EBEKE & ANOR v. EGWU & ORS
(2020)LCN/14771(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/E/21/2018
RATIO
APPEAL: ATTITUDE OF THE COURT TO PROLIFERATION OF ISSUES
Issues for determination derive their existence from the grounds of appeal, proliferation of issues becomes apparent where the number of issues exceeds those of the grounds of appeal. This is totally unacceptable in an appeal and is generally frowned upon. See UNITY BANK PLC VS. EDWARD BOUARI (2008) 7 NWLR (PT.1086) 372, IKUFORIJI VS. FRN (2018) LPELR-43884(SC) and ROE LTD VS. UNN (2018) LPELR-43855(SC). PER KAYODE OYEWOLE, J.C.A.
ACTION: WHETHER A PARTY IS ALLOWED TO APPROBATE AND REPROBATE
A party cannot be permitted to approbate and reprobate. They cannot on appeal, be permitted to canvass the opposite of the case freely stated by them at the trial. See OSUJI VS. EKEOCHA (2009) LPELR-2816(SC), OHIAERI & ANOR VS. AKABEZE & ORS (1992) LPELR-2360 (SC) and EZOMO VS. A.G. BENDEL STATE (1986) 4 NWLR PT 36) 448 at 462. PER KAYODE OYEWOLE, J.C.A.
COURT: PURPOSE OF THE CUSTOMARY COURT
A customary Court exists basically to do justice between the contending parties before it in a most simple manner devoid of all nuances of technicalities. See AGBASI & ORS VS. OBI & ORS (1998) 1-2 SC 26. PER KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
- NZE DAVID OWORA EBEKE 2. OGBONNA OTUU INYA (FOR THEMSELVES AND ON BEHALF OF THE IBE OMAKA UGBALA AMADI LINEAGE, AFIKPO NORTH L.G.A.) APPELANT(S)
And
- OWORA EGWU 2. NKAMA EGWU OWORA 3. OKO EGWU OWORA (FOR THEMSELVES AND ON BEHALF OF EGWU OWORA FAMILY OF UNWANA, AFIKPO NORTH L.G.A., EBONYI STATE) RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Customary Court of Appeal, Ebonyi State, holden at Abakaliki, delivered on the 30th July, 2015 coram Hon. Justice O. OGBONNA (presiding), Hon. Justice E. N. NWIBO (delivered lead judgment) and Hon. Justice O. ELEKWA.
The Appellants were uncomfortable with the activities of the Respondents on their land and after various steps to redress the situation within their Unwana Community in Afikpo North Local Government of Ebonyi State failed to yield the desired outcome, initiated litigation which after several hiccups, was eventually heard by the Customary Court of Afikpo North Local Government Area of Ebonyi State. The reliefs sought by the Appellants in that action are as follows:
1. A declaration that they are entitled to the Customary right of occupancy and use of the parcel of land known as and called “ORJI NDEMIYI or ICHAKARA” situate at Mater Road, leading to Ogub Akpu, Unwana within the jurisdiction of this Honourable Court.
2. An injunction restraining the defendants, their agents, privies and those working
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for them from further entry into/make use of the remaining portion of land which is still vacant.
3. An order of Court directing the defendants to refrain from further erection of new building on the land until the final determination of the case.
4. Two Thousand Naira (N2,000) damages to be paid by the plaintiffs.
After taking evidence from the witnesses for the two sides, the trial Customary Court embarked on a visit to the locus in quo before reserving judgment. The case of the Appellants that they were the owners of the land in dispute was not disputed by the Respondents. The area of dispute was narrowed down to the plot of land said to have been granted to the Respondents but which the Appellants had retrieved in the course of the dispute. The trial Customary Court in its judgment found substantially in favour of the Appellants but equally found for the Respondents with respect to the plot of land measuring 50ft by 100ft hitherto granted them by the Appellants.
The Appellants were dissatisfied and appealed to the Court below. The Respondents were equally dissatisfied with the size of the plot granted in their favour and
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cross-appealed. After hearing the arguments of the respective sides, the Court below delivered a considered judgment wherein both the appeal and the cross-appeal were dismissed. Dissatisfied with this outcome, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 5th August, 2015 containing three grounds.
At the hearing of the appeal, the learned counsel for the Appellants, Mr. Aliugo adopted the Appellants’ brief filed on the 14th March, 2018 but deemed properly filed and served on the 24th September, 2020 as well as the Appellants’ Reply brief filed on the 22nd September, 2020 but equally deemed properly filed and served on the 24th September, 2020 as the arguments of the Appellants in furtherance of this appeal. For the Respondents, their learned counsel, Chief Nkaa adopted their Respondents’ brief filed on the 17th April, 2018 but similarly deemed properly filed and served on the 24th September, 2020 as the arguments of the Respondents in contesting the appeal.
The Appellants distilled three issues for determination as follows:
1. Whether the learned Justices made a correct
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approach in the evaluation of the evidence when it affirmed the judgment of the Customary Court, Afikpo who directed the Plaintiff/Appellants to release one plot of land in dispute measuring 50ft by 100ft to the Defendant/Respondents contrary to the custom and tradition of Unwana people or any known law with respect to acquisition of title to land.
2. Whether or not the learned Justices properly directed themselves when in the course of their findings or evaluation of evidence did not support their judgment with respect to the directive that the Appellants should release one plot of land measuring 50ft by 100ft to the Respondents without tying same to any customary law or any known law which deals with sale of land.
3. Whether or not the learned Justices properly directed themselves when it deviated from the record of proceedings to hold that the Appellants admitted selling one plot of land measuring 50ft by 100ft to the Respondents’ father.
The Respondents on their part chose to worship at the false altar of prolixity when they formulated four issues from the three grounds of appeal thus:
1. Whether the trial Court has jurisdiction
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to try this case in view of the decision of High Court Afikpo in HAF/97M/2013.
2. Whether the trial Court was right in holding that Exhibit “A” which is the product of the arbitration did not bind parties.
3. Whether the trial Court was right in concluding that one plot of land means 50x100ft without survey plan or concrete evidence.
4. Whether the trial Court was right in not considering possession of land for over 30 years as a prima facie evidence of title.
Issues for determination derive their existence from the grounds of appeal, proliferation of issues becomes apparent where the number of issues exceeds those of the grounds of appeal. This is totally unacceptable in an appeal and is generally frowned upon. See UNITY BANK PLC VS. EDWARD BOUARI (2008) 7 NWLR (PT.1086) 372, IKUFORIJI VS. FRN (2018) LPELR-43884(SC) and ROE LTD VS. UNN (2018) LPELR-43855(SC).
As if proliferation was not bad enough, the Respondents formulated their issues without any recourse to the grounds of appeal bringing up their disagreements with the judgment of the Court below without filing a cross-appeal. This is most improper. The issues thus
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formulated by the Respondents shall be discountenanced. See ROBA INVESTMENT LTD VS. AREWA METAL CONTAINERS LTD (2010) LPELR 4900, AKINWUNMI GIWA VS. HON. OLA JEJELOLA (2014) LPELR 22692 (CA) and OKWUDILI UGO VS. OBIEKWE & ANOR (1989) LPELR-3319(SC). The three issues of the Appellants are on the same subject-matter and shall therefore be taken together juxtaposed with the relevant arguments of the Respondents.
Mr. Aliugo submitted for the Appellants that the Respondents failed to establish their entitlement to the one plot of land awarded them by the trial Customary Court and that the document brought forward by them and admitted as ID at trial had no evidential value and should not have been relied upon by the trial Customary Court. Learned counsel referred to PHOEBE OKEHI & ANOR VS CHIEF EDDY NWOKO (2002) 5 WRN 105 and CAPPA & D’ALBERTO LTD VS AKINTILO (2003) 9 NWLR (PT 824) 49.
It was further submitted that there was no evidence that the Respondents had any transaction with the Appellants leading to their being granted the said one plot and that the Court had no business awarding what was not claimed nor proved by a party. He
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referred to STANDARD ENG. CO. LTD & ANOR VS NIGERIA BANK FOR COMMERCE AND INDUSTRY (2006) 6 MJSC 132 at 150 and OLUROTIMI VS IGE (1993) 8 NWLR (PT 311) 257.
The Appellants challenged the evaluation exercise carried out by the two lower Courts on the ground that the two exercises did not follow the extant legal principles. Learned counsel referred to MOGAJI & ORS VS ODOFIN & ORS (1978) 3 SC 91 at 95, UCHENDU VS OGBONI (1999) 4 SCNJ 64, EZEOKE & ORS VS NWAGBO (1988) 3 SCNJ 37 at 48 and OLADEHIN VS CONTINENTAL TEXTILE MILLS LTD (1973) LRN 60 at 64.
He submitted that the Respondents failed to establish the ingredients of sale of land under customary law in respect of the plot of land granted them by the trial Customary Court. He referred to ADEDEJI VS OLOSO (2007) 5 NWLR (PT 1026) 133 at 167.
Finally, it was submitted that there was no record of the supposed admission of the Appellants that they sold the plot of land in question to the Respondents.
On the part of the Respondents it was contended that the dispute was as to size of the plot of land said to have been sold or given to them by the Appellants and that while
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they failed to adduce specific evidence of the dimension of the said plot, this could have been ascertained by the trial Customary Court in the course of its visit to the locus in quo.
It was further submitted by Chief Nkaa that the possession of the said land by the Respondents for over 30 years without contest from the Appellants raises the equity of laches and acquiescence in their favor.
In his Reply brief, Mr. Aliugo reiterated his earlier submissions that the Respondents failed to establish their title to the said plot of as the supposed sale was without the consent of the head of the family. He referred to BABAYEJU VS ASHAMU (1998) 7 SCNJ 158 at 166, BELLO ADEDUBU & ANOR VS MAKANJUOLA 10 WACA 13, ESAN VS FARO 12 WACA 135 and AGBLOE VS SAPPOR 12 WACA 187.
In addition submitted that possession no matter how long would not ripen to title against the true owner and that in the absence of title acts of possession amount to trespass. He referred to ARINZE VS BAMGBOSE (2015) ALL FWLR (PT 768) 968 (CA) at 985, YUSUF VS ADEGOKE (2007) 6 SC (PT 1) 126, MOGAJI VS CADBURY NIG. LTD (1985) 2 NWLR (PT 7) 393 and DA COSTA VS IKOMI (1968) 1 ALL NLR 394.
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As earlier indicated, the gravamen of the issues here centers around the award of a plot of land to the Respondents from the larger piece of land found to belong to the Appellants. The complaints were against the evaluation of the adduced evidence. It is now trite that evaluation of evidence and ascription of evidential value thereto is the primary responsibility of the trial Court which had the opportunity of seeing, hearing and observing the demeanors of the witnesses. An appellate will hesitate from interfering with such evaluation exercise unless the outcome will be perverse resulting in miscarriage of justice. See ABISI & ORS VS. EKWEALOR & ANOR (1993) LPELR-44(SC), ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) 360, EGBE VS ADEFARASIN (1987) 1 SC 1, OLUJINLE VS. ADEAGBO (1988) 2 NWLR (PT.75) 238; OJO VS. GOVERNOR OYO STATE (1989) 1 NWLR (PT 95) 1.
The primary complaint is as to whether there was evidential basis for the award of the plot of land measuring 50ft by 100ft to the Respondents. From the last two lines of page 4 to line 6 of page 5 and 10-12 of page 6 of the record of appeal contain the following testimony of PW1 at the trial:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The 1st defendant trespassed into one plot out of the eight plots set aside for the family building by entering into the land clearing. Despite the fact that he refused to perform the customary rite, we the members of Ibe Omaka maternal family still left the one plot of land for him. The 1st defendant entered and build a thatch house on that one plot of land that was given to him from there he started expanding his farming activities on the remaining plots of land. He started laying claim to two plots ten feet instead of one plot that was given to him….
The resolution of our family members to give one plot of land to the defendant was communicated to the elder brother of the 1st defendant.
On page 9 from lines 3 to line 3 of page 10 of the record of appeal, PW1 stated further:
We therefore went to the land, myself and the 2nd Plaintiff and other members of the family, including the senior brother to the 1st defendant, and measured one plot (i.e 50ft by 100ft) and we showed it to the senior brother of the 1st defendant, and told him this is your younger brother’s portion. As we were showing him the younger brother’s portion,
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the 1st defendant came in with his children, we then showed him his portion of land directly, but he rejected the portion that was shown to him, and also refused to perform the customary rite on the land. We demarcated his own portion from the rest of the land.
PW1 at trial is the 1st Appellant in this appeal. The above quoted portions were emanated from him at the trial. The grant of the plot of land measuring 50ft by 100ft to the Respondents by the Appellants was not derived from any document but from his direct testimony. PW2 was the 2nd Appellant in this appeal. He equally confirmed the grant made to the Respondents by their family. Appellants are not permitted to now canvass as they are doing that the ownership of the said plot or the dimensions thereof was not established, having conceded ownership thereof. A party cannot be permitted to approbate and reprobate. They cannot on appeal, be permitted to canvass the opposite of the case freely stated by them at the trial. See OSUJI VS. EKEOCHA (2009) LPELR-2816(SC), OHIAERI & ANOR VS. AKABEZE & ORS (1992) LPELR-2360 (SC) and EZOMO VS. A.G. BENDEL STATE (1986) 4 NWLR PT 36) 448 at 462.
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The judgment of the trial Customary Court only confirmed the admission made on oath at trial. A customary Court exists basically to do justice between the contending parties before it in a most simple manner devoid of all nuances of technicalities. See AGBASI & ORS VS. OBI & ORS (1998) 1-2 SC 26.
The complaint about the evidential value of a document admitted for identification purposes has merit. Such a document has no evidential value as it was not an exhibit in the trial which could be evaluated. See STAG ENGINEERING CO. LTD V. SABAL CO. (NIG) LTD & ANOR (2008) LPELR-8485(CA), BARDE EGWA VS. MOSES CIROMA EGWA (2007) 1 NWLR (PT 1014) 71 at 94 and BOYEWU VS. STATE (2017) LPELR-42321(CA).
The said document however did not play any important role in the finding of the trial Court. It is trite that it is not every error of the trial Court that would result in the reversal of its judgment. See A.G. LEVENTIS NIG PLC VS. CHIEF CHRISTIAN AKPU (2007) 6 SCNJ 242, OGBORU & ANOR VS. OKOWA & ORS (2016) LPELR-48350 (SC), OLONADE & ANOR V. SOWEMIMO (2014) LPELR 22914 (SC) and CHIEF IKEDI OHAKIM & ANOR VS CHIEF MARTIN AGBASO (2010) 6-7 SC 85.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In totality, I resolve the three issues against the Appellant. I find no merit in this appeal and I accordingly dismiss it.
The judgment of the Court below is hereby affirmed.
Parties shall bear their respective costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Joseph Olubunmi Kayode Oyewole, JCA just delivered. I am in total agreement with the decision reached and the reasoning behind the decision.
It is settled law that facts admitted, including oral admissions made in open Court during the proceedings need no further proof. See Section 123 of the Evidence Act and the case of DIN V. AFRICAN NEWSPAPERS OF (NIG) LTD (1990) LPELR-947 (SC). The evidence of PW1 who is the 1st appellant in this appeal contained at pages 5 — 6 and page 9 of the record of appeal as reproduced in the lead judgment constitutes a clear
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admission that the plot of land in dispute in the instant appeal was granted to the respondents. The appellants therefore, cannot canvass a case different from what PW1 clearly admitted at trial. The trial customary Court rightly granted the plot of land in question to the respondents after the said admission on oath by the appellants’ witness.
For the above reasons and of course the detailed ones adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.
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Appearances:
Mr. C. C. Aliugo For Appellant(s)
Chief S. O. Nkaa For Respondent(s)
