CHIEF AGBAI EKE UKPABI v. SUNDAY EKE UKPABI & ORS
(2019)LCN/13771(CA)
In The Court of Appeal of Nigeria
On Monday, the 2nd day of September, 2019
CA/OW/571/2018
RATIO
APPEAL: WHETHER A GROUND OF APPEAL CAN BE SPLIT INTO DIFFERENT ISSUES
The law is trite, that one cannot split a ground of Appeal, to generate different issues for determination of Appeal. It is also the law that, once a given ground of appeal has been used, to distill an issue for determination of Appeal, that ground ceases to be available to be used either alone or in conjunction with another ground(s) of appeal, to generate another issue for the determination of appeal. See the case of Obosi Vs NIPOST & Ors (2013) LPELR – 21397 CA”. PER IBRAHIM ALI ANDENYANGTSO, J.C.A
APPEAL: WHETHER MORE THAN ONE ISSUE CAN BE DISTILLED FROM A SINGLE GROUND OF APPEAL
“By law, no more than one issue must distill from a single ground of appeal, although an issue can generate from a combination of grounds of appeal. Any issue not distilled from any ground of appeal is incompetent and must be discountenanced by the Court, together with the arguments there under, in consideration of the appeal. See Marcathy Vs Tope (2012) All FWLR (Pt.648) 833; Nwaigwe vs Okere (2008) All FWLR (Pt.41 3)843; Oseni Vs Bajulu (supra); Blessing Vs FRN (2013)12 WRN 36”
.” PER IBRAHIM ALI ANDENYANGTSO, J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
CHIEF AGBAI EKE UKPABI – Appellant(s)
AND
1. MR. SUNDAY EKE UKPABI
2. MR. ONYEKWU EKE UKPABI
3. IJEOMA EKE UKPABI (MISS)
4. MR. IFEANYI JOHN – Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): On the 9th day of July, 2018, the Hon. Justice Agwu Umah Kalu, J, sitting at Igbere at the Igbere Judicial Division of the High Court of Abia State of Nigeria, delivered judgment in Suit No.HIG/15/2016 between Chief Agbai Eke Ukpabi and Mr. Sunday Eke Ukpabi& 3 Ors., in which he dismissed the claims of the claimant (pages 329-338 of the Record of appeal, to be referred to simply as ?the Record for short.)
The Claimant claimed to be the bonafide owner of a piece of land lying and situate at Umuokoronkwo Okoko Item in Bende Local Government Area of Abia State of Nigeria. He claimed that the piece of land was given to him as a gift by his late father Chief Eke Ukpabi, and that a portion of the land was given to him also as a gift by the Okoko Item Community, in 1980. The Claimant took out a Writ of Summons against the Defendants (pages 2- 3 of the Record.) In paragraph 37 of the Amended Statement of Claim dated 19th December, 2016 and filed on 23rd day of December, 2016, the Claimant claimed the following:
i. A declaration that the claimant is entitled to the statutory Right of Occupancy over all the piece or parcel of land situate and being at Umuokoronkwo Okoko Item in Bende Local Government Area of Abia State of Nigeria.
ii. The sum of N4,000,000.00 (Four Million Naira) only being damages for trespass.
iii. Perpetual injunction restraining the Defendants, their heirs, agents and/or assigns from trespassing and/or continuing to trespass into the land in dispute.
iv. An order compelling the Defendants to vacate immediately the four rooms as allowed them by the claimant.
The Defendants denied the claims in their joint Statement of Defence, thereby joining issues with the claimant and the matter proceeded to trial, at the end of which the Learned Trial Judge dismissed the Claimant?s claims.
Piqued by the decision of the Trial Judge, the Claimant filed a 6 ground Notice of Appeal on the 20th Sept, 2018, which grounds shorn of their particulars are as follows:-
GROUND 1
The judgment is against the weight of evidence.
GROUND 2
The Learned Trial Judge delivered his judgment outside the statutory period of three months from the date of the adoption of final addresses and this occasioned miscarriage of justice.
GROUND 3
The Learned Trial Judge erred when he held that the Appellant has failed to prove the alleged customary grant of parts of the land constituting the area in dispute to him by Chief Eke Ukpabi and the Okoko Item Community.
GROUND 4
The Learned Trial Judge erred in law when he held that there was a gap in the traditional evidence of the Appellant.
GROUND 5
The Learned Trial Judge erred in law when he held that the Appellant did not prove his case when the Respondent (sic) advanced no credible evidence in disprove (sic) thereof.
GROUND 6
The Learned Trial Judge erred in law when he stated and/or held that the Appellant did not prove that he single-handedly buried his father Chief Eke Ukpabi and therefore reached a wrong decision.
The Appellant indicated that further grounds of appeal may be filed on the receipt of the Records and then claimed the following reliefs:-
“To set aside the judgment of Learned Trial Judge and allowing the claim of the Appellant.”
The Claimant and the Defendants shall be referred to henceforth in this judgment as the ?Appellant? and ?Respondents? respectively. The Appellant, vide his Counsel Iro Ngozi Christopher Esq. filed his Brief of Argument on 21st January 2019, in which, from the 6 grounds of appeal, he distilled 3 issues thus:-
“1.WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE APPELLANT FAILED TO PROVE THE GRANT OF LAND IN DISPUTE TO HIM? GROUNDS 3 AND 5
2. WHETHER THE JUDGMENT OF THE LEARNED TRIAL JUDGE WAS NOT AGAINST THE WEIGHT OF EVIDENCE? GROUNDS 1, 5 AND 6
3. WHETHER LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THERE WAS GAP (sic) IN THE TRADITIONAL HISTORY OF THE APPELLANT? GROUND 4.”
The Respondents in their Brief of Argument filed on 21st February, 2019 vide their Counsel C. N. Onuchukwu, Esq, adopted the issues formulated by the Appellant but argued them under two headings. I shall now consider the issues.
ISSUE 1
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE APPELLANT FAILED TO PROVE THE GRANT OF LAND IN DISPUTE TO HIM?” Iro Ngozi Christopher, Esq. referred to IDUNDUN VS. OKUMAGBA (1976) 9-10 SC 27; BALOGUN VS. AKANJI (2005) Vol. 2 MJSC 175; ONWUGBUFOR VS. OKOYE (1996) 1 SCNJ dealing with the five methods of proving ownership of land in Nigeria, and submitted that the Appellant in the instant case relied on traditional history and acts of ownership (pages 254-260 of the Record) to establish his root of title through his father and the Okoko Item Community, having pleaded and proved that his father deforested that portion of land which he gave to the Appellant in 1980 as a gift which the Appellant exclusively used.
Learned Counsel referred to paragraph 6 of the Amended Statement of Claim and submitted that the averment therein contained was never challenged or controverted by the Respondents and so should be taken as having been accepted by them, referring to JACK VS. WHYTE (2001) 17 WRN 109 at 119-120.
Christopher Esq. referred to the evidence of DW1 (1st Respondent) under cross-examination and CW2 and submitted that the Appellant has proved his root of title and so the burden ought to shift and indeed has shifted to the Respondents to prove otherwise, relying on the Supreme Court decision in DIKE VS. NZEKA (1986) 4 NWLR (Pt. 34) 144 at 158; that the Respondents in this case did not bother to make their Kindred in Umuokoronkwo a party to the suit or call any evidence to establish their root of title; that reliance on both traditional history and acts of ownership by the Appellant was proper, commending to us in addition the case of ONWUGBUFOR VS. OKOYE (1996) I SCNJ 1 at 22, and emphasizing that the case of the Appellant was neither challenged nor contradicted by the Respondents at the lower Court; that the Appellant has proved his root of title as required by Law under traditional law, and then urged us to resolve this issue in favour of the Appellant and against the Respondents.
ISSUE 2
“Whether the judgment of the learned trial judge was not against the weight of evidence?”
Christopher Esq. cited the case of ISHOLA VS. UNION BANK (2005) 21 NSCQR 167 at 180 to the effect that all civil cases or claims are proved on the balance of probabilities and the preponderance of evidence and not on evidence beyond reasonable doubt; that although the onus of proof shifts depending on the nature of the evidence produced, the initial duty is always on the Plaintiff to prove his case, and submitted that in the instant case, the Appellant has proved his case by producing credible evidence which ought to have swayed the trial Court to give judgment in his favour, referring to pages 254-260 and 213-219 of the Record. Learned Counsel reiterated the evidence of the Appellant and his witnesses to the effect that at the demise of their father in 1981 he single handedly buried his father, thereby inheriting his property to the exclusion of his other siblings, on the ground that they never cared about their father; that it was not until in 2008 that his siblings started challenging him on the disputed land.
After reviewing the evidence of the parties Christopher Esq. submitted that there were fundamental contradictions in the case of the Respondents and, relying on JIAZA VS. BAMGBOSE (1999)69 LRCN 1278 @ 1293, urged us to hold that the learned Trial Judge did not pass his judgment based upon the evidence before him, and to resolve this issue in favour of the Appellant and against the Respondents.
ISSUE 3
“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THERE WAS GAP (sic) IN THE TRADITIONAL HISTORY OF THE APPELLANT?”
Christopher Esq. submitted that the Appellant in this case having traced more than 70% of the disputed land to his father, has fulfilled the condition precedent in proving traditional history in case of declaration of title to land as laid down by law, referring to ONWUGBUFOR VS. OKOYE (1996) 1 SCNJ 1 @ 21 and ANYANWU VS. MBARA (1992) NWLR (Pt. 242) 386 @ 399. Counsel also stated the various acts of ownership exhibited by the Appellant since 1982 and added that Pa Joseph Eke Ukpabi, an uncle to the Appellant witnessed the gift transaction;he referred the Court to page 121 of the Record and Exhibits ?G? and ?B? and submitted that the Appellant?s traditional history is water tight and conclusive, referring to ONWUGBUFOR VS. OKOYE (supra) at pages 13-24 and then urged us to resolve this issue in favour of the Appellant and against the Respondents, and allow the appeal since the Appellant has established the requirements of traditional history in proving his title. For the Respondents, C. N. Onuchukwu Esq. summarized the facts of the case at the trial Court and adopted all the issues formulated by the Appellant, but argued issues one and three together thus:-
“ISSUES ONE AND THREE
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE APPELLANT FAILED TO PROVE THE GRANT OF LAND IN DISPUTE TO HIM.
AND
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THERE WAS A GAP IN THE TRADITIONAL HISTORY OF THE APPELLANT.”
Onuchukwu Esq. submitted that the trial Court was right to have held that there was a gap in the traditional history of the Appellant placed before the trial Court, resulting to the failure of proof of the case by the Appellant.
Onuchukwu Esq. citing EWO VS. ANI (2004) 3 NWLR (Pt. 861) 611 at 628 B ? A, enumerated the five methods of proving title to land in Nigeria, noting that the Appellant in this case relied on traditional history and acts of ownership in proof of his title to the land in dispute, while proof of one of them could have been sufficient, and submitted that the Appellant did not prove any of the two methods, as there was no evidence as to the witnesses to the gift transaction; that one Jacob Ejeagba who was said to have built the house with the knowledge that he was doing so for the Appellant was not called as a witness in the lower Court, despite the fact that the Appellant called him to testify for him before the native arbitration in Exhibits ?G? and ?K? where the said Jacob denied being informed that he was building the house as a gift for the Appellant; that gift is one of the ways of proving title to land and that if proved can entitle the Appellant to the grant of Right of Occupancy, referring to IKPAMAKU VS. MAKOLOMI (2011) LPELR-4513 pp 32-35 F ?A.
Learned Counsel submitted however that a gift inter vivos must be made openly, there being evidence of actual handing over of the land and acceptance of same in the presence of witnesses under native law and custom, relying on ENADEGHE VS. EWEKA (2014) LPELR-24479 PP 21-22E; EZENWORA VS. EZENWORA & ORS. (2018) LPELR ? 43944 PP 26-27 PARA A; AYINKE VS. IBIDUNNI (1959) 4 FSC 280 at 282; “NIGERIAN LAND LAW” by B. O. NWABUEZE p 367; FOLARIN VS. DUROJAIYE (1988) NSCC 255 @ 265. He then submitted that the Appellant failed to lead evidence in proof of the necessary legal requirements as he did not plead and prove that Pa Joseph Ukpabi and Jacob Ejeagba were present and witnessed the gift of the six room building to him by his father; that the Hon. Trial Court was right in its decision that there was a gap in the t