CHINDA v. OWHONDA & ORS
(2022)LCN/16270(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, January 19, 2022
CA/PH/624/2016
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
KELVIN CHARLES ADELE CHINDA (For Himself And As Representing Charles Adele Chinda Family Represented By His Next Friend Mr. Charles Elendu, Substituted By Order Of Court Made On 19/02/2016) APPELANT(S)
And
1. PRINCE THEOPHILUS OWHONDA (JP) 2. MR. SAM ERNEST OWHOR 3. ELDER MARCUS WOKEKORO 4. SIR. G. A. OWHORODU 5. MR. ALVAN IKEGWURU 6. MR. CHRISTIAN O. AMADI (For Themselves And On Behalf Of The Members Of Ogbunabali Community, Port Harcourt). RESPONDENT(S)
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The suit before the lower Court concerned a parcel of land in a place called Ogbunabali by the respondents. The land in dispute, according to the respondents, is owned by the community and that the appellant trespassed on it and claims ownership of the land. The appellant, on his part, claimed to have inherited the land in dispute from his father, as the land was “disvirgined” by his grandfather.
The respondents, as claimants, for themselves and on behalf of the members of the Ogbunabali Community, Port Harcourt, filed a suit against the father of the current appellant before the Port Harcourt Division of the High Court of Rivers State, on 12/04/2001 (see page 1 of the record of appeal). The respondents filed a statement of claim on 24/10/2001. With leave of Court, twice sought and twice obtained, the respondents filed an ultimate amended statement of claim, on 17/05/2016, based on which, their case was determined (see page 377 of the additional record of appeal). At paragraph 44 of the last amended statement of claim, respondents claimed, as follows:
“1) A Declaration that the Ogum-nu-Abali (a.k.a Ogbunabali) Community of Port Harcourt of the Claimants are the owners in possession and the persons entitled to the Right of Occupancy over and in respect of the entire piece or parcel of land traditionally known as and called NKPOKWUM, situate and lying in Ogbunabali Community, particularly the area verged Red in Plan No. BOE/R10/2001-LD prepared by B. O. Ejekwu, licensed Surveyor.
2) N10,000.000.00 (Ten Million Naira) being damages for the continuing trespass and unlawful interference with the rights of the Claimants in and over the Claimants’ land.
3) A perpetual injunction restraining the Defendant whether by himself, his servants, agents privies otherwise howsoever from acts of further trespass and interference with the Claimants’ right of possession, ownership and user in and over the said Nkpokwum or any portion thereof.”
The appellant (then the defendant) filed a statement of defence and counter-claim on 24/04/2002 (see page 28 of the record of appeal). The ultimate amended statement of defence and counter-claim, on which the appellant relied for his case, was filed on 12/02/2014 (see page 362 of the additional record of appeal). The counter-claim of the appellant, is stated at paragraph 29 of the process, as follows:
“i. A declaration that the defendant is the owner/occupier with Deemed Right of Occupancy and to the exclusion of any other is entitled to a statutory right of occupancy over that expanse of land known as Mpoku land situate along Easter-by-pass Road, Port Harcourt and which said land is bounded to the east by ONU MINI IGO and AMADI FLAT, to the west by AMADI CREEK to the North by DIOBU CREEK with a bridge called EKEPETE ELI WOMBE after which is KOKO AMA COMMUNITY and to the South by NKPOGY WATER SIDE and some land for some families in Orogbum and Oroabali.
ii. The sum of N30m (Thirty Million Naira) for acts of trespasses committed by the Claimants on Mpoku land without the consent of the defendant.
iii. An order of perpetual injunction restraining the Claimants by themselves, their servants, assigns, agent or privies or whatsoever from further entry into the defendant’s Mpoku land and dealing with the same in howsoever manner without the consent of the Defendant.”
The respondents filed a reply to the statement of defence and defence to the counter-claim, dated 23/03/2010, on 29/03/2010 (see pages 99-101 of the record of appeal).
At the trial, five witnesses testified for the respondents. Two witnesses testified for the appellant. The lower Court, in a judgment delivered, by Justice W. A. Chechey, on 28/06/2016, concluded at page 340 of the record of appeal, as follows:
“56. In the circumstances and on the preponderance of evidence, I resolve the issues in favour of the claimants. It is therefore ordered that judgment be and is entered in favour of the claimants as follows:
1. It is declared that the Ogbum-nu-Abali (a.k.a Ogbunabali) community of Port Harcourt of the claimants are the owners in possession and the persons entitled to the right of occupancy over and in respect of the entire piece or parcel of land traditionally known as and called Mkpokwum, situate and lying at Ogbunabali community, particularly the area verged red in Plan No. BOE/R10/2001-LD prepared by B. O. Ejekwu, Licensed Surveyor.
2. The defendant whether by himself, his servants, agents, privies, or representatives howsoever is perpetually restrained from further trespass and interference with the claimants’ right of possession ownership and use of Mkpokwum land.
3. The defendant shall pay N1,000,000.00 (One Million Naira) in damages to the claimants for trespass.
4. Interest shall run at 10% per annum until the damages are paid.
5. The defendant’s counter-claim is dismissed.”
The appellant was unhappy with the decision of the lower Court. He filed a notice of appeal, containing eight grounds, on 09/09/2016, but he is not relying on it. The appellant relies, in this appeal, on that notice of appeal, filed on 26/09/2016, which bears ten grounds of appeal.
On 04/11/2021, this appeal was argued. Benjamin Obiora Esq. adopted the appellant’s brief of argument and reply brief of argument, as argument of the appeal. Out of the ten grounds of appeal, four issues were distilled for determination by appellant’s counsel, at pages 9-10 of the appellant’s brief of argument filed, on 24/02/2017, but deemed properly filed and served on 27/10/2020, which was settled by Benjamin Obiora Esq. The issues are:
1. Whether the Claimants pleaded and proved their root of title and the substratum of their claim before the trial Court and if the claims granted to the Claimants/Respondents emanated from the evidence before the Court or the Opinion of the trial Judge (grounds 1, 3, 4, 5, 8 & 10).
2. Whether there was a valid and competent Statement of Claim before the Court. (Ground 2)
3. Whether the trial Court was right in relying on misrepresented facts, hypothesis, speculations, personal opinion and facts not in evidence in rejecting the uncontroverted evidence of the Appellant/Counter Claimant thereby denying the Appellant judgment on the merit of the Counter Claim before the Court (Grounds 6 & 7).
4. Whether the trial Court was right when it failed to give full consideration to and determine the issue of limitation of action that was canvassed as a collateral issue on the proof of ownership and possession (Ground 9 of the Notice of Appeal).
D. A. Jaja Esq. adopted the respondent’s brief of argument of the appeal. The respondents’ brief of argument was filed on 24/04/2017, but repeatedly deemed properly filed and served on 11/06/2018 and 27/10/2020. The process was settled by David A. Jaja Esq. Learned counsel found the following issues for determination of this appeal:
a. Whether the holding of the lower Court that the respondents are entitled to right of occupancy over the subject matter, Mkpokwum, and the dismissal of the appellant’s counter-claim was borne out of proper evaluation of the evidence of the parties and their respective witnesses and the case law of Odum v. Chinwo (1978) 6 & 7 S. C. 251 at 268; (1977) 11 NSCC 438.
b. Did the various amendments allowed by the lower Court overreach the appellant and thereby occasioned any miscarriage of justice to the appellant.
c. Was the learned trial Judge right in relying on the amended statement of claim filed on 08/02/2011 in delivering his judgment.
d. Whether the defect in the original statement of claim had not been cured by the subsequent amendment thereof when the appellant had actively participated in the entire trial leading to the judgment.
The issues raised by the appellant appear to be more germane than those put forward by the respondents. For example, issues numbered (b) and (c) raised by the respondents did not emanate from the grounds of appeal filed by the appellant. Respondents did not file a cross-appeal or respondents’ notice to enable them raise grounds for argument in the appeal, not mentioned by the appellant. This appeal will be determined based on the issues raised by the appellant. However, the third issue for determination, on the appellant’s list, will be reworded, thus:
Whether the trial Court was right in rejecting the uncontroverted evidence of the Appellant/Counter Claimant thereby denying the Appellant judgment on the merit of the Counter Claim before the Court (Grounds 6 & 7).
APPELLANT’S ARGUMENT
On the first issue, learned counsel pointed out that the claimant’s case at the lower Court was in respect of who owns the land called Nkpokwum, which made proof of ownership the central issue. Learned counsel accused the claimant of not pleading or calling evidence of traditional history, as required by law. He explained that the respondents filed their suit as representing the Ogbun-nu-Abali communities, while maintaining that, that was constituted by two independent communities of Orogbum and Oroabali. Reference was made to paragraphs 1 and 2 of the amended statement of claim filed on 17/05/2016. He pointed at paragraph 22 of the same process, where he found the cause of action for the suit. He complained that while respondents pleaded a composite survey plan at paragraphs 23, 24 and 25 thereof, the document was not tendered at the trial. He asked that the Court should invoke the implication of Section 167(d) of the Evidence Act, 2011.
The attention of the Court was directed to paragraph 25 of the respondent’s amended statement of claim, where communal ownership of land is pleaded. He accused the respondents of not testifying in respect of that portion of their pleading, which implies that the pleading is abandoned. The same thing, according to learned counsel, occurred to paragraphs 4-21 of the amended statement of claim, which were, equally, abandoned. He relied on the case of Mainasara v. Imam [2012] All FWLR (Pt. 618) 854 at 894. The abandonment of pleadings, it was submitted, could lead to admission of the “traverse” of the opponent. The attention of the Court was directed to paragraph 8 of the amended statement of defence, which is answer to paragraph 25 of the amended statement of claim. DW 1, the Court was reminded, testified in paragraphs 8, 9 and 10 of his statement on oath, on the issue of dual communities of Oroabali and Orogbum and the fact that there is no land called Ogbunabali community land. He relied on the case of Bonga v. Adamawa State [2012] All FWLR (Pt. 633) 1908 at 1939.
Learned counsel accused the respondents of abandoning their claim of communal ownership of land, to accepting family ownership in Orogbum and Oroabali. Reference was also made to the evidence of CW 1, CW 2 and CW 3. He submitted that the ownership of the Ogbunabali communities is not to be presumed, but established by proved facts.
Learned counsel submitted that the respondents did not adduce any evidence to show how they became owners of the Nkpokwum land, which is in dispute. He accused the lower Court of granting the claim of respondents, not based on the evidence before the Court, but, based on the personal opinion of the Judge and presumptions.
Learned counsel complained, bitterly, about the lower Court’s reliance on the case of Chief Odum v. Chief P. B. O. Chinwo & Ors, reported at (1978) 6 & 7 SC page 251 to 268, pleaded in paragraph 26 of the Amended Statement of Claim, which was not tendered in evidence.
Learned counsel complained that the lower Court relied on the statement of claim filed on 08/02/2011, which had been replaced by amended statement of claim filed on 17/05/2016, to give judgment to the respondents. He cited the case of Olaniran v. Adebayo [2008] All FWLR (Pt. 410) 767 at 779; Ahmed v. The Registered Trustees of the Archdiocese of Kaduna of the Roman Catholic Church [2007] All FWLR (Pt. 347) 623 at 637; on the effect of amendment of pleadings.
This Court was advised that respondents pleaded many documents, especially, suits fought by the respondents, which they failed to tender in evidence. Learned counsel sought the impact of Section 167(d) of the Evidence Act, 2011 on the abstinence on the part of the respondents.
On the second issue, learned counsel complained that the “originating” statement of claim filed, on 24/10/2001, was not signed by either claimants or any legal practitioner as required by Rules of Court. It was signed by an entity known as Chikere & Chikere, who is not a legal practitioner called to the Nigerian Bar and a person. Order 25 Rule 4(3) was cited on mandatory nature of the provision requiring signature. The case of International Beer and Beverages Industries Ltd. v. Mutunci Company (Nig.) Ltd. [2013] All FWLR (Pt. 670) 1253 at 1277; Okafor v. Nweke [2007] All FWLR (Pt. 368) 1016; S. B. Consortium Ltd. v. NNPC [2011] All FWLR (Pt. 583) 1902 at 1916; and, Sections 2(1) and 24 of the Legal Practitioners Act were cited, as law contravened. Learned counsel acknowledged that the issue was not raised before the lower Court, but being a fundamental issue, which affects the jurisdiction of the Court, he submitted that the issue can be raised in this Court. He relied on the case of Odey Oyama & Anor. v. Engr. Christopher Ngoro Agibe & 4 Ors. [2016] All FWLR (Pt. 840) 1274 at 1284.
On the third issue, the position taken by learned counsel is that while the appellant filed a counter-claim, in which he separately and distinctly pleaded his root of title, traditional history and possession, respondents did not file a defence to the counter-claim, as they did not have an answer to it nor join issues with him. He described, as unchallenged, the evidence that the appellant built his house on the land in 1975 and has been in occupation of same since then, until 2001 when the respondents filed a suit against him.
Learned counsel found issue with the fact that, on 18/02/2014, the lower Court formulated an issue for parties to further address it on, which gave away the impression that the respondents failed to make out a case for the Court’s grant of their prayers. He described the attitude of the trial Judge as “capricious and totally unsustainable.” Learned counsel, at paragraph 6.7 of appellant’s brief, stated that the trial Judge adopted the use of hypothesis, speculations, misrepresentations, personal opinions, presumptions and assumptions to input weakness on the unchallenged evidence of the appellant. He submitted that the lower Court failed in its primary duty to, objectively, give consideration to the issues raised in the counter-claim and dispassionately evaluating the unchallenged evidence of the appellant, before dismissing the said counter-claim.
On the fourth issue, learned counsel complained that the lower Court failed to pronounce on the issue of jurisdiction raised by the appellant in relation to Section 1 of the Limitation Law of Rivers State on the cause of action of respondents and also the common law issue of acquiescence and its twin concept of laches.
He urged the Court to allow the appeal, set aside the judgment of the lower Court and allow reliefs in the notice of appeal.
RESPONDENTS’ ARGUMENT
Learned respondents’ counsel informed that respondents pleaded the facts of the trespass by the appellant on the land in dispute in paragraphs 4 and 5 of the amended statement of claim, filed on 08/02/2011. Also, in paragraphs 8-22 of the same pleading, acts of ownership were pleaded, which included the suit in Chief Odum v. Chinwo (supra). He recalled that the decision arose from a suit, filed by the respondents as representatives of Ogbunabali community. Learned counsel analysed the import of the evidence of each of the witnesses called by the respondents. He described the decision of the lower Court recorded at paragraphs 35, 36 (on evidence of communal ownership) and 50 (on preponderance of evidence) as correct, given the analysed evidence before the lower Court.
Learned counsel described the fulcrum of the case and evidence of the appellant as weak. Appellant’s evidence, under cross-examination, at page 307-308 of the record of appeal, was highlighted to show that the appellant confessed that his father came to live in Ogbum-nu-Abali as a refugee, as quite revealing. He described the answers provided by the appellant, under cross-examination, as showing that the appellant is a stranger to Nkpokwum land. He agreed with the lower Court’s analysis of appellant’s case at paragraph 52 of the judgment. He saw contradiction/inconsistency between the pleading and evidence given by appellant on who gave him information about the land in dispute as between his grandfather and his grandmother (page 308 of the record of appeal), contrary to paragraph 30 of his pleading. He submitted that the lower Court was right when it held that that the traditional history given by the appellant was weak and when that Court relied on the case of Odum v. Chinwo in its judgment, against the contention that the judgment was not tendered in Court to enable the appellant cross-examine on it. He relied on Section 124 of the Evidence Act, 2011 for the submission on the lower Court’s conclusion at paragraph 49 of the judgment.
Learned counsel recalled appellant’s submission on amendments. He submitted that the Court had the power to grant serial amendments, citing the case of NDDC v. Precision Assoc. Ltd. [2006] (Pt. 1006), 527 at 559. He also submitted that the appellant participated in the proceedings to the end, without complaining, and thereby waived his right to do so. He cited the case of S. C. C. (Nig.) Ltd. v. Elemadu [2005] 7 NWLR (Pt. 923) 28 at 79-80. The Court was warned that the appellant did not identify any miscarriage of justice occasioned by the grant of leave to amend pleadings to the respondents. He cited the case of S. B. N. Ltd. v. Industries O. Corporation [2009] 8 NWLR (Pt. 1144) 491 at 511, 511-512. He submitted that an appellate Court does not lightly set aside findings of fact made by a trial Court unless such findings or conclusion is perverse.
He urged the Court to dismiss the appeal.
The appellant’s reply brief of argument was filed on 30/05/2017, but repeatedly deemed properly filed on 11/06/2018 and 27/10/2020.
Learned counsel stated that respondents’ argument on the second issue did not arise from any ground of appeal. He accused the respondents of arguing the appeal, indiscriminately, arising from issues for determination distilled by them, which have no relationship with grounds of appeal. He urged the Court to discountenance the issues. He pointed out that the appellant did not file any ground of appeal complaining about amendments granted by the lower Court.
Other argument in the reply brief were, as previously stated in the appellant’s brief of argument, making them repetitive.
RESOLVING THE ISSUES
Resolution of the issues raised for the determination of this appeal, will be serialised based on their degree of importance and effectiveness. The issues, which may impact jurisdiction will, necessarily, have to be determined first. Thereafter, issues pertaining to proof will be determined.
DETERMINING THE FOURTH ISSUE
Whether the trial Court was right when it failed to give full consideration to and determine the issue of limitation of action that was canvassed as a collateral issue on the proof of ownership and possession (Ground 9 of the Notice of Appeal).
The fourth issue may impact on the jurisdiction of the lower Court and that of this Court, depending on the direction of the judgment of this Court. It is therefore imperative that the fourth issue should be considered and determined first. Under the fourth issue, the appellant’s grouse is that the lower Court abdicated its responsibility, when it failed to pronounce on the complaint laid before it by the appellant regarding the suggestion that the suit before it was barred by statute.
Where a statute of limitation is called into play, the effect is that the proceedings are not to be instituted after the period prescribed by such a statute. Any action that is instituted after the period stipulated is totally barred as the right of the claimant or the injured party to commence the action would have been extinguished by law. See Egbe v. Adefarasin [1985] 1 NWLR (Pt. 3) 549 and Ibrahim v. J.S.C. [1998] 14 NWLR (Pt. 584) 1 at 32.
It is a fact that the lower Court failed to consider whether the respondents’ suit is statute barred. It is my view that the lower Court was right in its abstinence. The issue was not presented to the lower Court, in a lawful manner, to require its resolution. Order 25 Rule 6(1) of the High Court of Rivers State (Civil Procedure) Rules, 1987, provides as follows:
“6-(1) A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise.
(3) Without prejudice to paragraph (1), a defendant in action for recovery of land shall plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.”
The appellant failed to plead its intention to rely on a statute of limitation or laches and acquiescence. It is settled law that a limitation law is procedural, setting out clearly a time frame within which an action must be filed and as such, limitation laws are matters of practice and procedure and they are not aspects of the substantive law. Limitation law thus concerns the procedural jurisdiction of a trial Court and not its substantive jurisdiction, and, being an issue of procedural jurisdiction, it must be raised by a party entitled to rely on it in his pleadings and that where it is not so raised, the party will be deemed by the simple rules of pleadings to have waived whatever right he possesses thereon. See Ntung v. Longkwang [2021] 8 NWLR (Pt. 1779) 431 at 492. Limitation of action is a defence that can be waived by the party entitled to it and to that extent it cannot be said that an action commenced outside the limitation period is incompetent for lack of jurisdiction of the Court. The law recognizes that an individual may renounce or waive a law made for his special benefit or protection. This is encapsulated in the maxim quilibet potest renunciate juri pro se introduao. See Ntung v. Longkwang [2021] 8 NWLR (Pt. 1779) 431 at 492. See also the case of Ariori v. Elemo [1983] 1 SCNLR 1.
Uwaifo, J.S.C. in the case of Adeniran v. Alao [2001] 18 NWLR (Pt. 745) 361 at 391 stated that:
“I think learned counsel is definitely right in that contention. I cannot find where those defences were raised in any of the submissions made to the two Courts below even by way of mere mention … In actual fact and as a matter of practice, the respondents did not, in conformity with pleadings procedure, raise those defences in their statement of defence. All they pleaded in that regard is in para. 40 as follows:
“Further and in alternative, the defendant will among other legal and equitable defences open to them rely on (a) Estoppel, (b) Laches (c) Standing by and (d) Acquiescence.”
On this type of pleading, a defendant will be precluded from leading evidence and will not be allowed to rely on the defences. The law is clear that those defences must be specifically pleaded with full particulars. It is the facts averred which determine what the real defence is and so it is necessary that the facts be adequately and carefully stated.”
Even if the issue should be determined, it will not be a decision in favour of the appellant. How does one determine the period of limitation? The answer to this is simple – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the claimant a cause of action and by comparing that date, with the date on which the writ of summons was filed. If the date on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1 at 20.
The cause of action is said to accrue when there exists a person who can sue and another who can be sued, and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. The time which had commenced to run will as a rule continue to do so even though subsequent events occur which makes it impossible that an action should be brought. This rule holds with respect to all limitation laws. See Sanda v. Kukawa Local Government [1991] 2 NWLR (Pt. 174) 379 and Iyirhiaro v. Usoh [1999] 4 NWLR (Pt. 597) 41.
In paragraph 18 of the amended statement of claim, the respondents pleaded that the appellant was discovered trespassing, in 2001. The suit before the lower Court was filed on 12/04/2001, which is well within the limitation period, in respect of land disputes.
It is my view and holding that there is no merit in the fourth issue, which is hereby resolved against the appellant.
DETERMINING THE SECOND ISSUE
Whether there was a valid and competent statement of claim before the Court. (Ground 2).
There are two arms or legs in the contention of the appellant under the second issue. The first leg or arm is that the lower Court relied on the statement of claim, which had been amended, to give judgment to the respondents. What the appellant did not say or argue is that the prayers granted by the lower Court could not be traced to the valid or relevant process, filed by the respondents on 17/05/2016, which the lower Court should have acted on. What an appellate Court reacts to is not every error found in the judgment or decision of a lower Court. What the appellate Court seeks, in considering the judgment of a lower Court, are those decisions, which occasion miscarriage of justice. The prayers granted by the lower Court are, evidently, found in the amended statement of claim filed by the respondents, filed on 17/05/2016. Thus, the lower Court’s minor mistake in referencing the original statement of claim, in the opening parts of its judgment, does not amount to error occasioning miscarriage of justice, as that Court, ultimately, found the actual prayers it should have granted and made use of them in its judgment.
Further to the above conclusion of this Court, the appellant’s counsel conceded that the issue of signature on the original statement of claim was not raised before the lower Court. However, learned counsel for the appellant stated that the issue being a fundamental issue, which affects the jurisdiction of the Court, can be raised in this Court. The fact that the appellant, who ought to have raised the issue before the lower Court failed to do so, and elected to raise it for the first time in this Court, after dutifully participating in the trial, leading to delivery of judgment by the lower Court, is a factor which debars the appellant from raising the issue before this Court. The appellant is deemed to have waived the issue. The attitude of the Supreme Court on the issue of waiver attaches to the person of the appellant and its disposition to the trial before the lower Court, with the effect that the appellant is not allowed to raise the issue on appeal. This is different from taking a decision on the validity or otherwise of the process, against which a complaint is made. The attitude of the Court is that, in the circumstance, the appellant is barred from raising the issue.
There are three decisions of the Supreme Court, which consistently adopted the approach stated above, which have not been set aside and by which this Court is bound. In the case of Unity Bank Plc Vs Denclag Limited (2012) 3 SCNJ 335, the Supreme Court held that an error in signing a Court process, in the name of a Law Firm, is capable of being corrected, by an amendment of the Court process. In the case of Heritage Bank Limited v. Benthworth Finance (Nigeria) Ltd (2018) 9 NWLR (Pt. 1625) 420, the Supreme Court held that the signing of a statement of claim, in the name of a law firm, was an irregularity, which could be waived by the other party or corrected by an amendment by the party. The most recent (which I found) is the decision of the Supreme Court, delivered on 13/03/2020, in Bakari v. Ogundipe (2021) 5 NWLR (Pt 1768) 1 at 43, where Rhodes-Vivour, JSC. stated thus:
“In these cases, counsel on the other side quickly complained about the incompetence of the originating process. He did not waive his right to object. The process was struck out accordingly. I do not see in what way these cases could assist learned counsel for the appellant on the point under consideration.
The appellant accepted the statement of claim as if it was very much in order. He participated in the proceedings, filed a statement of defence and called evidence. Judgment of the trial Court was given dismissing the 1st respondent’s claim. The appellant was happy. He did not complain. The 1st respondent/plaintiff filed an appeal. On appeal the appellant defended the judgment and never made the defective statement of claim an issue.
When the appellant lost in the Court of Appeal he appealed to the Supreme Court, and made the issue of the competence of the statement of claim an issue for the first time. It is clear he waived his right to object to the defective process. The right of the appellant to object to the defective statement of claim is a waivable right, being procedural jurisdiction. A private right.
It would be most inequitable and unjust to the 1st respondent/plaintiff for the appellant after waiving his right to complain about the plaintiff’s incompetent process, to be allowed to complain on appeal. Waiver is inferred or implied after examining the conduct of the appellant.”
This Court is bound by the decisions of the Supreme Court, which have not been overruled and are consistent, on the expected approach of this Court, where waiver is located in the circumstances of this appeal. The respondents filed, with leave of Court, an appropriately signed amended statement of claim on 17/05/2016, upon which the trial was based, with the appellant participating in the trial, without complaining. The appellant is, therefore, deemed to have waived his right to complain about the manner the original statement of claim, filed by the appellant on 24/10/2001, was signed or not signed by an unknown entity. The second issue is resolved against the appellant.
DETERMINING THE THIRD ISSUE
Whether the trial Court was right in rejecting the uncontroverted evidence of the Appellant/Counter Claimant thereby denying the Appellant judgment on the merit of the Counter Claim before the Court (Grounds 6 & 7).
It is trite law, that for all intents and purposes, a counter-claim is a separate, independent and distinct action. See Jeric (Nig.) Ltd. v. U. B. N. Plc [2000] 15 NWLR (Pt. 691) 447 at 463. A counter-claim is a separate process, standing alone from the claim. Thus, it is expected to be treated as a stand-alone suit, which is determined in the company of another suit, without losing its identity and separateness. The defendant, in the main claim, becomes the claimant, in the counter-claim. The claimant, in the main claim, becomes the defendant in the counter-claim. The change of positions is equally attended by traditional responsibilities regarding burden and discharge of the burden of proof. It was the duty of the appellant in this appeal to prove his counter-claim.
In a claim seeking declaration of title to land, the appellant must:-
a. succeed on the preponderance of evidence led by him;
b. succeed on the strength of his own case;
c. not succeed by the weakness of the defence, unless of course there are features in the evidence of the defence that support the claimant’s case. See Oyinloye v. Esinkin [1999] 10 NWLR (Pt. 624) 540 at 549.
The appellant, who brought an action for declaration of title, was required to satisfy the Court by evidence and not by admission in the pleadings of the respondents, of his right to the declaration sought or claimed. This is because the grant of a declaration by the Court is discretionary. See Temile v. Awani [2001] 12 NWLR (Pt. 728) 726 at 755. In the case of Ani v. Nna [1981] 1 SC 101, Obaseki J.S.C. remarked on the need to prove entitlement to a declaration by the Court, when he said:
“It is true as was contended before us by the appellant’s counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleading of the defendant, that he is entitled. The necessity for this arises from the fact that the Court has discretion to grant or refuse the declaration and the success of the claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”
(Bold font for emphasis).
To succeed in a claim for a declaration of title to land, the Court must be satisfied as to:
(a) the precise nature of title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise;
and
(b) evidence establishing the title of the nature claimed.
See Adesanya v. Aderounmu [2000] 9 NWLR (Pt. 672) 370 at 382 and Emegwara v. Nwaimo [1953] 14 WACA 347.
The point has to be made at this point that the appellant’s counsel has wrongly argued, with due respect, that the respondents did not file a reply to his counter-claim. That cannot be a fact. The fact is that, as already recounted above, the respondents actually filed a reply to the statement of defence and defence to counter-claim dated 23/03/2010, on 29/03/2010, which joined issues with the facts pleaded by the appellant. The process is resting at pages 99-101 of the record of appeal. Without appellant acknowledging that fact, it is apparent that the entire arguments of the appellant’s counsel, is, with respect founded on avoidably false premises. Even if the respondents did not file a reply to the statement of defence and defence to counter-claim (which, in fact, they filed), they were entitled to cross-examine the appellant and his witness, as to their credit and to cast doubt on the case of the appellant, which they did at the trial. See S. G. E. Ltd. v. Okpanum [1989] 4 NWLR (Pt. 115) 371.
The appellant in this appeal appears to be insistent on the fact that since his testimony and that of his witness was not controverted, the lower Court was under a compulsive duty to act on such evidence. That stance is not reflective of the position of the law. It is not all manner of evidence, which appear to be unchallenged, which will be binding on the Court. The law is that where evidence given by a party is unchallenged or uncontroverted, a Court of law must accept it and act on it unless it is palpably incredible. See Iyere v. B.F.F.M. (2008) 18 NWLR (Pt. 1119) 300. Unchallenged evidence is not sacrosanct. It should not be believed if it is inherently incredible and in conflict with probability and other credible evidence. See S.P.D.C.N. Ltd. v. Amadi [2010] 13 NWLR (Pt. 1210) 82 at 128. In the case of Odunsi v. U. N. M. I. C. Ltd. [1998] 2 NWLR (Pt. 536) 95 at 107, this Court stated that:
An averment by way of affidavit evidence which is not necessarily challenged, may in the circumstances it is made, be inherently incredible when it is in conflict with probability and so utterly hostile to reason as to be viewed as almost impossible, and should not be believed by the Court or given any credence. It is difficult to believe that statement.
See also Turka v. State [1991] 5 NWLR (Pt. 189) 54.
The appellant failed to appreciate the fact that the lower Court found that the appellant’s case before it was incredible and unbelievable, and thus, refused to act on it. Instead of appreciating that simple rule, which the lower Court dutifully applied to the case before it, appellant’s counsel elected to deploy very unkind words against the lower Court.
It is important to also note that the appellant failed to appeal against the specific findings of fact by the lower Court, which implies that the appellant agreed with those findings of fact. It goes without saying that where an appellant fails to appeal on a finding of fact made by a Court, he would not be allowed to submit thereon. See the case of Atanda v. Iliasu [2013] 6 NWLR (Pt. 1351) 529 at 558 and Ihim v. Maduagwu [2021] 5 NWLR (Pt. 1770) 584 at 615. In the case of Saleh v. Abah [2017] 12 NWLR (Pt. 1578) 100 at 133-134, the Court held:
“… These are not controverted and the 1st respondent did not deem it fit to appeal this finding of facts that he perceived were adverse to his electoral fortune or political future.
This position restates the settled position of the law that the legal consequence of failure to appeal against any finding, holding or decision of a Court is that the parties to the case have accepted it as correct and binding upon them. On this side of the judicial structure, the law is settled that a party is estopped by his failure to appeal against an adverse finding of a fact relevant to the issue.”
See Abubakar v. Bebeji Oil and Allied Products Ltd. & Ors. (2007) 18 NWLR (Pt. 1066) 319 (2007) 2 S.C 48. Per Ogbuagu, J.S.C (P.68, para. F).”
The case of the appellant before the lower Court is that he is the owner of the land described in his counter-claim, having inherited the land from his father, as opposed to the fact that the land in dispute is owned by the Ogbunabali community, which is the claim of the respondents. In paragraphs 32-35 of the amended statement of defence, (page 368 of the record of appeal), the appellant pleaded as follows:
“32. The defendant avers that Chinda Wokea was his grandfather, who was the exclusive owner in possession of Mkpoku land, as he lived all his life, died and was buried at the Mkpoku land. The grave where he was buried was remarked by the big mango tree, which is still standing till date.
33. Chinda Wokea became the owner of Mkpoku land because he was the first person to settle and he also disvirgined the land from time immemorial, and according to the Ikwerre native law and custom, anybody who disvirgins a land that was not previously owned by anybody becomes the unchallengeable owner of the same.
34. The Mkpoku land was a war zone and Chinda Wokea became a war leader of the members of the Oroada family that settled there with him, that is why the name of the land is called Mkpoku which meaning is derived from war activities going on in the area.
35. The defendant avers that Chinda Wokea was of the lineage of Adumgbi from Oroada family in Oroabali community.
(Page 68 of the record of appeal).
The lower Court carefully examined the evidence presented by the appellant, made deductions and checked it for fallacies, as that Court had a duty to do, and at pages 334-335 of the record of appeal, the lower Court stated as follows:
“35. Mr Obiorah contended that Ogbum and Abali are separate and independent communities that do not own land jointly; rather that individual families own land. Counsel submitted that “throughout the evidence of all the claimants witnesses, there is no evidence as to how the Ogbum-nu-Abali Communities became joint owners of the Mkpokwum land” and any joint ownership “of the land in dispute cannot be presumed but must be established by proven facts”.
36. Again, I take a completely contrary view. This is because the claimants’ case is replete with evidence of communal ownership of the land in dispute, allowing for the areas where families or individuals have land holdings.
37. In my own opinion it is the defendant’s own evidence of traditional history that is weak and indeed spurious. He testified that his father was a war leader of Oroada of Oro Abali who founded the land. Conquest is, of course, recognized as a method of founding land. And yet there is no credible evidence before the Court to support this grand claim. The area was a war Zone, said the defendant, but which war, when and with whom, the defendant did not say.
39. Let me further examine the alleged wars of the defendant’s grandfather from a legal historical perspective. For this purpose, I take judicial notice that government and legal order had been established over the area not called Rivers State, including Port Harcourt, by virtue of the following:
1. The Oil Rivers Protectorate and the Royal Niger Company (operating under Royal Charter) operated Equity Courts and provided order before 1900.
2. The protectorate of Southern Nigeria applied Laws of General Application in the United Kingdom from 1st January, 1900.
40. Now the defendant died in 2015 aged about 54 or 55 years. According to him, his father died in 1974 aged 39, which places his birth around 1935. Following the foregoing timeline, it would, in my view, be reasonable to assume that the defendant’s grandfather, who he knew as a boy, was born no earlier that the late 1800s or early 1900s. Accordingly, his grandfather Chinda Wokea could not have led wars of conquest by the 1920s or 1930s, when he became an adult, but by which time there was legal order and the age of contest was gone.
41. The land in dispute is said to be about 447 acres. That is more than 3500 (Three thousand Five hundred) high-density plots of land. The defendant added that when his father died land had to be purchased for his grave from another family in the Community. Furthermore, the land on which his father’s house was built was purchased from a neighbor. The question is, how could someone who owned most of the land in the community, like a feudal overlord, be buying land from neighbours for a house and even a grave? It is clear to me that the defendant’s traditional history is just arrant nonsense upon stilts, so that you could not miss it.”
At pages 339-340 of the record of appeal, the lower Court specifically held as follows:
“51 On his part, the defendant testified that he first built his house and went to live on the land in dispute in 1975. The defendant testified that he was fourteen (14) years old at the time. He also testified that the land was Ojohia, or Ajofia, as his counsel called it, which he said means evil forest. He testified that it was a bad bush where dead bodies were thrown away. And yet the defendant would have reasonable people believe that he, a callow boy of 14 years not only built a house but also went to live alone in Ojohia or evil forest.
52. Meanwhile, the defendant testified that his father, a Shell P. D. C. Ltd employee, built a block house on 41 Gada Street, in Ogbunabali Community. The question is, why would a boy of 14 years abandon his father’s nice house among human beings (his father, he said, worked both at Sea and with Shell-BP), and go to build his own house and live alone in the evil forest where dead bodies are thrown away? This completely beggars belief, and I find it false.
53. Meanwhile, the Exhibit D1, being a sketch made for the defendant in 1976, does not indicate, as the defendant alleged that the defendant, or anyone else for that matter, was living on the land in dispute. The sketch Exhibit D1 shows that the defendant’s address to be at No. 33 Gada Street, Ogbunababli. I find all this to be ridiculous fabrications that cannot fool anyone.
54. The DW 2, Mr. Kenuwo Amadi Oparaeli, attempted to back-up the defendant’s wild tales. He confirmed that the defendant built his house and moved to live on the land in dispute, an evil forest where dead bodies are thrown, in 1975. He said that the Defendant from then on began to confront and fight off trespassers. A boy of 14 years fighting off trespassers? I do not believe it at all. The question then becomes, since DW 2 said that he was abroad from 1975 to 1983, how would he know all this? By and by, I do not find the DW 2, Mr Kenuwo Amadi Oparaeli, to be credible at all, and I accordingly reject his testimony.
55. Now, one thing which the defendant testifies to which is, without doubt, true, is that the land in dispute had become highly valued. But I do not agree with him that it was the claimants who then invaded the land to seize it from him. It is clear that it was the defendant himself who was tempted, and acted on the temptation to seize highly valued communal property. He then went on to fabricate a root of title and acts of possession in order to support his trespass on communal land. I find the defendant to have blatantly lied in respect to constructing a house in the evil forest and to living there, when he had a more decent house left for him by his father who had just died, more so when he was the eldest son. On account of this blatant fabrication, the law condemns all other uncorroborated accounts of the defendant on material issues before the Court; Such as his grandfather being buried under a mango tree on the land, or being the juju priest of some deity called Ruhu Eli. The applicable maxim I believe, is Falsa in uno, falsa in omnibus. If one lies about a material thing that is within his knowledge, then he cannot be believed in other things, unless corroborated.”
As can be found in the clear findings quoted above, the lower Court found the case of the appellant to be incredible. The appellant did not raise any ground of appeal against the specific findings of fact made by the lower Court.
It is clear from the pleading and evidence before the lower Court that the weight of evidence presented by the respondents was heavier than that from the appellant, whose case and evidence was found to be a sham. Speaking on that point, at this level, the falsehood in the case of the appellant is signposted by the fact that while the appellant testified that the land in dispute was at a time an evil forest, his witness (DW 2) testified that the land was not to be an evil forest at any time in the past, though it was a forest. It was the appellant who testified that corpses were being thrown or disposed of on the land, then known as evil forest. That was serious contradiction.
Furthermore, the respondents pleaded, at paragraph 3(e) and 7 of the reply to the statement of defence and defence to counter-claim, as follows:
“e) That at no time did the Ogbunabali people or their representatives appear before any local arbitration panel in respect of the land in dispute with the Defendant.
7. That no single individual or family has ever laid claim to any part of Ogbunabali land, neither did Defendant’s father nor his fore-fathers before him.”
At paragraph 37 of the appellant’s statement on oath (at page 77 of the record of appeal), he testified as follows:
“37. That sometimes around the year 1985, when my father’s half brothers (uncles) trespassed on some part of the land I inherited from my father, by selling same to a third party. Myself along with my mother, Mrs. Fyner Adele Chinda summoned them to REBISI COUNCIL OF CHIEFS, also called PORT HARCOURT CITY DIVISIONAL COUNCIL OF CHIEFS, PORT HARCOURT, who sometime in August 1985 gave verdict in my favour telling my uncles not to interfere with my lands including Mkpoku Land. Some of the Claimants were members of the panel that arbitrated on the matter. I shall at the trial rely on the record of proceedings and verdict of the Arbitration to prove my case. Orogbum and Oroabali are offsprings of Rebisi along with other offsprings. All the offsprings of Rebisi exist as independent communities.”
Under cross-examination, on 25/09/2012, (see page 309 of the record of appeal) the appellant testified as follows:
Q: You never took the defendant for any arbitration.
Ans: I never took them anywhere.
Q: You attached the judgment of Rebisi arbitration.
Ans: Yes.
Q: In that case, the claimants were not parties.
Ans: They were parties.
Court: The witness is shown Exhibit DD2.
Q: Can you identify any of the claimants on that document?
Ans: They are parties.
Q: It was not specifically over the Nkpokwum land that you went for the arbitration.
Ans: The arbitration was over all properties of Chinda Wokea which I wanted released to me.
Q: I put it to you that neither you nor the others referred to Nkpowum land in the arbitration.
Ans: It was not.
Under cross-examination, the appellant admitted that the customary arbitration, he mentioned in his evidence-in-chief, did not consider the land in dispute in its determination of a dispute over the estate of appellant’s father, which shows that the appellant fatally contradicted himself on properties constituting the estate of his father. The appellant could not identify the names of the respondents he alleged participated in the customary arbitration – exhibit DD2.
The appellant has also argued that the fact that he built on the land in dispute in 1975 was not challenged or controverted at the trial. What the appellant did not include in his argument is the fact that the lower Court faulted the assertion, using the sketch plan of the land, which the appellant tendered in evidence at the trial. That sketch plan (exhibit DD1) clearly showed, and this Court confirmed that fact, that the land was barren of any structure on it, as at the date, in 1976, when it was drawn. It was the appellant’s own tendered document, which showed that the appellant was peddling falsehood. The lower Court also found it incredible that a child of 14 years could have built a house and chosen to live in an evil forest, when a decent apartment built by his father was in existence and available. The logic of the lower Court cannot be faulted.
It is beyond argument that the evaluation of evidence and ascription of probative value to such evidence are the primary duties of the trial Court which saw, heard, and duly assessed the witnesses. Where such a Court of trial has justifiably evaluated the evidence, it is not the business of the appellate Court to substitute its own views for those of the trial Court. What the appellate Court ought to do is to ascertain whether or not there is evidence upon which the trial Court acted. Once there is evidence, the appellate Court must not intervene even if such appellate Court felt that if the facts were before it, it would not have come to the same decision as the trial Court. An appellate Court may only interfere with the findings of fact of a trial Court under circumstances such as where the trial Court did not properly evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial Court is shown to be wrong or perverse in that it is not supported by evidence before the Court. See the case of Eigbejale v. Oke [1996] 5 NWLR (Pt. 447) 128 at 143. This Court, as appellate Court, cannot interfere with those findings and they stand, especially, as they represent what the lower Court perceived and observed from evidence before it.
With the enumerated lapses, omissions and incredible nature of the evidence led by the appellant, the lower Court was justified in dismissing appellant’s counter-claim. The second issue is resolved against the appellant.
DETERMINING THE FIRST ISSUE
Whether the Claimants pleaded and proved their root of title and the substratum of their claim before the trial Court and if the claims granted to the Claimants/Respondents emanated from the evidence before the Court or the Opinion of the trial Judge (grounds 1, 3, 4, 5, 8 & 10).
The main plank of the case of the respondents at the lower Court is that the land in dispute is owned by the Ogbunabali community. In paragraph 26 (previously pleaded in paragraph 8 of previous respondents’ pleadings) of the amended statement of claim (page 379 of the record of appeal), the respondents pleaded:
“26. In 1972, Chief G. Odum and another took the Claimants to Court when Chief Odum’s right to lease a portion of Ogbunabali land aforesaid within the neighbourhood of the area of the claimants’ land adjacent to Nkpokwum was challenged. The Defendant was of a comparatively younger age at the time of that suit, but the Defendant’s father, Adele Chinda and the Oroada family of Oroada knew about the suit and never raised any claim adverse to the communal ownership of the said lands by Ogbunabali Community. The Claimants will rely on the judgment in the said suit which was reported on appeal in (1978) 6 & 7 SC. Pages 251 to 268 as part of their acts of ownership and possession of the said land.”
In response to the pleading above from the respondents, the appellant pleaded, at paragraph 9 of his amended statement of defence (page 363 of the record of appeal), as follows:
“9. The defendant denies paragraph 8 of the statement of claim and avers that whatever claim the Claimants made against Chief Odum did not affect Mkpoku land which belongs to the defendant by inheritance. The defendant could not have raised any adverse claim for a land that does not belong to him or by his father for a land that was not theirs. However the Claimants shall be put to the strictest proof of the same.”
Thus, the respondents pleaded and proposed to rely on a decision of the Supreme Court to prove the fact that a Court of record had previously determined the fact that land in Ogbunabali is communally owned. The respondents, in their pleading, cited the Law Report, where the judgment of the Supreme Court could be found. A Law Report is a book or e-book, as the case may be, which is available to interested persons. In a manner of speaking, it is in the public domain. The appellant did not deny the existence of the judgment. He merely pleaded that the judgment did not concern or affect the land in dispute, which implies that the appellant was aware of the judgment and knew its content.
The appellant, in this appeal, complained that the judgment ought to have been tendered, as exhibit, to enable the appellant subject the document and witnesses to cross-examination. He submitted that the fact that the judgment was not physically tendered in evidence amounted to denial of fair hearing. Appellant insists that the lower Court should not have given consideration to the previous judgment of the Supreme Court pleaded in the amended statement of claim. In dealing with the judgment relied upon by the respondents and other documents tendered in evidence at the trial by the respondent, the lower Court stated, in its judgment, at pages 337-340 of the record of appeal, as follows:
“45. The Court is urged by the claimants’ learned counsel to have regard for the case of suit No. SC/305/76 Odum v. Chinwo (delivered on 21/7/78) and hold that the land in dispute is communal land. I disagree with the defendant’s learned counsel’s submission that it is misleading to submit that the Supreme Court therein held that certain land in Ogbunabalu is held as communal land, or that the case was not determined on the merit.
46. I shall reproduce a portion of the judgment, which the Supreme Court culled from the judgment of the High Court, thus-
“If therefore compensation paid in respect of Ogbunabali west went to the Ogbunabali people, that is the Ogbunabali community – then it follows that all land in Ogbunabali east not the subject of private ownership belongs to the Ogbunabali community; so that all lands not indicated on Exhibits C to be privately owned belongs to the Ogbunabali community…”
47. The Supreme Court cited the above passage of the judgment of the High Court with approval, and dismissed the appeal of the plaintiffs, leaving the Ogbunabali community triumphant as owners of the land in that suit.
48. The land referred to in the Odum v. Chinwo case as “Ogbunabali East” is the same land as the land in dispute before this Court. This fact is not in dispute between the parties.
49. In the circumstances, apart from stating that the Odum v. Chinwo case should have been tendered as exhibit, I do not see how this Court could ignore this decision of the Apex Court. I therefore take judicial notice of it as conclusive of both issues of root of title and communal ownership. I further hold that the defendant’s family were aware of the Odum v. Chinwo case but failed to join to challenge the community on the ownership of the land. Accordingly, the doctrine of laches and acquiescence in my opinion applies, and the defendant is now estopped from challenging the community on their ownership of the land. I therefore resolve issue No (1) in favour of the claimants. That their traditional history is more persuasive and preferable.
50. The claimants’ earliest documented act of possession and ownership of the land, from the evidence before the Court, is the 1972 case which was given final determination in the Supreme Court in 1978. See suit NO. SC. 305/76 Odum v. Chinwo. Exhibits C1 to C6 are leases of or deeds in respect to portions of the land in dispute or adjacent surrounding lands, going back to 1981. None of these documents were impeached by the defence.” (Bold font for emphasis).
It is my view that the lower Court was right in its approach to the extant judgment of the Supreme Court on the status of land ownership in the Ogbunabali community. While it may take some time and space in this judgment, it is apt to state that land ownership, which is not based on statutory right, necessarily has to be a matter of custom and customary law of the community in which the land is located. The Evidence Act, 2011 makes provision for proof of custom by means of previous judgment of a Court of competent jurisdiction.
Section 258 of the Evidence Act, 2011 defines “custom” as meaning a rule which, in a particular district, has from long usage, obtained the force of law. Thus, where a community accepts and operates a rule that land in their community is communally owned, such a rule is the custom of that community.
For proof of custom in litigation, Section 17 of the Evidence Act, 2011 provides that a custom may be judicially noticed, when it has been adjudicated upon, once, by a superior Court of record. There is no dispute that the Supreme Court is a superior Court of record. Section 18(1) of the Evidence Act, 2011 provides that where a custom cannot be established as one judicially noticed, it shall be proved as a fact. It is only where custom cannot be judicially noticed that there will be need for such custom to be proved as a fact. In the case on appeal, it should be recalled that the lower Court judicially noticed the existence of the custom of communal ownership of land in Ogbunabali, vide the judgment of the Supreme Court, to which its attention was drawn. Section 19 of the Evidence Act, 2011 provides that every fact is deemed to be relevant which tends to show how in, particular instances, a matter alleged to be a custom was understood and acted upon by persons interested.
In the respondent’s final written address, adopted before the lower Court, the lower Court was specifically invited to take judicial notice of the existence of the judgment. (See page 249 of the record of appeal). Section 122(4) of the Evidence Act, 2011 provides that if the Court is called upon, by any person, to take judicial notice of any fact, it may refuse to do so unless and until such a person produces any such book or document, as it may consider necessary, to enable it do so. However, Section 124 of the Evidence Act, 2011 further provides that:
“124. (1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is-
(a) common knowledge in the locality which the proceeding is being held, or generally; or
(b) capable of verification by reference to a document the authority of which cannot be reasonably be questioned.
(2) The Court may acquire, in any manner it deems fit knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account.
(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.”
Section 59 of the Evidence Act, 2011 provides:
“59. The existence of any judgment, order or decree which by law prevents any Court from taking cognisance of a suit or holding a trial, is a relevant fact, evidence of which is admissible when the question is whether such Court ought to take cognisance of such suit or hold such trial.”
Section 70 of the Evidence Act, 2011 provides that in deciding questions of customary law and custom, the opinions of traditional rulers, chiefs or other persons having special knowledge of the customary law and custom and any book or manuscript recognised as legal authority by people indigenous to the locality in which such law or custom applies, are admissible. The decision of the Supreme Court will qualify as legal authority in this instance. Section 173 of the Evidence Act, 2011 provides that:
“173. Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case, actually decided by the Court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
Section 121 defines “proved” to mean:
“… when, after considering the matters before it, the Court believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist.”
In the case before the lower Court, the respondents specifically pleaded details of the judgment they intended to rely upon and the respondents’ counsel invited the lower Court to take judicial notice of the judgment. I have enumerated, above, that Section 70 allows the Court to rely on any book where it is to form opinion on any custom. I have also referred to Section 124 of the Evidence Act, 2011 which permits the Court to take into account knowledge of facts which it may acquire, in any manner it deems fit, and to which Subsection (1) of the Section refers, and shall take such knowledge into account. The only condition is that the Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.
In the case of Eyo v. Okpa (2010) 6 NWLR (Pt. 1191) 611 at 634, the Court took the view that it is proper for a party to a law suit who has a previous judgment in his favour to use the judgment as a foundation for an action in trespass or as a foundation for a fresh suit in which he is claiming a relief in addition to what was granted in his previous suit. A previous judgment may be pleaded by a claimant as a relevant fact, as issue estoppel and a weapon of attack. In this appeal, particulars of the judgment were pleaded and the appellant was represented by counsel, who was permitted to make submission on the issue. The judgment was reported in a Law Report, which makes the decision accessible to parties. The custom intended to be relied upon had, in compliance with the Evidence Act, 2011, been acted upon and upheld by a superior Court of record, once.
It would have been astounding for the lower Court, in the face of extant provisions of the Evidence Act, 2011 enumerated above, to ignore a decision of the Supreme Court it was positively invited to consider and make its own path, without a glance at the decision of the apex Court. In the case of Jubrin v. FRN [2020] 4 NWLR (Pt. 1714) 315 at 345-346, Eko, JSC. warned as follows:
“I consider it most unethical for the counsel in this appeal not to have, out of courtesy, drawn the attention of this Court to its previous decisions arising from the same set of facts on which this appeal has been premised. …
This Court, on the principle of stare decisis, will hold itself bound by its previous decision on the same facts and issues except where it is satisfied that its previous decision was erroneous and/or was reached per incuriam: …
Since every counsel appearing in this Court, being an officer in the temple of justice, owes the duty to this Court of ensuring that it does not deliver conflicting decisions; whenever an issue on the very fact his present appeal predicates had been decided or determined previously, it behoves the counsel, in discharge of his professional duty to the Court to draw the attention of the Court to its said previous decision(s). I take serious exception to the conspiracy of taciturn, in view of the three previous decisions of this Court arising from the same facts as the instant appeal, that counsel on both sides engaged in this appeal. I say no more.”
Section 128 of the Evidence Act, 2011 prohibits any oral testimony to alter the content of a judgment of a Court, which put the decision of the Supreme Court beyond the ambit of cross-examination. The judgment should speak for itself and it actually does. The judgment, relied upon by the respondents, was delivered on Friday, 21/07/1978, in suit no. SC. 305/1976 (reported – as pleaded by respondents – at (1978) 6-7-SC 251-268). It is headed and opened, as follows:
APPELLANTS
CHIEF ODUM & ANOR (For themselves and as representing the Odums family of Orogbum Diobu).
RESPONDENTS
CHIEF P. B. O. CHINWO & 16 ORS (For themselves and as representing the Ogbunabali people of Ogbunabali Village, Diobu).
SOWEMIMO, J.S.C. (Delivering the Leading Judgment): The plaintiffs in this case claim for themselves and for the representatives of the Odum Family of Orogbum Diobu, whilst the defendants were sued for themselves and as representing the Ogbunabali people of Ogbunabali village, Diobu. The institution of proceedings by the plaintiffs was caused by the defendants challenging the right of the plaintiffs to lease land to a private company for development purposes. The defendants contended that the whole area of Ogbunabali is communal land to which both parties have the right of use and occupation as in the case of each portion occupied by each of the 24 families. If at any time any family intends to part with any portion of its holding, the consent of the whole family must be obtained. It was the refusal of the plaintiffs to obtain the consent of the other members of their family that gave rise to this case. The plaintiffs claim declaration of title to the whole area of land occupied by their family (Odum family), averring that the land was granted to them by Chukuoka, who was a descendant of the common ancestor of both parties. The defendants, on the other hand, said that there was no such right and that the area of land in dispute, being part of the area of Ogbunabali communal land, was never granted out and out to the plaintiffs’ family. The contest in the lower Court, therefore, devolved on whether there was an out and out grant made to the plaintiffs’ family, or, on the other hand, the land was part of the communal land of the whole Ogbunabali Village, Diobu. It is not in dispute, as revealed in evidence, which we shall refer to later, that the defendants’ family comprises twenty-four sub-families of which the plaintiffs’ family is one. No evidence was led, except the ipse dixit of the first plaintiff himself, of a purported grant. There was no evidence led as to how the grant was made and as to the area allocated.
The case which the plaintiffs set out to make in their Statement of Claim was not established in their evidence. The first plaintiff claimed to be the head of Odum’s family of Orogbum Diobu, but he had to admit that up till 1972, someone else was the head chief and still held the staff of office. He also admitted that he had not been installed as a chief of the family and, therefore, could not validly say that he is the present head of the family.”
The Supreme Court concluded its judgment, thus:
“The learned trial Judge in his judgment made the following findings:-
“From the evidence, I find that Ogbunabali comprises twenty-four families one of which is the Odum family of the plaintiffs over which Gabriel Odum the D.W.5 is the head. The 1st plaintiff, in the earlier part of his evidence, claimed to be the head of Odum family which in fact he is not even as he admitted later, thus confirming evidence by the defence that he is not. Exhibit A was a Power of Attorney authorising the 1st plaintiff and others to deal with plaintiffs’ family land including the bringing of this action.
I also find that there is no indication on the plan as to the location of the area in dispute, such area ought to have been indicated on the plan. Plaintiffs purported to have given boundary descriptions of it but these boundary descriptions are not shown on the plan. The plan Exhibit C covers an area of 340.5 acres; plaintiffs are claiming 11.55 acres of this. Plaintiffs ought to have shown at which part of Exhibit C they claim the 11.55 acres – and also showing the area dimensions of the portion they claim. For what it is now plaintiffs are just claiming 11.55 acres of land without stating where the land is. This Court cannot make an order on an unidentified area of land. Where plaintiff claims land he must identify such land and must in showing such land in a plan, if he made a plan, relate it to some natural features or other known object so that the land could be easily identified for future reference and to avoid future litigations on the same land by other names. The declaration sought by plaintiffs cannot therefore be made.
It is also in evidence that the former Government paid compensation to Ogbunabali people in respect of lands at Ogbunabali West acquired by the Government. It is also in the evidence of 1st plaintiff that Ogbunabali East and West were one vast area of land prior to the construction of the road now known as Yakubu Gowon Drive which now divides it into East and West. If therefore compensation paid in respect of Ogbunabali West went to the Ogbunabali people, that is the Ogbunabali community then it follows that all lands in Ogbunabali East not the subject of private family ownership, belongs to the Ogbunabali community; so that all lands not indicated on Exhibit C to be privately owned belongs to the Ogbunabali community. I also refer to the evidence of plaintiffs’ 5th witness in examination in chief when he said “There is no land communal to Ogbunabali people except the area we planned”. The area planned is that shown in Exhibits C & D. So the area in Exhibits C & D not indicated as the property of private ownership belongs to the community.
On the fact of all these I do not find anything in support of plaintiffs’ case to warrant a finding in their favour. The plaintiffs cannot succeed and I hereby hold that their case has failed and I accordingly dismiss it.”
On appeal before us, counsel asked that the relief sought be amended to include, as an alternative relief, one of non-suit of the plaintiffs’ claim. Learned counsel for the plaintiffs also argued at first that the judgment was not supported by the weight of evidence but in the end he had to concede that the land is communal land of the Ogbunabali people. We have carefully considered the arguments and replies of both counsel on the issue of non-suit and have come to the conclusion that in view of the findings of fact by the learned trial Judge, which are amply supported by the oral and documentary evidence in the case, that this is a case in which the order made by the learned trial Judge, that is, one of dismissal of plaintiffs’ claim, is the correct order. We have considered the following cases:-
Titus Sogunle and Ors. v. Amusa Akerele and Ors. (1967) NMLR Page 58;
Ajibade Garuba v. Abu Akacha (1966) NMLR Page 62;
Yesufu Dele and Family v. Adelabu and Family (1966) NMLR Page 105;
Okwo Ejiofor v. Eze Onyekwe and Ors.(1972) 1 ANLR Page 527;
Idundun and Ors. v. Daniel Okumagba (1976) 9-10 S.C. page 227; and
Sir Adesoji Aderemi v. Joshua Adedire (1966) NMLR page 398.
We would like to adopt the reasoning in the last case cited, the facts of which are similar to this one, and emphasise that although the claim is being dismissed, both parties are agreed that the plaintiffs’ family have a right to the use and occupation of the land occupied by them at present on which they have built houses and cultivated farms.
The appeal is therefore dismissed with costs assessed at N335 to be paid by the plaintiffs/appellants to the defendants/respondents.”
The first thing to be derived from the judgment, quoted above, is the fact that contrary to the contention of the appellant, there is actually a community known as Ogbunabali community, which has once litigated the question of communal ownership of the land in their community up to the Supreme Court. The Supreme Court upheld the decision of the trial Court. The trial Court confirmed that ownership of land in Ogbunabali community is primarily communal, while private ownership is an offshoot of the communal ownership. A previous judgment can properly constitute prima facie act of possession where it pertains to the land in dispute. See Achiakpa v. Nduka [2001] 14 NWLR (Pt. 734) 623 at 633.
The respondent, who admits being a member of the Orogbum part of Ogbunabali community is bound, as a privy, by the Supreme Court judgment, which the lower Court relied upon. See Osunrinde v. Ajamogun [1992] 6 NWLR (Pt. 246) 156 at 187. The appellant cannot contend that land in Ogbunabali is not primarily communally owned. Having cited a previous decision of a superior Court of record, the respondents discharged their duty to prove their case, prima facie, to the effect that land in their community is communal land. Where a Court of competent jurisdiction has settled, by a final decision, the matters in dispute between the parties, neither, party nor his privy may re-litigate that issue again by bringing a fresh action. The matter is said to be res judicata. The estoppel created is one by record inter partes. See Ogbogu v. Ndiribe [1992] 6 NWLR (Pt. 245) 40.
It, thus, turned on the appellant to prove private ownership, which exists in the community, of the land in dispute. The lower Court found as a fact that the appellant failed to prove that fact. In fact, the record of appeal shows that a member of the appellant’s family testified against the interest of the appellant. Christian Amadi, CW 2, in his statement on oath dated 13/08/2008, testified as follows:
“2. That I am the 8th Claimant on record in this suit.
3. The other Claimants in this suit are members of Ogbum-nu-Abali Community. I am also an elder and Opinion Leader in Oroada family and Ogbum-nu-Abali at large.
4. That I know the Defendant in this matter, he is from Chinda family in Oroada, Abali all in Ogbum-nu-Abali Community.
5. That Defendant and myself are of the same Oroada family of Oroabali in Ogbum-nu-Abali.
6. That no member of our Oroada family had ever laid claim or exercised any act of ownership of any portion of Nkpokwum land from time immemorial except the Defendant.
7. I know that the Defendant’s father has never been in possession of any part of Nkpokwum land during his lifetime.
8. I know that Ogbum-nu-Abali Community has in several occasions granted lease or license to companies without the Defendant not the Defendant’s late father never raised any adverse claim.
9. The Defendant, his fore bearers nor the larger Oroada family where I belong have never laid claim of ownership of the Nkpokwum land or any portion of it now in dispute.”
Under cross-examination by appellant’s counsel, the witness answered questions as follows:
Q: You are from Oro-Abali Community.
Ans: Yes.
Q: Your family has land in Oro-Abali.
Ans: Yes.
The appellant’s counsel, just like he did with all respondents’ witnesses, failed to ask about communal ownership of land in Ogbunabali or how the witnesses acquired interest, which they testified in respect of, over land in Ogbunabali. The lower Court aptly captured the case of the respondents, when it restated that private ownership of land in Ogbunabali, is an offshoot of communal ownership. The appellant conducted the appeal as if the evidence of CW 2 does not exist on the record. The appellant did not even mention the witness, when he testified.
The appellant, who testified that there is no community known as Ogbunabali, slipped up, under cross-examination, when he admitted that he lived in the community, whose name he earlier claimed only refers to a road. Under cross-examination, the appellant answered questions as follows:
Q: Your father worked with Shell.
Q: Yes; Shell B. P.
Q: So he was educated.
Ans: I think so.
Q: He lived all his life in Ogbunabali community
Ans: No. My father and mother and two daughters came to Ogbunabali as a refugee from Oro-Ada, Rebisi. I am from Abali, Ogbum.
At page 314 of the record of appeal, the appellant’s witness, DW 2, testified, in acknowledgement of the existence of the Obunabali community, as follows:
Q: There was a time that you and your family, the Oparaeli family, had issues with the Ogbunabali community over ownership of that land where the daily market is located, and the matter went to Court, correct?
Ans: Yes. My father had issue with the Ogbunabali communities.
The lower Court, also found as a fact, that the respondents proved other acts of possession, apart from the judgment of the Supreme Court, which included the documents tendered, as exhibits C1-C6, showing that the respondents have been leasing parts of the land in dispute. One of the planks of the respondents’ case, as pleaded, is proof by acts of possession. Where there is oral and documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony. See Kimdey v. Mil. Gov. Gongola State [1988] 2 NWLR (Pt. 77) 445; Fashanu v. Adekoya [1974] 6 SC 83; Jinadu v. Esurombi-Aro [2005] 14 NWLR (Pt. 944) 142 at 192.
On the question whether respondents abandoned their claim that the land in dispute is communally owned, the trial Court at pages 332-333 of the record of appeal, held as follows:
“28. The defendant’s learned counsel, Mr. B. Obiorah, has vigorously attacked the Claimant’s traditional history. He contended that none of the Claimants’ five witnesses gave evidence, either in Chief or under cross-examination of the land being held communally.
30. This strong attack was not answered by claimant’s counsel. But in my opinion this attack by counsel is absolutely untenable, as the claimants’ witnesses both in their witness statements and in Court testified that the land was communally owned. See for example CW 1 Sir G. A. Owhorodu in paragraphs 5 and 7 of his witness statement; CW 2 Christian Amadi in paragraphs 8 and 10 of his witness statement (which is misnumbered by counsel); and CW 3 Alvan Ikegwuru in paragraphs 5 and 7 of his witness statement.”
On the issue of whether the respondents fatally failed to file a reply to the statement of defence and counter-claim of the appellant and its effect, at pages 333-334 of the record of appeal, the lower Court held as follows:
“32. Learned defence counsel submitted that the failure to reply to these averments means in law that the claimants have admitted them. …
33. It is noteworthy that the Claimants counsel failed to respond to the foregoing, critical submissions. …
34. However, it is my respectful opinion that the defendant’s learned counsel is, as to whether the Claimants ought to have filed a reply to the statement of defence, wrong. This is because the core of the Claimant’s case is that, except for family holdings, the entire Mkpokum land is communally owned. Odum v. Chinwo (1978) 6 & 7 SC 251. Accordingly, it was the defendant who needed to answer those averments and, in doing so, the defendant merely joined issues thereon. He did not thereby raise a fresh issue to which the Claimants must reply.”
Without the appellant dislocating the findings, quoted above, which are justified by evidence on the record, this Court is bound to resolve the first issue in favour of the respondents and against the appellant.
CONCLUSION
Where a trial Court has exercised its discretion over a matter, an appellate Court should not interfere on the ground that it might have exercised the discretion differently, if it were in a position to do so. However, and in appropriate cases, an appellate Court is entitled to interfere with the exercise of discretion of a trial Court if the appellate Court is satisfied that it is in the interest of justice to do. See Ceekay Traders Ltd. v. Egeibon (1994) 6 NWLR (Pt 348) 23 at 41.
The lower Court exercised its discretion, in the appeal before us, in a competent and just manner, based on admissible evidence before it. This Court is not enabled to tamper with the exercise of the lower Court’s discretion in refusing the counter-claim of the appellant and granting the claim of the respondents. In sum, it is my determination that the judgment of the lower Court should not be reversed.
The appellants have not been able to show that there was miscarriage of justice, occasioned by the judgment of the lower Court. There is no merit in this appeal. The judgment of the lower Court is sound and hereby affirmed. This appeal is dismissed.
HARUNA SIMON TSAMMANI. J.C.A.: My learned brother, Olabode Abimbola Adegbehingbe, JCA gave me the advantage of reading in advance, the judgment just delivered.
My learned brother extensively and exhaustively considered the issues that came up for determination in this appeal. Apparently, this appeal is devoid of merit, I therefore agree with my learned brother that it be dismissed. The appeal is accordingly dismissed.
TANI YUSUF HASSAN, J.C.A.: I had the preview of the lead judgment delivered by my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA, and I agree there is no merit in this appeal. I also dismiss same and affirm the judgment of the lower Court
Appearances:
Frank O. Okpara, Esq. holding Benjamin Obiora’s brief. For Appellant(s)
D. A. Jaja Esq. For Respondent(s)
