CHIEF (DR) M. C. A. PETERSIDE & ORS. v. H.R.H. EZE ODUM G. WABARA & ORS. (2010)

CHIEF (DR) M. C. A. PETERSIDE & ORS. v. H.R.H. EZE ODUM G. WABARA & ORS.

(2010)LCN/3670(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of March, 2010

CA/PH/188M/2003

RATIO

INTERPRETATION: INTERPRETATION OF THE WORD INTERESTED IN SECTION 91(3) OF THE EVIDENCE ACT

It has been held that the word “interested” in Section 91(3) of the Evidence Act must be given a narrow rather than a broad meaning. See ANYAEBOSI v. R. T. BRISCOE NIG. LTD. (1987) 3 NWLR Pt.59 Pg.84, or (1987) 6 SCNJ 9 at pg.22-23; APENA v. AIYETOBI (1989) 1 NWLR Pt.95 Pg.85. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

ACTION: WHETHER A SURVEYOR TENDERING A SURVEY PLAN IS AN INTERESTED PERSON IN RESPECT OF THE ADMISSIBILITY OF THE DOCUMENT

The rationale held Olagunju JCA in OKONKWO v. OKONKWO (supra) is that such an expert has no reason or temptation ordinarily to depart from the truth as he sees it from his professional experience. He ordinarily should have no personal purpose to serve. See also GBADAMOSI v. KABO TRAVELS (2000) 8 NWLR Pt.668 Pg.243. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A

LAND LAW: ESSENCE OF A SURVEY PLAN

JUSTICE

ABUBAKAR JEGA ABDUL-KADIRJustice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

Between

1. CHIEF (DR) M. C. A. PETERSIDE
2. SENIBO SOFIRI, JOAB PETERSIDE
3. DANIEL JIM PETERSIDE
4. CHRISTIAN AYAMA PETERSIDE
5. SENIBO (DR) SOFIRI PETERSIDE
(For themselves and on behalf of members of
Chief Sunju Peterside House, Opobo Town in Rivers State)Appellant(s)

AND

1. H.R.H. EZE ODUM G. WABARA
2. CHIEF FRIDAY ADIELE
3. UKACHI NWANKWO
(For themselves and on behalf of members of
Umuogor Community in Ukwa East Local
Government Area of Abia State).Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Abia State sitting at Obehie delivered on 12/3/03. In that ruling, the learned trial Judge granted the Appellant’s application for an order for extension of time within which to file their statement of claim, but refused the Appellant’s prayer for leave to enter the land in dispute with their surveyor for the purpose of surveying and producing a plan of the land in dispute. This is an appeal against the order refusing the prayer for leave to enable a surveyor enter the land and produce a plan of the land in dispute.
The Appellants filed four grounds of appeal. Issues were joined and parties filed their briefs.
The Appellant’s brief is dated 3/2/05 filed on same day. The Respondent’s brief is dated 19/10/05 filed on 21/10/05 but deemed filed on 8/2/10.
The Appellant’s claim before the lower court is as stated below:
“1. The sum of N1,000,000.00 (one million Naira) against the Defendants jointly and severally for acts of trespass committed by the Defendants on the Plaintiff’s family estate at Umuogor in Ukwa West Local Government Council, Abia State on or about 1998.
2. An order of perpetual injunction restraining the Defendant’s servants, agents and workmen from committing further trespass on Plaintiff’s family estate at Umuogorin Abia State.”
In the notice of appeal, the Appellants asked for the following relief:
“To allow the appeal, set aside the ruling of the trial Judge and grant leave to the Plaintiffs to enter the land in dispute with their surveyor in order to produce a plan of the land in dispute.”
The Appellants distilled three issues for determination set out below:
1. Was the learned trial Judge right when he held that even if the Plaintiffs’ request to be allowed to enter the land in dispute and produce a plan thereof was granted any plan made by the plaintiffs thereafter would be inadmissible as a document produced by a person interested at the time when proceedings were pending under S.91 (3) of the Evidence Act?
2. Was the learned trial Judge right when he held that plan of the land in dispute was unnecessary having regard to the fact that the Plaintiffs had earlier surveyed the land in dispute in 1918?
3. Was the learned trial Judge right when he held that the identity of the land in dispute was not in issue in the instant case?”
I will adopt these issues as they are similar in content to the Respondent’s issues and in any case best represent the complaints of the Appellants against the ruling of the lower court. On Issue 1, counsel submitted that the lower court erred in holding that a dispute plan produced by a Surveyor is inadmissible in evidence under S.91(3) of the Evidence Act because it would be a document made by a person interested at a time when proceedings were already pending.”
Counsel submitted that a surveyor who makes a dispute or ordinary survey plan is an expert in his field who gives a truthful opinion of a matter within his knowledge. He cited the following cases – CHIEF ALIMI ODUNSI APENA & 3 ORS. v. CHIEF NURUDEEN LAWAL AITETOBI (1989) 1 NWLR Pt,95 Pg.85 at 94 paragraphs E-G. See also PETER OKONKWO & 5 ORS. V. BERNARD OKONKWO & 5 ORS. (2004) 5 NWLR Pt.865 Pg.87 at 126.
Respondents’ counsel on the other hand argued that a surveyor preparing a plan in the circumstances of this case would be a person interested within the meaning of Section 91(3) of the Evidence Act. He cited AGBALLAH v. NNAMANI (2005) ALL FWLR Pt.245 Pg.1052 at 1079 to 1080. Counsel argued that APENA v. AIYETOBI (supra) and OKONKWO v. OKONKWO (supra) are inapplicable to this case.
In this case, the learned trial judge held that as follows on this issue on page 28 of the record:
“As aptly submitted, such a prayer offends Section 91(3) of the Evidence Act to the extent that it is made during the pendency of the matter and such a move or order cannot be sustained.”
Let me say straight off that

the general rule and the law is that documents made by an interested party during the pendency of a suit is inadmissible. See OGIDI v. IGBA (1999) 6 SCNJ 107

Section 91 (3) of the Evidence Act provides as follows:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”
This section had been interpreted by the law courts in particular relation to the question whether a surveyor acting in his professional capacity in preparing a survey of the land in dispute during the pendency of an action can be regarded as an “interested person” so that the document he prepared would be held inadmissible.

The attitude of the courts is settled that a surveyor, like any expert in any other field of knowledge, who is tendering a survey plan is not an “interested person” in respect of the admissibility of the document (survey-plan) made by him during the pendency of the action.
The rationale held Olagunju JCA in OKONKWO v. OKONKWO (supra) is that such an expert has no reason or temptation ordinarily to depart from the truth as he sees it from his professional experience. He ordinarily should have no personal purpose to serve. See also GBADAMOSI v. KABO TRAVELS (2000) 8 NWLR Pt.668 Pg.243.
Thus, the reasoning of the learned trial judge set out above is palpably wrong in law.

The first issue is resolved in favour of the Appellants.Issue 2 is whether the learned trial Judge was right when he held that the plan of the land in dispute was unnecessary, having regard to the fact that the Appellants had earlier surveyed the land in dispute in 1918.
Learned Appellant’s counsel submitted that a property plan made in 1918 cannot be used to properly prosecute a case of trespass to land and possession in 2000. In such circumstances, a dispute plan is always essential contrary to the view obviously held by the trial Judge. He cited OMOREGIE v. IDUGIEMWANYE (1985) 2 NWLR Pt.5 Pg.41 at 54 and ELIAS v. OMO-BARE (1982) NSCC Pg.92 at 97.
Learned Respondents’ counsel is of the view that the learned trial judge never held any such view attributed to him. Counsel argued that comments made obiter or hypothetical questions raised by the judge cannot give rise to a valid ground of appeal. He cited UDEZE v. ONONUJU (2001) 3 NWLR Pt.700 Pg.216.
The trial judge posed this question to himself “Is there then any rationale in calling up yet another plan?”. This was after the learned Judge had considered the fact that there was a property plan made in 1918. I cannot agree that the question posed by the learned Judge was merely hypothetical; I think it formed part of his reasoning process (obiter) in arriving at the conclusion that the survey plan was unnecessary. However, it was not a ratio and the learned trial Judge did not make a categorical finding that a new survey plan was unnecessary because there was an earlier plan made in 1918. It is not every comment that can give rise to a ground of appeal. I agree that this issue derived from ground two in view of the fact that the trial court made no decision in that con is not justiciable. See UDEZE v. ONONUJU (supra). A comment or observation in a judgment is of no moment if the decision of the court was not based on it and such comment is not a good ground of appeal. See EMY J. BILA AUTA v. CHIEF WILY IBE (2003) 7 SCNJ 159; OKEAHIALAM v. NWAMARA (2003) 7 SCNJ 159.
The third issue is whether the learned trial judge was right when he held that the identity of the land in dispute was not in issue in this case. Learned Appellant’s counsel submitted that it was premature at this stage for the learned trial Judge to hold that there was no dispute as to the identity of the land in dispute. He argued that since pleadings had not been filed and exchanged by the parties, facts on which issues would be joined by the parties were not yet certain.
He argued that the learned trial Judge on the facts placed before the court at that stage in the proceedings was wrong to say that parties agreed on the identity of the land in dispute. Counsel argued that from the statement of claim and affidavits before the court there was already dispute as to the boundary of the land in dispute and the boundary men of the land. Counsel submitted that issues are joined on pleadings and not on survey plans. He cited EZEWUICHE IKOKU Y. REUBEN EKEUKWU (1995) 7 NWLR Pt.410 Pg.637.
Learned Respondent’s counsel argued that since the Appellants were contending trespass on all their entire land, and the different parcels of land had been surveyed in the past, the identity of the land was not in dispute. He argued that where parties identify the same portion of land but called it different names viz MAKANJUOLA v. BALOGUN (1989) 3 NWLR Pt.108 Pg.192 at 204, the identity of the land was held not to be in dispute. He argued that the learned trial Judge was right in holding that the identity of the land was not in dispute.
I agree with the learned Appellant’s counsel that it was premature to assume that the identity of the land was not in dispute given the state of the pleadings. At that point in the trial, the statement of claim had just been filed. The statement of defence had not yet been filed. In disputes over land, the burden is always on a Plaintiff to prove the identity of the land in dispute. The burden must arise where the Defendant raises it in his statement of defence. See OGUN v. AKINYELU (2004) 12 SCNJ 196. It is only when it is not disputed by the pleadings that it does not become an issue. See ISO v. ENO (2003) 7 SCNJ 82. The Respondents to the affidavit of the Appellants in the motion had started disputing boundary men so it was not premature on the part of the Appellants to seek to file a dispute plan which they would tender as part of their case. Having looked at the whole facts of the case before the trial Judge, this was a wrongful exercise of the discretion of the learned trial Judge and this is a good case for interference. See OHWOVORIOLE v. NIGERIAN (2003) 1 SCNJ 484. I must say that I feel it incumbent on my humble self to say that trial judges should learn the virtue of patience. I cannot help but wonder what miscarriage of justice would have been occasioned in the learned trial Judge had allowed the Appellants to enter the land in dispute with the sale purpose of enabling a licenced surveyor to prepare a new survey plan.

Is it not to aid the court that a dispute plan should be made? A dispute plan would show details of not only what the litigant claims to be boundaries to the land, but would also show features which will help the court to form a good picture of the land and its environs.

A plan is supposed to be a mirror or picture of the evidence to be led by a party. See ELIAS v. OMO-BARE (1982) 8 NSCC Pg.92 at 97. The advantages of a survey plan in a land dispute are numerous. One of the ways of showing a specific area claimed is to file a plan of the area. Such plan being properly oriented, drawn to scale and accurate, rellecting the boundary features. The plan must be served on the defendant against whom a declaration is sought to enable him know the land claimed against him.
It has taken seven years for this matter to be resolved on appeal. This appeal would not have been necessary if the trial Judge has allowed counsel to prosecute their case the way they felt would profit them. I cannot find any merit in any of the reasons given by the learned trial Judge in refusing the Appellant’s application to enable their surveyor into the land in dispute in order to file a survey plan.
For reasons given above, I find this appeal meritorious. The portion of the ruling of the lower court refusing the application to file a dispute plan is set aside. The Appellants are hereby given leave to file a current dispute plan. The case is sent back to the lower court to be tried before another Judge. No order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I have had the privilege of reading before now the Judgment just delivered by my learned brother Ogunwumiju, JCA. I agree with her conclusion that the appeal deserves to succeed having regard to her reasoning in the said Judgment.
The appeal is therefore allowed by me.
I abide by all the orders contained in the aforesaid Judgment.

MOJEED A. OWOADE J.C.A: I agree.

Appearances

Mike Ekwerekwe for the Appellants/Applicants with him M. J. Oputa (Miss) and C. B. Anyigbo.For Appellant

AND

K. C. NwufoFor Respondent