CHIEF MONDAY IBELEME & ANOR v. MR. BOB UWAMACHA
(2014)LCN/7542(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of November, 2014
CA/OW/327/2012
RATIO
LAND LAW: TITLE TO LAND; WHETHER TRADITIONAL EVIDENCE IS ONE OF THE WAYS TO ESTABLISH TITLE TO LAND
It is well settled that one of the five ways to establish title to land is by traditional evidence and which the Appellants as Plaintiffs had sought to do throughout this case. See IDUNDUN vs. OKUMAGBA (1976) 9-10 SC.227. It is also established following a long line of decided cases, that once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever, to require further proof. See the cases of AKUNYILI vs. EJIDIKE (1996) 5 NWLR (Pt. 449) 381; BALOGUN vs. AKANJI (1988) 1 NWLR (Pt. 70) 301; AMAJIDEOGU vs. ONONAKU (1988) 2 NWLR (Pt.78) 614.
But the traditional evidence must be such that it is consistent and properly links the Claimant with the traditional history relied upon. (underline, is supplied by me for sake of emphasis). See OWOADE vs. OMITOLA (1988) 2 NWLR (Pt.77) 413. In addition, the Claimant must prove his title to the land and this he has to do by tracing title to his ancestors both orally in court, (See Section 66 of the Evidence Act, 2011, Act No. 18 LFN on the issue,) and also in his pleadings. Perhaps, what NWADIALO, F. Learned Author of: Civil Procedure in Nigeria. 2nd Edition at page 335 has to say on the subject, may be instructive here. He said:
“In such a case, the parties should plead the names and histories of the ancestors from whom they claim to have inherited the land in dispute, otherwise, evidence in this respect would not be allowed. The pleading and evidence should state facts about the founding of the land, the persons who have held title or whom title has devolved in respect of the land since the founding before the current claimants acquired control of it on behalf of the community. There must be averments as to the devolutions of land right from the original founder to the present Claimants without leaving any unexplained or unexplainable gaps in the line of the successors. Without such averments, evidence of family history would be mere hearsay upon hearsay and therefore inadmissible”. per. FREDERICK O. OHO, J.C.A.
EVIDENCE: CONTRADICTORY EVIDENCE; MATERIAL CONTRADICTIONS IN EVIDENCE
In borrowing the language of the learned trial judge and with due apologies observed, I too cannot put it better than the Supreme Court did in the case of NWOKORO vs. ONUMA (1999) 12 NWLR (PT.631) 342 per UWAIFO, JSC (as he then was) on material contradictions, when he said;
“…the law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle is, of which the courts are well familiar in practice, is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses: see ENAHORO vs. THE QUEEN (1965) NMLR 265.” per. FREDERICK O. OHO, J.C.A.
COURT: DUTY OF THE COURT; THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND WHEN IS A JUDGMENT SAID TO BE PERVERSE
A Judgment is said to be perverse where the conclusion arrived at by the trial court or tribunal is not justified by the evidence or the sum total of evidence led in the course of trial before the lower court or where vital pieces of evidence were not taken into consideration in reaching its judgment. In short to say that the judgment of a trial court is perverse is another way of saying that there was an improper evaluation or non-evaluation of evidence by the trial court. But even at that, the position is still not all comers affair. There are principles or rules guiding the engagement of the Court of Appeal where the lower court’s judgment is attacked on grounds of non-evaluation or improper evaluation of evidence such as has been done by the Appellants in this case. See the case of EDWARD UKAEGBU NWOKORO & ORS. VS. EZEKIEL NWOSU & ORS (1994) 4 NWLR (PT.337) 172. In the four (4) bullet points of reasons for which the Appellants’ have attacked the lower court’s judgment as being perverse, two are clearly hinged on the issue of credibility of witnesses and an area for which this Court as an appellate Court has no business going into as that remains the primary function of the trial court who had the opportunity of seeing the witnesses testify in open court. The exception however, is where the findings of the lower court are perverse or un-sound. That to me is not the situation in this case and this court therefore has no business with the issue of evaluation of evidence, where same shall involve the issue of credibility of witnesses or the ascription of probative values to their testimonies. See the case of BEN ELECTRONIC COMPANY NIGERIA LTD. VS. ATS & SONS & ORS (2013) LPELR- 20870 (CA); See also the case of UNILAG vs. LANIYAN (1985) 1 NWLR (PT.1) 156 and a host of other decided cases on the issue. per. FREDERICK O. OHO, J.C.A.
CUSTOMARY ARBITRATION; THE CONDITIONS PRECEDENT TO BINDINESS OF A CUSTOMARY ARBITRATION
In the case of AGALA vs. OKUSIN (2010) 10 NWLR (PT.1202) 412, the Supreme Court per OGBUAGU JSC had this to say on the subject;
“… the conditions precedent to bindingness of a Customary Arbitration are as follows;
a. There must have been a voluntary submission of the disputes by the parties to the non-judicial body.
b. The parties must have agreed to be bound by the decision of the non-judicial body as final;
c. That the decision was in accordance with the custom of the people or of their trade or business; and
d. That the arbitrators reached a decision and published their award…” per. FREDERICK O. OHO, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF MONDAY IBELEME
2. MR. OBIOHA JACOB (Representing the IKPO AYA Family) Appellant(s)
AND
MR. BOB UWAMACHA Respondent(s)
FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment): On the 8th day of June, 2009, Chief Monday Ibeleme, the 1st Appellant herein and Mr. Obioha Jacob, the 2nd Appellant, representing the Ikpo Aya Family of Umunkaruba Amizi Olokoro in Umuahia South local Government Area of Abia State filed Suit No. HU/160/2009 against the Respondent herein as Defendant claiming at paragraph 24 of their “Joint statement of claim”, the following:
1. A Declaration of this Honourable Court that the Plaintiffs’ Family is entitled to the statutory right of occupancy over the land in dispute.
2. Perpetual injunction restraining the Defendant, his agents or workmen from trespassing into the land.
3. Two Million Naira (N2,000,000.00) as General damages and trespass.
Upon service of the court’s processes, the Defendant entered appearance through counsel on the 22-6-2009. The Defendant’s Statement of Defense of 17 paragraphs, is dated the 16-11-2009. At the hearing of the matter before the lower court, the Plaintiffs each testified and called two (2) witnesses and tendered a total of three (3) exhibits; A, B and C. The Defendant testified for himself and called two witnesses. The Defendant tendered no exhibits. At the close of evidence, Counsel to the parties addressed court through their written addresses filed into court.
The brief facts of the case is that the Plaintiffs (who now become, Appellants) are members of the Ikpo Aya Family of Umunkaruba Amizi Olokoro in Umuahia South Local Government Area of Abia State and have claimed ownership of the parcel of land known and called “NTAROKU” situate at Amizi Olokoro, hereinafter called the parcel of land in dispute in this appeal. The Plaintiffs further claimed at paragraph 7 of their Statement of Claim that the parcel of land in dispute was deforested by their great Grandfather one Ikpo Aya who farmed on the land until his demise and that since then the parcel of land remained in the possession of the descendants of Ikpo Aya by devolution until one Owuegbuchi, Father of the 2nd plaintiff gave the disputed parcel of land to the Defendant to hold in trust for the Family since 1970, since they were not staying at home.
That when in 1990 the Plaintiffs approached the Defendant and told him they wanted to farm on their land, the Defendant bluntly refused and that this led to the parties taking the matter before the Amizi Village Council where the Defendant was told to leave the parcel of land in dispute. Again, that in 1995 when the plaintiffs pledged the parcel of land to one Mrs. Nkereonwuike from Amizi Olokoro, the Defendant chased the woman away with a machete and trespassed on the land once again and that this led the Plaintiffs into taking the matter before the Amizi Okonko Society where the Defendant refused to appear and then to the Okonko Olokoro Society where he also refused to appear before the Okonko Olokoro Society, subsequently awarded ownership of the parcel of land in dispute to the plaintiffs.
On the side of Defendant, (who now becomes, the Respondent) he claims that the parcel of land in dispute was deforested by his great Grand Father called Nwoko Nkaruba and who exercised maximum acts of ownership and possession of the entire Ntaroku parcel of land unchallenged by anybody including members of the plaintiff’s family. The Defendant denied all the claims of the Plaintiffs and averred that he is a Catholic and did not participate in the deliberations of the Okonko Society Arbitration with the Plaintiffs or any members of their family as he was not a member of the society.
On the 3rd day of May, 2012, the learned trial court delivered its judgment dismissing the claims of the Plaintiffs. The learned trial Judge held as follows;
“In my very humble view, the Claimants have failed to establish that they are entitled to the relief they ask for. The law requires them in this case of title to land, to prove their case upon the preponderance of evidence and this burden will never shift. See KIYAOJA vs. EGUNLA (1974) 12 SC. 55. The Claimants have certainly failed to prove their title over the “Ntaroku” land in dispute. The consequence of this failure has long been settled in GOLD vs. OSARENREN (1970) LPELR -SC 362/1967, (1970) ALL NLR 129 where the apex court held that if a Claimant in declaration of title to land fails to prove his title, the proper order is one of dismissal. The Claimants completely failed to prove the root of title they wanted to rely on in-toto and I am bound to order their case dismissed. The case of the Claimants is accordingly dismissed, r award cost of N20,000.00 against Claimants in favour of Defendant.”
Dissatisfied with this judgment, the Appellants, on the 4th day of June, 2012 filed a Notice of Appeal commencing this Appeal No. CA/OW/327/2012 with two (2) Grounds of Appeal which are reproduced hereunder without their particulars as follows;
GROUNDS OF APPEAL:
1. The Honourable Judge erred in law when he misapplied the law as regards proving traditional history of land when evaluating his evidence in this suit.
2. The Judgment of the Honourable trial Judge was perverse.
After the transmission of the Records of Appeal, parties filed and exchanged their Briefs of Argument through their respective learned counsel. The Appellant’s Brief of Argument settled by Eluwa Eze, Esq. dated 29th day of November, 2012 was filed on 30th day of November, 2012. Learned counsel to the Appellant nominated a total number of two (2) issues for the determination of court as follows:
(1) whether the learned trial judge misapplied the law guiding the proving of traditional History of land.
(2) whether the Judgment of the learned trial judge was perverse and therefore occasioned a miscarriage of justice.
The Respondent’s brief of argument settled by Okezie Nwazue Kanu, Esq. dated 20th day of December, 2012 and filed same date did not raise any issues for the determination of this court, but rather adopted the issues raised by learned plaintiff’s counsel.
At the hearing of the Appeal on the 23rd day of October, 2014 parties adopted their respective briefs. The Appellant’s Counsel adopted the Appellants, brief and prayed this Honourable Court to allow the Appeal and set aside the judgment of the trial court, while counsel to the Respondent adopted Respondent’s brief and urged this court to dismiss the appeal. Considering the judgment, the Grounds of Appeal, the issues for determination raised by Appellant’s counsel and the arguments in their respective briefs, it may be appropriate for court to as well settle for the adoption of the issues as raised by learned Appellant’s counsel.
ISSUE ONE;
Learned counsel for the Appellants contended that the learned trial judge misapplied the law applicable in cases of land disputes where traditional history of land in dispute is relied upon. He said that the CW1, Chief Monday Ibeleme in his examination-in-Chief before court, said that it was Ikpo Aya that deforested the parcel of land in dispute and still maintained this during cross examination but admitted that Ogereze was the father of Ikpo Aya which does not amount to any major contradiction in proving traditional history of land. According to counsel even if the CW1 admitted during cross examination that it was Ogereze that deforested the parcel of land in dispute, that does not amount to contradiction because both of them, that is Ikpo Aya and Ogereze are from the same lineage. Counsel however, did not cite any authorities in support of this proposition.
He further said that Ogereze was the father of Ikpo Aya and enthused that this does not mean that Ikpo Aya cannot deforest a land. He added that the Court erred when learned trial Judge misapplied the law by insisting that there was a major contradiction in the evidence of the CW1, Monday Ibeleme and the CW3, Andrew Njinkoye who agreed that Ogereze was the father of Ikpo Aya and deforested the land in dispute. Counsel said that the Plaintiffs proved their case as required and referred to the case of IGBOJIMADU vs. IBEABUCHI (1993) 1 NWLR (PT. 53) 1 AT 99, also the case of FASORO vs. BEYIOKU (1988) 2 NWLR (PT.76) 263; the case of KACHALLA vs. TIJANI BANK & ORS. (2006) FWLR (PT. 309) 1420. Learned counsel urged the court to resolve the issue one in favour of Appellant.
In his response, learned counsel for the Respondent contended that the learned trial Judge did not misapply the law guiding the proof of traditional history of land.
Counsel referred court to paragraph 7 of the Plaintiffs Joint Statement of Claim at page 4 of the printed records, where the Plaintiffs pleaded that their Grand Father, Ikpo Aya deforested the land in dispute and also to the CW1’s Witness Deposition on Oath at page 10 of the printed records on this issue. Counsel further referred court to the evidence of the 2nd Plaintiff in his Witness Deposition on Oath at page 13 of the printed records at paragraph 5 where the said CW2 also stated that it was Ikpo Aya who deforested the land in dispute. Counsel said that under cross examination, the CW1, that is the 1st Plaintiff herein, Chief Monday Ibeleme, said that Ogereze left the piece of land to Ikpo Aya. That Ogereze was living on the parcel of land long before Ikpo Aya was born. See page 58 of the printed records.
In the case of the CW3, counsel said that under cross examination he stated that it was Chief Ibeleme who deforested the parcel of land in dispute and that when he realized the import of what he said he quickly recanted and stated that it was Ikpo Aya that deforested the parcel of land in dispute and that Ogereze was father of Ikpo Aya and that Ikpo Aya “inherited him on death and that all lands owned by Ikpo Aya were inherited from Ogereze”. As a result of the foregoing, learned Respondent’s counsel submitted that the Plaintiffs failed to prove their traditional history to the land in dispute. He further submitted that the onus is on the Plaintiff in an action for declaration of title to land to adduce sufficient and credible evidence to establish the mode of acquisition of his title. According to counsel the plaintiff must succeed on the strength of his own case and not on the weakness of the defense. Counsel referred court to the case of ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT. 424) 252; also the case of AJIBOYE vs. ISHOLA (2006) 5 JNSC (PT.20) 529-682. It was learned counsel’s further submission that the contradiction in the evidence of CW1 and CW3 is so material that it is impossible for any reasonable court to rely on these as basis to establish the title of the plaintiffs to the land in dispute.
Learned Counsel referred court to the case of AKANBI vs. SALAWU & ANOR. (2003) LPELR SC. 125/1999, (2003) 6 SC. (PT. 11) 144 where the Supreme Court stated that for a Plaintiff who relies on his pleadings and evidence on traditional history for his root of title to land must ensure that he pleads that traditional history properly and pleads evidence on it. The history may succeed on its merit either standing alone when there is no competing story but will not succeed where the story breaks down for being unreliable in nature or owing to its own internal conflict. Learned counsel urged the court to resolve this issue in favour of Respondent.
ISSUE TWO;
In respect of the issue two, learned Appellant’s counsel contended that the judgment of the learned trial Judge was perverse and counsel gave four (4) reasons for making this contention as follows;
a. That the learned trial Judge in delivering his judgment stated that no person witnessed the handover of the land in dispute by Jacob Onwuegbuchi, the father of the 2nd Plaintiff to the Defendant. He submitted that the law under customary law is; when a person is handing over land to his friend or brother it must not necessarily be witnessed and that where witnesses are required is when the parcel of land is to be pledged or where there is an outright sale.
b. The learned trial Judge did not take cognizance the evidence of the CW2, Jacob Obioha whose father gave the Appellants’ land to the Respondent, where he told the court that he once visited the Respondent with his late father Jacob Onwuegbuchi, and on which occasion the Respondent showed them all the land of the Appellants which he held in trust for the Appellants’ family including the one in dispute. This piece of evidence, counsel submitted is not contradicted and that the learned trial court should look no further for evidence in this case.
c. That the learned trial court did not make any comment on the document the CW1 Chief Monday Ibeleme tendered as the Exhibit “B” from the Abia State Okonko Society Arbitration between the Plaintiffs family and the Defendant/Respondent and in which the parcel of land in dispute was awarded to the Appellants’ family. Counsel also referred to the Exhibit “C”, the Charge sheet, wherein the Respondent was later convicted for threatening the life of the CW1 over the land in dispute.
d. That when evaluating the evidence, the lower court erred when he held that the DW3 Chief Mark Agbanyim said that he knew nothing about the land in dispute, but when learned trial court was delivering Judgment, he held that the DW3 knew the land in dispute very well.
In his response, learned counsel for the Respondent submitted that the lower court’s judgment was not perverse and did not occasion a miscarriage of justice. Counsel said that the learned trial Judge was right to have stated that no one witnessed or was called to witness when the parcel of land in dispute was purportedly handed over to the Respondent. Counsel said that the reason for this was that the Respondent denied completely that there was any such hand over of lands for him to keep in trust for the Appellants.
Learned counsel drew attention to the entire pleadings of the Appellants herein and said that while the Appellants pleaded at paragraph 14 of their Statement of Claim that they handed over all their lands to the Respondent including the parcel of land in dispute, Appellants have said nothing about their other parcels of land along with which the one in dispute was purportedly handed over to Respondent. Counsel said that the Appellants failed to tell the trial court whether the Respondent also refused to release the other parcels of land handed over to him apart from the one in dispute.
Learned counsel further punctured Appellants’ story of giving land to the Respondent from an entirely different kindred than the Appellants’ to hold and that no reasons or circumstances were given in their pleadings which led the Appellants’ into handing over land to the Respondent. Counsel said that the whole of Appellants’ case is one big doubt more so when it was given in evidence that it was the CW2 who first told the CWI of the purported hand over of lands in 1999 whereas the handover had been done since 1970. Counsel queried why it had to take that long, a period of 29 years to inform the CW1 of the handover of family land to a complete stranger. Counsel said that the numerous doubts in the Appellants’ case at the lower court led the trial court into demanding the existence of an eye witness who saw when the parcel of land may have exchanged hands. Learned counsel urged court to hold that the whole handing over allegations were left by the Appellants in the realm of speculation and that no court is entitled to rely on speculation but only evidence presented before it. Counsel referred court to the case of SIESMOGRAPH LTD. vs. OGBENI (1976) 4 SC. 85 AT 101.
On the issue of the learned trial court not commenting on the Exhibits “B” and “C”, counsel submitted that they were worthless as they did not help the Appellants’ case’ In the case of the Exhibit “B”, the document stated on the face of it that the Respondent did not participate in the Arbitration as he did not appear before it. Counsel said that the Exhibit “B” failed the test of a valid customary arbitration and so not binding on the Respondent. He referred court to case of EKE vs. OKWARANYIA (2001) 20 WRN. 132 AT 156. Learned counsel urged the court to resolve the issue two in favour of Respondent dismiss the appeal and affirm the decision of the lower court.
RESOLUTION OF ISSUES
I have taken a careful look at the issues raised in this appeal. The question to address at this stage is; whether traditional evidence was proved to establish Appellants’ title to the parcel of land in dispute?
Straightaway let me say that the issue of whether or not the Respondent went over the parcel of land in dispute is not denied by the Respondent. His case is that he went over the parcel of land lawfully as it belongs to his family. It is well settled that one of the five ways to establish title to land is by traditional evidence and which the Appellants as Plaintiffs had sought to do throughout this case. See IDUNDUN vs. OKUMAGBA (1976) 9-10 SC.227.
It is also established following a long line of decided cases, that once traditional evidence is found to be conclusive and cogent, there would be no need whatsoever, to require further proof. See the cases of AKUNYILI vs. EJIDIKE (1996) 5 NWLR (Pt. 449) 381; BALOGUN vs. AKANJI (1988) 1 NWLR (Pt. 70) 301; AMAJIDEOGU vs. ONONAKU (1988) 2 NWLR (Pt.78) 614.
But the traditional evidence must be such that it is consistent and properly links the Claimant with the traditional history relied upon. (underline, is supplied by me for sake of emphasis). See OWOADE vs. OMITOLA (1988) 2 NWLR (Pt.77) 413. In addition, the Claimant must prove his title to the land and this he has to do by tracing title to his ancestors both orally in court, (See Section 66 of the Evidence Act, 2011, Act No. 18 LFN on the issue,) and also in his pleadings. Perhaps, what NWADIALO, F. Learned Author of: Civil Procedure in Nigeria. 2nd Edition at page 335 has to say on the subject, may be instructive here. He said:
“In such a case, the parties should plead the names and histories of the ancestors from whom they claim to have inherited the land in dispute, otherwise, evidence in this respect would not be allowed. The pleading and evidence should state facts about the founding of the land, the persons who have held title or whom title has devolved in respect of the land since the founding before the current claimants acquired control of it on behalf of the community. There must be averments as to the devolutions of land right from the original founder to the present Claimants without leaving any unexplained or unexplainable gaps in the line of the successors. Without such averments, evidence of family history would be mere hearsay upon hearsay and therefore inadmissible”.
To support this position, the Learned Author cited with approval, a number of decided cases on the subject, some of which are:
– AKINTOLA & ANOR VS. EYIYOLA (1968) NMLR 92
– PIARO VS. TENALO (1976) NSCC 700 at 705
– UCHENDU VS. OGBONI (1999) 4 SCNJ 64 at 78 and
– ALLI VS. ALESHINLOYE (2000) 4 SCNJ 264 at 306 – 308
The Appellants’ evidence before the lower court is contained at pages 57 to 63 of the printed records. The High Chief Monday Ibeleme was the CW1 in this case. At page 58 lines 7 to 11, precisely he told the court that he was 73 years of age and gave the following answers under cross examination;
“…Ikpa Aya my grandfather, deforested this land. Ikpa Aya’s father was Ogereze. Ogereze left this land to Ikpa Aya. Ogereze was living on this land before Ikpa Aya was born.”
The CW3 was one Andrew Njinkonye. At page 62 of the printed records, under cross examination, he said;
“…I am from the Ikpa Aya Family. Chief Ibereme first deforested this land who is the first claimant. I now say it was Ikpa Aya our ancestor that deforested this land. Ogereze was Ikpa Aya’s Father and Ikpa Aya inherited him on death. Yes, all lands owned by Ikpa Aya he inherited from Ogereze…”
The learned trial judge at page 91 of the printed records, in the court’s judgment made the following findings which I find unable to disagree with. He said;
“…in the present case the claimants pleaded in paragraph 7 of their Amended Statement of Claim that the land in dispute was deforested by their ancestor Ikpa Aya. However, when the 1st claimant/CW1 was cross examined he contradicted his pleadings on this point by now telling the court that it was Ogereze, whom he described as Ikpa Aya’s Father that deforested this land. The CW1 said that Ogereze was already living on the land in dispute before Ikpa Aya was born and that, indeed it was Ogereze who left the land for Ikpa Aya. The CW3 brought out the confusion in the Claimants’ traditional History more forcefully. This witness under cross examination told the court firstly that it was the 1st claimant who deforested the land in dispute. When the same question was put to him again the CW3 said that it was Ikpa Aya who deforested the land in dispute. When he was asked the same question again, this witness said it was Ogereze who deforested the land and that Ikpa Aya only inherited the land from Ogereze. Clearly on the issue of traditional History or evidence as claimants’ root of title it is clear that the CW1 and the CW3 contradicted the claimants’ pleading on this point. The contradiction is so material that it is impossible for this court to rely on it as a basis to establish the title of the claimants to the land in dispute. I cannot put it better than the Supreme Court did in AKANBI vs. SALAWU & ANOR. (2003) LPELR -SC. 21511999, (2003) 6 sc. (pr. 11) 144, when it said that for a claimant who relies on his pleading and evidence on traditional History for his root of title to rand he must ensure that he pleads that history properly and leads evidence on it. The History may succeed on its merit either standing alone when there is no competing story but will not succeed where the story breaks down for being unreliable in nature or owing to its own internal conflict”…
I am unable to find any plausible reasons for not agreeing with learned trial judge in his findings on the issue. The explanations of learned Appellants’ counsel to the effect that the lower court misapplied the law guiding the application of traditional History are clearly untenable. His arguments that there were no contradictions in the evidence of the Cw1 and CW3 as it relates to the person between Ikpa Aya and Ogereze who deforested the parcel of land in dispute because they come from the same lineage, is rather novel or may be Machiavellian; a deception probably intended to pool wool across the face of court. This court wonders how Ikpa Aya would have inherited the disputed parcel of land from Ogereze, and yet it was Ikpa Aya who is said to have deforested the same piece of land. In borrowing the language of the learned trial judge and with due apologies observed, I too cannot put it better than the Supreme Court did in the case of NWOKORO vs. ONUMA (1999) 12 NWLR (PT.631) 342 per UWAIFO, JSC (as he then was) on material contradictions, when he said;
“…the law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle is, of which the courts are well familiar in practice, is that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses: see ENAHORO vs. THE QUEEN (1965) NMLR 265.”
In the second issue distilled for the determination of this court, the Appellants have contended that the judgment of the learned trial Judge was perverse. The relevant question to perhaps ask at this stage is whether the judgment of the lower court can be truly said to be perverse or not. A Judgment is said to be perverse where the conclusion arrived at by the trial court or tribunal is not justified by the evidence or the sum total of evidence led in the course of trial before the lower court or where vital pieces of evidence were not taken into consideration in reaching its judgment. In short to say that the judgment of a trial court is perverse is another way of saying that there was an improper evaluation or non-evaluation of evidence by the trial court. But even at that, the position is still not all comers affair. There are principles or rules guiding the engagement of the Court of Appeal where the lower court’s judgment is attacked on grounds of non-evaluation or improper evaluation of evidence such as has been done by the Appellants in this case. See the case of EDWARD UKAEGBU NWOKORO & ORS. VS. EZEKIEL NWOSU & ORS (1994) 4 NWLR (PT.337) 172.
In the four (4) bullet points of reasons for which the Appellants’ have attacked the lower court’s judgment as being perverse, two are clearly hinged on the issue of credibility of witnesses and an area for which this Court as an appellate Court has no business going into as that remains the primary function of the trial court who had the opportunity of seeing the witnesses testify in open court. The exception however, is where the findings of the lower court are perverse or un-sound. That to me is not the situation in this case and this court therefore has no business with the issue of evaluation of evidence, where same shall involve the issue of credibility of witnesses or the ascription of probative values to their testimonies. See the case of BEN ELECTRONIC COMPANY NIGERIA LTD. VS. ATS & SONS & ORS (2013) LPELR- 20870 (CA); See also the case of UNILAG vs. LANIYAN (1985) 1 NWLR (PT.1) 156 and a host of other decided cases on the issue.
On the issue of the allegation of hand over of land to the Respondent and the evidence of CW2 on the issue, the lower court had earlier remarked at page 87 of the records as follows:
“…Also very interesting was the testimony of the 2nd Claimant CW2 under cross examination. This witness was cross examined on 19-7-10 when he claimed he was 45 years old. He agreed that he had never farmed on this land since he was born and it was his father Jacob Onwuegbuchu-who gave the Defendant the land in trust. He said that all that the 1st claimant said regarding the land being given to the Defendant by Jacob Onwuegbuchu were the information he 2nd Claimant gave the 1st Claimant in 1999.”
Still on this issue, this was how the lower court dismissed the issue of the allegation of handing over of land to the Respondent. The court had this to say at page 93 of the printed records;
“… Another weakness easily noticeable in the case of the Claimants is that they pleaded in paragraph 14 of their pleading that it was Jacob Onwuegbuchu, father of the 2nd Claimant that gave the land in dispute to the Defendant to hold in trust for the Claimants’ family. The Claimant alleged that this handing over took place just in 1970 but no witness was tendered by them who witnessed the alleged handing over. The whole handing over allegation was left by the Claimants in the realm of speculation and no court is entitled to rely on speculations but only evidence presented before it. See the case of SEISMOGRAPH LTD. vs. OGBENI (1976) 4 SC. 85 AT 101…”
It is clear that the learned trial Judge obviously already had doubts as to the truthfulness of the allegations of the handover of the parcel of land in dispute to the Respondent when the 2nd Claimant and CW2 gave evidence and was cross examined on the issue. Here is a situation in which the parcel of land had been handed over to the Respondent in 1970, but by their own showing this was never brought to the attention of the 1st Claimant until 1999, some 29 years after wards. Besides this, it further means that the Appellants by the paragraph 16 of their Statement of Claim also told a lie when they said that in December, 1990 the 1st and 2nd Claimants approached the Respondent and demanded for portions to enable them farm on the land in dispute. By the answers of the said 2nd Claimant, the 1st Claimant by 1990 did not know that the parcel of land in dispute was handed over to the Respondent by Jacob Onwuegbuchu.
On the issue of the lower court’s decision to ignore the Exhibit “B”, that is clearly an issue, in which the lower court can hardly be faulted. The Exhibit “B” which is the report of a purported Customary Arbitration between the parties simply failed the test of a valid Customary Arbitration and the lower court and as well as this court has no business making use of it. The Respondent took no part in the arbitration and the lower court was right in practically ignoring it. In the case of AGALA vs. OKUSIN (2010) 10 NWLR (PT.1202) 412, the Supreme Court per OGBUAGU JSC had this to say on the subject;
“… the conditions precedent to bindingness of a Customary Arbitration are as follows;
a. There must have been a voluntary submission of the disputes by the parties to the non-judicial body.
b. The parties must have agreed to be bound by the decision of the non-judicial body as final;
c. That the decision was in accordance with the custom of the people or of their trade or business; and
d. That the arbitrators reached a decision and published their award…”
With these at the background of this case, the two issues are resolved in favour of the Respondent. The Appeal therefore fails and same is dismissed. The Judgment of the Abia State High Court delivered on the 3rd day of May, 2012 is hereby affirmed.
Cost of N50,000.00 is awarded against the Appellants.
IGNATIUS IGWE AGUBE, J.C.A.: Having carefully read before now the Judgment of my Lord and learned brother, F.O. Oho, JCA, I agree completely with him that the Appeal lacks merit and therefore fails. The judgment of the Abia State High Court delivered on 3rd May, 2012 is hereby affirmed with cost assessed at N50,000.00 in favour of the Respondent.
ITA G. MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment by my learned brother, Fred. O. OHO JCA, just delivered. I agree with his reasoning and conclusions and also dismiss the appeal, and abide by the consequential Orders in the lead judgment.
Appearances
Eluwa Eze Esq.,For Appellant
AND
Okezie Nwazue Kanu Esq.,For Respondent
