ENYEREIBE NWAOBILO v. AKOBUNDU AHUKANNA
(2018)LCN/12291(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2018
CA/OW/155/2009
RATIO
APPEAL: WHERE AN APPEAL IS INCOMPLETE
“In Okochi vs. Animkwoi (2003) 18 NWLR Part 851 page 1, the Supreme Court, per Tobi, J.S.C., admonished that: ‘An appellate Court must be wary to hear an appeal on Incomplete records and must not hear an appeal on Incomplete records unless the parties by consent agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. Another situation emphasised therein where an appeal can be heard when the records are incomplete is where the missing part of the record, in view of the opinion of the Court Is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.'”PER THERESA NGOLIKA ORJI-ABADUA J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
ENYEREIBE NWAOBILO Appellant(s)
AND
AKOBUNDU AHUKANNA
(For himself and as representing Ahukanna Family of Umuakirika, Ozatta, Ukwa West L.G.A) Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the decision of the Abia State High Court in Suit No.HUK/43/96, delivered on 28/9/2007 by Hon. Justice S.N. Imo, Chief Judge of Abia State, wherein the learned trial Judge granted the reliefs sought by the plaintiff, now Respondent.
The claim at the trial Court, as per the Amended statement of claim, was for:
1) A declaration that the plaintiffs are the Customary occupants in possession and are entitled to the right of occupancy of the piece or parcel of land known as and called OKPULO AHUKANNA land situate at Unwakirika Ozata Village ASA, within the jurisdiction of the Honourable Court with an annual rental value of N20.00.
2) Ten Thousand Naira (N10,000.00) being special and general damages for trespass into the said land by the Defendant.
3) Injunction, permanently, restraining the Defendant, his agents, servants and/or workmen from further acts of trespass to the said land.
At the trial the parties called witnesses and after the trial and consideration of addresses by their Counsel, the trial Court held for the plaintiffs, as follows:
As earlier stated, I hold that the plaintiffs have proved their case on preponderance of evidence as required by law. The case for the plaintiffs therefore succeeds. I accordingly give judgment in favour of the plaintiffs, and make order as follows:
1. A declaration that the plaintiffs are entitled to the statutory right of occupancy of the parcel of land known as and called ‘Okpulo Ahukanna Land’ situate at Umakirika Ozata Asa as depicted in the plaintiffs’ survey plan, tendered in this (case) as Exhibit A.
2. Ten Thousand Naira (N10,000.00) payable by the defendant to the plaintiffs as general and special damages for trespass into the said land by the defendant.
3. An order of injunction permanently, restraining the defendant from entering or interfering with the land.
The defendant is to pay a cost of N5,000 (five thousand Naira) to the plaintiffs’.
That is the decision the Defendant (now Appellant) appealed against, as per the Notice and grounds of Appeal, filed on 21/12/2007 on pages 186 to 189 of the Records of Appeal. Appellant filed this brief of arguments on 26/2/2015, upon the Records of Appeal being regularized on 24/2/2015. Appellant distilled two issues for the determination of the Appeal, from the four grounds of the Appeal, as follows:
(1) Whether the Respondents/Plaintiffs proved their traditional history as to entitle them to the relief sought. (Grounds 3 and 4)
(2) Whether the learned trial Judge adequately and fairly considered the cases of the parties (Grounds 1 and 2)
The Respondent’s Brief was filed on 17/3/2015, wherein the Respondent adopted the issues distilled by Appellant for the determination of the Appeal. When this appeal came up for hearing, on 22/11/18, Counsel, on behalf of parties adopted their briefs and urged us accordingly.
Arguing the Appeal, Chidozie Ogunju Esq, who settled the Brief for Appellant, on issue 1, observed that the trial Court had held that the pleadings and evidence adduced, showed that the plaintiffs relied on traditional history and acts of long possession/enjoyment of the land to prove title to the land; that on the basis of the above the trial Court granted the reliefs sought.
Counsel said the trial Court was wrong, because looking at the Respondent’s pleadings, particularly, paragraph 11, the same did not satisfy the basic requirements for pleading traditional history that can ground a claim of ownership by traditional history. He relied onAlikor Vs Ogwo (2010) 5 NWLR (Pt.1187) 281 at 285; to the effect that a party relying on evidence of traditional history must plead his root of title and show in his pleadings and evidence, who his ancestors were, and how they came to own and possess the land; he must show who founded the land and how it was done. Counsel relied on Anabaronye Vs Nwakaihe (1997) 1 NWLR (Pt.482) 374; Ohiaeri Vs Akabeze (1992) 2 NWLR (Pt.221) 1, and submitted that the traditional history relied upon by the Plaintiffs (Respondent herein) was bereft of the essential requirements of evidence of traditional history; that apart from stating the name of the alleged progenitor, nothing more was said on how the land was founded, the particulars of the intervening owners through whom the Plaintiffs claimed the land. Counsel also said that the Respondent did not plead or mention whom they got the land from; that from the pleading and evidence, the Respondent did not make out a case entitling them to judgment.
Counsel submitted that a party whose root of title by traditional history has failed, cannot be taken to be in possession as all he was doing at that time can only be trespass. He relied on the case ofAlikor Vs Ogwo (2010) 5 NWLR (Pt.1187) 281 at 287.
On Issue 2, whether the trial Court adequately and fairly considered the cases of the parties, Appellant answered in the negative. Counsel reproduced the findings/holding of the trial Court on pages 178 to 181 of the Records of Appeal and submitted that the same concentrated on the weakness of the defence before even considering the case of the Plaintiff (Respondent). He said that the approach adopted by the trial Court, which was the demolition of the case of the defence before considering the case of the Plaintiff, was anomalous and led to a miscarriage of justice; he said that the law was trite that he who alleges must prove, and the one laying claim to title to land, must lead evidence to establish same and must succeed on the strength of his own case, not on the weakness of the defence. He relied on the case of Kodilinye Vs Odu (1935) WACA 336; Abisi Vs Ekwealor (1993) 6 NWLR (Pt.302) 634; Obilaso Anabaronye & Ors Vs Nelson Nwakaihe (1997) 1 NWLR (Pt.482) 374 at 376.
Counsel said that the inherent weakness of the Respondent?s case, apart from the incoherent traditional evidence (history), was the failure to plead the particulars of the intervening owners through whom the Respondent claimed the land; that the trial Court failed to advert to the defective nature of the claim, because it concentrated on demolishing the defence, rather than discovering whether the Respondent had even made out a case, at all.
Counsel further referred us to the holding of the trial Court on pages 180 to 181 of the Records of Appeal, as proof of unfair decision of the Court, where the trial Court held that failure of the Appellant to call Samuel Onwuli Nwokocha, as witness, amounted to withholding evidence, to invoke Section 149(d)of the Evidence Act against the Appellant. Counsel said that provision (Section 149(d) of the Evidence Act) was against withholding evidence, not failure to call a witness. He relied on the case of Onwujuba Vs Obienu (1991) 4 NWLR (Pt.183) 16; Awosile Vs Sotunbo (1986) 3 NWLR (Pt.417); Akintola Vs Anyiam (1961) ALL NLR 508; Ogbodu Vs State (1987) 3 SC 497; Ezemba Vs Ibeneme (2004) 40 WRN 1 and HMS Ltd Vs First Bank of Nigeria Ltd (1991) 1 NWLR (Pt.167) 290 at 308.
Counsel added that a defendant had no case to prove, since he did not Counter-Claim; that the burden resided on the Plaintiff to establish his case and that it is only after leading credible evidence to prove his claim that the burden passes to the defence to rebut the claim. He relied on the case of Aromere & Ors Vs Awoyen (1972) ALL NLR 105.
Counsel urged us to resolve the Issues for the Appellant, and to allow the Appeal.
Responding, Nkwo Victor O’ Brien Esq, who settled the Respondent’s brief, on Issue 1, whether the Respondent proved his traditional history, answered in the affirmative. He said that the Suit was fought in a representative capacity; that the action was filed by some children of Ahukanna, for themselves and as representing the rest of the children of Ahukanna. Counsel said that the pleading and evidence of the Respondent (particularly PW1) had clearly pleaded and traced the root of title of the land, to their ancestor, Ahukanna, who deforested the land and that the land devolved right down to the Respondent, but that Appellant omitted those pieces of evidence by the Respondent in the Records of Appeal, transmitted to this Court.
Counsel said the capacity/status of the Respondent and the people he represented in the Suit, as children and members of the family of Ahukanna, the founder of the land, was not challenged in anyway, but was rather clearly admitted by Appellant. He argued that Appellant was under a misconception of the words ?ancestor? and/or ?forefather?/progenitor?, as used in the pleadings, when he (Appellant) argued that the Respondent did not name the persons he got the land from, apart from his progenitor. Counsel said that, from the pleadings and evidence of Respondent, and the people he represented, their reference to Ahukanna as their ancestor was/is simply a reference to him as their father; that a holistic appraisal of the pleading and evidence of the Respondent, the capacity in which the Suit was brought by them, as can be found at pages 24 – 25 of the Records, as well as the pleaded facts and evidence adduced, to the effect that the land was deforested by Ahukanna, whose children the Respondent and the people he represented, were; that it was not the requirement of the law that the evidence should state how the Respondent (and the people he represented) individually occupied or possessed the land. He said that the members of the family, as an indivisible unit, from the pleadings and evidence of the Respondent, have collectively and/or jointly been in possession of the land. Therefore, the Court held on page 181 of the Records:
“The pleadings and evidence adduced in this case show that the Plaintiffs rely on traditional history and acts of long possession and enjoyment of the land. I am satisfied that the Plaintiffs’ traditional evidence is coherent and clearly shows root of their title, up to the present Plaintiffs.”
Counsel submitted that the traditional history of the land, adduced by the Respondent, having passed the test and been accepted by the trial Court, was properly applied to predicate the decision, and on the proved acts of long possession and enjoyment of the land.
On Issue 2, whether the trial Judge adequately and fairly considered the case of the parties, Counsel answered in the affirmative too. Counsel said that Appellant was wrong to say that the trial Court concentrated on the case of the defence before considering the case of Plaintiff, thus adopting the approach of demolishing the case the defence; he said that the lower Court took cognizance of the position of the law in the cases of Kodilinye Vs Odu (1935) WACA 336; Abisi Vs Ekwealor (1993) 6 NWLR (Pt.302) 634; Obilaso Anabaronye & Ors Vs Nelson Nwakaihe (1997) 1 NWLR (Pt.482) 374 at 376. (All cited and relied upon by the Appellant’s Counsel), and clearly predicated its judgment on it. Counsel said that before the trial Court even considered the evidence adduced in the case by the parties, it had emphasized that the Plaintiff must succeed on the strength of his own case and not on the weakness of the defence – page 197 of the Records.
Thus, that it was after looking at the evidence on both sides that the trial Court came to its decision; he said that the trial Court actually considered the evidence of the Plaintiffs, before turning it focus on the evidence of the defendant.
On the allegation of considering the defence, first, Counsel said judgment writing is an art, and individual judge has his style, provided the conclusion is right and follows legal principles. He relied on the case of Airopeju & Ors Vs State (2001) 8 NSCQR 312. Counsel added that once a judgment contains the known constituent parts of a good judgment, the style approach of the adopted by the trial Judge is immaterial. He added that even if one or two constituent part(s) of a good judgment is lacking, that that would not necessarily lead to the setting aside the judgment, except the same caused a miscarriage of justice. He relied on AG FED. VS Atiku Abubakar (2007) 32 NCSQR 58
On the alleged presumption of Section 149(d) of the Evidence Act (now 167(d), 2011) against the Appellant, for failing to call a particular witness, Counsel said the trial Court was right to make its observation on pages 180 to 181 of the Records; that by failing to call Samuel Onwuli Nwokocha to give evidence, the requisite evidence was kept away from the Court. Counsel however, submitted that the trial Court did not invoke the Section 149(d) of the Evidence Act against the Appellant, and that the judgment was not predicated on invocation of the Section 149(d) of the Evidence Act. Counsel added that even if was true the trial Court invoked that provision against Appellant, that error would not lead to the setting aside of the decision as it was not foundational to the decision. He relied on Grosvenor Ltd Vs Halaoui (2009) 38 NSCQR 187; AKAYEPE Vs AKAYEPE (2009) 38 NSCQR 450; APGA VS Victor Umeh (2011) 45 NSCQR 175.
Strangely, Respondent’s Counsel argued what he called. Issue3: whether, having regard to the nature of the Records (of this Appeal), this Court can hear this appeal.?
We have held several times that a Respondent who has not filed a cross-appeal or raised a Respondent’s Notice, cannot formulate and argue an Issue for determination of appeal, outside the grounds of appeal (and Issues) raised by the Appellant. See Duru Vs Duru (2016) LPELR 40444 CA; Emesonye Vs The State (2016) LPELR 40549 CA.
It is, however, appreciated that the Respondent Counsel in the brief had raised questions about the accuracy or completion of the Records of Appeal, compiled and transmitted to this Court by Appellant. That would not, in my view, permit the Respondent to raise a separate issue on it, and argue it, having earlier adopted the 2 two Issues donated by the Appellant for the determination of the appeal. If the Respondent felt that the Records of Appeal was incomplete the law allows the Respondent right to compile and transmit Supplementary Records of Appeal to highlight the part omitted by the Appellant in the Records compiled and transmitted to this Court for the hearing of the appeal. It was also up to him (the Respondent) to raise a preliminary objection, thereon, that the Records of Appeal was incomplete. Having failed to do any of these, he cannot advance arguments on the issue 3. In the circumstance, the alleged Issue 3 is struck out.
RESOLUTION OF THE ISSUES
I think the two Issues donated for the determination of this appeal by the Appellant are basically, talking about the same thing.
EVALUATION OF EVIDENCE, whether the trial Court properly and fairly evaluated the evidence of the parties, to reach its conclusion that the evidence of traditional history, led by the Respondent, entitled the Respondent to judgment.
I shall therefore consider this appeal on the rephrased single issue, above.
Appellant argued that the Respondent did not establish their root of title by means of the traditional history pleaded, to be entitled to the reliefs sought. But the trial Court had held, as follows:
“The pleadings and evidence adduced in this case show that the Plaintiffs rely on traditional history and acts of long possession and enjoyment of the land. I am satisfied that the Plaintiffs’ traditional evidence is coherent and clearly shows root of their title, up to the present Plaintiffs. The Plaintiffs’ claim and the story is very straight-forward. The land in dispute was deforested by their father, Ahukanna from its condition as an evil forest, the Ahukanna lived and farmed on it, until they moved to a new place of residence in the 1950s and continued to farm on the land, thereafter. The position of the plaintiff of being descendants of the Ahukanna that deforested it has not been challenged. In fact, the defendants so admit but only stated that they settled the Plaintiffs on the land, without leading credible evidence in proof of it.
The Plaintiffs’ long possession has also not been challenged at all. The Plaintiffs, to my mind and I so hold, have satisfied the law as to standard of proof required of them. Establishment of a case on preponderance of evidence imports an appraisal of the case of the Plaintiff and defendant on the basis of balance of probabilities’. In other words, if weighed on the imaginary scale of justice, as between the case of the Plaintiff and that of the defendant, where would the scale tilt. In a nutshell it simply has to do with the relative strength of the evidence advanced by each side. See NBC PLC Vs Abubakar (2006) ALL FWLR (Pt.334) 122? I hold that the Plaintiffs have proved their case on the preponderance of evidence as required by law.
Appellant’s main complaint against the findings of the trial Court that the Respondent’s evidence of traditional history was coherent and satisfactory, is that Respondents’ pleading (paragraph 11 of the Statement Claim) and evidence adduced in Court, did not satisfy the basic requirements to found traditional history; he said that ‘a party relying on traditional history as root of title must show by pleading and evidence who founded the land, how the land was founded and the particulars of the intervening owners through whom the land devolved.’
While agreeing with the above submission of the learned Counsel for the Appellant, as to the law on the point, I think Appellant has a further duty to establish that the above was not, in fact, complied with in this case. Appellant has an uphill task to prove that the trial Judge was wrong, and/or that he held falsely when he said, as in this case:
“I am satisfied that the Plaintiffs’ traditional evidence is coherent and clearly shows root of their title, up to the present Plaintiffs. The Plaintiffs’ claim is straight forward. The land in dispute was deforested by their father, Ahukanna, from its condition as an evil forest. The Ahukannas lived and farmed on it until they moved to a new place of residence in the 1950s, and continued to farm on the land thereafter (Pages 181 – 182 of the Record)
I have not seen where Appellant raised any appeal against those clear finding and holding of the Court and/or faulted same.
The trial Court had observed that the parties who commenced the Suit, including the Original Defendant had all died and were substituted by the present parties. Thereafter, that 1st and 2nd Plaintiffs equally died, leaving only the 3rd Plaintiff, who pursued the case to conclusion; that the Plaintiff had called three witnesses, PW1. PW2 and PW3, and the Defendant had called 5 witnesses. See page 176 of the Records.
PW1, Akobundu Ahukanna, had told the Court the original Plaintiffs, Erondu Brown Ahukanna (Emezue Ahukanna and Isiguzo Ahukanna (now deceased) had instituted the Suit for themselves and as representatives of Ahukanna family. PW1 gave evidence to identify the land and said:
Members of the Ahukanna family have been in possession of the entire land farming on it. It was only in the 1950s that there was some dispute between the Ahukanna family and Umu-osu over boundary. The ‘amala’ arbitrated over the matter and later planted ‘ukpo’ trees at the boundary; since then there had not been any further dispute over the land. The land was deforested by our forefather, Ahukanna. Before he deforested the land, the land was known as ‘a bad bush’ where those who died of dreaded diseases were buried.”
PW1 did not conclude his evidence on 13/2/04, as the case was adjourned at the point he stated how their forefather, Ahukanna, acquired the land. The case was adjourned to 18/2/04 for continuation of his evidence, but there is nothing on the Records to show what happened on 18/2/04. There is a records that on 15/3/04, the case had to be adjourned, because Plaintiffs’ Counsel was absent in Court. Again there is nothing to show what transpired on the 16/4/04 when the matter was adjoined. But on 27/10/04, when the Suit was called, another witness, PW2, testified. (See pages 109 to 110 of the Records of Appeal)
The Respondent has deposed to affidavit in this case, to say that the Records of Appeal is incomplete; that as the PW1 commenced his evidence in chief and gave evidence in part on 13th day of February, 2004, the case stood adjourned to 18/2/2004? There is no record of what transpired on the said 18/2/2004? Page 110 of the records is the proceeding of 27th October, 2004, and it is the evidence in-chief of the PW2.
Defendant/Appellant, tactfully, omitted or procured the omission of the remaining part of the evidence in chief of the PW1 as well as his evidence, under cross examination? On 18th day of March 2005, Defendants/Appellants commenced his evidence in chief as DW1, gave evidence in part before the matter was adjourned to 29/4/2005, the remaining part of the evidence in chief of the Defendant (DW1) was not shown or reflected in the records of the 31st March, 2005. The records at pages 130 ? 131 show the cross examination of DW1. There is no record, whatsoever, of the conclusion of his evidence in chief and cross examination.? (See paragraph 5 of the Affidavit of the Respondent filed on 23/2/15 in this Court).
I think, on the basis of this alone, this appeal has a fundamental problem, having been argued on incomplete Records of Appeal, and so ought to be struck out. See the case of A.C.N. Vs Tunji & Ors (2012) LPELR 9461 (CA); AULT & WIBORG Nig. Ltd Vs NIBEL IND. LTD (2010) 11 NWLR (Pt. 1220) 486 at 496, on what to do in a situation of incomplete Records of Appeal
In the case of Akpan Vs First Bank of Nigeria Plc (2016) LPELR 41201 (CA), it was held as follows:
“The Appellate Court has a duty to ensure the records are complete as settled by the parties. Where a respondent disputes the genuineness or authenticity of the record of appeal or of positions thereof, he is duty bound to depose to an affidavit to challenge the said record; which will be served on the judge or registrar of the lower Court and on other party. Irawo-Osan Vs Folarin (2007) LPELR 9040 CA; Orajeaka Vs Owuamalam (2011) LPELR 4883 CA; Itita Vs Govt of Cross Rivers State (2010) LPELR 4341 CA. If the dispute of the respondent is with regard to the completeness of the record of appeal, the attention of the appellate Court must be called to this anomaly. Additional or supplemtary record may be filed, pursuant to the Order 2 Rule 6
The Respondent in this appeal, in my view, has done what was expected of him, as per the above case of Akpan Vs First Bank of Nigeria Plc. Appellant has not responded to the Affidavit of the Respondent, and has not filed any Additional Records of Appeal, to complete the Records of Appeal, as to the full evidence of PW1 and of DW1. This appeal is therefore struck out.
Even in the event of hearing this appeal on the merits, as I proceed to do, in this case appeal proceeds to the apex Court, I had earlier stated that Appellant did not challenge or appeal against the findings of the trial Court, which stated that it (the Court) was satisfied that the Plaintiffs traditional evidence was coherent and clearly showed the root of their title, up to the present Plaintiffs; that the land in dispute was deforested by their father, Ahukanna, from its condition as an evil forest; that the Ahukanna lived and farmed on it, until they moved to a new place of residence in the 1950s, and continued to farm on the land, thereafter. (Pages 181 – 182 of the Records). The law is that, where the findings or decision of Court is not appealed against, the same remains binding and conclusive. Ebemighe Vs Chi (2011) 14 NWLR (Pt.1268) 530; CPC Vs INEC (2011) 18 NWLR (Pt.1279) 493; Igbojionu Vs Uko (2018) LPELR – 45875 CA.
It can also be seen that the Respondent in this appeal was/is representing the family of the said Ahukanna, and himself, and himself one of the grandsons of the Ahukanna; his father was one of the original Plaintiffs, who succeeded the said Ahukanna. See the affidavit in support of the motion to substitute the original deceased Plaintiffs on page 33 – 35 of the Records of Appeal. The land even traces to a recent history, as the evidence shows that Ahukanna and his family were living and farming on the land, until 1950s, when they moved to a new place, but still kept farming on the land in dispute!
The PW2, Nwabilor Kanu, who testified on 27/10/2004, said he was over 70 years old; that he had lived in the locality since birth, and knew the parties. He also knew the land in dispute, as the home stead of the Plaintiffs. He said that only one part of the land was in dispute, and he had a common boundary with the Plaintiffs over the portion in dispute? that all the time he had only seen the children of Ahukanna on the land in dispute, and he had been farming on his portion of land, bounding with the Plaintiffs’ land for up to 35 years! PW2 also said:
“There was a time we had dispute with the Ahukanna over this very land in dispute. The dispute took place over 40 years ago. The dispute was settled by the ‘amala’ by demarcating the boundary between us and them with ‘Ukpo’ life trees, since then no party has trespassed on the other’s portion.” See pages 110 – 111 of the Records.
There was therefore, no break in the chain of devolution of the land, in my opinion, between the founder, Ahukanna, and his sons (the original Plaintiffs) and the present Respondent, who substituted their father at the demise of the original Plaintiffs. The Appellant was therefore, not correct, in my opinion, to argue that the particulars of the intervening owners through whom the Plaintiffs claimed, or the land devolved, were not stated.
I agree with the Learned trial Court that the requirements of traditional history was satisfied by the Respondent. See the recent case of Ihedioha Vs Agwalemere (2018) LPELR 44813 CA, where we said that evidence that traced the Claimant, as offspring of the original founder of the land, supplying the name that linked the Claimant to the founder was enough to show the devolution of the land.
I also think the trial Court had considered the evidence adduced by both parties, before reaching its conclusion; and that the trial Court, while analyzing the case of the Appellant (as defendant) was in my view, merely showed that the defendant could not debunk the evidence put forward by the Plaintiff, and so did not set out to demolish the case of the defendant. The trial Court had observed:
“Under cross examination he (Defendant) stated that his father Chigbu Nwuobilor saw Nwaobilor Nwakocha. But his witness, DW4 stated that Nwaobilor had died, before his wife, who was the mother of the father of the Defendant, went back to her maiden home Umuiku. That it was at Umuiku that the father of the Defendant was born. How then could a child admittedly born long after the death of Nwaobilor could be said to have entered the land in the lifetime of Nwaobilor.” Page 180 of the Records of Appeal.
I think that observation and inference was consistent with the evidence, adduced by the Defence. There was no point for Appellant to quarrel with the application of the evidence they adduced at the trial Court. Even then, the decision of the trial Court was founded on the quality of evidence presented by the Plaintiff, because, being a declaratory relief, touching on title to land, the Plaintiffs needed to succeed on the strength of their own case. The Appellant, therefore, really had no case to prove, having not filed any Counter-claim.
To that extent the trial Court was wrong, in my view, to have implied that the Section 149(d) of the Evidence Act 1990 (now Section 167(d) of the 2011 Act) would operate against the Appellant for failing to call a witness (one Samuel Onwuli Nwokocha). Appellant appeared to rely on the said observation by the trial Court. But the said observation was an obiter, that Appellant’s failure to produce the said Samuel Onwuli Nwokocha to testify for them (Appellant) would raise the presumption of law (Section 149(d) of the Evidence Act 1990) against Appellant. It was not the basis of the decision of the trial Court, adjudging the claim for the Respondent, as there were sufficient evidence before the Court to decide the case for Respondent. The trial Court had said:
“There is no evidence to show that the said Samuel Onwuli Nwokocha is no longer the family head. Under cross examination that Defendant admitted that he (Samuel Onwuli Nwokocha) is still living and is indeed the traditional ruler of their people. He was not called to support the defendant?s case as a witness. By the nature of the pleading this person is one whose evidence would have assisted the Court in arriving at a decision in the case. The failure of the defendant to call him, apart from regarding the pleading as abandoned, would raise the presumption of law that if called, the evidence he would give would be against the defendant. See Section 149(d) of the Evidence Act, Laws of the Federation of Nigeria, 1990.” See pages 180 – 181 of the Records of Appeal.
Of course, by law the trial Court ought not to have made that inference, as it would suggest that Appellant had a burden of proof in the case. But as argued by the Counsel for the Respondent, and I agree with him, that slip did not go to the substance of the decision of the trial Court, and was not the basis of the decision giving judgment to the Respondent.
In the recent decision of this Court in the case of CA/OW/301/2013: ADIBE IGBOJIONU & ORS VS NWACHUKWU UKO & ORS, delivered on 26/10/2018 Published as(2018) LPELR 45875 CA, we held, as follows:
“Appellant had quarreled that the trial Court presumed Section 149(d) of the Evidence Act, 1990, against them for failure to produce a witness to support their claims, that the Plaintiffs were strangers; that they had claimed that some elders (who were still alive) had witnessed the arrival and settlement of the Plaintiffs’ ancestors at Ndioze compound, but failed to produce any of the elders to give evidence. Thus, such failure be presumed against the Appellants – withholding evidence! I agree that the trial Court was wrong to invoke that presumption, in the circumstances of this case. But I also think the fire works by Counsel, from both sides, on this issue were clearly unnecessary, as the said presumption of Section 149(d) of the Evidence Act, 1990 (now 167(d) of the Evidence Act, 2011) did not reduce and could not have discounted the overwhelming evidence that entitled the Respondents to judgment on the preponderance of evidence. That means, as argued by Respondents, even if the trial Court did not make that error of invoking the presumption, the available evidence was enough to lead to the same conclusion, that the Respondents had proved their claim and were entitled to judgment.
I have already said that the trial Judge, in my opinion, was wrong to have resorted to the presumption of Section 149(d) of the Evidence Act? The reason for this is obvious, that Appellants (as Defendants) did not have any case to prove, being defendants in the Suit, having not filed a Counter Claim. The burden of proof, in the case, resided with the Respondents, who took out the Suit, and they had a duty to prove their claims, and on the strength of their evidence, not on the weakness of the defence. A.G. Cross River Vs A.G. Federation (2012) LPELR 9335 (SC); Nduul Vs Wayo & Ors (2018) LPELR 45151 (SC).”
The above case is apposite to this case on the point that the error of the trial Court in presuming the Section 149(d) of the Evidence Act, 1990, cannot vitiate the decision and conclusion of the trial Court granting title to the Respondent, upon the available credible evidence that they had established their root of title to the land in dispute.
I would therefore resolve the Issues against the Appellant, in the circumstance. I had earlier ruled that the Appeal be struck out, for incomplete Records of Appeal.
Appellant shall pay the cost of this appeal assessed at Fifty Thousand Naira (N50,000.00) only.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read in advance the leading judgment of this Court now delivered by my learned brother, Mbaba, J.C.A., and wholly agree that an appeal cannot be heard on an Incomplete record of appeal because an appellate Court is stripped of any jurisdictional competence to hear an appeal based on an incomplete record. In Okochi vs. Animkwoi (2003) 18 NWLR Part 851 page 1, the Supreme Court, per Tobi, J.S.C., admonished that:
An appellate Court must be wary to hear an appeal on Incomplete records and must not hear an appeal on Incomplete records unless the parties by consent agree that the appeal should be so heard. And such a consent which, will be a basis of a successful defence of waiver in the event of a retraction on the part of any of the parties, must be recorded by the appellate Court. Another situation emphasised therein where an appeal can be heard when the records are incomplete is where the missing part of the record, in view of the opinion of the Court Is so immaterial, clearly so immaterial that it cannot affect the decision of the appeal one way or the other. Where there is doubt in the mind of the Court as to the materiality or otherwise of the missing record, the doubt must be resolved against hearing the appeal in the interest of justice. In such a situation, other efforts should be made to procure the missing portion of the record.
In the instant appeal, it was observed that the evidence of P.W.1 and D.W.1 is incomplete in the record of appeal and even when the attention of the Appellant was drawn to it, no effort whatsoever was made to compile and transmit an additional record. The situation herein does not fall within the exceptions stated in Okochi vs. Animkwoi (supra), therefore, this appeal is bound to be struck out. The same is struck out by me.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother ITA G. MBABA JCA.
I agree with his reasoning and conclusion. I have nothing more to add. I also dismiss the appeal.
I abide by the consequential order made as to costs.
Appearances:
Chidozie Ogunji, Esq. (who settled the brief) with him, F.C. Ohajuru, Esq. For Appellant(s)
Nkwo Victor O’Brien (who settled the brief) with him, I.C. Igwe, Esq.For Respondent(s)
