EDWARD O. NIKAGBATSE v. MR. GOD’POWER FRENCH & ORS (2014)

EDWARD O. NIKAGBATSE v. MR. GOD’POWER FRENCH & ORS

(2014)LCN/7382(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/B/284/99

RATIO

APPEAL: GROUND OF APPEAL; WHETHER A GROUND OF APPEAL MUST RELATE TO THE DECISION OF THE COURT
The settled legal position is that a ground of appeal must relate to the decision of the court and should constitute a challenge to the ratio decidendi in the case. See NASIRU vs. BANDAWA (2006) 11 NWLR (PT 961) 365 at 372 and SARAKI vs. KOTOYE (1992) 9 NWLR (pt. 264) 156. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPEAL: PARTICULARS OF A GROUND OF APPEAL; WHETHER THERE MUST BE A HARMONIOUS RELATIONSHIP BETWEEN THE PARTICULARS OF GROUND OF APPEAL WITH THE GROUND OF APPEAL ITSELF

In any event, the law is that there must be a harmonious relationship between the particulars of a ground of appeal with the ground of appeal itself in order for such a ground to be competent. See AJAOKUTA STEEL CO. BOARD OF TRUSTEES OF STAFF PENSION SCHEME v. ROLE (2012) 53 WRN 37 at 56 and A RIBO vs. CBN (2011) 12 NWLR (PT 1260) 12. There seems to be no correlation between Ground 2 and the particulars set out in support of it. In OLUFEAGBA v. ABDUL-RAHEEM (2009) 18 NWLR (PT 1173) 384 at 426 D – G it was stated that a ground of appeal:
“…must disclose reasonable complaint against a ratio decidendi in the decision as opposed to an obiter dictum… the particulars to a ground must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out.”
See also OGBONNAYA vs. ADAPALM NIG LTD (1993) 5 NWLR (PT 292) 147.I am not in any doubt whatsoever that Ground 2 of the grounds of appeal does not complain about the ratio decidendi in the case. Furthermore, the particulars to the ground are not in tandem with it. As held by this court, per Pemu, JCA, in ODUAH vs. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR (9220) 1 at 19 – 20: “The particulars of a Ground of Appeal are intimately related to the ground and cannot be divorced from it.
Therefore, where a particular attached to a ground does not flow from or relate to the ground of appeal, it must be struck out, in other words, the particulars as well as the ground it purportedly flows from must be struck out, as the court is not a surgeon who will excise the bad part from the ground. Thus a particular merely highlights the main ground and is not an independent complaint against the judgment.” See also HONIKA SAWMILL (NIG) LTD vs. HOFF (1994) 2 NWLR (PT 326) 252. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROVING TITLE TO LAND
Howbeit, it is settled that a plaintiff claiming a declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case, except where the defendant’s case supports the plaintiff’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 14, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (pt 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19 – 20. So it was for the Appellant to establish the entitlement to the declaration sought over the land where the defunct Okere Union School I and II were established. This is especially so because the Respondents, as Defendants in the lower court did not file a counterclaim. The heavy burden of proving title to the disputed land rested squarely on the Appellant. There was no duty on the Respondents to prove their title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160G, 163E and 165D – F and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 at 1477 C – D. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EVIDENCE: PROVING TITLE TO LAND; WAYS OF PROVING TITLE TO LAND

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

EDWARD O. NIKAGBATSE
(For himself and on behalf of the Nikagbatse-Oki Family of Odeile, Okere) Appellant(s)

AND

1. MR. GOD’POWER FRENCH
(substituted in place of Mr. French on 21/01/2013 by order of court dated)
2. THE REGISTERED TRUSTEES OF OKERE UNION
(in Suit No M/31/83)
AND
MR. SCOTT IWEJA
(substituted in place of Madam Ekurede Nikoro and Esanjumi Anthony Nikoro on 21/2013 by order of court dated)
(in Suit No M/32/83) Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, sitting at the Warri Judicial Division which was delivered on 29th May 1996. The Appellant herein, as Plaintiff in the lower court instituted proceedings in Suit No. M/31/83 against the first set of Respondents herein, as Defendants, claiming for the following reliefs:
1. A declaration that the developed land verged green and yellow in part “A” of the Plaintiffs’ survey Plan No. TJBD 1067 filed with this claim sometimes known as the defunct 2nd Okere Union School Compound is the land of the Nikagbatse-Oki family of Okere, Warri.
2. An order of ejectment of the Defendants from the said land, that is to say, that the Plaintiffs to recover possession of the premises known as the defunct 2nd Okere Union School Compound verged green and yellow in part “A” of the survey plan No. TJBD 1067 on the ground that the Plaintiffs are entitled to possession and that the Defendants are in occupation without lawful authority, licence or consent.
3. An award in favour of the Plaintiffs against the 13th and 14th Defendants of the sum of N100,000 (One Hundred Thousand Naira) as damages for acts of trespass in that they are in wrongful occupation and user of the land in dispute, thereby wrongfully depriving the plaintiffs of the said land.
4. An order of perpetual injunction to restrain the Defendants, their agents, servants or privies and/or person or persons claiming through them from entering upon the aforesaid Plaintiffs’ land or interfering in any manner whatsoever with Plaintiffs’ rights and interests in and over the said land.
5. Further and other reliefs.
In the related Suit No. M/32/83, the Appellant as Plaintiff claimed the following reliefs against the second set of Respondent herein as Defendant in the said action namely:
1. A declaration that the developed land verged pink in part ‘B’ of the plaintiffs’ survey plan No. TJBD 1067 filed with this claim sometimes known as the defunct 1st Okere Union School Compound, like all the other adjoining lands in the area verged green in the said part ‘B’ of the said survey plan, is the land of the Nikagbatse-Oki family of Okere, Warri.
2. An order of ejectment of the Defendants from the land in dispute, that is to say, that the Plaintiffs do recover possession of the premises known as the defunct 1st Okere Union School Compound, the land in dispute verged pink in part ‘B’ of the Plaintiffs’ survey plan filed with this suit on the ground that the Plaintiffs are entitled to possession and that the defendants are in occupation without lawful authority, licence or consent
3. An award in favour of the Plaintiffs against the 13th and 14th Defendants or the sum of N100,000 (One Hundred Thousand Naira) as damages for acts of trespass in that they are in wrongful occupation and user of the land in dispute, thereby wrongfully depriving the Plaintiffs of the said land.
4. An order of perpetual injunction to restrain the Defendants, their agents, servants or privies and/or person or persons claiming through them from entering upon the aforesaid Plaintiffs’ land or interfering in any manner whatsoever with Plaintiffs’ rights and interest in and over the said land.
5. Further or other reliefs.
The actions were consolidated for hearing and after a full dressed inter partes hearing in which the parties called several witnesses in proof of the relative positions averred to in their respective pleadings, the lower court in its judgment dismissed the Appellant’s case in the consolidated Suits. Being dissatisfied with the said decision, the Appellant appealed against the same. The Notice of Appeal which was filed on 23rd August 1996 is at pages 315 – 318 of the Records.
The Records of Appeal having been settled, compiled and transmitted to this court, the parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument which is dated 8th February 2013 but filed on 8th March 2013 was deemed as properly filed and served on 20th May 2014. The Respondents Brief of Argument which is dated 30th April 2013 was filed on 2nd May 2013.
The Appellant formulated two issues for determination in his brief of argument as follows:
1. Whether the judgment of the learned trial judge was perverse (Grounds 1 & 3).
2. Whether a claim for possession is in congruous or inconsistent with a claim for damages for trespass (Ground 2).
In their brief of argument, the Respondents raised a preliminary objection wherein the challenged the competence of Ground 2 of the Grounds of Appeal contending that the said ground was ambiguous, nebulous and did not relate to the decision and/or finding made by the lower court.
The Respondents then distilled a sole issue for determination in the appeal, namely:
Whether the learned trial judge made good and legal use of the opportunity of seeing and hearing the witnesses in the evaluation of the evidence before him and in his ascription of value to same.
At the hearing of the appeal, the learned counsel for the Respondent informed the court of the preliminary objection which was incorporated in the Respondents’ Brief of Argument. In arguing the appeal, Sir A.J. Oshiokpelua, learned counsel for the Appellant adopted the submissions in the Appellants’ Brief of Argument. He contended that the Respondents preliminary objection was incompetent as it was not filed in accordance with order 10 Rules 1 and 3 of the Court of Appeal Rules. He further submitted that Ground 2 of the Grounds of Appeal which is subject of the attack in the preliminary objection is a good ground as it flows directly from the finding of the lower court at page 284 fines 10 – 23 of the Records. He urged the court to allow the appeal.
Chief V. E. Otomiewo, learned counsel for the Respondents adopted the submissions in the Respondents Brief of Argument. He referred to the preliminary objection at paragraph 2.0 on page 5 of the Respondents Brief and he urged the court to uphold the preliminary objection and strike out the said Ground Two of the Grounds of Appeal. With respect to the merits of the appeal, learned counsel urged the court to dismiss the appeal.
PRELIMINARY OBJECTION
The Appellant has challenged the competence of the Respondents’ Preliminary objection on the grounds that it does not comply with the stipulations of Order 10 Rules 1 and 3 of the court of Appeal Rules. The said Order 10 Rules 1 and 3 deals with the filing of a Notice of Preliminary Objection and requires that a Respondent who intends to rely on a preliminary objection shall give the appellant three clear days notice thereof before the hearing and that where this is not done the court may refuse to entertain the objection or may adjourn the hearing as it thinks fit.
It is quite clear that Order 10 Rule 1 of the Rules does not relate to a preliminary objection that has been incorporated in the Respondents Brief. It refers to a notice of preliminary objection filed separately from the Respondents Brief. This being so the stipulation of order 10 of the court of Appeal Rules will not apply to a preliminary objection that is incorporated in the Respondents Brief as in the instant case. In any event the Appellant has not complained about not having had at least three days of the preliminary objection incorporated in the Respondents Brief. Howbeit, the current trend is to incorporate a preliminary objection in a Respondent’s Brief without necessarily having to set it out in a separate notice of preliminary objection; such an incorporated preliminary objection is valid and competent. See DAKOLO vs. DAKOLO (2011) 16 NWLR (pt 1272) 22 at 41 and AGURA vs. OROBIYI (2012) LPELR (7975) 1 at 15. Consequently there is no merit to the Appellants challenge to the competence of the preliminary objection.
Having held that the preliminary objection is competent, I turn now to consider the merits of the said preliminary objection. The substance of the preliminary objection which is an attack on Ground 2 of the grounds of appeal is that the said ground does not arise from the decision appealed against. Shorn of its particulars the said Ground 2 reads:
“GROUND 2
The learned trial judge erred in law when he failed to analyse the nature and quality of the claim before him which was an action in rem and not in personam by reason of the peculiar proceeding adopted. This has led to his miscarriage of justice.”
The settled legal position is that a ground of appeal must relate to the decision of the court and should constitute a challenge to the ratio decidendi in the case. See NASIRU vs. BANDAWA (2006) 11 NWLR (PT 961) 365 at 372 and SARAKI vs. KOTOYE (1992) 9 NWLR (pt. 264) 156. The Appellant submitted that Ground 2 flows from the finding of the lower court at page 284 lines 10 – 23 of the Records. I have considered the portion of the Records relied upon, relative to Ground 2 of the grounds of appeal. There is nothing therein which pertains to the nature of the claim having been analysed by the lower court as an action in personam as opposed to an action in rem which is the complaint in the said Ground 2.
Though in the particulars of error in respect of the said Ground 2, the Appellant set out one of the particulars as:
“(i) In any event the claims for possession and trespass in a writ are not always in-consistent as opined by the learned trial Judge.”
This no doubt flows from the observation made by the lower court on page 284 of the Records, but that is all that it is, because it is an observation which does not constitute the ratio decidendi in the case. In any event, the law is that there must be a harmonious relationship between the particulars of a ground of appeal with the ground of appeal itself in order for such a ground to be competent. See AJAOKUTA STEEL CO. BOARD OF TRUSTEES OF STAFF PENSION SCHEME v. ROLE (2012) 53 WRN 37 at 56 and A RIBO vs. CBN (2011) 12 NWLR (PT 1260) 12. There seems to be no correlation between Ground 2 and the particulars set out in support of it. In OLUFEAGBA v. ABDUL-RAHEEM (2009) 18 NWLR (PT 1173) 384 at 426 D – G it was stated that a ground of appeal:
“…must disclose reasonable complaint against a ratio decidendi in the decision as opposed to an obiter dictum… the particulars to a ground must be in tandem with it. If the particulars are at cross purpose to the ground of appeal, it becomes defective and liable to be struck out.”
See also OGBONNAYA vs. ADAPALM NIG LTD (1993) 5 NWLR (PT 292) 147.I am not in any doubt whatsoever that Ground 2 of the grounds of appeal does not complain about the ratio decidendi in the case. Furthermore, the particulars to the ground are not in tandem with it. As held by this court, per Pemu, JCA, in ODUAH vs. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR (9220) 1 at 19 – 20:
“The particulars of a Ground of Appeal are intimately related to the ground and cannot be divorced from it.
Therefore, where a particular attached to a ground does not flow from or relate to the ground of appeal, it must be struck out, in other words, the particulars as well as the ground it purportedly flows from must be struck out, as the court is not a surgeon who will excise the bad part from the ground. Thus a particular merely highlights the main ground and is not an independent complaint against the judgment.”
See also HONIKA SAWMILL (NIG) LTD vs. HOFF (1994) 2 NWLR (PT 326) 252.
From the totality of the foregoing, I must arrive at the inevitable conclusion that Ground 2 of the Grounds of Appeal is incompetent. There is merit in the preliminary objection and it is upheld. Ground 2 of the grounds of appeal together with the issue distilled thereupon are hereby struck out.
The necessary implication of the success of the preliminary objection is that it is only issue number one as distilled by the Appellant which is not at all dissimilar from the sole issue formulated by the Respondent that will now be considered in this appeal. I will therefore consider the appeal based on the said issue as distilled by the Appellant.
ISSUE FOR DETERMINATION
Whether the judgment of the learned trial Judge was perverse.
SUBMISSIONS ON THE ISSUE
It is the contention of the Appellants that the judgment of the lower court is perverse because the court gave weight to irrelevant and unproved matters and/or omitted to take relevant matters into consideration such that the three primary issues canvassed on proprietorship and ownership of Okere Union School 2, the quarter in which Okere Union School 2 is located and the ownership of the land on which Okere Union School 1 was located were wrongly resolved against the Appellant. The Appellant maintained that a proper evaluation of the evidence would have resulted in a finding that the proprietorship and ownership of Okere Union School 2 was in Wellingig Okome, who testified on behalf of the Appellant. Furthermore, that all lands in Okere are owned by families and not by the Community.
The learned counsel for the Appellant proceeded to insightfully analyse the evidence adduced, positing that the lower court considered as weighty irrelevant evidence which went to no issue and also failed to evaluate weighty and substantial evidence touching on the location and history of the Okere Union School 1 and 2. The Appellant maintained that the lower court failed to consider the root of title relied on by the Respondent with regard to the claim to ownership of the land on which Okere Union School 1 was built asserting that the same was not sufficient to establish traditional ownership of the land. It was opined that the root of title traced by the Appellant established the allodial ownership of the land and that the evidence of the Respondent did not show a continuous claim of devolution.
It is the further contention of the Appellant that the lower court having failed to properly evaluate the evidence resorted to uphold the Respondents evidence without giving any reasons. It was posited that it was wrong for the lower court to accept and believe the Respondents case without stating the reasons. The Appellant faulted the reasoning of the lower court in preferring the traditional evidence of the Respondents to that of the Appellant.
The Appellant further submitted that the lower court misdirected itself on the recent acts of possession contending that from the evidence that it was apparent the recent acts of possession relied upon by the lower court are acts of usurpation based on might is right and that the said acts of possession were fraudulent acts which should not have aided a possessory title.
In their reply, the Respondents submit that the duty of evaluating evidence and ascribing weight and value to the same is that of the trial court and that an appellate court will not interfere lightly except the person complaining is able to demonstrate on the Record that the trial court failed in its duty.
Referring to excerpts from the judgment of the lower court, the Respondents contended that the Appellant did not appeal against the finding that the Appellant’s forebear or precursor, Oki, could not have left any land for his son Nikagbatse and that where Nikagbatse, the Appellants grandfather lived, never belonged to Oki. It was also contended that the Appellants did not appeal specifically against the findings of facts that that it was not the Appellant’s father that granted the land where School I was established, just also as it was not the Appellant’s family that gave the land where School II was established.
The Respondents submitted that even after the lower court rejected the traditional evidence led by the Appellant, it still proceeded to consider recent acts of possession over the land and concluded that the Respondents produced overwhelming evidence of recent acts of possession, positive and numerous enough to lead to the inference of ownership on their side. The Respondents maintained that the evaluation of the evidence by the lower court was painstaking and proper and value and weight duly ascribed to the evidence. This court was urged not to interfere, especially as the findings of facts made were based substantially on credibility of witnesses and any interference will amount to substituting the views of the appellate court for that of the lower court.

RESOLUTION OF ISSUE
The entirety of the contention in this appeal is in respect of the evaluation of evidence by the lower court. While the Appellant contends that the evaluation of evidence was not properly done or not done at all and the decision arrived at is consequently perverse, the Respondents naturally contend that the evaluation of evidence and ascription of probative value thereto was properly done by the lower court.
Now, in two separate but related actions which were later consolidated, the Appellants in the reliefs which I have already set out claimed declaration that the land on which the defunct Okere Union School I and Okere Union School II were established belongs to the Nikagbatse-Oki family of Okere, Warri. In respect of the claim for the land where the Okere Union School II was established, which is Suit No. M/31/1983, the Appellant contested the ownership principally with the Registered Trustees of Okere Union while in respect of the claim to the land where the Okere Union School I was established, which is Suit No. M/32/1983, the Appellant contested the ownership principally with the Nikoro family.
The Respondents in paragraph 2.04 and 2.05 of their Brief argued that the Appellant did not specifically appeal against certain findings of facts made by the lower court. I do not think that this is correct. The Respondent on page 5 of the Respondents’ Brief correctly identified the appeal as being essentially a complaint about the evaluation of evidence and ascription of probative value thereto. In Ground one of the grounds of appeal, the Appellant complained that the judgment of the lower court was perverse and the particulars of the ground dwelt copiously on the evaluation of evidence as done by the lower court. In the light of the complaint as to evaluation of evidence, I am unable to agree that there can be any specific findings of facts which it can be said that the Appellant did not appeal against. By contending that the evaluation of evidence was perverse, the Appellant puts in issue the specific findings of facts made by the lower court.
Howbeit, it is settled that a plaintiff claiming a declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case, except where the defendant’s case supports the plaintiff’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 17 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 14, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (pt 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19 – 20. So it was for the Appellant to establish the entitlement to the declaration sought over the land where the defunct Okere Union School I and II were established. This is especially so because the Respondents, as Defendants in the lower court did not file a counterclaim. The heavy burden of proving title to the disputed land rested squarely on the Appellant. There was no duty on the Respondents to prove their title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 152 at 160G, 163E and 165D – F and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 at 1477 C – D.

It is trite that the five ways or methods of proving title to land are:
1. By traditional evidence
2. By production of title documents
3. Proving acts of ownership
4. Acts of long possession and enjoyment of the land
5. Proof of possession of connected or adjacent land in circumstances which render it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC 227 and THOMPSON vs. AROWOLO (2003) 4 SC (PT2) 108 at 155 – 156.The Appellant relied on traditional evidence in proof of the entitlement to the declaration sought. The Appellant’s case and in respect of which evidence was led is that the land in dispute is part of a larger tract of land held in allodial tenure by Nikagbatse Oki by an act of paternal settlement by his father Oki. The Appellant stated that the disputed land was founded and cultivated as farmland and held in exclusive possession and undisturbed ownership by his great grandfather, Oki who later gave the land as a gift to his grandfather Nikagbatse Oki and who then gave the property to Appellant’s father Joel Ogharanmeye. The Appellant stated the various acts of ownership and user which they put to the land including making the same available for the establishment of Okere Union School I and also later giving a portion of the same to Mr. Wellingig Okome for the establishment of Okere Union School II.
The Respondents in their statement of defence and evidence denied that the Appellants and his precursors owned the disputed land and maintained that the Appellants grandfather Nikagbatse-Oki committed misconduct with his father’s wife and went into exile and that upon his return, since he did not have a place to return to in his father’s home owing to his misconduct he was given land by the Okoloju/Ejurugho family. The Respondents stated the various acts of ownership and user to which they had put the disputed land including the establishment of Okere Union School I and II, insisting that it was not the Appellant’s family that granted the land for use by the School.
After reviewing the testimonial evidence adduced, the lower court at page 278 of the Records stated that:
“My approach will be, to deal with the merit of the case and the main consideration is whose predecessor in title had a better right to the land in dispute.”
In the course of evaluating the evidence adduced and ascribing probative value thereto, the lower court stated as follows on page 279 of the Records:
“The more important aspect of the matter, is that the plaintiffs by the evidence of Mr. Okome a member of their Oki family, it is clear that where Oki lived and died is a part of Odeile, near the water side and by implication is in Oki Street. There is no evidence that the time he left his alleged original place of abode to the waterside area, that his son Nikagbatse has been born. Rather, Okome’s account is that when he moved with his mother, he left his original place of abode to the Ukus whom he said prior to this, lived partly in Odekporo and partly in Odeile, on land granted to them by Oki. The clear implication of this would be that after Oki moved away, he would have no landed property behind to give to his son Nikagbatse.”
The lower court continued at page 280 of the Records and stated thus:
“More importantly, the point I have shown concerning the fact that Oki would have left no land near the Ukus which he would have granted to his son Nikagbatse, certainly leaves unexplained, the undoubted fact of the presence of Nikagbatse and his several structures near the land in dispute. I am convinced that the explanation can be found in the evidence given by the defendants which I accept, that Nikagbatse committed misconduct against his father and was driven away and that when he eventually returned after precarious existence at Ugbododo and Aladja he was granted land on which he lived, prospered and developed several buildings. This is my view, wholly explains the reasons why his entire Nikagbatse compound, is virtually surrounded by persons who are descendants of Ekpen namely, Egor compound, Esisi family compound and Egbe family compound. In other words, I am satisfied that where Nikagbatse lived and died and where he had his buildings never at any point in time, belonged to Oki and the story that Nikagbatse derived title from Oki is but tissues of lie which I have no hesitation in rejecting.”
In disbelieving the root of title traced by the Appellant that the disputed land had been given to Nikagbatse Oki by Oki, the lower court further stated that at pages 280 – 281 of the Records as follows:
“No reason was given for the movement of Oki and I hold that he never moved and that the waterside of Odeile where he lived and died is his original homestead where he was, when Nikagbatse committed the taboo that led to his flight from home.”
Conclusively, the lower court at page 283 of the Records rejected the traditional evidence led by the Appellant in the following words –
“In totality therefore, I reject the traditional evidence led on the side of plaintiffs. In contrast, I accept defence account that the land comprised in School I from part of Nikoro family land and that it was madam Jemiregbe the then surviving eldest member of the family, that granted same for use as School I and that upon the closure of the school, the land reverted to the family. In respect of land comprised in School II, I also accept defence case that it was part of communal land of Okere people, that on or about 1921, the then Olaraja of Okere, allowed Mislaw Cheke to establish tennis court on part of it, that School II is an extension of School I and that the land was allowed the union by the then Olaraja of Okere.”
Now, it is hornbook law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the court of trial that saw, heard and assessed the witnesses and where a trial court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate court to substitute its own views for the view of the trial court, however, an appellate court can intervene where there is insufficient evidence to sustain the judgment or where the trial court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial court cannot be regarded as resulting from the evidence or where the trial court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46 47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47 – 48.

The focal point, nucleus and pith of this appeal is the complaint that the lower court did not evaluate the totality of the evidence or did not properly evaluate the evidence and that the findings of facts made by the lower court are perverse. The law is that the conclusions of the trial court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (Pt 2) 66 and EBOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Therefore the nitty-gritty of this matter is whether the Appellant has been able to displace or dislodge the presumption that the findings of facts made by the lower court are correct.

As a prelude, let me state that it is now settled law that for the determination of an appeal on issues of facts, it is not the business of an appellate court to embark on a fresh appraisal of the evidence where the trial court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (Pt 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR 1 at 47:
“It is now settled that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial court.”
It is pertinent to restate the root of title traced by the Appellant. It is his case that the allodial ownership of the disputed land is in his great grandfather Oki who founded and cultivated the land and passed on the land, out of paternal love and affection to his grandfather Nikagbatse-Oki who then passed on the land to his father Joel Ogharanmeye Oki from whom the land devolved on the present Appellant. The evidence before the lower court showed that Nikagbatse committed misconduct with his father’s (Oki) wife and that as a result of this taboo, Nikagbatse fled into exile and that when Nikagbatse returned from exile he was given the land on which he settled by the Okoloju/Ejurugho family. This finding about the misconduct committed by Nikagbatse and his flight into exile has not been challenged. The lower court accepted this evidence, the effect of which was to dislodge the root of title traced by the Appellant as the continuity in inheritance and devolution of the land from Oki to Nikagbatse down to the present was broken. The lower court clearly found on the available evidence that the land granted to Nikagbatse over which Appellant’s father Joel Ogharanmeye Nikagbatse-Oki exercised control and dominion did not extend to the land in dispute. See page 281 lines 5 – 18 of the Records.
It cannot be disputed that the lower court duly appraised the evidence. The findings and conclusions arrived at by the lower court accord with common sense and reason based on the available evidence. It is evident from the Appellant’s brief that the entire contention of the Appellant is for this court to embark on a fresh appraisal of the evidence so as to arrive at a different conclusion from that reached by the lower court. The link of the chain of the root of title traced by the Appellant was broken with the acceptance by the court that the land on which Nikagbatse lived was not inherited from Oki. Therefore the claim by the Appellant that it was the Oki family that owns the land on which the Okere Union School I and II were established no longer seemed plausible particularly as the lower court found that the land given to Nikagbatse did not extend to the land in dispute.
Let me reiterate that it is an established principle that an appellate court will not substitute its own views with those of the trial court, when as in the present case, the trial court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19 – 20. The evaluation of evidence and the findings made by the lower court was definitely not perverse. Therefore there is absolutely no basis on which an appellate court can intervene.

The legal position as established in the case of KOFO II vs. BONSIE (1957) 1 WLR 1223 is that where the traditional evidence adduced in proof of title to land is inconclusive or in conflict, the court should examine the acts of ownership or possession done by either party in recent times in relation to the disputed land. See IRIRI vs. ERHURHOBARA (1991) 2 NWLR (PT 173) 252, ELEGUSHI vs. OSENI (2005) 14 NWLR (PT 945) 348 or (2005) LPELR (1111) 1 at 15 – 16 and SALAMI vs. GBODOOLU (1997) LPELR (2984) 1 at 20. Even though the lower court rejected the Appellant’s traditional evidence, the court still proceeded, ex abundantia cautela, to consider the evidence of recent acts of possession and ownership and concluded as follows on pages 283 line 26 to page 284 line 9 of the Records:
“I must state clearly that I accept the plethora of evidence of acts of possession by defendants and their witnesses and by implication reject the rather scanty and nebulous account of acts of possession led on plaintiffs’ side. It is pertinent to observe that the 2nd plaintiff was living quite close and did nothing to challenge various acts of possession and ownership exercised by madam Jemiregbe and later, by the 13th defendants in suit No. M/32/83, when the school I became defunct on or about 1950. Mr. Okome’s own struggle ended in the court action in 1970 and it is on record that since school II closed down in about 1969 the union has consistently exercised continuous acts of possession. It is my clear view that traditional evidence apart, the defendants are also entitled to succeed on the basis of acts of possession.”
The above finding is manifest from the available evidence as rightly found by the lower court. The contention of the Appellant, that his uncle, who was the 2nd Plaintiff at the lower court, was inept, laid back and led the kind of “genteelish life” that the “Itsekiris call Asamagor” does not in any way affect the findings of the court on acts of recent possession.
From the totality of the foregoing, I must resolve this sole live issue against the Appellant.
In upholding the Respondents preliminary objection on the competence of Ground 2 of the Grounds of Appeal and issue number 2 distilled therefrom, I struck out the said ground and the issue distilled therefrom. However, this is an intermediate appellate court and I lay no claims to infallibility or any pretensions to being a repository of knowledge. In the most unlikely event that I am wrong in the conclusion I reached that the said Ground 2 and the issue distilled therefrom are incompetent. I will now proceed to consider the said issue number two as distilled by the Appellant.
ISSUE NUMBER TWO
Whether a claim for possession is in congruous or inconsistent with a claim for damages for trespass.
It is the submission of the Appellant that a claim for damages for trespass can be conveniently and properly brought alongside a claim for possession and that the lower court erred in law when it held that the claims were inconsistent, placing reliance on the per incuriam pronouncement said to have been in AROMIRE vs. AWOYEMI (1972) 1 ANLR 101.
Without a doubt the lower court stated at page 284 lines 11 – 12 as follows:
“… I agree entirely with Mr. Otomiewo that the claims for possession and trespass are inconsistent.”
But this definitely is not the ratio decidendi of the lower court. Prior to making the above statement the lower court stated as follows on page 284 lines 10 – 11 of the Records:
“The above really are enough to dispose of this case except to observe that…”
Doubtless, the statement made by the lower court on the claims for possession and trespass being inconsistent is a statement made in passing which does not reflect the ratio decidendi, that is the reasoning or ground upon which a case is decided. See ODUNUKWE vs. OFOMATA (2010) NWLR (PT 1225) 404 or (2010) LPELR (2250) 1 at 48 and AIC LTD vs. NNPC (2005) 11 NWLR (Pt. 937) 563 or (2005) LPELR (6) 1 at 24 – 25. It was definitely an obiter dictum. In distinguishing between a ratio decidendi and an obiter dictum, Iguh, JSC stated as follows in the case of AFRO-CONTINENTAL NIGERIA LTD vs. AYANTUYI (1995) 9 NWLR (PT 420) 411 or (1995) LPELR (218) 1 at 37:
“It is indisputable that in the judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issue raised in the case that is to say, the binding part of the decision is its ratio decidendi as against the remaining party of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision.”
It is settled law that an appeal is usually against the ratio and not against an obiter. See XTOUDOS SERVICES NIG LTD vs. TAISEI (WA) LTD (2008) 15 NWLR (PT 1003) 533, and SAUDE vs. ADBULLAHI (1989) 4 NWLR (PT 116) 387.

A ground of appeal is a highlight of the error made by a court in the decision sought to be set aside on appeal. It sums up the reason why the decision appealed against is considered to be wrong by the appellant and why it should be set aside. Therefore for a ground of appeal to achieve the purpose of setting aside the decision appealed against, it has to be substantial and must relate to the ratio of the decision and not directed at an obiter dictum. See NWANKWO V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) USA (2007) 5 NWLR (PT 1027) 377 or (2007) LPELR (2108) 1 at 27. Prior to making the observation subject of Ground 2 of the Grounds of Appeal and issue number two of the Issues for Determination, the lower court had already rejected the traditional evidence of the Appellants holding that it was not the Appellant’s family that gave the land on which Okere Union School I and II were established, which is the land subject of the declaration of title sought in the consolidated suit.
Be that as it may, the fact that the lower court stated that in AROMIRE vs. AWOYEMI (supra), it was held per incuriam, that a claim for trespass and recovery of possession was self-contradictory does not change the fact that it is a correct statement of the legal position. The phrase per incuriam as stated by Tobi, JSC in TANKO vs. STATE (2009) LPELR (3136) 1 at 37 means:
‘Per incuriam is not the opposite of the Latinism per curiam which means by the court. It rather means through misadventure, in ignorance of the relevant law. It is more commonly used today as those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the particular court;”

It is definitely the correct legal position that a claim for trespass and recovery of possession are inconsistent and self-contradictory. In EKPAN vs. UYO (1986) LPELR (1085) 1 at 39, Aniagolu, JSC stated:
“It is held that claims for damages for trespass and for recovery of possession are self-contradictory and should not be joined together, as one postulates that the plaintiff was in possession at the relevant time, while the other suggests that he was not.”
Furthermore in EZEKWESILI vs. AGBAPUONWU (2003) LPELR (1204) 1 at 27, Musdapher, JSC (as he then was) stated:
“A claim in trespass to land is rooted and or based on exclusive possession or right to possession, thus trespass is always against the person not in possession. A plaintiff cannot therefore maintain an action both for trespass to a particular land and recovery of possession of the same land as both claims are contradictory, inconsistent and mutually divergent, one being based on the fact of the plaintiff’s possession and the other on the fact that the Plaintiff is out of possession and then claiming recovery of possession.”
See also CARRENA v. AROWOLO (2008) LPELR (833) 1 at 19, IBEZIAKO vs. NWADIOGBU (1972) LPELR (1395) 1 at 28 and AROMIRE vs. AWOYEMI (supra).Accordingly this issue is resolved against the Appellant. Not only is the obiter dictum of the lower court in this regard a correct restatement of the law, even if it were not, the resolution of the same in favour of the Appellant would not have resulted in the decision of the lower court being set aside as it does not constitute the ratio decidendi in the case.
CONCLUSION
The harbour looms into sight. It only remains to navigate this judgment to berth at the wharf. In summing up, this appeal is totally devoid of merit. It is dismissed. The judgment of the lower court in the consolidated suit Nos. M/31/83 and M/32/83 delivered on 29th May 1996 is hereby affirmed. The Respondents are entitled to costs of N50,000.00.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I completely agree with His Lordship’s brilliant reasoning and conclusion that the appeal is completely without merit. I will add a few words.
There is no doubt that the decision law is settled on the position that the only situation where an appellate court may evaluate evidence given by the trial court that is on record is where the trial court has failed to do its duty of evaluating said evidence. It is the exclusive duty of the trial court to make findings of fact in accord with evidence led. Interference by the appellate court is only allowed where the trial court fails to make a finding on a crucial issue of fact, or the trial court did not properly evaluate the evidence led. In any event interference with the findings of fact of the trial judge can only be allowed where no issue of the credibility of witnesses arises. See Thompson v. Arowolo (2003) 4 SCNJ 20; Isaac Gaji & Ors. v. Emmanuel D. Paye (2003) 5 SCNJ 20; Sule Anyegwu & Anor. V. Aidoko Onuche (2009) 1 SCNJ 91.
In this appeal at hand, having read the judgment of the trial court, I am persuaded that the trial court painstakingly appraised the evidence on record before arriving at its decision that the land granted to Nikagbatse over which the Appellant’s father Joel Ogharanmeye Nikagbatse-Oki exercised control and dominion did not extend to the land in dispute and that the claim for title must fail. The chain of ownership and possession of the land claimed by the Appellant was broken by the evidence that the land which Nikagbatse lived was not inherited from Oki. This evidence was accepted as true by the trial court. Thus, this appeal is totally without merit and is hereby dismissed. I abide by all orders in the lead judgment.

HAMMA AKAWU BARKA, J.C.A.: I have had the preview of the judgment of my learned brother UGOCHUKWU ANTHONY OGAKWU JCA, in draft. I agree with him that this appeal has failed, and it is hereby dismissed. I order costs of N50,000.00 to the respondents.

Appearances

Sir A. J. OshiokpeluaFor Appellant

AND

Chief V. E. OtomiewoFor Respondent