GODWIN NWAFOR MADUKA & ORS v. VICTOR ECHEZONA ANYADIEGWU
(2014)LCN/7442(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of August, 2014
CA/E/178/2010
RATIO
APPEAL: PRELIMINARY OBJECTION; THE PROCEDURAL APPROACH AND OR REQUIREMENTS FOR THE GIVING OF NOTICE OF PRELIMINARY OBJECTION AGAINST THE HEARING OF AN APPEAL OR A PART THEREOF
Order 10 Rule 1 of the Court of Appeal Rules, 2011 provides the procedural approach and or requirements for the giving of notice of preliminary objection against the hearing of an appeal or a part thereof. Thus, the position is firmly established, that the requirement for notice under this rule is compulsory on a respondent who intends to raise a preliminary objection to the hearing of the appeal. This is more so, because rules of court are meant to be complied with and not otherwise. Nevertheless, it has become an acceptable practice for the respondent to raise and argue such a preliminary objection in the respondent’s brief of argument. In such a situation and with the previous service of the said brief on the appellant, coupled with the payment of requisite/assessed filing fees, the compelling need for the formal filing of a notice of preliminary objection can be dispensed with. Again, this is because the appellant will be deemed to have had adequate notice and must have been afforded ample opportunity to respond thereto in the appellants’ reply brief of argument if he is so inclined. See Aroyinkeye vs. Awoyinka (2004) 10 FWLR (Pt. 232) 659.
However, before such an objection which is embedded in the respondent’s brief of argument is given proper consideration, the respondent must have sought and obtained requisite leave of the Court of Appeal, before the commencement of oral hearing of the appeal. At the least, the respondent’s counsel must have drawn attention of the Court to the preliminary objection and more particularly, the pages in the brief containing the notice and arguments in respect thereof. Put differently, he must have asked the court for leave to move and or raise the objection. Thus, failure on the part of the respondent in this regard will render such objection incompetent and liable to be struck out. This is more so, because it will be deemed to have been waived and abandoned. See Oforkire & Anor. vs. Maduike & Ors. (2003) 1 SCNJ 440, (2003) 5 NWLR (Pt.812) 166; Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65; Att. – Gen. Rivers State vs. Ude (2007) All FWLR (Pt. 347) 598; Minister, Works & Housing vs. Shittu (2007) 16 NWLR (Pt. 1060) 351; Mosoba vs. Abubakar (2005) 6 NWLR (Pt.922) 460. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: CROSS-EXAMINATION; THE WEIGHT ATTACHED TO EVIDENCE EXTRACTED DURING CROSS-EXAMINATION
The law is trite that in the conduct of proceedings/hearing in a matter, evidence adduced through answers elicited or obtained from a witness while being cross-examined, is admissible, potent and as good as the evidence proffered under examination-in-chief. Indeed, cross-examination forms a crucial and indispensable aspect of the adjudication process. Thus, evidence extracted during cross-examination has similar potency and weight in relation to the facts in contention. Consequently, where answers to questions posed under cross-examination are relevant and linked to the fact in issue, such answers cannot be swept aside with a wave of the hand, glossed over or ignored, simply because it was procured through or under the intense heat of cross-examination and not otherwise. See I.N.E.C. vs. Ifeanyi (supra)
Thus, the law is basic on the point that, provided it is pleaded by either of the parties, evidence elicited under cross examination is proper and admissible. Thus, it could be utilized by the trial court in the adjudication/determination process. I accordingly hold that the evidence given by the respondent though extracted under cross-examination having been duly pleaded and relevant to this case was rightly admitted and relied upon by the learned trial judge. I hereby resolve this issue in favour of the respondent. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
COURT: DUTY OF THE COURT; THE PRIMARY FUNCTION OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT
It is trite that it is the trial court which alone has the primary function of giving full consideration to the totality of evidence placed before it. It ascribes probative value to it, put the same on the imaginary scale of justice in order to determine the party in whose favour the balance tilts or preponderates. Thereafter, it will make the necessary findings of fact and come to logical and legal conclusions. The duty to evaluate the evidence adduced by the parties remains the exclusive preserve of the trial court. This is more so, because of its singular advantage, opportunity of hearing and watching the demeanour of the witness as they testify. Thus, the trial court is best suited to assess the credibility of witnesses and reliability of their evidence. When the trial court fails to evaluate such evidence properly or a tall, then an appellate court will intervene and re-evaluate such evidence. Other than this, the appellate court has no direct business interfering with the findings of the trial court on such evidence and thereby substitute its own views of the facts for those of the trial court. See NEPA vs. Adesaju (2002) 17 NWLR (Pt.797) 578. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: DOCUMENTARY AND ORAL EVIDENCE; WHETHER DOCUMENTARY EVIDENCE CANNOT BE ALTERED OR CONTRADICTED VIDE ORAL EVIDENCE
It is trite principle of law that document speaks for itself and its contents cannot be altered or contradicted vide oral evidence. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: PROVING TITLE TO LAND; WAYS OF PROVING OR ESTABLISHING TITLE TO LAND OR OWNERSHIP OF LAND AND THE BURDEN OF PROVING TITLE TO LAND
Basically, there are five ways of proving or establishing title to land or ownership of land, these are by:
(a) Traditional Evidence.
(b) Production of document of title duly authenticated.
(c) By positive acts of extending to a sufficient length of time.
(d) By acts of long possession and enjoyment of the lands.
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the case of IDUNDUN v. OKUNMAGBA (1976) 1 NMLR 200. The law is that establishment of one of the five ways is sufficient proof of ownership. See Nkado v. Obiano (1997) 5 NWLR (Pt.503) 31; Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 354;
In a claim of declaration of title, the plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case. The onus lies on the plaintiff to satisfy the court on the evidence he adduced that he is entitled to the declaration being sought. See Kodilinye Ode (2003) 36 WRN 127. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: PROOF OF TRADITIONAL HISTORY; WHETHER PROOF OF TRADITIONAL HISTORY WILL BE SUFFICIENT TO SUSTAIN THE PLAINTIFF’S CLAIM FOR DECLARATION OF TITLE TO LAND
Where a plaintiff relies on traditional history as evidence or proof in his claim for declaration of title to land and it is found to be cogent and credible’ it will be sufficient to sustain his claim. The onus which lies on such a plaintiff, is to prove his title upon the preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See Shittu vs. Fashawe (2005) 14 NWLR (Pt.946) 671; Adesanya vs. Aderonmu (2009) 9 NWLR (Pt.672 370. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. GODWIN NWAFOR MADUKA
2. CHIEF SAMUEL NWAFOR EZEIMO
3. MADUORA ANANTI
4. CHUKWUDUBEM ANANTI
(Substituted for Alexander Ananti
by Order of the Court of Appeal for
themselves and on behalf of
Umuezealukpaka Family of Ojoto) Appellant(s)
AND
1. VICTOR ECHEZONA ANYADIEGWU
(Substituted for Nathaniel Anyadiegwu
by Order of the Court of Appeal for
himself and on behalf of Nathaniel Anyadiegwu Family of Oba) Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court, Anambra State, Idemili Judicial Division, sitting at Ogidi, hereinafter referred to as the lower court, in Suit No. HID/171/2006, delivered on the 30th day of May, 2008. In the decision of the said lower court, Hon. Justice J. I. Nweze, J. entered judgment in favour of the plaintiff who is hereinafter referred to as the respondent.
Briefly put, the facts of the case are that the respondent as plaintiff, initially commenced Suit No. CCOB/49/97 at the Customary Court, Oba, claiming declaration of title, damages for trespass and injunction against the 1st defendant alone. About two years after the said commencement of the suit, two other defendants applied to be joined in the suit and they were subsequently joined. The three defendants are hereinafter referred to as the appellants. By order of the Administrative Judge in charge of Idemili Judicial Division, dated 22nd June, 2006 the suit was transferred to the High Court for hearing and determination.
Pursuant thereto and on 18th December, 2006 the lower court ordered the parties to comply with the requisite/relevant procedural provisions of the rules of the lower court, with regard to the filing of pleadings and affidavit evidence , that is witnesses’ written statement on oath and so on. Pleadings were duly filed and exchanged between the parties and the suit proceeded to trial/hearing. In his bid to prove his case, the respondent testified in person and called two other witnesses. The appellants also testified in person and further called an additional witness in their defence.
The case of the respondent at the lower court is that the land in dispute was originally founded by one Oba his ancestor. That the said parcel of land devolved from Oba to Isu his son and down the lineage to the respondent. Additionally, the respondent asserted/testified that he had been in possession for a long time and thereby exercised numerous acts of possession. On the other side of the divide, the 1st appellant’s case is to the effect that he acquired the land in dispute by purchase from the Umuezealukpaka family. He also asserted that he exercised possessory rights over the land in dispute. At the end of trial/hearing, inclusive of adoption of written addresses by the learned counsel for the parties respectively, the learned trial judge adjudged the case of the respondent as having succeeded and thereby granted the reliefs sought by the respondent.
Dissatisfied with this untoward development, the appellants lodged their appeal to this court on a notice of appeal containing seven grounds of appeal. Upon, the grant of leave by this court on 14th April, 2011 the appellants further filed their amended notice of appeal containing five grounds of appeal on 19th April, 2011. The said grounds of appeal shorn of their particulars are reproduced below:-
“(1) The learned trial judge erred in law in entering judgment for the plaintiff – respondent in this case when he failed to prove his case.
(2) The learned trial judge misdirected himself in law in his judgment where he opined as follows:
“The case of the plaintiff is that the land in dispute was originally founded by Oba. He claimed that it devolved from Oba to Isu his son and down to the plaintiff. In his witness statement on oath he did not show how Isu was related to Oba. The defendants as a result contends that he failed to prove an unbroken chronology of his ancestors. They relied on the case of OGUNLEKE V. ADEDIBU (2003) 18 WRN 120. In making this submission the defendant conveniently forgot that under cross-examination the plaintiff explained that “Akabo is the son of Nnakwa. Nnakwa is the son of Isu, whilst Isu is the son of Oba.”
(3) The learned trial judge completely failed to evaluate properly and correctly the evidence before him and this resulted in a miscarriage of justice against the defendants-appellants.
(4)(a) The learned trial judge misdirected himself in fact in holding that the evidence of the 1st defendant confirms that the plaintiffs plan Exhibit P.I. refers correctly to the land in dispute.
(b) The learned trial judge misdirected himself in law in the passage of his judgment where he stated as follows:-
“These Ojoto people are settlers who, as they grew in population, acquired part of the Akabo land. He was not cross-examined to show that the acquisition of the land was not by purchase from Oba people.”
(5) The learned trial judge misdirected himself in fact when he concluded that the land in dispute is the land P.W.2 farmed.
(6) The learned trial judge erred in law in entering judgment for the plaintiff-respondent in this case when he failed to consider and evaluate the evidence of D.W.1., D.W.2, and D.W.4.
(7) The judgment is against the weight of evidence.”
Parties duly filed and exchanged briefs of argument in compliance with the rules of this Court. Appellants’ brief of argument was filed on 5th May, 2011. It was prepared by S.M.I. Asoegwu Esq. The appellants distilled five issues for determination in this appeal.
The issues are as follows:
“(1) Whether on the evidence in this case the respondent proved his case?
(2) Was it open to the respondent to give evidence under cross-examination to fill the yawning gap in his traditional history?
(3) Whether the learned trial judge properly evaluated the evidence before him?
(4) Whether the first appellant, who was the 1st defendant in the lower court, affirmed in any way in his evidence that the plaintiff’s Plan Exhibit “P.1.” refers correctly to the land in dispute?
(5) Whether the learned trial judge was right in entering judgment for the respondent in this case?”
Appellants also filed a reply brief on 4th February, 2014. The respondent’s brief of argument was filed on 17th June, 2013. It was deemed duly filed and properly served on 21st January, 2014. It was prepared by Ikechukwu F. Ezechukwu Esq. The three issues formulated therein for determination in this appeal are reproduced below:
(i) Whether answer elicited from a witness during cross-examination which is relevant to the facts of the case can be brushed aside or ignored simply because it came through cross-examination.
(ii) Assuming but not conceding that the trial Court was not entitled to conclude as it did that “…the testimony of the 1st Defendant confirms that the plan of the plaintiff exhibit P.1 refers correctly to the land in dispute”, given the consideration of the totality of the said 1st defendant’s evidence, whether same occasioned a miscarriage of justice.
(iii) Whether the learned trial judge was right in entering judgment for the respondent.”
On 27th May, 2014 when the appeal came up, for hearing before us, learned counsel for the appellants, N.F.P. Egonu Esq. identified the aforedescribed processes filed by the appellants, adopted and relied on the arguments contained therein. We were urged to allow the appeal and thereby set aside the decision of the lower court. Mr. Egonu of counsel referred to the cases of Federal Medical Centre, Ido-Ekiti vs. Shuaibu Adewole Alabi (2012) 2 NWLR (Pt.1285) 411/433. G – H.; Nigerian Laboratory Co-operation & Anor. vs. Pacific Merchant Bank Ltd. (2010) 15 NWLR (Pt. 1324) 505/518 A – B.; Chief Ebenezer Ilo Adeniyi vs. Alhaji Yesufu Akintan (2011) 5 NWLR (Pt.1241) 554/563 D – E and submitted that a respondent who raises a notice of preliminary objection in the respondent’s brief of argument, has a duty to comply with the relevant and applicable rules of this court, inclusive of payment of requisite/assessed fees and penalty.
On the part of the respondent, learned respondent’s counsel, Mrs Nneka Ozowara also identified the respondent’s brief of argument and confirmed that the respondent has complied with the orders of this Court in all material particulars. Learned counsel for the respondent adopted the said respondent’s brief, placed reliance on the arguments contained therein and urged us to dismiss the appeal.
Before proceeding with and resolving the issues raised for determination in this appeal, let me touch some salient sub-issues found therein. They include the issue of preliminary objection incorporated into the respondent’s brief of argument. Paragraphs 3.0 to 3. 2. 5. 4 at pages 2 – 8 of the respondent’s brief of argument indicated an avowed intention on the part of the respondent to raise preliminary objection predicated upon the grounds stated therein. It was urged on us that both the record of appeal and the appeal itself should be struck out, inter alia on the ground of incompetence and invalidity.
Order 10 Rule 1 of the Court of Appeal Rules, 2011 provides the procedural approach and or requirements for the giving of notice of preliminary objection against the hearing of an appeal or a part thereof. Thus, the position is firmly established, that the requirement for notice under this rule is compulsory on a respondent who intends to raise a preliminary objection to the hearing of the appeal. This is more so, because rules of court are meant to be complied with and not otherwise. Nevertheless, it has become an acceptable practice for the respondent to raise and argue such a preliminary objection in the respondent’s brief of argument. In such a situation and with the previous service of the said brief on the appellant, coupled with the payment of requisite/assessed filing fees, the compelling need for the formal filing of a notice of preliminary objection can be dispensed with. Again, this is because the appellant will be deemed to have had adequate notice and must have been afforded ample opportunity to respond thereto in the appellants’ reply brief of argument if he is so inclined. See Aroyinkeye vs. Awoyinka (2004) 10 FWLR (Pt. 232) 659.
However, before such an objection which is embedded in the respondent’s brief of argument is given proper consideration, the respondent must have sought and obtained requisite leave of the Court of Appeal, before the commencement of oral hearing of the appeal. At the least, the respondent’s counsel must have drawn attention of the Court to the preliminary objection and more particularly, the pages in the brief containing the notice and arguments in respect thereof. Put differently, he must have asked the court for leave to move and or raise the objection. Thus, failure on the part of the respondent in this regard will render such objection incompetent and liable to be struck out. This is more so, because it will be deemed to have been waived and abandoned. See Oforkire & Anor. vs. Maduike & Ors. (2003) 1 SCNJ 440, (2003) 5 NWLR (Pt.812) 166; Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65; Att. – Gen. Rivers State vs. Ude (2007) All FWLR (Pt. 347) 598; Minister, Works & Housing vs. Shittu (2007) 16 NWLR (Pt. 1060) 351; Mosoba vs. Abubakar (2005) 6 NWLR (Pt.922) 460.
In the instant case, the learned counsel for the respondent did not do the expected and needful. She maintained a dignified silence during the oral hearing of this appeal. In this vein, I am left with no viable option other than to regard the preliminary objection as having been waived and abandoned. This is also in tandem with the arguments canvassed by the learned counsel for the appellants thereon. It is accordingly struck out by me. See Ajibade vs. Pedro (1992) 5 NWLR (Pt. 241) 257. All arguments in respect thereof, contained in the respondent’s brief will also be discountenanced and ignored.
It is also to be noted, that learned counsel for the appellants in their brief of argument, did not bother to connect or relate the distilled issues to the appropriate/particular ground or grounds of appeal to which the said grounds could be traced or tied to. It is instructive and significant too that it be emphatically restated that there is the need and a highly recommended one to marry/link the issues to/with ground or grounds of appeal – expressly. In U.B.N. Ltd. vs. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558/578 per Wali, JSC the erudite and revered learned jurist stated thus:-
“While it is true that the Rules as regards filing of briefs of argument do not specifically state that counsel must indicate in his brief which of the ground or grounds of appeal are covered by an issue, it is highly desirable that should be done. This will tremendously assist the appellate Court in relating arguments to the issue to the ground of appeal they are related, thus saving the time of the Court and enhancing the quick disposal of the appeal.”
Again, let it be restated that it is trite, that points of law not raised in the lower court will not be allowed to be raised in the appellate court except with leave of either the lower court or the appellate court. See Djukpan vs. Orovuyovbe (1967) 1 ALL NLR 134. Hence, where the issue or question sought to be raised for the first time on appeal involves substantial points of law, be it substantive or procedural and it is obvious that no further evidence could have been adduced to affect the decision thereon; leave will be granted by the appellate court to allow the issue, point or question to be raised. See Ajuwon vs. Adeoti (1990) 2 NWLR (Pt.132) 271/284.
Thus, raising of a new issue on appeal requires the leave of either the lower court or the appellate court; otherwise it will be incompetent and incapable of being raised and or argued. See Agbaje vs. Adigun (1993) 1 NWLR (Pt.269) 261.
Going by the rules of this court, an appellant’s reply brief is supposed to respond to new points raised in the respondent’s brief of argument. It is not supposed to rehash the previous arguments all over again. Hence, where a reply brief is more or less a repetition of what has already been submitted in the main appellant’s brief of argument, such a reply is not worthy of any judicial or judicious considerations and will be liable to be discountenanced.
Having perused the record of appeal, grounds of appeal and the issues distilled therefrom by the learned counsel for the parties, I am duly satisfied that the issues identified by the learned counsel for the respondent, succinctly captured the essence of the complaints or challenges mounted by the appellants against the decision of the lower court. I prefer them to the ones formulated by the learned counsel for the appellants. The same are accordingly adopted by me for determination in this appeal.
At the hearing of this appeal, learned counsel for the parties, adopted and placed reliance on the arguments contained in their respective briefs of argument. Consequent thereto, while the learned counsel for the appellants urged us to resolve the issues positively and thereby allow the appeal, the learned counsel for the respondent urged us to do the reverse, resolve the issues negatively and therefore dismiss the appeal.
ISSUE NO. 1
WHETHER ANSWER ELICITED FROM A WITNESS DURING CROSS-EXAMINATION WHICH IS RELEVANT TO THE FACTS OF THE CASE CAN BE BRUSHED ASIDE OR IGNORED SIMPLY BECAUSE IT CAME THROUGH CROSS.EXAMINATION.
Learned counsel for the appellants with regard to this issue, adopted his previous arguments/submissions and further maintained that, “the respondent in his statement of claim at pages 33 to 37 of the record of appeal neither pleaded nor proved how Oba allegedly founded the land in dispute.” He cited the case of Benjamin Nwankwo Iroagbara vs. David Ufomadu (2009) 11 NWLR (Pt.1135) 587/600 on the established position of the law that a plaintiff/respondent “who claims a declaration of title such as in this case, “based on traditional history has the onus of pleading and proving who founded the land, how it was founded and the devolution of the land by unbroken chain of succession down to him.”
Learned counsel for the appellants quoted extensively from the record of appeal and the judgment of the trial court at pages 200 – 201 of the printed record. It was then submitted that the respondent is incapable of supplementing “his evidence in chief by his evidence under cross examination in an attempt to fill the yawning gap in his traditional history.” It was strenuously contended that the traditional history on which the respondent based his claim was neither properly pleaded nor duly established. Hence, according to the learned counsel for the appellants, the learned trial judge was wrong when he concluded that the respondent, “proved an unbroken chronology of his ancestors in this case and this led to a miscarriage of justice,” against the appellants herein.
With regard to this issue, the learned counsel for the respondent observed that part of the issue as argued by the learned counsel for the appellants, was not raised at the lower court and the same cannot be raised or argued without leave of either the lower court or this court previously sought and obtained. He referred to the decided case of S.P.D.C. (Nig.) Ltd. vs Emehuru (2007) 5 NWLR (Pt.1027) 347/362 on the point being made. Additionally and according to the learned counsel for the respondent, the gravemen of this issue relates to the argument by the learned counsel for the appellants, that the respondent cannot supplement his evidence in chief with answers elicited from his evidence while being cross examined. He wrongly cited the case of I.N.E.C. vs. Ifeanyi as Inex vs. Ezeulcwu (2010) 1 NWLR (Pt.1174) 98/103 and contended that in the instant case, the respondent while under cross examination supplied and explained the relevant link which has been duly pleaded and that the same was rightly upheld by the learned trial judge.
I have carefully perused the arguments of learned counsel on behalf of both parties on this issue. The gravamen of this issue is the possibility in law for a witness (in this case, the respondent) to complement or supplement his evidence in chief by his evidence under cross examination. Put differently, the issue of admissibility of evidence elicited/extracted under cross-examination.
It is the law that evidence in a case is based on pleadings in that case and a case in proved by admissible evidence. Consequently, evidence which is not based on pleadings goes to no issue and should be disregarded. Such evidence in law is inadmissible. Put differently, that the admissibility of evidence must satisfy the precondition in law of having been pleaded in the pleadings of parties. Statement of claim and statement of defence as the case may be and same must be relevant and material to the facts in issue.
The contentious evidence under this issue is the question put forward to PW1 by counsel for the appellants and the answers given in his cross-examination. For the purpose of clarity and a better grasp of the position, I will reproduce below the relevant aspects of the evidence in question.
“Q. There is no son of Oba called Ndiaboh.
Ans. Yes, that is true, Ndiaboh people came from Aboh. Akabor is the son of Nnakwa. Nnakwa is the son of Isu whilst Isu is the son of Oba.
(See page 159 of the Record of Appeal.)
This evidence is no doubt missing in the evidence in chief of the respondent. Howbeit, the same has been pleaded and is contained in paragraphs 7 and 8 of the plaintiff/respondent’s statement of claim.
The said paragraphs read thus:
“7. The Plaintiff states that Oba was the original owner and founder of the large expanse of land known as ANI AKABO LAND. Oba is dead, Oba had nine children, his children shared his land after his death.
8. His son Isu inherited the land in dispute. Isu is dead. On the death of Isu, his children shared his land, Isu begat Abu, Ebii, Nnakwa, his son Nnakwa inherited the land. Nnakwa is dead.”
(See page 34 of the Record of Appeal).
Let me be explicit at this stage, that I cannot gloss over facts which are pleaded and of course, relevant to the justice of this case simply because it was extracted or elicited through cross examination. This fact to my mind having been duly pleaded is very relevant to the just determination of this case, hence I will disagree with learned counsel for the appellants in his argument and authorities cited that such a vital and important piece of evidence ought not to have been considered by the learned trial judge.
The law is trite that in the conduct of proceedings/hearing in a matter, evidence adduced through answers elicited or obtained from a witness while being cross-examined, is admissible, potent and as good as the evidence proffered under examination-in-chief. Indeed, cross-examination forms a crucial and indispensable aspect of the adjudication process. Thus, evidence extracted during cross-examination has similar potency and weight in relation to the facts in contention. Consequently, where answers to questions posed under cross-examination are relevant and linked to the fact in issue, such answers cannot be swept aside with a wave of the hand, glossed over or ignored, simply because it was procured through or under the intense heat of cross-examination and not otherwise. See I.N.E.C. vs. Ifeanyi (supra)
Thus, the law is basic on the point that, provided it is pleaded by either of the parties, evidence elicited under cross examination is proper and admissible. Thus, it could be utilized by the trial court in the adjudication/determination process. I accordingly hold that the evidence given by the respondent though extracted under cross-examination having been duly pleaded and relevant to this case was rightly admitted and relied upon by the learned trial judge. I hereby resolve this issue in favour of the respondent.
ISSUE NO. 2
ASSUMING BUT NOT CONCEDING THAT THE TRIAL COURT WAS NOT ENTITLED TO CONCLUDE AS IT DID THAT”…THE TESTIMONY OF THE 1ST DEFENDANT CONFIRMS THAT THE PLAN OF THE PLAINTIFF EXHIBIT P.1 REFERS CORRECTLY TO THE LAND IN DISPUTE.” GIVEN THE CONSIDERATION OF THE TOTALITY OF THE SAID 1ST DEFENDANT’S EVIDENCE, WHETHER SAME OCCASIONED A MISCARRIAGE OF JUSTICE.
Learned counsel for the appellants contended on this issue, that contrary to the conclusion reached by the learned trial judge that the 1st appellant herein, “confirms that the plan ….refers correctly to the land in dispute,” that the 1st appellant did not in anyway or anywhere in the relevant pages of the record of appeal, “either expressly or by implication admitted that the plaintiff – respondent’s survey plan Exhibit “P2″ refers correctly to the land in dispute.” Additionally, that the evidence before the trial court was wholly against the conclusion reached on the point by the learned trial judge. According to the learned counsel, this is more so, when “the trial court did not state where and how the 1st defendant made the alleged admission in his evidence before the trial court.”
Learned counsel for appellants referred to the statement and understanding of the learned trial judge when he stated thus:
“The law as l understand it is that the plaintiff having produced a plan must establish that the plan represents the area of land in respect of which he seeks a declaration. See ARO v. OBALORO (1968) NMLR 28.
Learned appellants, counsel then submitted that “if the learned trial court had properly considered the oral description of the land in dispute by the plaintiff – respondent and his witnesses and compared same with the plan filed by the plaintiff – respondent in this case bearing in mind the above principle of law, it would have come to a different conclusion and decision in this case.” According to the learned counsel, failure in this regard by the learned trial judge to properly appraise the evidence in this case and to apply the same to the relevant principles of law led to a miscarriage of justice in this case.”
Learned counsel for the respondent on his part and in response to the arguments, canvassed by appellants. counsel on this issue, submitted in essence that going by the pleadings, the appellants did not deny the correctness of the survey plan produced and tendered by the respondent. Furthermore, that the appellants did not tender or file a composite plan. Additionally, that paragraph 11 of appellants’ statement of defence endorsed/approved “of a feature of the said plan.” According to the learned respondent’s counsel, that in the given circumstances the trial court “was entitled to conclude as it did that the 1st Defendant (1st appellant) circumstantially and invariably admitted that the plaintiffs survey plan, Exhibit P2 referred correctly to the land in dispute.”
It was then his argument in the alternative, albeit without conceding, that if the learned trial judge was disentitled from arriving at the conclusion being impugned and complained against, “that the appellants failed to show how same occasioned a miscarriage of justice, the appellants not having shown how the said conclusion influenced the trial court in taking any decision adverse to them.”
I have carefully perused the submissions of counsel and authorities cited thereon. The crux of this issue is the holding of the learned trial judge to wit; “In the instant case, the testimony of the 1st defendant confirms that the plan of the plaintiff exhibit P.1 refers correctly to the land in dispute” and whether such holding has basis and or is capable of affecting the justice of this case. Put differently, whether such holding has occasioned a miscarriage of justice?
I am not oblivious of the law that a plaintiff or party who claims a declaration of title is under a duty in law to give the exact extent and identity of the land he is claiming. See the case of His Highness Alhaji A.G. Momoh & ors. vs. His Highness Alhaji I.M.J. Umoru & Ors. (2011) 15 NWLR (Pt.1270) 217.
The appellants’ grouse with regard to this issue is the fact that the learned trial judge held that the testimony of the 1st appellant confirmed the accuracy/veracity of the survey plan tendered by the respondent. It is obvious that the appellants do not have any problems with the learned trial judge admitting and marking the said exhibit as Exhibit P.2.
The law is explicit that even in a situation where a trial court wrongly admitted an exhibit, the fact of the wrongful admission per se may not necessarily affect the decision of the court in a fatal manner, unless the probative value placed on such evidence has brought about a miscarriage of justice. See the cases of Shittu v. Fashawe (2005) 14 NWLR (Pt. 964) 671/692 and Durosara v. Ayorinde (2005) 8 NWLR (Pt.927) 407.
The appellants have belaboured themselves trying to convince this Court that the testimony of the 1st appellant or any of their witnesses did not confirm, connect or has linkage with the said Exhibit P.2, without making any effort to show to this court how this singular act occasioned a miscarriage of justice which is capable of affecting the judgment adversely.
It is not every mistake, error or omission that will necessarily vitiates a judgment in order to warrant the intervention of an appellate court. To warrant such an intervention, it must be substantial to the extent that it occasioned or is likely to have occasioned miscarriage of justice. See Unity Bank Plc. vs. Bouari (2008) 7 NWLR (Pt. 1086) 372.
In the instant case, it could not be rightly said that the learned trial judge was in the wrong with his finding in this regard. There are pieces of evidence, dotted all over the printed record placed before us, which tend to show and lend support to the findings being challenged by the appellants herein. To my mind, there is a sound basis for the findings. Thus, I agree with counsel to the respondent that the failure of the appellants to file a separate survey plan and of course a reference to a feature in Exhibit P2 in paragraph 11 of their statement of defence is enough to give the learned trial judge the basis to conclude as he did that the 1st appellant somewhat confirmed the contents of Exhibit “P2”. I accordingly resolve this issue in favour of the respondent.
ISSUE NO.3
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ENTERING JUDGMENT FOR THE RESPONDENT.
Learned counsel for the appellants commenced his arguments with regard to this issue with a restatement of the trite position of the law to the effect, “that the burden is on a party claiming declaration of title to adduce credible, convincing, positive and unequivocal evidence in support of his case” and not on the weakness of the defendant’s case. Additionally, that “the evidence in support of his case must be in accordance with the pleadings.” He cited the cases of Sunday Ukwu Eze & Ors. vs. Gilbert Atasie & Ors. (2000) 10 NWLR (Pt.676) 470/481; Alhaji Jamiu Olokotintin vs. Saadu Sarumi & 2 Ors. (2002) 13 NWLR (Pt.784) 307/314: Miss Clementine Ricketts & Ors. vs. Oba A.K. (Pt.750) 94/106; J.M. Kodilinye vs. Mbanefo Odu (1935) 2 WACA 336/337; Dopemu Taiwo Adeyeri & 2 Ors. vs. Akinbode Okobi & Ors (1997) 6 NWLR (Pt. 510) 534/547.
Learned counsel for the appellants quoted extensively from the testimony of PW3 – Geoffrey Ilokwube Uzoekwe while being cross examined at pages 162 – 164 of the record of appeal. He also referred to Section 34(1) of the Evidence Act, 2004 and contended in essence that the evidence adduced by PW3 in the instant case was the previous evidence which he gave at the Customary Court, Oba. Again, that the written statement on oath in question, was not duly and properly “sworn to before a person having authority to administer such oath.” According to the learned counsel the said evidence as proferred was inadmissible. It was then submitted, “that the trial court ought to have expunged or discountenanced the said statement on oath for contravening S.34(1) of the Evidence Act as well as the provision for filing statement on oath.” Cases which include Babatunde Jemi Alade vs Lawani Abore – Shade (1960) 5 FSC 167/173; Francis Shanu & Anor vs. Afribank Nig. Plc. (2002) 17 NWLR (Pt. 795) 185/222; George Obi Ikenyi & Anor vs. Akpala Ofune & Ors. (1985) 2 NWLR (Pt.5) 1/6; S.A.I. Ossai vs. Isaac E. Wakwah & Ors. (2006) 4 NWLR (Pt.969) 208/230 and others were cited in support of the point being made.
Learned counsel for the appellants strongly maintained and described the evidence adduced by the respondent and his witnesses as contradictory and conflicting. According to the learned counsel, this is more so, when both the respondent and his witnesses, “failed to identify accurately and precisely the land in dispute.
Learned appellant’s counsel further contended that, “the traditional history on which the respondent based his claim was neither properly pleaded nor established.” Hence, the submission that the learned trial judge, “was wrong in holding that the respondent proved his claim in this case which was based on traditional history.” Additionally, that the learned trial judge failed in his duty “to consider the totality of the evidence adduced by the parties, fully and properly evaluated same before giving his decision.” He called in aid the cases of Etim Jeremiah Akpan vs. The Registered Trustees of Qua Iboe Church of Nigeria & Ors. (2001) 15 NWLR (Pt. 736) 328/347; Dalfam Nigerian Ltd. vs. Okaku International Ltd. & Anor. (2001) 15 NWLR (Pt.735) 203/244.
Learned counsel for the appellants cited a host of cases on the trite position of the law, that both parties and the court are bound by the pleadings filed and evidence led on unpleaded facts go to no issue. Again, that “it is the duty of the trial court to evaluate evidence led before it dispassionately.” According to the learned appellants’ counsel, the learned trial judge in the instant case, “delved into an issue which was not raised by the parties before it.” He referred to the observation made by the learned trial judge at page 187 of the record of appeal and concluded with the submission that the learned trial judge inter alia failed to firstly consider the case/evidence of the respondent herein before the case/evidence of the appellants and that the failure with regard to this duty, “resulted in miscarriage of justice in this case against the defendants-appellants.” It was also contended by the learned appellants’ counsel that the learned trial judge did not conduct a visit to the locus in quo.
On his part, learned counsel for the respondent countered the submissions made above by the learned counsel for the appellants. He cited the case of Amadu vs. Yantumaki (2011) 9 NWLR (Pt.1251) 161/186; Ajala vs. Okogbue (2011) 16 NWLR (Pt.1272) 62/82; Ogundepo vs. Olumesan (2011) 18 NWLR (Pt. 1278) 54/68 – 69 and observed inter alia that by judicial authorities, evaluation of evidence, entails “the placing of the material evidence on an imaginary scale with a view to determining which side the pendulum thereof tilts, be it ever so slightly.”
Learned respondent’s counsel opined that most of the arguments/points raised by the appellant’s counsel under this issue, should be discountenanced, because they are fresh point/issues which were not canvassed at the trial court and did not form part of the appellants’ case thereat. Additionally, that such points/issues cannot be raised without prior leave of either the rower court or this Court sought and obtained.
Learned respondent’s counsel contended and maintained that Section 34(1) of the Evidence Act does not apply to the given facts and peculiar circumstances of this case. Reference was made to pages 61-63 of the record of appeal and in essence, it was postulated that the written statement on oath of PW3 was sworn before a person who had authority to administer oath on a deponent. Additionally, that the argument by the appellants’ counsel regarding contradiction or conflict in the evidence adduced by PW1, PW2 and PW3 and respondent’s survey plan are misconceived, in view of the findings of the learned trial judge thereon. He cited the case of Gararu vs. Pashiri (2006) NWLR (Pt. 962) 521 on the position of the law that it is “.not every contradiction in the evidence of witnesses that would necessitate a reversal of judgment.” Also, the case of Zenith International Bank Ltd. vs. Vicktab & Sons Nig. Ltd. (2011) 2 NWLR (Pt.231) 337 on the primary duty of the trial court, “to weigh the evidence adduced before it to determine which side the evidence preponderates.” It was thus his submission that in the instant case, the learned trial judge duly, dutifully and fully evaluated all the pieces of evidence adduced by the parties herein and placed before him.
Regarding the argued point by the appellants’ counsel on the non visit to the locus in quo by the learned trial judge, learned respondent’s counsel cited the case of Olonade vs. Sowemimo (2006) 2 NWLR (Pt. 963) 30/47 and posited “that in law it is not mandatory on the court to embark on a visit to the locus in quo, if it can conveniently resolve the issues before it without visiting the locus in quo, more so, when the appellants failed to apply for a visit to the locus in quo by themselves.”
Finally on this issue, the learned counsel for the respondents contended that, “there was no case of the trial court making any case for the respondent.” According to the learned counsel, there is “enough evidence in the judgment of the trial court to show that there was due evaluation of evidence” by the learned trial judge.
I have given adequate considerations to the arguments of learned counsel on this issue. The crux of this issue pertains to the evaluation of the learned trial judge of the evidence placed before him – Whether the same was properly done and whether the respondents led credible and convincing evidence to earn the fruit of the judges evaluation.
It is trite that it is the trial court which alone has the primary function of giving full consideration to the totality of evidence placed before it. It ascribes probative value to it, put the same on the imaginary scale of justice in order to determine the party in whose favour the balance tilts or preponderates. Thereafter, it will make the necessary findings of fact and come to logical and legal conclusions. The duty to evaluate the evidence adduced by the parties remains the exclusive preserve of the trial court. This is more so, because of its singular advantage, opportunity of hearing and watching the demeanour of the witness as they testify. Thus, the trial court is best suited to assess the credibility of witnesses and reliability of their evidence. When the trial court fails to evaluate such evidence properly or a tall, then an appellate court will intervene and re-evaluate such evidence. Other than this, the appellate court has no direct business interfering with the findings of the trial court on such evidence and thereby substitute its own views of the facts for those of the trial court. See NEPA vs. Adesaju (2002) 17 NWLR (Pt.797) 578.
Under the given circumstances in this case, the appellate court will seek to know the following:
(a) The evidence before the court.
(b) Whether the trial court accepted or rejected any evidence upon the correct principles.
(c) Whether the court correctly approached the procedural modality for ascription of probative value to it.
(d) Whether it used the imaginary scale of justice to weigh the evidence on either side.
(e) Whether it appreciated the preponderance of evidence and which side the scale is weighed having regard to the standard and burden of proof. See Bodi v. Agyo (2003) 16 NWLR (Pt. 346) 305/317 and Olowoake v.Salawu (2000) 11 NWLR (Pt.677) 127/149.
Guided by the above principles, I have given a second look to the evidence adduced before the trial court as contained in the printed record in order to determine whether the learned trial judge performed his duty of evaluation properly or not. This will enable this Court to determine whether to interfere with the findings or not.
Basically, there are five ways of proving or establishing title to land or ownership of land, these are by:
(a) Traditional Evidence.
(b) Production of document of title duly authenticated.
(c) By positive acts of extending to a sufficient length of time.
(d) By acts of long possession and enjoyment of the lands.
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the case of IDUNDUN v. OKUNMAGBA (1976) 1 NMLR 200. The law is that establishment of one of the five ways is sufficient proof of ownership. See Nkado v. Obiano (1997) 5 NWLR (Pt.503) 31; Nkwo v. Iboe (1998) 7 NWLR (Pt.558) 354;
In a claim of declaration of title, the plaintiff succeeds on the strength of his case and not on the weakness of the defendant’s case. The onus lies on the plaintiff to satisfy the court on the evidence he adduced that he is entitled to the declaration being sought. See Kodilinye Ode (2003) 36 WRN 127.
Where a plaintiff relies on traditional history as evidence or proof in his claim for declaration of title to land and it is found to be cogent and credible’ it will be sufficient to sustain his claim. The onus which lies on such a plaintiff, is to prove his title upon the preponderance of evidence or on the balance of probabilities. He must succeed on the strength of his own case and not on the weakness of the defence, except where the defendant’s case supports his case. See Shittu vs. Fashawe (2005) 14 NWLR (Pt.946) 671; Adesanya vs. Aderonmu (2009) 9 NWLR (Pt.672 370.
In the case at hand, the respondent is claiming title to the land in dispute based on traditional evidence. The respondent in paragraphs 7 to 13 of his statement of claim, pleaded his long list of ancestors and the process by which he ended up becoming the owner of the land in dispute. This chain of ancestors was not discredited either outrightly or specifically challenged by the appellants. It was not dismantled or weakened during cross-examination, instead it was further amplified the more.
I am persuaded to hold contrary to the argument of the appellants, counsel that the evidence of PW3 is an evidence of previous trial. The witness said that it was typed and read over to him before he signed. Appellants did not explore the possibility of PW3 identifying his signature before the Commissioner for Oath as the said document reads:
“Sworn to at the High Court
Registry Ogidi this 5th day of March, 2007.
BEFORE ME
COMMISSIONER FOR OATH”
It is trite principle of law that document speaks for itself and its contents cannot be altered or contradicted vide oral evidence.
I consequently agree with the counsel for the respondent that this argument is highly misconceived. Counsel for the appellants argued that Exhibit p1 was wrongly admitted. I have gone through the judgment of the learned trial judge. I have not seen where reference is made to the said Exhibit P1 let alone probative value being attached to the same.
I am of the humble view as earlier held in this judgment, that the fact that a document is wrongly admitted can only affect the decision of the court if a development admissible occasions a miscarriage of justice. And that is not the situation of Exhibit “P1”.
The appellants contention that the survey plan did not disclose or does not tally with the pleadings of the Plaintiff/Respondent would have being weighty if the appellants had fired their survey plan. That not being the case, the only survey plan avail able to the court is Exhibit “P2”.
It is the law that the court is not obliged to believe the testimonies of witnesses of the same party that contradicts each other on material particulars. This is more so, because the court is not expected to choose who to believe or disbelieve. However, discrepancy in evidence adduced by witnesses is different from contradiction in the said evidence. Hence, it is not every discrepancy that gives rise to a question which borders on credibility of witnesses. The discrepancy must be substantial and material enough to amount to contradiction which would make their evidence irreconcilable. Contradictions are immaterial unless such contradictions affect live issues in a suit. See Usiobaifo vs. Usiobaifo (2005) 3 NWLR (Pt.913) 665.
I have analysed the supposed contradictions itemized by the case of the appellants, that presumably marred the case of the plaintiff/respondent. The purported contradictions did not affect the plaintiff s/respondent’s case with regard to proof of his traditional history.
I wish to state that the test of evaluating the evidence adduced at the trial is primarily that of the trial judge, who had the advantage of seeing, listening to and assessing the credibility of witnesses in relation to their testimonies. Because of the nature of complaint raised in the appellants, issues 1, 3 and 5, I had to re-assess the evidence adduced and found that the learned trial judge properly evaluated the evidence adduced before him. The lower court put the evidence called by the respondent and the appellants on either side of imaginary scale and weigh them together as it was laid down in the locus classicus case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93 – 95.
The findings of the lower court are sound and not perverse. The findings of the lower court ale supported by evidence. The appellants did not prove title to the land in dispute.
The learned trial judge rightly concluded at page 205 of the record thus:-
“The result of the above appraisal of the evidence led by the parties is that the case presented by the Defence is fabricated. There is no truth in it. The case of the Plaintiff is clearly to be preferred to that of the defence. I therefore find as a fact that the land in dispute is owned by the plaintiff and is a part of the land granted to his father by the Maduanyo family”
In the premise of all that I have said in this judgment and having resolved the issues raised and adopted for determination in the manner stated above, it is my humble but firm standpoint that the appeal lacks merit and it is thereby dismissed by me. I affirm the judgment of Hon. Justice Nwezeo J. in Suit No. HID/171/2006 delivered on 30th May, 2008 coupled with the grant of reliefs therein. I award the sum of N50,000.00 as costs in favour of the respondent.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read a preview of the judgment delivered by my Learned brother, MASSOUD ABDULRAHMAN OREDOLA JCA. I am in complete agreement with the reasoning and conclusions therein. I also agree with the orders made therein.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had a preview of the judgment just delivered by my learned brother, MASSOUD ABDULRAHMAN OREDOLA, JCA. I agree with the reasoning and conclusions therein.
Appearances
N.F.P. Egonu Esq.For Appellant
AND
Mrs. Nneka OzowaraFor Respondent
