ELEBE & ORS v. AYENI & ORS
(2020)LCN/14319(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, June 16, 2020
CA/AK/113/2014
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
AUGUSTUS SUNDAY ELEBE & 9 ORS APPELANT(S)
And
SUNDAY AYENI & 3 ORS RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY WHO SOLICITS FOR A DECLARATION OF TITLE TO LAND MUST SUCCEED ON THE STRENGTH OF HIS CASE AND NOT ON THE WEAKNESS OF THE DEFENDANT’S CASE
A party who solicits for a declaration of title to land must succeed on the strength of his case and not on the weakness of the Defendant’s case. See Momoh V. Umoru (2010) 15 NWLR (Pt. 1270) 217, Tukuru V. Sabi (2013) 10 NWLR (Pt. 1363) 442. PER ABDULLAHI, J.C.A.
TRADITIONAL HISTORY AS A WAY OF PROVING TITLE OF OWNERSHIP TO LAND
From the pleadings of the Appellants, it is clear that the Appellants relied on traditional history as proof of their title to the disputed land. Traditional evidence is one of the five recognised ways of proving title to land. See Odunukwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Dakolo V. Rewane Dakolo (2011) 16 NWLR (Pt. 1272) 22, Iseogbekun V. Adelakun (2013) 16 NWLR (Pt. 1362) 374.
It is trite that where party to an action for declaration of title to land relies on traditional history, as in the instant case, he has the duty to plead and prove:-
(a) The founder of the land (b) the intervening owners through whom he derived his title and their particulars and how the land get unto him. In the case of Chukwuemeka Anyafulu & Ors V. Maduegbuna Meka & Ors (2014) LPELR 22336 (SC) the Supreme Court had this to say.
“It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleadings the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims where a party has not given sufficient information in his pleading as regards the origin or ownership of the land and the line of succession, to himself, he has just laid foundation for the failure of his claim”. See Ukaegbu V. Nwololo (2009) 3 NWLR (Pt. 1127) 194.
To rely on traditional history as mode of proving title to land, the evidence of traditional history must be cogent without leaving any gap of lineage from whom the land devolved up to the Claimant. The Appellants in proof of their case by traditional history make heavy weather that the Appellants in paragraphs 3, 4 and 6 of their statement of claim and paragraphs 3 and 14 (a-v) of their reply to the Defendants’ statement of defence and counter claim had pleaded and led evidence of their traditional title history. PER ABDULLAHI, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES BEFORE IT AND ASCRIBE PROBABTIVE VALUE TO IT
Evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial Court which saw heard and assessed the witnesses that testified. It involves reviewing and criticizing the evidence given and estimating it. A decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation of evidence entails the trial Court examining the evidence before it before making its findings by putting all the evidence on an imaginary scale to see which side appears outweighs the other. See Lafia Local Govt v. Executive Governor Nasarawa State & Ors (2012) LPELR 20 602 (SC).
Evaluation of evidence would not be based on number of witnesses but rather on their credibility and the acceptability of the evidence. See Omisore & Anor v. Aregbesola & Ors (2015) LPELR 24803 (SC). The law is trite that a trial Court like the lower Court is saddled with primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanor of witness called by the parties in any proceedings having regard to their pleadings. To discharge the burden a trial Court must show how and why it arrived at its finding of facts and final determination of the matter before it. It appraises evidence by constructing an imaginary scale of justice and put the evidence of the feuding parties on the pans of the scale and weighs them to determine which is heavier in terms of quality. See Ndulue v. Ojiakor (2013) 8 NWLR (pt 1356) 311, Adusei v. Adebayo (2012) 3 NWLR (pt 1288) 534. PER ABDULLAHI, J.C.A.
WHETHER OR NOT A COUNTER-CLAIM IS AN INDEPENDENT AND SEPERATE CLAIM FROM THE MAIN CLAIM
It is trite that a counter claim is an independent and separation triable with the main claim for reason of convenience, just like the main claim, it must be proved by the Counter-claimant in order to get judgment in his favour. See NSEFIK & ORS. V. MUNA & ORS. (2013) VOL. 12 MJSC (PT. 1) 116; BILANTE INT’L LTD. V. NDIC (2011) 15 NWLR (PT. 1270) 407 and KOLADE V. OGUNDOKUN (2017) 18 NWLR (PT. 1596) 152. PER ABDULLAHI, J.C.A.
DUTY OF THE TRIAL COURT IN DETERMINING THE WEIGHT OF EVIDENCE
In determining the weight of evidence, the trial Court is enjoined to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. See Mogaji V. Odofin (1978) 3 SC 91; Oyewole V. Akande (2009) NWLR (Pt. 1163) 11, Agala V. Okusin (2010) 10 NWLR (Pt. 1202) 412 Nwokidu V. Okanu (2013) 3 NWLR (Pt. 1181) 362. It is not for the Judge to accept evidence hook, line and sinker without weighing its preponderance and probability. See Ajagbe V. Idowu (2011) LPELR 279 (SC). PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Ondo State sitting at Ikare-Akoko Judicial Division, delivered by B. F. Adeyeye J. on 31st December, 2013. Before the lower Court, the Appellants and the Respondents were the respective Plaintiffs and Defendants/Counter-claimants.
The facts of this case as borne from the pleadings and evidence before the lower Court was simple. The Appellants sued the 1st Respondent for declaratory reliefs and on the application for joinder, the 2nd, 3rd and 4th Respondents were joined. By Paragraph 16 of an Amended Statement of Claim filed on 9th June, 2012, the Appellants/Plaintiffs claimed against the Defendants as follows:-
The Plaintiffs shall also adduce evidence to prove the fact that they have suffered severe loss in terms of stress, embarrassment and inconveniences suffered by the acts of the Defendants in terms of trespass and encroachment on the land subject matter of this case. Wherein the Plaintiffs shall claim the sum of N10,000,000.00 (Ten Million Naira) being General Damages to the Plaintiffs being
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compensation for encroachment and trespass on the Plaintiffs’ Land.
Whereas the Plaintiffs claimed from the Defendant as follows:
1. A DECLARATION that the Plaintiffs are the bonafide holders of the right of title and interest in that expanse of land, measuring 19.823 Hectares, delineated in the layout with survey pillars: SC/ODM 6126F; SS/ODM 6127F; SC/ODM 6128F; SC/ODM 6129F; SC/ODM 6130F; SC/ODM 6131F; SC/ODM 6132F; SC/ODM 6133F; and SC/ODM 6134F, described as “Residential Estate for the Egeye Family” lying being and situated off Lokoja Road, Imo, Arigidi Akoko North West Local Government Area Council of Ondo State, of which land they are entitled to the quiet enjoyment thereof to the exclusion of any other family or member of any other quarter whatsoever.
2. A DECLARATION that the Defendant, who is from Ijebu Quarters, Imo Arigidi Akoko is not a member of the Plaintiffs’ family and is therefore not entitled to any claim to any part of the Plaintiffs family land, therefore his unilateral act of incursion into and annexation of a portion within Plot 3, Block L within the Plaintiffs’ family Residential
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Estate, wherein he had commenced the erecting of a building therein without the consent and authority of the Plaintiffs’ family land owner is wrong, illegal, absurd and an abuse/violation of the rights of the Plaintiffs to the enjoyment of their right to their land, thereby amounting to trespass.
3. AN ORDER of the Honourable Court directing the Defendant to abate any further form of trespass on the Plaintiffs’ family land and the removal forthwith of any structure already erected therein.
4. AN ORDER of the Honourable Court for the payment of N5, 000, 000 (Five Million Naira Only) to the Plaintiffs as special damages for tampering with and alteration of the layout by virtue of his activities within Plot 3, Block L of the Plaintiffs’ family residential Estate, wherein he had commenced the erecting of a building therein without the consent and authority of the plaintiffs’ family land owner.
5. AN ORDER of the Honourable Court to the Defendant for the payment of N10 Million (Ten Million Naira) as general damages to the Plaintiffs, being compensation for stress, psychological trauma, and inconveniences caused the Plaintiffs
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by virtue of the Defendant’s act.
6. An order of the Honourable Court for a perpetual injunction against the Defendant to abate any further trespass, encroachment and claim to any part of the Plaintiffs land for the purpose of erecting any building or doing any other thing whatsoever on the said land that is inconsistent with the interest of the Plaintiffs on their family land.
The Defendants in response to the Plaintiffs’ claims filed their statements of defence and counter-claim on 21st of June, 2012. By paragraph 23 of the counter – claim, the Counter – claimants claimed against the Plaintiffs as follows:-
Wherefore the Counter claimants counter claimed as follows:
1. A declaration that the Counter claimants are entitled to customary right of occupancy over the piece/parcel of land described in lay out charted by the Plaintiffs demarcated by survey pillars SC/ODM 6128F, SC/ODM6126D, SC/ODM6126F, SC/ODM6127F, SC/ODM 6128F, SC/ODM 6129F, SC/ODM 6130, SC/ODM 6131F, SC/ODM 6132F, SC/ODM6133F and SC/ODM 6134F which the Plaintiffs wrongly called Residential Estate for the Egeye Family which land is off
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Arigidi/Okene/Lokoja Road, Imo Arigidi- Akoko.
2. AN ORDER of forfeiture of the Plaintiffs’ rights and or holding over the land known as Ekese land in Imo Arigidi- Akoko.
3. An order of Court directing the Plaintiffs to render an account of their dealings in the land known as Ekese which is the lis of this suit with the Counter claimants having the option of surcharging them.
4. An order of injunction restraining the Plaintiffs either by themselves, their agents, privies and or any one claiming through them from further dealing with the Counter claimants’ land known as Ekese at Imo Quarters, Arigidi-Akoko.
5. A Sum of N5,000,000 (Five Million Naira) only as damages.
In proof of their case, the Plaintiffs called three witnesses and tendered some documents, the Defendants in their defence and proof of their counter – claim called four witnesses and tendered some documents. In a considered judgment delivered on 31st December, 2012, the learned trial Court dismissed both the Plaintiffs’ claim and the counter claim. Dissatisfied with the said judgment, the Appellants filed a notice of appeal dated 14th March, 2014
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containing 12 grounds of appeal as seen at pages 191 – 200 of the record.
Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 23rd January, 2020.
During the hearing of the appeal, on 23rd January, 2014, learned counsel for the Appellants/Cross Respondents A. C Ajakaiye, Esq. adopted the Appellants’ amended brief of argument and Cross Respondents’ brief of argument both filed on 9th February, 2018, as representing their arguments for the appeal. He urged the Court to allow the appeal. Similarly, learned counsel for the Respondents/Cross Appellants Gani Asire, Esq. adopted the amended Respondents’ brief and Cross Appellants’ brief of argument filed on 28th March, 2018 as representing their contentions against the appeal. He urged the Court to dismiss it.
In the Amended Appellants’ Brief of Argument, they distilled seven issues for determination to wit:
1. Whether the Claimants/Appellants had plead before the trial Court sufficient facts by way of pleading and leading of evidence in respect o
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the pleading and in prove beyond the preponderance of evidence over and above the Defendants/Respondents as will sway the trial Court to give judgment in their favour.
2. Whether the trial Court had properly evaluated the available evidence as would have enabled it to give a contrary verdict as it has done.
3. Whether the Claimants/Appellants had not proved exclusive possession of the land subject matter of this appeal as will entitle them to the claim of declaration, trespass and in injunction against Defendants/Respondents.
4. Whether the evidence of the sale and the grant of land by the Claimants/Appellants could be construed as correctness of the assertion of the Defendants/Respondents to have given the land to the Claimants/Appellant to manage.
5. Whether failure at the trial Court to evaluate the traditional history of the Claimants/Appellants alongside with the other evidence of the Claimants/Appellants outside the traditional evidence adduced by them at the trial had not occasioned the perversion of justice against the interest of the Appellants.
6. Whether in the totality of the available evidence the decision of the trial
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Court is not against the weight of evidence adduced by the Claimants/Appellants.
7. Whether the evidence of the Defendants/Respondents in Exhibit DW 1A did not support the case of the Claimants/Respondents and whether Exhibit DW1B, DW 2A and DW3A are properly admitted by the trial Court and are not overreaching and prejudiced to the case of the Claimants/Appellants.
Learned counsel for the Respondents in the Respondents’ brief of argument in the main appeal crafted two issues for determination as follows:-
1. Whether the learned trial judge was wrong in admitting Exhibits DW2A and DW3A and if so, if the wrongful admission has occasioned miscarriage of justice which if otherwise would have warranted the judgment being given in favour of the Appellants.
2. Whether the learned trial Judge was wrong in dismissing the Appellants’ claim.
I have carefully gone through the record of appeal and the processes filed by the feuding parties in this appeal. I am convinced that the following three (3) issues which are modifications of the issues formulated by the Appellants and/or admixture of the issues formulated by the parties would
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meet the justice of the appeal. They are:
1. Whether the learned trial Judge was right to have dismissed the Appellants’ case for want of proof.
2. Whether the trial Court had properly evaluated the available evidence as would enable it give a contrary verdict as it has done.
3. Whether from the totality of the evidence the decision of the trial Court is not against the weight of evidence.
ISSUE ONE
On issue one, Learned Counsel for the Appellants submitted that the Appellants had placed sufficient facts in their pleadings and led evidence accordingly. That paragraphs 3 and 14 of the Statement of Claims and the Appellants’ reply to Defendants’ Statement of Defence and Defence to Counter Claim are specific pleadings of which evidence were led in the discharge of the onus placed on them under the law and referred to exhibits tendered in proof of their case.
Learned counsel submitted that in a claim for declaration of title, the claimant is to rely on the strength of his own case. That contrary to the trial Court that the only pleadings and evidence of the Claimants is that they have been owners of the land in dispute from time
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immemorial, without naming the founder of the land and the means of acquisition not pleaded, neither is the particulars of the intervening owners. The Appellants in paragraphs 2 and 6 of the statement of claim, reply to the Defendants’ statement of defence and defence to counter claim are specific finding and evidence were led in establishing that.
Learned counsel argued that the right to declaration of title to land can be proved in one or more of five methods. Cited Adetutu Adesanya v. Alhaji S. D. Aderonmu & Ors (2000) 6 SC (pt 11) 18; Alhaji Kachalla v. Alhaji Banki & Ors (2006) ALL FWLR (pt 309) 1420 SC amongst others for the view. That the five ways stipulated in the case of Idundun were held not to be cumulative but concurrent. That the Appellants through their witnesses particularly PW1 had adduced evidence asserting their origin, root of title and exclusive possession of the disputed land.
Learned counsel referred to the case ofA.G Oyo State v. Fairlakes Hotels Vol. 3 ACLC 1, to the effect that the burden of proof is on the party claiming a relief to prove same by evidence of the highest provable value. That the written
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statements by the Claimants witnesses complemented by their documentary evidence as admitted are sufficient in the discharge of the onus placed on the Appellants and urged the Court to so hold.
He argued that the evidence of the Claimants as contained in the family receipt, minutes of meeting acts of possession and the layout plan had demonstrated positive acts of ownership as well as acts of long possession. That the lower Court should have reverted to other acts of ownership if the Appellants’ traditional history is not sufficiently proved. He cited the case of Ibidokun v. Adaralode (2001) 12 NWLR (pt 727) 268 for the view. That Exhibits PW1B and PW1C are evidence of exclusive possession. That the Respondents did not adduced evidence that they gave the disputed land to the Appellants to manage.
It was further submitted that where evidence of traditional history relied on by both sides is inconclusive, the party can rely on the acts of possession and ownership where pleaded. He cited Anyafulu & Ors v. Meka & Ors (2014) 6 SCM 1; Aruru v. Nwodo (2013) 12 (pt 3) SCM 205 for the point. He urged the Court to so hold and resolve the issue in
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favour of the Appellants.
Learned counsel for the Respondents submitted that the Appellants being the Claimants and claiming declarative reliefs, the burden of proof is on them in establishing their case to the satisfaction of the Court and that admission by the Defendants would not aid the Claimants. He cited Emenike v. PDP & Ors (2012) 8 SCM 111, Matanmi & Ors v. Dada & Anor (2013) 4 SCM 120, Owoade v. Omitola (1998) 2 NWLR (pt 77) amongst others for the point.
Learned counsel submitted that in a claim of title to land, the Claimant is expected to prove his case by any of the five ways laid down in Idundun v. Okumagba. That the Appellants as the Claimants at the trial Court relied on traditional history in the main. That a party relying on traditional history as root of his title must prove how his ancestors got to the land. The Appellants said counsel, neither in their statement of claim nor in their evidence did prove their chain of ancestors on the land. He cited Yussuf v. Kode (2001) 4 NRN 34; Odofin v. Ayoola (1984) 11 SC 72; Mogaji v. Cadbury (1985) 7 SC (pt 1) 116 for the view and said that none of the Appellants’ boundary men
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were called to testify.
Learned counsel submitted that where a Claimant traditional history failed, he cannot rely on any other method such as acts of possession. The traditional title relied upon by the Appellants has crumbled and failed, resort cannot be heard to long possession. Long possession according to counsel, cannot ripen into ownership against the true owners. He cited Nruamah & Ors v. Ebuzoeme & Ors (2013) 3 SCM 209; Omotayo v. Ayodele (1993) 8 NWLR (pt 314) 717; Ohakanu v. Nlemagu (2002) 33 WRN 100 for the view.
He argued that the Respondents both in their pleadings and evidence had claimed that they put the Appellants on the land to be managing it on their behalf and to share the proceed derived therefrom between them. That they led evidence to that effect and tendered Exhibit DW1 which has not been debunked. That why should they be sharing it if the Respondents have no title or claim to the land counsel asked. That the exclusive possession claimed by the Appellants was examined by the lower Court and found to be of no merit. That the receipts tendered as Exhibit PW1B and PW1C are of no moment. The minutes of meetings tendered
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as Exhibits PW1D and PW1E are worthless paper for not being signed by the maker or the recorder, therefore, said Counsel, no probative value can be placed on them. He cited Maku V. Al-Makura (2016) NWLR (Pt. 1505) 201.
That the Learned trial Judge was therefore right in dismissing the Appellants’ case. He urged the Court to resolve this issue in favour of the Respondents.
RESOLUTION
A party who solicits for a declaration of title to land must succeed on the strength of his case and not on the weakness of the Defendant’s case. See Momoh V. Umoru (2010) 15 NWLR (Pt. 1270) 217, Tukuru V. Sabi (2013) 10 NWLR (Pt. 1363) 442.
From the pleadings of the Appellants, it is clear that the Appellants relied on traditional history as proof of their title to the disputed land. Traditional evidence is one of the five recognised ways of proving title to land. See Odunukwe V. Ofomata (2010) 18 NWLR (Pt. 1225) 404, Dakolo V. Rewane Dakolo (2011) 16 NWLR (Pt. 1272) 22, Iseogbekun V. Adelakun (2013) 16 NWLR (Pt. 1362) 374.
It is trite that where party to an action for declaration of title to land relies on traditional history, as in the instant case, he
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has the duty to plead and prove:-
(a) The founder of the land (b) the intervening owners through whom he derived his title and their particulars and how the land get unto him. In the case of Chukwuemeka Anyafulu & Ors V. Maduegbuna Meka & Ors (2014) LPELR 22336 (SC) the Supreme Court had this to say.
“It is trite that a party seeking for a declaration of title to land, who relies on traditional history as proof of his root of title, must plead same sufficiently. That is to say, he must demonstrate in his pleadings the original founder of the land, how he founded the land, the particulars of the intervening owners through whom he claims where a party has not given sufficient information in his pleading as regards the origin or ownership of the land and the line of succession, to himself, he has just laid foundation for the failure of his claim”. See Ukaegbu V. Nwololo (2009) 3 NWLR (Pt. 1127) 194.
To rely on traditional history as mode of proving title to land, the evidence of traditional history must be cogent without leaving any gap of lineage from whom the land devolved up to the Claimant. The Appellants in proof of their
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case by traditional history make heavy weather that the Appellants in paragraphs 3, 4 and 6 of their statement of claim and paragraphs 3 and 14 (a-v) of their reply to the Defendants’ statement of defence and counter claim had pleaded and led evidence of their traditional title history.
I have gone through the record of appeal, especially pages 23 and 36 – 39 where the said paragraphs situated.
Paragraphs 3 provides:-
3. The Plaintiffs shall adduced evidence to prove that Imo Quarters, Arigide Akoko is comprised of Egeye Family, Ijebu Family and Elaju Family of which three families are distinct not only in name but also in their affliction and ownership of family properly, more particularly as it relates to family land ownership.
4. The Plaintiffs aver that each of the three families has its own family land within Imo Quarters, Arigide Akoko, of which each families holds and enjoys to the exclusion of the others.
6.The Plaintiffs shall adduce evidence to the effect that they embarked on the charging of layout for their family land of which land is measuring …and described as “Residential Estate for the Egeye Family lying
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being and situate off Lokoja Road, Imo, Arigide Akoko in Akoko North West Local Government Area Council of Ondo State. The said layout is hereby pleaded.
Paragraphs 3 and 4 of the reply to the Defendants’ statement of defence and defence to Defendants counter claim.
3. That paragraph 3 of the statement of defence is not true and maintain that each of the three quarters that constitutes Imo Arigidi as it comprises of Elaju Quarters, Ijebu Quarters and Egeye Quarters have their respective family land as follows:-
a. …
b. …
c. …
Paragraph 14 provide. These
14. (j) That the movement to this present site of Imo Arigidi started as far back as 1914 when the then Resident European District Officer (acting on the instruction of Lord Lugard) in Owo started the construction of the road from Owo to Lokoja, wherein the family that first moved to this site were Baba Oya, Idagba Ogbona, Fayomi etc all from Egeye Quarters.
14. (t) The Plaintiff therefore maintain that no other family other than the Egeye’s have any right of interest, right of title and right of possession of the landed property subject matter of this case.
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…
I have also gone through the oral testimonies of the Appellants witnesses as seen at pages 147 – 157 of the record. The Appellants only pleaded that the movement to the land in dispute started in 1914, the name of the founder of the land was not pleaded. The particulars of the intervening owners through whom the land was acquired and how the land got unto them was equally not pleaded. There was no evidence of all these facts led by the Appellants before the trial Court. The Appellants in my view have failed to show or led evidence of their traditional history to be entitled to judgment. The Appellants traditional history/evidence has crumbled, I so hold.
Having confirmed the findings of the lower Court that the Appellants traditional evidence failed, their alleged long possession of the disputed land cannot vest them with the title over the land. This is because when their root ceases to stand, the stem and branches will fall with the root. In other words, where the radical title pleaded, in this case the tradition history is not proved. It is not permissible to support a non existed root with act of possession. See Ukaegbu v. Nwololo
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(2009) 3 NWLR (pt 1127) 194; Ameen v. Amao (2013) 9 NWLR (pt 1558) 159, proof of ownership is tantamount to proof of possession. See Anyanwale v. Odusami (2011) 18 NWLR (pt 1278) 328; Olamiyan v. Fatoki (2013) 17 NWLR (pt 1385) 477. Possession and ownership can only be resorted to where the root of title is pleaded and duly established, without pleading and leading cogent evidence to satisfactorily establish the root of the title, it would be futile to resort to finding recent acts of possession.
The lower Court findings in my respective view is impeccable. Issue one is resolved against the appellants and in favour of the Respondents.
ISSUE TWO
Whether the trial Court had properly evaluated the available evidence as would have enabled it to give a contrary verdict as it has done.
Learned counsel for the Appellants submitted that the trial Court had failed to properly evaluate the Appellants evidence. That the failure had occassioned miscarriage of justice against the Appellants. That in evaluating evidence, the Court is under duty to evaluate all evidence tendered at the trial. He cited Osazuwa v. Isibor (2004) ALL FWLR (pt 194) 387.
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Counsel argued that there cannot be a finding of fact by a judge when the judge had not evaluated the evidence before him. He urged the Court to hold that the evaluation of the Appellants’ evidence at the trial Court is perverse and occasioned a miscarriage of justice.
Counsel contended that where the evidence which the trial Court neglected to evaluate is a documentary evidence, the appellate Court is in good as the trial Court position to evaluate the evidence. He cited Ogundepo v. Olumesan (2012) ALL FWLR (pt 609) 1136 SC; Nwankpu v. Ewulu (1995) 7 SCNJ 197.
It was further contended that the trial Court’s evaluation of the Appellants’ evidence is not only perverse but had drew a wrong inference from the totality of the evidence. That this Court can conveniently embark on the evaluation of evidence where the trial Court evaluation is clearly perverse or drew wrong inference. He urged the Court to so hold and resolve this issue in favour of the respondents.
Learned counsel for the Respondents submitted that it is only when a wrongful admission of evidence has occasioned miscarriage and or perversion of justice that an appellate
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Court will interfere. Wrongful admission of evidence per se will not automatically lead to the reversal of the trial Court judgment. He cited A.G Leventis Nig. Plc v. Akpu (2007) 46 WRN 1; Olayinka v. State (2007) 45 WRN 43 Ojengbede v. Esan & Anor (2002) 1 SCM 187 for the point.
Learned counsel contended that the trial Court is primarily responsible to evaluate and ascribe probative value to the evidence led by the parties. That an appellate Court will not ordinarily interfere with the findings unless it can be shown to have been perverse or occasioned a miscarriage of justice. He furthered that the Appellant failed to show how any perversity and or miscarriage of justice occassioned. He urged the Court to resolved this issue in favour of the Respondents.
RESOLUTION
Evaluation of evidence and ascription of probative value to such evidence are the primary functions of a trial Court which saw heard and assessed the witnesses that testified. It involves reviewing and criticizing the evidence given and estimating it. A decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation of evidence entails the
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trial Court examining the evidence before it before making its findings by putting all the evidence on an imaginary scale to see which side appears outweighs the other. See Lafia Local Govt v. Executive Governor Nasarawa State & Ors (2012) LPELR 20 602 (SC).
Evaluation of evidence would not be based on number of witnesses but rather on their credibility and the acceptability of the evidence. See Omisore & Anor v. Aregbesola & Ors (2015) LPELR 24803 (SC). The law is trite that a trial Court like the lower Court is saddled with primary duty to evaluate relevant and material evidence both oral and documentary after hearing and watching the demeanor of witness called by the parties in any proceedings having regard to their pleadings. To discharge the burden a trial Court must show how and why it arrived at its finding of facts and final determination of the matter before it. It appraises evidence by constructing an imaginary scale of justice and put the evidence of the feuding parties on the pans of the scale and weighs them to determine which is heavier in terms of quality. See Ndulue v. Ojiakor (2013) 8 NWLR (pt 1356) 311, Adusei v. Adebayo
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(2012) 3 NWLR (pt 1288) 534.
I have read the record of appeal, I also considered the 19 pages judgment wrapped between pages 172 – 190 of the record. The lower Court had evaluated and scrutinized the evidence of the parties both oral and documentary. I discern from it that the lower Court rightly assessed the evidence, viva voce and documentary professed by the feuding parties after assigning them to their respective pans in the imaginary scale of justice. The trial Court in my view had attached the deserved probative weights to the respective pieces of evidence offered by the parties. I endorse the unbiased appraisal of the evidence conducted by the lower Court.
At any rate, the documentary evidence which the law donates concurrent jurisdiction to this Court and lower Court to evaluate which the Appellant contended that the lower Court failed to evaluate. The law forbids this Court from interfering with duly evaluated evidence. Exhibits PW1B, PW1C the family receipt. PW 1D and PW1E the minutes of family meetings, the English translated version PW3B and PW3C and the Layout Survey PW1E and other relevant evidence were considered and evaluated by
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the trial Court. The finding of the Court that “both parties in this case have failed to establish, by evidence to my satisfaction, facts excluding each other from the possession of the land in dispute. I say no more, the case of the Plaintiffs and the counter-claim are dismissed”, cannot be faulted in any way; all the stricture which the Appellants rained on it come to naught. I therefore resolved issue two against the Appellants and in favour of the Respondents.
ISSUE THREE
Whether from totality of the evidence, the decision of the trial Court is not against the weight of evidence.
Learned Counsel for the Appellants submitted that the decision of the trial Court is against the weight of evidence adduced by the Appellants (Claimants). That the trial Court’s failure to utilize the totality of the evidence adduced by the Appellants/Claimants amounts to a perverse evaluation of facts and had occasioned a miscarriage of justice against the Appellants. He urged the Court to so hold and upturn the decision of the trial Court.
Learned Counsel submitted that the trial Court found the traditional evidence of both parties
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inconclusive but failed to evaluate the evidence side by side to ascertain acts of possession, if any. He urged the Court to resolve this issue in favour of Appellants.
Learned Counsel for the Respondents submitted that the trial Court has properly evaluated the evidence before the Court and adequately ascribed the probative value. That the traditional title relied upon by the Appellants has crumbled and failed, resort cannot be made to long possession. Long possession cannot be ripen into ownership against the true owners. He urged the Court to resolve this issue in favour of the Respondents.
RESOLUTION
The Appellants queried the correctness of the lower Court evaluation of evidence, given the weight of evidence. A castigation of a decision on the premise that a judgment is against the weight of evidence connotes that the decision of the trial Court cannot be supported by the weight of evidence adduced by the successful parties which the Court either wrongly accepted or that the inference it drew based on the accepted evidence adduced by the complaining parties is weighed against the one given by the Respondents; the judgment rendered to the
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Respondents is against the totality of the evidence placed before the trial Court.
In determining the weight of evidence, the trial Court is enjoined to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. See Mogaji V. Odofin (1978) 3 SC 91; Oyewole V. Akande (2009) NWLR (Pt. 1163) 11, Agala V. Okusin (2010) 10 NWLR (Pt. 1202) 412 Nwokidu V. Okanu (2013) 3 NWLR (Pt. 1181) 362. It is not for the Judge to accept evidence hook, line and sinker without weighing its preponderance and probability. See Ajagbe V. Idowu (2011) LPELR 279 (SC).
A perusal of the judgment discloses that the lower Court appreciated its duty as a trial Court, it is decipherable from the manner of weighing the evidence, it appraised the evidence both viva voce and documentary on an imaginary scale of justice. It is clear that it weighed the divergent pieces of evidence and reached its findings based on the quality not quantity of the evidence. The lower Court was not in the least guilty of improper assessment of the evidence presented to it by the feuding parties.
I had earlier on somewhere in
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this judgment considered and resolved the issue of evaluation of the evidence by the lower Court and I need not to repeat it to avoid duplication of efforts. I adopt same in resolving this issue. Issue three is resolved against the Appellants.
Having resolved the three issues against the Appellants, the fortune of the appeal is plain. It is devoid of any morsel of merit and deserves to be dismissed. Consequently, I dismiss the appeal and affirm the decision of the lower Court wherein it dismissed the Appellants’ claims.
The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.
THE CROSS-APPEAL
The Respondents were aggrieved by part of the lower Court‘s judgment and filed a notice of cross-appeal hosting three grounds.
The cross-appeal was heard on 23rd January, 2020 with the main appeal. During its hearing, learned counsel for the Respondents/Cross Appellants Gani Asiru, Esq. relied on the arguments contained in the Respondents’ Cross Appellants’ brief of argument filed on 28th March, 2018 in urging the Court to allow the cross-appeal. Similarly, learned
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counsel for the Appellants Cross Respondents, A. C. Ajakaiye, Esq. relied on their submissions contained in the Appellants/Cross Respondents’ brief filed on 9th February, 2018 in urging the Court to dismiss the cross appeal.
In the Cross Appellants’ brief of argument, they crafted a sole issue for determination viz:
Whether my lord the learned trial Judge was right in dismissing the Cross-Appellants’ claim in the face of the pleadings and evidence before him.
The Cross-Respondents in their brief of argument framed a sole issue for determination to wit:
Whether the evidence of the Defendants/Appellants in Exhibit DW1A did not support the case of the Claimants/Respondents (sic) and whether Exhibits DW1B, DW2A and DW3A are properly admitted by the trial Court and are not overreaching and prejudicial to the case of the Claimants/Appellants.
I will decide the cross appeal on the issue submitted by the Cross Appellants.
ARGUMENTS ON THE ISSUE
Learned counsel for the Cross Appellants submitted that the Counter-Claimants/Cross Appellants bear the burden of proving their claim to the satisfaction of the Court. That
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there are five ways of proving title to land and any one of the methods is sufficient if it can be proved. That the Cross Appellants in the main appeal rely on traditional history that is by conquest of Ekese people who were the original settlers on the land.
Learned counsel argued that the Cross Appellants having been able to establish how they came to the land need not prove all the segments of ingredients of the traditional history. That the evidence adduced by the Cross Appellants should have been enough persuasion for the trial Judge to grant title in favour of the Appellants. That the trial Court was wrong not to have granted the reliefs of the Cross Appellants. Counsel submitted that the Esi Community decision supported Exhibit DW1A, the report of the arbitration with regard to the management of the land. That the Cross Appellants called their boundary men and partners in the war against the Ekese, the Osin.
It was further submitted that it is injustice for the trial Court to have dismissed the claims of the Cross Appellants because the chain of intervening ancestors of the Cross Appellants were not given in evidence. He urged the Court to
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reverse the decision of the trial Court and grant the counter-claim.
Learned counsel for the Appellants/Cross Respondents submitted that the evidence of DW2 and DW3 ought not to be relied upon by the trial Court. This is because, said counsel the witnesses are interested in the case and Exhibits DW2A and DW3A were made during the pendency of the case. That the admission of the said document is against the law. He cited J. E. ELUKPO & SONS LTD V. F.H.A. (1991) 3 NWLR (PT. 179) 322; GBADAMOSI V. KABO TRAVELS LTD. (2008) 8 NWLR (PT. 668) 234 and N.S.I.T.F.M.B V. KLIFCO NIG. LTD. (2010) ALL FWLR (PT. 534) 73 SC.
Counsel contended that Exhibits DW2A and AW3, had overreached the Appellants/Cross Respondents and offended the legal principle enunciated in N.I.W.A. V SHELL PETROLEUM DEVELOPMENT COMPANY OF NIG. LTD. (2008) 49 WRN II.
That the evidence of DW1 is too shallow for credibility to support the evidence of conquest of Ekese. He submitted that the Defendants had failed to adduce any conclusive traditional history in their evidence neither do they adduce evidence in reference to any facts in recent years as to establish their claims.
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that the Claimants/Cross Respondents had adduced better credible evidence on prove of the root of their title to the land in dispute. He urge the Court to dismiss the cross appeal.
RESOLUTION
The Cross Appellants’ chief grievance is simple. They quarrel with the lower Court dismissal of their counter-claim. The gravamen of the Cross Appellants is that the lower Court ought to have granted the counter-claim. A counter-claim connotes a claim for relief asserted against an opposing party after an original claim has been made that is a Defendant’s claim against the Plaintiff or as a set-off against the Plaintiff’s claim. It is trite that a counter claim is an independent and separation triable with the main claim for reason of convenience, just like the main claim, it must be proved by the Counter-claimant in order to get judgment in his favour. See NSEFIK & ORS. V. MUNA & ORS. (2013) VOL. 12 MJSC (PT. 1) 116; BILANTE INT’L LTD. V. NDIC (2011) 15 NWLR (PT. 1270) 407 and KOLADE V. OGUNDOKUN (2017) 18 NWLR (PT. 1596) 152.
In an action for declaration of title in which the Defendant raised a counter-claim also for declaration of
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title as in the instant case. It is possible for both parties to fail on the ground that neither of them proved his title. This is because a party must succeed on the strength of his claim.
Placing the legal principles in perspective of the pleadings of the parties and the evidence led, the facts available shows that the Cross Appellants also relied on traditional history in proof of their title to the disputed land.
Evidence of traditional history is one of the accepted method of establishing title to land. Where party to an action for declaration of title to land relies on traditional history, he has the duty to plead and prove by evidence the followings: (1) Who founded the land in dispute; (2) How he founded it; and (3) The particulars of the intervening owners through whom he claimed.
I have carefully examined the Cross Appellants’ pleadings and evidence led in support thereof. I agree with the learned trial Judge that the Cross Appellants/Counter Claimants failed to fulfill the conditions for establishing title based on traditional history. The Counter-claimants asserted the land in dispute does not belong to the Plaintiffs/Appellants. That
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the land belong to Ekese people. During the tribal war which led to the conquest of Ekese by Osin and Imo community and shared the boundaries. Osin took the moveable properties while Imo took the immoveable property, the land in dispute. The land consist of Elajus and Ijebus and the land was given to the Defendants to manage on behalf of the Imo community and to share the proceed between Elajus and Ijebus. The Counter-claimants also claimed that Eja baba was the leader of Imo at the time of the war and that the leader on the throne when the Plaintiffs came to Imo during construction of Arigidi/Lokoja Road in 1913.
The learned trial Judge held at page 188 of the record as follows:
“I find that the evidence of the conquest of Ekese people by the Imo community as not conclusive. The dramatis personae in the war which is akin to a proof of the founder in a claim by original settlement was not establish by evidence. The Plaintiff ought to lead evidence to support the averment that leader of Imo at the time of the war with Ekese was Ejebaba and also that the leader on the throne when the Plaintiffs came to Imo was in 1913 long after the inter tribal
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war Obagogo….Obagogo was alleged to be in existence when the Plaintiffs came to the land in dispute this was said to be as recent as when the Road to Lokoja was constructed in 1913…. It is my view that the Claimant, by conquest ought to establish by satisfactory evidence the people who took center-stage in the battle, if possible on the both side….”
While it is pleaded that Ekese was conquered by Osin and Imo and that Ejebaba was the leader at the time of the war, alleged to have taken place 500 years ago. There is no details of the intervening owners before they come to devolve on the Counter-claimant. There is no particulars of head, those on the throne before 1913 unto the present one. Because the alleged conquest was said to have taken place 500 years ago. The pleadings and evidence led by the Cross Appellants is bereft of this vital facts. Contrary to the contention of the learned counsel for the Cross-Appellants, I am of the view that the lower Court’s assessment of the traditional evidence and the finding that it is scanty and incapable of establishing the Cross-Appellants’ title to the land in dispute is
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unimpeachable.
Having resolved the sole issue in this cross appeal against the Cross-Appellants, the cross-appeal lacks merit and ought to be dismissed. I hereby dismiss it. Accordingly, the main Appeal and the Cross Appeal are hereby dismissed. Consequent upon which the judgment of the lower Court delivered on 31st December, 2013 by Hon. Justice B. F. Adeyeye is affirmed.
I made no order as to costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have, studied keenly the lead Judgment articulated and delivered by my learned brother, Ridwan Maiwada Abdullahi, JCA dismissing both the appeal and the cross appeal in this matter and concur that the decision of the trial Court cannot be faulted. The no victor nor vanquish conclusion of the trial Court relating to the substantive appeal and the cross-appeal based on the counter claim cannot be faulted.
I concur.
Both the appeal and cross- appeal are dismissed.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the benefit to read in draft form the lead judgment my learned brother, Ridwan M. Abdullahi, JCA just delivered. I completely agree with his reasoning and conclusion that the appeal is bereft of merit
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and should be dismissed. I dismiss the appeal and affirm the decision of the learned trial judge. In respect of the cross appeal, I agree with my learned brother for the reasons aptly stated in the lead judgment that this too is without merit. I also dismiss the cross-appeal.
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Appearances:
C. AJAKAIYE, with him, O. ABISOLA ESQ. For Appellant(s)
GANI ASIRU, ESQ. For Respondent(s)
