Ojagali including the land in dispute
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until she could not continue. She started farming the lands immediately she finished mourning her husband (my father). Mourning is done for one (1) year in their days. I have economic trees on the land in dispute such as palm trees, Ukwa trees, oil bean trees, Mango trees etc. My mother reaps all the economic trees on the land in dispute, The defendants are now reaping all the economic trees on the land in dispute since my mother became incapacitated from reaping same. I have tried to reap the economic trees on the land in dispute but I could not reap them because the defendants disturbs me from doing so. The disturbance started in 1985. Prior to 1985 my uncle late Sylvanus Nwadije whom I entrusted the land in dispute to when my mother cannot continue in the cultivation of same cleared the land for cultivation, the defendants forced him out of the land including his workers and my uncle and his workers went away. When the defendants forced my uncle and his workers out of the land in dispute he sent for me because I was in Lagos as at that time and I came back and went to the 1st defendant who is the defendants’ head of family, I complained to him about what
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members of his family did to my uncle. I brought in a surveyor to survey the land for me after I had warded off Charles Aniemena and his group. The surveyor started his assignment I gave to him to do for me on the land in dispute but he did not complete same because the defendants did not allow him to complete his survey works on the land, The defendants after they have disturbed my own survey they called in a surveyor to survey the land in dispute in this suit for them as an act to assert ownership of the land by them.”
Pw1 further testified that: “It is not true that the family has been in possession of the land in dispute from 1932. The Umukabia family has never been in possession of the land in dispute at all. They came into the land in dispute for the first time in their lives in 1985. As at 1985 I was in Lagos when the defendants went into the land in dispute. The defendants made a survey plan in 1985 and when I came back I saw that beacons were all over the land in dispute. I am praying the Court to order a perpetual injunction against the defendants, their agents and servants from further trespass on our land.”
The trial Court believed this
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testimony without considering the appellants evidence of their exclusive possession of the Suitland from when their progenitor deforested, founded and occupied it. The respondents by their evidence have shown that the appellants have been in exclusive possession of the Suitland from 1985.
It is clear from the above testimonies that at some point the respondents were no longer occupying the Suitland. When their mother could no longer continue reaping the economic trees on the land, their uncle was prevented from occupying the land by the appellants who retained exclusive occupation of same, which occupation resulted in the arbitrations and the suit leading to this appeal.
?The respondents contend that the appellants’ act of possession was trespassory. But they admit that the appellants were able to prevent any other person including the respondents from entering the land. The evidence shows that this was the status quo ante bellum and ante litem. So between 1985 and 2007 when the suit leading to this appeal was filed, a period of 16 years, the appellants remained in exclusive possession of the Suitland. The respondents did not rely on the customary
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arbitral decisions as their root of title to the Suitland.
In any case, what the trial Court did was treat the customary arbitrations as a substitute for the root of title the respondent could not prove. This is wrong. See Ude & Ors v. Chimbo & Ors (supra). Customary arbitration cannot be a root of title to land. It can only be pleaded and proved as a fact that confirms the facts constituting a person’s root of title and shows that the existence of those facts have been settled by the Customary arbitral decision. Where the Court has held as in this case, that those facts do not establish a person’s title to land, the arbitral decisions would become ineffective as a means of proof of title. Where the plaintiff who has failed to prove title to the land is in exclusive possession of the land, he can rely on the Customary arbitrary decisions in his favour to show that he is in lawful exclusive occupation of the land. But where, as in this, he has not proven the root of title he pleaded and relied on and the defendant is rather in exclusive occupation of the Suitland for 16 years before the commencement of the suit, he has no existing legal right to
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the land that the Customary arbitral decisions can support.
Another reason for the view that the trial Court was wrong to have relied on the Customary arbitrations decisions to declare that the respondents are entitled to the statutory right of occupancy to the suit land is that the customary arbitrations were not proved.
Learned counsel for the appellant argued thusly- “Obviously, the decision of Isisiakpu Umueze village, Amawbia upon which the Court based its judgment was not proved. The learned trial Judge based his decision on the oral testimony of the decision of Isisiakpu Umueze village Amawbia. A decision which was reduced in writing and which decision was surprisingly not tendered in evidence. Section 132 of the Evidence Act provides that oral testimony of the judgment of any Court or any other judicial or official proceedings shall not be admissible where such judgment or proceedings is reduced in writing. In effect, the learned trial judge relied on inadmissible oral evidence of the decision of the Isisiakpu customary arbitration to give judgment for the respondents.”
Learned Counsel for the respondents did not answer this argument.
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As held by the Supreme Court inEchere v. Ezirike (2006) All FWLR (Pt.323) 1597 at 1608 and followed by this Court in Tractor Equipment (Nig) Ltd & Ors v. Integrity Concepts Ltd & Anor (2011) LPELR 5034, this failure to respond to the above argument of Learned counsel for the appellant does not render it automatically correct. This Court still has a duty to find out whether the submission is correct on the law and the facts.
Paragraph 18 of the further amended statement of claim states that the decision of the Isisiakpu Umueze customary arbitration of 2000/2001 in respect of the land in dispute was in writing. PW1 testified in chief that the said decision of 2000/2001 Isisiakpu Umueze customary arbitration was in writing which he identified. Learned Counsel for the appellant applied to tender it through PW1 as an I.D. The trial court admitted and marked it ID.I. It was not admitted as an exhibit and so was not admitted in evidence.
PW3 testified in chief that- “I am 80 years old? In the year 2000, I was a member of Isisiakpu Umueze village, Amawbia and also a member of Isisiakpu Amawbiao. He further stated under cross-examination that:
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“During my term the decision of Isisiakpu Umueze and Isisiakpu Amawbia are usually reduced into writing. I don’t have any decision we took in my tenure as a member of Isisiakpu. When each panel or body concludes their term, they hand over their decision in writing to the incoming members of the Isisiakpu.”
Proceedings of Customary arbitrations are in most cases unwritten. Evidence of such unwritten proceedings and their decisions are often in the nature of oral testimonies of witnesses, who in many cases were not present during the proceedings of the arbitrations. Oral testimonies of such proceedings, by even persons who were not eye and ear witnesses of the event are more often than not admitted as evidence of the traditional history of the dispute as to the title to the property by virtue of S.66 of the Evidence Act 2011.
Where evidence is adduced that the proceedings and decisions were in writing, then oral evidence of the proceedings of such arbitrations and the decision cannot be admitted to prove the proceedings and decisions in the arbitration. See Ss. 125 and 128 (1) of the Evidence Act which provide that- “All facts, except the contents of
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documents, may be proved by oral evidence.” And 128(1)- “When any judgment of any Court or any other judicial or official proceedings, or any contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
?No explanation was made as to why the respondents could not tender in evidence the written record of the proceedings and decisions of the Customary arbitrations. If the arbitration proceedings were reduced into writing and the written records are not tendered in evidence, then oral evidence of the contents of the arbitration decisions are inadmissible. The existence of such written records exclude the admissibility of any oral testimony concerning the arbitrations and the decisions arrived therein.
?The need to tender the written
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records of the arbitrations become more necessary considering that the appellants disputed the outcome of the first Isiakpu Umueze arbitration, that the appellants disputed their submission to the 2nd Isisiakpu Umueze arbitration and the evidence of PW3, that the appellants did not accept the decision of the Isisiakpu Amawbia arbitration and that was why the members of the arbitration asked the 1st respondent to take the matter to anywhere. This need is further emphasized by the fact that PW2, the secretary of the Isisiakpu Amawbia arbitration could not remember anything concerning the matter that was the subject of arbitration. He stated under cross-examination that because it has taken a long time since the arbitration took place, he cannot remember what the 1st respondent said during the arbitration about how they acquired the Suitland, that he could not remember who were the respondents’ witnesses, that he does not know whether Okeke Ojagali owned any property in his life time, that the subject matter of the arbitration was about ownership of land but he cannot remember the exact nature of the complain that led to the arbitration, that he cannot remember
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what he saw on the Suitland during inspection, that he cannot remember if the Isisiakpu found out who was farming on the land and reaping economic trees thereon in 1986 or prior to 1986, that he cannot remember if they interviewed any boundary neighbours to the Suitland, that he remembered that there was no mention of beacons on the date of the inspection, that he cannot remember the testimonies of both parties during arbitration, but remember the decision and that he does not know Amawbia Custom on the inheritance of the estate of a person who died childless without a wife.
PW3, a member of the first Isisiakpu Umueze arbitration testified under cross-examination thusly- “The 1st defendant submitted himself to the arbitration of Isisiakpu Umueze when I was a member of that body, Bernard Nwana, the 1st defendant did not accept the decision of Isisiakpu Umueze when I was a member of that body, that was why we asked the 1st plaintiff in this suit to go to any where he wants.?
In the absence of the written record of the proceedings and decisions of the Isisiakpu Amawbia Arbitration and in the absence of any other evidence of what transpired
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during the proceedings, and the exact content of the decision and how the appellants reacted to it, it cannot be reasonably held that it is a valid arbitration that has all the attributes that make it binding on the parties. PW2 the secretary of the group that arbitrated over the matter could not remember anything about the arbitration except that the arbitration was in favour of the respondents.
In the face of the testimony of PW3, that the appellants did not accept the decision of the first Isisiakpu Umueze arbitration, an essential requirement for a binding arbitral decision is missing and the trial Court was wrong for holding that it was binding on the appellants who did not accept the decision.
It was wrong for the trial Court to have held that the three arbitral decisions were binding on the parties in the absence of the written record of the proceedings and decisions and the uncertainty of the contents of the proceedings and the decisions.
In the light of the foregoing I resolve issue 1 and 2 in favour of the appellants.
?Let me now consider issue No 3 in the appellant’s brief. It is noteworthy that the appellant’s did not counter
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claim for a declaration of title to the Suitland or any other relief. So it is only the respondents that claimed for a declaration that they are entitled to the statutory right of occupancy of the Suitland. Therefore the burden of proof was clearly on the respondents to prove their case on a balance of probabilities by a preponderance of evidence. The respondents must discharge this burden only on the strength of their case and not on the weakness of the defence, but without prejudice to their right to rely on any evidence of the defence that is favourable to them.
It is on the basis of the above stated principles that a proper evaluation of the evidence adduced by both parties should proceed. The trial Court is bound by law to first evaluate the evidence adduced by the respondents to find out if they discharged the primary legal burden on them to prove their case. In doing this they ought not evaluate the evidence of the appellants and compare same with that of the respondents to determine which is more reliable. It is after the trial Court has evaluated the evidence of the respondents and is reasonably satisfied that the fact sought to be proved is
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established, that it will now evaluate the evidence of the appellants, placing it side by side with the evidence of the respondents, to find out if it has successfully rebutted the case established by the respondents evidence. See S. 133 of the Evidence Act 2011.
The trial Court did not adopt the above approach in evaluating the evidence before it. Its evaluation of the evidence before it was mixed up and confusing. The trial Court gave no reason for preferring to believe the respondents inconclusive evidence of traditional history of title and not believe the more detailed and conclusive narrative by DW1 of the traditional history of title of the appellants that clearly established their root of title to the Suitland. For no valid reason it chose to believe a traditional history that could not state how Okereke Ojali acquired the land and a history that shows that the land that allegedly became inherited by Vincent Akubede was granted to the respondents by Umunwomalum family with Vincent Akubede merely consenting.
The decision of the trial Court not to attach any weight to the testimonies of PW3 and DW2 on the ground that they sat in Court while
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witnesses were testifying in the trial proceedings is wrong.
There is no law prohibiting the admission of evidence of a witness who sat in Court while other witnesses were testifying. While the probative value of the evidence of such witness may be diminished depending on the circumstances of the case, it cannot provide justification for the wholesale disregard of such evidence. Even where the Court holds that the probative value of any part of the evidence is diminished due to the witness’ presence in Court, there must be evidence of how his presence in Court may have influenced his subsequent testimony in Court and the injustice it has caused or is likely to cause the other party. An error of procedure during trial proceedings cannot vitiate any part of the proceedings unless it can be shown that such error has caused or is likely to cause injustice to the other side.
There is nothing in the record of this appeal that shows how the presence of PW3 and DW2 in Court influenced their subsequent testimony in open Court. PW3 had been present in Court during the testimonies of PW1 and PW2. The appellants against whom he testified did not object to the
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admission or use of his testimony. His testimony that the appellants did not accept the verdict of the first Isisiakpu Umueze arbitration was in favour of the appellants. The trial Court discountenanced this vital evidence in favour of the appellants and turned round to hold that there is no evidence that the appellants did not accept the verdict of that arbitration. PW3 also testified that all the arbitration proceedings and decisions were reduced into writing. This vital evidence was in favour of the appellants because no written record of the arbitration proceedings and decisions were in evidence as exhibits, creating very serious doubts about the content of the arbitral proceedings and decisions. The PW3 was a witness for the respondents. As it is, the respondent immensely benefitted from the trial Court’s refusal to consider his evidence. The appellant suffered injustice from the refusal of the trial Court to use evidence of PW3. The plaintiffs introduced evidence that is unfavourable to their case, the trial Court for no valid reason, Suo motu refused to use that evidence to the advantage of the plaintiffs and to the disadvantage of the defendants.<br< p=””
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The trial Court gave no reason for the wholesale believe of PW1 and disbelieve of DW1. It is not enough to disbelieve a witness. You must give reasons for doing so. The disbelief of a witness by a trial Court without giving reasons therefore is perverse and amounts to an improper use of the opportunity of having listened to and watched the witnesses testify before it. This is a good reason for this Court to interfere with the decision of the trial Court disbelieving or believing the witnesses and the findings flowing therefrom. The decisions disbelieving PW1, PW3 and DW1 and refusing to consider the evidence of PW3 and DW2 is hereby set aside. I do not think that there is need for me to evaluate the above testimonies, since the trial Court has held that the respondents failed to prove their root of title to the Suitland and earlier in this judgment I have made use of the evidence of PW3.
Issue No 3 is resolved in favour of the respondents.
On the whole, this appeal has merit and it succeeds. Accordingly the judgment of the High Court of Anambra State in Suit No.A/234/2001 delivered on 28-3-2006 per J.C Iguh is hereby set aside.
The respondents
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shall pay costs of N100,000 to the appellants.
RITA NOSAKHARE PEMU, J.C.A.: I had read in draft, the lead judgment just delivered by my brother EMMANUEL AKOMAYE AGIM (JCA).
I agree with his opinion and conclusions, and I abide by the consequential order made as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the judgment just delivered by my learned brother HON. JUSTICE EMMANUEL AKOMAYE AGIM, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has merit and it succeeds. I abide by the consequential orders made therein.
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Appearances:
O. E. Mathew, Esq. with him, Emmanuel O. Achukwu Esq.For Appellant(s)
DR. M. Nnama Umenweke Esq. with him, N. D. Agu Esq.For Respondent(s)
Appearances
O. E. Mathew, Esq. with him, Emmanuel O. Achukwu Esq.For Appellant
AND
DR. M. Nnama Umenweke Esq. with him, N. D. Agu Esq.For Respondent
