CHRISTOPHER OGBEMUDIA & ORS. v. EKHATOR OTABOR & ORS. (2012)

CHRISTOPHER OGBEMUDIA & ORS. v. EKHATOR OTABOR & ORS.

(2012)LCN/5530(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 4th day of July, 2012

CA/B/203/2007

RATIO

COURT: PRIMARY DUTY OF THE TRIAL COURT

It is well settled in our law that matters relating to evaluation of facts, assessment of evidence and consideration of veracity in the testimony of witnesses are essentially and intrinsically questions of fact to be determined primarily by the court of trial.

See KASIEDU v. DOMPREH (1935) 2 WACA 253.

FATOYINBO v. WILLIAMS (1956) 1 FSC 37 and

AJAO v. ALAO (1986) 5 NWLR (Pt.45) 802 at 814. PER CHIOMA EGONDU NWOSU-IHEME J.C.A.

APPEAL: ATTITUDE OF THE APPEAL COURT TOWARDS FINDINGS OF FACT MADE BY THE TRIAL COURT

Equally settled is the law that where there are specific findings of fact in the court of trial in respect of an issue, a court of appeal will be most reluctant and indeed seldom will interfere with such findings see AJAO v. ALAO Supra. In the instant case not just that there were findings of fact by the trial court, those findings were also affirmed by the appellate High Court. In other words, there have been concurrent findings of fact by two lower courts.

Therefore an appellate court will not interfere with concurrent findings of fact of two lower courts unless such findings are shown to be perverse or not the result of a proper exercise of judicial and judicious discretion. See KIMDEY v. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (Pt.77) 445 at 457 and OGUNDIPE v. AWE (1988) 1 NWLR 118 at 725. PER CHIOMA EGONDU NWOSU-IHEME J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1) CHRISTOPHER OGBEMUDIA
2) DAVID OGBEMUDIA
3) OSAKUE IZEDOMWEN
4) OKUNGBOWA
5) THOMAS OSAREMWINDAMWEN
6) OMOGIATE IDEHEN
7) ISERHIERHIEN UHUNMWANGHO
(For themselves and on behalf of Ohen Quarters in Irokhi Village) Appellant(s)

AND

1) EKHATOR OTABOR
2) OGBEMUDIA AIRHIONBHARE
3) OMOREGIE OTABOR
4) EDUGIE AVIENYIO
5) OKPOAVBIE IDEHEN
6) FEDERAL IDEHEN
7) OSAYOMABOR IKHIMWIN
8) IMUENTIYAN EZUKUSE
9) BACKSON ISMIKA
(For themselves and on behalf of Igiehen Quarters in Irokhi Village) Respondent(s)

CHIOMA EGONDU NWOSU-IHEME J.C.A. (Delivering the lead judgment): The Suit from which the present appeal emanates was commenced by the Appellants as Plaintiffs at the Area Customary Court sitting at Abudu in Edo State against the Respondents as Defendants. Both parties were of the same IROKHIN Community though of different quarters. While the Appellants hail from OHEN quarters, the Respondents hail from IGIEHEN quarters. The claim before the Customary Court was originally for declaration of title to land, damages for trespass and perpetual injunction. Later the claim was amended twice. The last amendment granted by court was headed “Further Amended Claim and sought the following reliefs at pages 28-28a (34-35) of the Records:
“1. That the Plaintiffs are entitled to enter, farm, harvest their crops in their farms indicated in the Survey Plan No. ER 3579, the land now in dispute.
2. Perpetual injunction restraining the defendants, their servants, agents, or privies from entering the land to disturb the Plaintiffs’ farming on the said land.”
The Suit went for trial at the Benin Customary Court, upon its transfer to that court, at the end of which the Customary Court dismissed the Appellants’ case holding as it did that the Appellants (as Plaintiffs) “Failed to prove their case on the balance of probability.”
Dissatisfied with this dismissal, Appellants appealed to the High Court which appeal was heard by Akomolafe-Wilson J who in a considered Judgment dismissed same. Hence the present appeal.
By their amended Grounds of Appeal, Appellants complaints against the Judgment of the High Court are hinged on Eight Grounds. These Grounds without their particulars read:
”GROUND ONE
That the learned appellate Judge erred in law by not resolving the issues raised in some of the grounds of appeal by glossing over or ignoring them.
GROUND TWO
That the learned appellate Judge erred in law in affirming the finding of the trial court that the land is communal.
GROUND THREE
That the learned appellate Judge erred in law in failing to resolve the issues raised in some grounds of appeal which resolution would have led to the final decision in this case.
GROUND FOUR
That the appellate High Court erred in law in adjudicating on a claim not extant before the court that is, not existing before the court;
GROUND FIVE
That the learned trial court erred in law in admitting inadmissible evidence and the appellate Judge fell into the same error as follows:
(a) A court’s judgment cannot be brought to the attention of court safe by an original or certified copy of same by virtue of Section 97 (1) (e) and 97 (2) (c) of Evidence Act. Both trial and appellate courts admitted oral testimony of PW1 and 2 as evidence of admission of contents of a Judgment of the case between Ewuodogun and Irokhin and this influenced both courts to hold that the land is communal.
(b)The content of a claim is no evidence which the appellate Judge would have acted upon as admission, more so after that claim had been amended.
GROUND SIX
That the style adopted by the appellate Judge was not in accordance with legal principles, namely:
(a) Appellate courts are enjoined to resolve all relevant issues submitted for adjudication and show in the record that it is so done.
(b) In resolving issues, the court is enjoined to resolve the issues as set out, or formulate its own or combine some issues and resolve them. Apart from issues 1 and 4 which the appellate Judge said he was resolving together, no other issue or ground of appeal was adverted or properly treated.
GROUND SEVEN
The appellate trial Judge erred in law in holding that there was no sufficient evidence of title (it having held that title was in issue) when
(a)There was no evidence from the defendants/respondents as to the founding of the land.
(b)The land was not proved to have been founded by a common ancestor.
(c)It was not bought with a common money contributed by all Irokhin Citizens.
(d)The trial and appellate courts found that the only one man (Alfred Agbontaen) whom 1st Plaintiff said has land there and believed by both appellate and trial courts to have individual land he inherited from his father is from defendants’ quarters, but the Plaintiffs men did not inherit their own from their fathers.
GROUND EIGHT
The learned appellate High Court Judge erred in law by making a case for the Respondents when she made the following findings:
1. That the Plaintiffs said that the whole land in dispute belongs to Ohen quarters and none of the defendants has land there.
2. That the portion given to Alfred Agbontaen was allocated/allotted to him by Irokhin community.
3. Alfred Agbontaen held his portion under communal usage and not by inheritance from his father.
Three issues were distilled by the Appellants on the above grounds of appeal as follows:
“1. Assuming it is correct as found by the trial court and confirmed by the appellate High Court that title was in issue and the Plaintiffs failed to prove title ought not the High Court to have set aside the finding or declaration of the trial court to the effect that the land was communal when:
(a) no counter claim was filed by defendants asking for such relief,
(b) and/or when the community in favour of whom the finding or declaration was made was not a party to the proceedings.
2. Assuming that the claim to communal ownership is sustainable is there any evidence on record from which it can be held that the land in dispute is communal and not for individuals?
3. Is it correct that title was in issue? If so is the evidence adduced at the trial insufficient to establish title of the Plaintiffs and right to the grant of injunction?
The Respondents also formulated three issues as arising for determination but phrased differently in the following terms:
ISSUES FOR DETERMINATION
ISSUE I
WHETHER THE TRIAL COURT PROPERLY EVALUATED THE EVIDENCE OF THE PARTIES AND THEIR WITNESSES BEFORE DELIVERING ITS WELL CONSIDERED JUDGMENT WHICH WAS AFFIRMED BY THE LEARNED JUDGE OF THE APPELLATE HIGH COURT.
ISSUE II
WHETHER TITLE IS NOT IN ISSUE HAVING REGARD TO THE EVIDENCE ADDUCED AND DOCUMENT TENDERED AND IF SO WHETHER THE APPELTANTS HAVE SUCCEEDED IN PROVING THEIR TITLE BY TRADITIONAL HISTORY.
ISSUE III
WHETHER THE TRIAL COURT WAS RIGHT IN HOLDING THAT THE LAND IN DISPUTE IS IN JOINT POSSESSION OF BOTH PARTIES HAVING REGARD TO THE AVAILABLE EVIDENCE AND EXHIBIT P1.
It appears to me that the main complaint in this appeal arising from the Grounds of Appeal and the issues formulated therefrom is the affirmation of the appellate High Court of the findings of the trial Customary Court that title was in issue in the matter and that the land was the communal property of both parties to the Suit. Therefore, the issue in this appeal becomes narrow and comes to thus:
“Whether the appellate High Court was right in affirming the findings of the Customary Court as to whether title was in issue and the nature of title to the land in dispute.”
The arguments of counsel on both sides of the divide concentrated on this sole issue and the current findings of the two lower courts thereon.
Learned counsel for the Appellants, Mr. Umasabor had argued in his brief that the appellate High Court was wrong to have affirmed the finding of the trial Customary Court that the land in dispute was communal to both parties when the Respondents made no counter claim for such a relief. He argued that the burden was on the Respondents as defendants at the Customary Court to prove the communal nature of the land in dispute. It was the argument of learned counsel for the Appellants that the learned Judge of the appellate High Court made reference to a 2nd amended claim which had been further amended to reach the conclusion that both parties descended from a common ancestor. He submitted that once a claim had been amended, the original claim no longer defined the issues between the parties. Counsel further contended that it was on the basis of this reliance that the lower High Court found communal ownership of the land in dispute by the parties to the Suit when the Appellants as Plaintiffs had in their evidence claimed they predominantly occupy and use the land in dispute. Copious references were made to the evidence of witnesses called by the Appellants. Counsel finally submitted that if the current finding on communal ownership is set aside as perverse, ownership of the land by Appellants and trespass thereon by Respondents were made out as to entitle the Appellants to their claim for injunction.
In his reply, learned counsel for the Respondents, Mr. Ebu, submitted that the trial Customary Court properly evaluated the evidence of both parties and their witnesses before making its findings of fact on the crucial areas of the case. It was counsel’s further submission that the pronouncement of the trial court that the land in dispute was communal to both parties was not a declaration in favour of the Respondents but a finding of fact based on the evidence. The appellate High Court, counsel further submitted thoroughly examined the Judgment of the trial court in relation to those findings and being satisfied with those findings based on the evidence adduced at the trial court, affirmed them. There was, therefore, he submitted two concurrent findings which this court should not interfere with.
As I said elsewhere in this Judgment, the cardinal point in this appeal is the challenge of the concurrent findings of fact in the two courts below i.e. the trial Customary Court and the appellate High Court. The High Court affirmed the findings of fact by the trial Customary Court that “the land in dispute is Irokhin Communal land and that it does not belong to the Appellants alone” (page 52 of the records).
The trial Customary Court in reaching the above finding which the appellate High Court affirmed, made a thorough, painstaking, critical excursion and proper evaluation of the evidence led before it by the parties at pages 50-57 of the records. The appellate High Court at pages 138-143 properly examined the evidence upon which the trial Customary Court based its aforesaid findings before reaching the conclusion as it did at pages 141 and 142 of the Record of Appeal that:
“After an exhaustive appraisal of the testimonies of the witnesses from both parties and a critical examination of Exhibit P1 which in fact showed that the Suit between Irokhin and Evhdogun as shown in Exhibit P1 revealed that the action was filed on representative capacity for and on behalf of Irokhin Community and not Ohen quarters of Irokhin Community, the court logically and in my view, rightly arrived at its thus:
“We therefore find as a fact that the land in dispute was and is still in the joint possession of the parties to this Suit.”
There is no basis for me whatsoever to fault the finding and the sound reasoning of the court below in this regard. I am in full accord with the President and members of the Abudu Area Customary Court when it held at page 56 lines 33-34 that “the Plaintiffs have woefully failed to show that they have a better title than the Defendants. They have failed to adduce evidence to prove their claim before the trial court …”
It is well settled in our law that matters relating to evaluation of facts, assessment of evidence and consideration of veracity in the testimony of witnesses are essentially and intrinsically questions of fact to be determined primarily by the court of trial.
See KASIEDU v. DOMPREH (1935) 2 WACA 253.
FATOYINBO v. WILLIAMS (1956) 1 FSC 37 and
AJAO v. ALAO (1986) 5 NWLR (Pt.45) 802 at 814.

There is a well settled presumption of the correctness of the findings of fact of courts below and the presumption must be displaced to reverse such findings of fact. See WLLIAMS v. JOHNSON 2 WACA. 25.
Therefore an appellate court will not interfere with concurrent findings of fact of two lower courts unless such findings are shown to be perverse or not the result of a proper exercise of judicial and judicious discretion. See KIMDEY v. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (Pt.77) 445 at 457 and OGUNDIPE v. AWE (1988) 1 NWLR 118 at 725.
In the present appeal, this court has been invited to reverse the findings of fact of the two lower courts that looked into the land dispute between the parties. Where there are concurrent findings of fact and concurrent Judgments of two lower courts, as in the instant case, the burden is on the Appellants to show exceptional circumstances that could justify interference with the concurrent verdict. See OJO v. GOVERNOR OF OYO STATE (1989) 1 NWLR (Pt.95) Page 1 at page 10; and OKONKWO v. ADIGUN (1985) 1 NWLR (Pt.4) 694 at 699. I have considered with studious attention and clarity of mind, the submissions of learned counsel for the Appellants and his attack on the findings but I do not find any exceptional circumstances flowing from his submissions and attack that should justify any interference with the two concurrent findings of the lower courts.
The appellate High Court was, in my view, infinitely right in his affirmation of the findings of fact of the trial Customary Court and in dismissing the appeal of the Appellants before him.
In the result, the issue in this appeal is resolved against the Appellants in favour of the Respondents. The Grounds of Appeal fail and the appeal is dismissed in its entirety. The Appellants will pay Respondents costs fixed at N30,000.00.

RAPHAEL CHIKWE AGBO J.C.A: I agree.

OYEBISI FOLAYEMI OMOLEYE. J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Nwosu-Iheme, JCA. I am in agreement with him that this appeal ought to be dismissed and I dismiss it accordingly.

Appearances

E. G. UmasaborFor Appellant

AND

J. UkpeborFor Respondent