CHIEF MONDAY TAMONU & ORS v. OBOIYA BUNAFA & ORS
(2019)LCN/13222(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of May, 2019
CA/PH/267/2015
RATIO
COURT: WHERE EXHIBITS ARE NOT ALLOWED TO COURTS: THE RECORD OF APPEAL IS INCOMPLETE AND TAKE AWAY THE JURISDICTION OF THE COURT
Now, where the exhibits are not delivered to this Court, it follows that the record of appeal is incomplete and no Court has the power to hear an appeal on an incomplete record. See EKPEMUPOLO V. EDIEMODA (2009) LPELR 1089; FUBURA V. MINIMAH (2003) 5 SCNJ 142 and NUHU V. OGELE (2003) 12 SCNJ 158.PER ABUBAKAR MUAZU LAMIDO, J.C.A.
COURTS: AN APPELLATE COURT CANNOT DETERMINE AN APPEAL WITH AN INCOMPLETE RECORD
It is settled that this Court cannot proceed to determine an appeal on an incomplete record. In MOBIL PRODUCING (NIG) UNLTD V. MONOKPO (2003) 18 NWLR (PT 852) 346 @ 437 ? 438, Tobi, JSC (of blessed memory) held that:-
There is no procedural law known to me which allows an appellate Court to accept the evaluation of Exhibits by the trial Court which are not before that Court. A Court, trial or appellate, must see the Exhibits before taking any decision on them. A Court, trial or appellate must see the exhibits before probing into their veracity or authenticity. A Court, trial or appellate, cannot and must not come to the conclusion one way or the other on exhibits which it did not see. Where a Court does that there is a clear miscarriage of Justice and the Judgment must be declared a nullity.PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF MONDAY TAMONU
2. CHIEF FRANCIS KOLIBO
3. CHIEF ROMAN ORUKALI
4. CHIEF IDONIBOYE NWALIA
5. LOVEDAY AKUMONDA
(For themselves and as representing the Anyamablele Community in Okordia Clan in Yenagoa Local Government Area, Bayelsa State) Appellant(s)
AND
1. OBOIYA BUNAFA
2. FRIDAY EBIYE
3. SINCLAIR ORUMAPE
4. IKPUREDE ELEMEFORO
5. PAUL EZI
6. CHIEF EZEKIEL Z. WENIBO
7. JULY ANYANTA
8. MARTIN KIENSUO
9. ASEIMIA NWOYORO
10. JOHN MARK KIEWN
(For themselves and as representing the Opoti and
Akalawari families is Akumoni of Okordia Clan in the
Yenagoa Local Government Area of Bayelsa State) Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Bayelsa State Yenagoa Judicial Division delivered on 14/05/2004 by Akpomiemie, J. Before the trial Court, the appellants were the plaintiffs and the respondents were the defendants.
The claimants/appellants claims in their further amended statement of claim filed on 06/11/2003 as follows:-
1. A declaration that the plaintiffs are entitled to the customary right of occupancy over all that parcel of land situate at Ayamabele, Okordia.
2. A declaration that the plaintiffs are entitled to the exclusion of the defendants for compensation for damages done to the plaintiff improvements and other right on the said NORTH ATANAKPASI LAND and NORTH EBETE LAND in Ayamabele, Okordia Clan, by the Nigeria Agip Oil Company Ltd in the course of petroleum exploration.
3. The sum of N 500,000 (Five Hundred Thousand Naira) as general damages for trespass to the said NORTH EBETE land stretching to and including North Atanakpasi and the land through Nigeria Agip Oil Company access road.
4. A perpetual
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injunction restraining the defendant, their servants and or agents from entering upon the said land or presenting themselves as owners of the said land or claiming any other acts or trespass on the said land.
The plaintiffs/appellants action was commenced sometimes in 1987 and it is for a declaration of title to a land situate at Ayamale. The defendants/respondents also filed a cross action in 1987 seeking for a declaration of title to a customary right of occupancy over a land situate at Akumoni, damages for trespass and injunction. Both parties filed and exchanged their respective pleadings. The two suits were consolidated.
The plaintiffs/appellants and the defendants/respondents are all natives of Okordia Clan in Yenagoa Local Government Area of Bayelsa State and they are descendants of a common ancestor called Akita who immigrated from Ogbolomabini, Nembe to the Taylor creek but did not trace conclusively their traditional history to him in the consolidated suits. The claimants/appellants called a total member of 7 witnesses and tendered in evidence 5 Exhibit.
The defendant respondent in their cross action claim the following
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reliefs:-
1. A declaration that with the exception of the portion of land verged Blue at the new defendant settlement of Ayamabele/Kalaba, the customary right of occupancy over the area verged Red in plaintiff plan NO BOE/R 42/87 ? LD dated 15/09/87 including those parts of Ebete and Atanakpasi lands verged Yellow lying and situate therein is vested in the plaintiffs.
2. A declaration that the plaintiffs are entitled to compensation for damages done to the plaintiffs improvement and other right on the said Ebete Land stretching to and including Atanakpasi bush Akamoni, Okordia by the Nigeria Agip Oil Company Limited in the cause of petroleum exploration.
3. The sum of N 20,000.00 as general damages for trespass of the said Ebete Land stretching to and including Atanakpasi bush.
4. Perpetual injunction restraining the defendants, their servant and / or agent from further trespass in to the land and bush.
At the conclusion of trial, the Court delivered it?s Judgment in the consolidated action. The trial Court dismissed the claim of the Claimants/appellants in its entirely and enter Judgment for the defendants /
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respondents upon their claim in their cross action.
Dissatisfied with the decision of the trial Court, the claimants /appellants appealed to this Court on a notice of appeal containing 12 grounds of appeal. The grounds of appeal without their particulars are reproduced hereunder:-
GROUND ONE
The learned trial Court erred in law in admitting Exhibit R in evidence and this admission occasioned a miscarriage of Justice.
GROUND TWO
The learned trial Court erred in law in holding that Exhibits F, G, H, J, K, L-L2 and N constitute acts of ownership by the defendants.
GROUND THREE
The learned trial Court misdirected itself on the fact in the following passage in the Judgment.
?The areas which the defendant allowed the plaintiffs to settled are verged blue in Exhibit P and Q (the survey plan of the defendant). From the above facts and evidence I have no difficulty in holding that the plaintiffs settled on part of the land in dispute with the permission of the defendant.?
GROUND FOUR
The learned trial Court misdirected itself on the facts in the following passage in the Judgment.
The plaintiffs
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through pw1 said that the 1923 case fixed the boundary between Ikarama and Ayamabele/Kalaba communities at the Pereku tree. The Judgment was admitted as Exhibit A. Exhibit A has not fixed the boundary at Pereku tree but at Igbelata tree and Palm tree. These are certainly different description of the boundary marks.
GROUND FIVE
The learned trial Court erred in law in granting the reliefs sought by the defendants/respondents.
GROUND SIX
The learned trial Court erred in law in not evaluating the acts of ownership of the plaintiff before arriving at the conclusion that they are not cogent enough to sustain a claim of title.
GROUND SEVEN
The learned trial Court erred in law in the following passage of the Judgment.
?In this case, the plaintiffs can be described as customary tenants of the defendants. Both parties are therefore in possession.?
GROUND EIGHT
The learned trial judge erred in law in failing to fully and properly evaluate and consider the whole case made out by the appellants.
GROUND NINE
The learned trial Judge erred in law in placing on the plaintiffs/appellants, the burden
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of proving better title even after holding that the appellant are in possession of the land in dispute.
GROUND TEN
The learned trial Court erred in law in granting customary right of occupancy over the land in dispute to the defendants/respondents when there was no proof of transmission of ownership from Akumoni community to the defendant Opoti and Akaliwari families.
GROUND ELEVEN
The learned trial Judge erred in law in the following passage of the Judgment:
In this case there is no evidence that the Kaladu, the Ekirikumo and Ayawari families ever transferred the ownership of their distinctive portions to the entire Ayamabele community to bring the action for declaration of title to the entire land in dispute.?
GROUND TWELVE
The Judgment is against the weight of evidence.
In line with the rule of this Court, the appellants? brief of argument was filed on 08/09/2015 but deemed filed on 11/10/2016 and the appellant reply brief was filed on 21/02/18. The respondents? brief of argument was filed on 06/04/2017 but deemed filed on 05/02/2018. The appellants formulated four issues for determination.
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The issues are:-
1. Whether the reliefs sought by the defendants/respondents and granted by the trial Court are justifiable or supported in law.
2. Whether the admission into evidence of Exhibits F, G, H, J, K, L,-L2, M, N, and R was wrongful and if yes whether it occasioned a miscarriage of Justice.
3. Whether the learned trial Court was right in holding that the defendants /respondents established their entitlement to the land by acts of ownership and possession.
4. Whether from the totality of evidence adduced, the learned trial Judge was right in holding that the appellant failed to establish their entitlement to the land by acts of ownership and possession.
The respondents formulated a single issue for determination of this appeal. The issue is:
Did the respondents prove their ownership of the area in dispute by acts of long possession and enjoyment of the land.
In the consideration of this appeal, it is my humble view that the four issues for determination as formulated by the appellant will in one way or the other dispose of this appeal. The issues will be adopted by the Court. The issues are:
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1. Whether the reliefs sought by the defendants/respondents and granted by the trial Court are justifiable or supportable in law.
2. Whether the admission into evidence of Exhibits F, G, H, J, K, L-L2, M, N, and R was wrongful and whether it occasioned a miscarriage of Justice.
3. Whether the learned trial Court was right in holding that the respondents established their entitlement to the land by acts of ownership and possession.
4. Whether from the totality of evidence adduced the learned trial Judge was right in holding that the appellant failed to established their entitlement to the land by acts of ownership and possession.
Arguing the first issue, learned counsel for the appellants U. A. C. Agogu, Esq., submitted that where a prayer is vague and it is difficult to discern properly and precisely what it is for, such prayer should be struck out by the Court. He referred to NWANKWO V. NWANKWO (1993) 6 NWLR (PT 293)281. Learned counsel argued that prayer one of the respondent relief is ambiguous as the area in dispute cannot be easily ascertained and the implication is that, the prayer is liable to be struck out.
He also stated that a declaration
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of customary right of occupancy against the appellant is unsupportable in law. This is so because the respondent had pleaded that some of the appellants are their customary tenants and that trial Court agreed with that contention. And where it is assumed to be so, can the relief of declaration of title lie against a customary tenant who has erred by claiming title to land , counsel then submitted that, it cannot as the only relief against an erring customary tenant is forfeiture and not a declaration of title. He referred to ABIOYE V. YAKUBU (2001) ALL FWLR (PT 83) 2212; ADELEKE V. ADEWUSI (1961) 1 ALL NLR 37. and ADESANYA V. ADERONMU (2000) ALL FWLR (PT 15) 2492.
He also stated that where a plaintiff fails to prove the extent of the area he claims his action should be dismissed. He referred to IORDYE V. IHYAMBE (2001) ALL FWLR (PT 31)2881. The land in dispute so described is far less than the land in dispute as shown in the 1st relief of the respondent as such the 1st relief cannot stand. This is more so as if the evidence of Dw1 is considered. The said evidence showed that the actual land in dispute is less than what the respondent are claiming in
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the first relief. Furthermore, counsel stated that the piece of evidence is inconsistent with the description of the land in dispute as shown in Exhibit P. Counsel argued that a party who adduce inconsistent evidence over one and the same issue damages his own case. He referred to BASSIL V. FAJEBE (2001) ALL FWLR (PT 51) 1914.
Learned counsel also submitted that for a relief for trespass to be granted, the plaintiff must show that he is in exclusive possession of the land. He referred to OGBECHIE V. ONOCHIE (1988)1 NWLR (PT 70)370 and OGUNBIYI V. ADEWUNMI (1988)5 NWLR (PT 93)210. He then argued that there is no evidence showing that the respondent are in exclusive possession and this can be seen from the evidence of Dw1 under cross examination.
He further stated that a party claiming damages for trespass has a duty to satisfy the Court that at the time of the alleged trespass, he was in possession of the particul
