IGBU & ORS v. IMANDE & ANOR
(2022)LCN/16842(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/MK/299/2017(1)
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. JOHN K. IGBU 2. MOSES TYEKU 3. KWAGHWA NGUCHI 4. CLEMENT DZEVER APPELANT(S)
And
1. AWUA IMANDE 2. ISAAC ORHE AKPEHE (Suing For Themselves And On Behalf Of Mondo Adigan Family Of Mbagban,Ugondo, Makurdi L.G.A) RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS EVERY ERROR OR SLIP BY A LOWER COURT THAT WILL LEAD TO A REVERSAL OF THE LOWER COURT DECISION
It is pertinent to state here that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. The findings of the judgment of the lower Court in not making pronouncement on the issue of no defence to the counter-claim raised by the Cross-Appellant is no doubt a slip and avoidable error on the part of the lower Court. However, the slip is not fatal to the judgment given partly in favour of the Cross-Appellant. What is more the issue of the ownership of the land in dispute was resolved by the lower Court in favour of the Cross-Appellant and as rightly submitted by learned Counsel for the Respondent that the evidence of PW2, Orhe Akpehe who tendered Exhibit 2 found at pages 70-73 of the record clearly is in support of the Respondents’ reply to Cross-Appellants’ counter-claim. PER HASSAN, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE LOWER COURT
An appellate Court will not concern itself with the route taken by a lower Court to arrive at its conclusion. The Appellate Court is only concerned about whether the conclusion as found by the lower Court is right and supported by oral and documentary evidence before the lower Court. Where the decision of the lower Court is right, it will be affirmed by the appellate Court.
In Alhaji Umaru Sanda Ndayako & Ors v. Alhaji Haliru Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at 220 paragraphs F-G. Per EDOZIE, JSC Stated:
‘’An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.’’
In Dairo v. U.B.A. PLC (2007) 16 NWLR (Pt. 1059) 99 at 161 Per OGBUAGU JSC, Said:
‘’It is now firmly settled that where a decision of a Court is right, the reason given for so holding is immaterial.’’ PER HASSAN, J.C.A.
THE CONDITION OF LAW FOR A CONTRADICTION IN A WITNESS TESTIMONY TO BE MATERIAL
The law is long settled by plethora of authorities that for any contradiction to be material, it must be one which has substantial disparagement of the witnesses, likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See Ogbu & Anor v. State (2007) 2 S.C. 273 at 292 -293.
It is not every contradiction in the testimony of witnesses that will render their evidence unreliable. The law allows room for minor discrepancies. See Akpan v. The State (1991) 3 NWLR (Pt. 182) 641, Dagayya v. The State (2006) All FWLR (Pt. 212) 1666, Popoola v. The State (2011) 47 WRN 88. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): CROSS APPEAL This is an appeal against the decision of the Benue State High Court sitting at Makurdi delivered by Hon. Justice E. N. Kpojime in Suit No. MHC/444/2014, on the 26th day of May, 2017, wherein the trial Court entered judgment in favor of the Respondents and dismissed the Cross-Appellants counter-claim.
The Cross-Appellants were the Defendants/Counter-Claimants, while the Respondents were the Plaintiffs at the trial Court. The trial Court heard the case of the parties and at the close of pleadings, counsel filed written addresses and adopted same. The Respondent’s final written address is found at pages 191 to 208, while the Cross-Appellants final written address is found at pages 170 to 190 of the Record. The Cross-Appellants being aggrieved with the decision of the Trial Court found at pages 209 to 228 had crossed appealed against same to this Court.
The Record of Appeal was compiled and transmitted to this Court on the 15th of December, 2017. The Cross-Appellants amended their brief and their amended brief of argument was filed on the 11th of December, 2020, while the Cross-Respondents brief was filed on the 12th of January, 2021. The Cross-Appellants upon being served with the Cross-Respondents’ brief of argument, filed Cross-Appellants’ amended reply brief on the 11th of December, 2020.
At the hearing of the appeal, counsel to both Cross-Appellants and Cross-Respondents adopted their respective briefs. The Cross-Appellants amended their Notice of Appeal, and the said Amended Notice of Appeal was filed on the 11th of December, 2020. The Cross-Appellants amended Notice of Appeal filed on the 11th of December, 2020, has 5 grounds of Appeal distilled by the Cross-Appellants, upon which counsel rendered argument on challenging the judgment of the trial Court.
The Cross-Respondents who were Plaintiffs at the trial Court commenced this suit by a writ of summons dated 18th of December, 2014, and filed on the same date, which was issued to the Cross-Appellants who was tagged as the defendants at the trial Court. The reliefs sought by the Respondents against the Cross-Appellants by Paragraph 28 of the Respondents’ statement of claim accompanying the writ are as follows:
a. A declaration that the Plaintiffs are the owners of the said piece of land.
b. An order evicting the defendants from the plaintiffs ancestral land.
c. An order restraining the defendants and their privies from further trespass on plaintiff’s land.
d. Special damages of N800,000.00 only.
e. Seven Million Naira General damages. See Page 8 of the Record of Appeal.
The Cross-Appellants as the Defendants upon being served with the writ and accompanying documents, filed their joint defence and counter-claimed against the Respondents as Defendants to counter-claim respectively. The Cross-Appellants counter-claimed in paragraph 26 thereof as follows:
a. An order of declaration of title to all that portion of land lying and situate in Omnbanaku, Mbanima, beside and adjacent 330 KVA PHCN Distribution Station, Ugondo, Otukpo Road, Makurdi, Benue State and better described in paragraph 5 above as the Defendants land.
b. An order of perpetual injunction restraining the plaintiffs, their relatives, agents and successor in title, assigns and whosoever claim from them or through them from trespass, further trespass and harassment of the defendants and their relatives on the land described in paragraph 5 above.
c. An order of general damages of N10,000,000 (Ten Million Naira) in favor of the Defendants against the plaintiffs for their acts of trespass, unceasing harassment and molestation on the land of the defendants above described. See page 36 of the Record.
BRIEF STATEMENT OF FACTS
The case of the Respondents against the Cross-Appellants is that the plaintiffs are the owners of a large parcel of land situate at Apir, Mbagan Ugondo district of Makurdi local Government by customary inheritance. It is the Respondents’ case that the land described was founded by Mondo Adigan as a virgin land who first settled thereon with his children Angohol, Ikyaa and Akya.
That the three sons of Mondo Adigan begot sons and their sons equally birthed several children who inherited the land through them. That upon the demise of Mondo Adigan, the vast land devolved to his son Ikyaa as the head of the family, and from Ikyaa to chagh, from Chagh to Apir, From Apir to Agera, from Agera to Akpehe, from Akpehe to Yough, from Yough to Imande, from Imande to Ugela, from Ugela to Ubur, and from Ubur to Vegher Ajiva who was the current head of family of Mondo Adigan family when the suit was filed.
The Respondents’ case was that their forefather Apir Chagh established the Market known as Apir Market. That when the Cross-Appellants’ forefather Agabi died, his children fled their ancestral land called Mbanima because of spiritual problems and headed for sojourn at their maternal kinsmen at Gwer Local Government area. That as they journeyed on their way enroot the Respondents’ compound, they met Apir Chagh and his brothers who prevented them from proceeding to Mbamar and placed them on the eastern part of the Respondents’ land. That the Cross-Appellants settled there but later some of their descendants proceeded to their maternal kinsmen Mbamar leaving behind only Igyuun.
The Respondents’ case is that many of the Cross-Appellants relatives died while in sojourn at their maternal kinsmen and were buried there, while some of them returned to join Igyuun on the land. That instead of joining Igyuun where the Respondents’ forefathers placed them, the returnees decided to spread on the Respondents’ land with the excuse that Igyuun had a witchcraft that was killing them, and now the Cross-Appellants have replaced their forefathers on the land and have refused to go back to their ancestral home in Mbanima.
That although the Cross-Appellants have been living on the disputed land, the problem began in 2008 when they commenced selling the Respondents’ land without consent, an act which the Respondents warned against, summoned them and persist that the trespass should stop. But the Cross-Appellants sometimes in 2013, trespassed into the Respondents land again and sold part of it measuring 200ft x 200ft at the cost of N800,000.00 only to one Elizabeth Mbafan.
The Respondents case was that this act of the Cross-Appellants led them to report the matter to the traditional rulers and on the 5/04/2014, and the traditional council led by Ter Makurdi met with the elders on the issue and resolved that the land belonged to the Respondents and the Cross-Appellants should stop dealing with same without the consent of the Respondents who are their landlords.
That however, the Cross-Appellants continued with their acts of trespass and in July, 2014, the 4 Cross-Appellant sold part of the land and when the 1st Respondent asked his younger ones to instruct the 4th Cross-Appellant to stop, he turned violent and chased them away. That the 4th Cross-Appellant demolished four round houses built by Nee Apir, and since then the Cross-Appellants had been intimidating the Respondents’ family members by making frivolous police reports leading to the arrest of the family members of the Respondents on several occasions. See pages 5 to 8 of the Record.
The Cross-Appellants’ case which formed their counter-claim is that the land in dispute exclusively belonged to them and not the Respondents who are from Mbagbam and have their separate lands in Apir and some surrounding area that does not extend to the farms of the Cross-Appellants, and both parties maintain their respective boundaries over several decades until the recent troubles by the Respondents against the Cross-Appellants.
The Cross-Appellants case is that they are all from the family of Omnbanaku, Mbanima, Ugondo, Makurdi Local Government where the disputed land is situate and they inherited the land from their forefathers commencing from the founder Angyom Naku to Torkya Angyom, to Ageh Angyom, to Igyuum Angyom, to Dura Tortya to the present head of Omnbanaku family by name Tyoamee Ageh who is sued and the 1st Cross-Appellant.
The Cross-Appellants’ case is that Angyom Naku came to the land as a virgin land with his wives and lived there as a farmers by tilling the land with his family and participating in hunting exercise. That the land of the Cross-Appellants is situate also at an area called Omnbanakau, Mbanima, and beside and adjacent 330 KVA PHCN distribution Power station, Ugondo, Otukpo Road, Makurdi. That the Cross-Appellants are not claiming the land where Apir Market is situate, but they have been in physical possession of their land and maintained their boundaries with the Respondents, and had exclusive possession of same plus the economic tress thereon. That they sold the lands and farmed on them without the intervention of the Respondents.
That however, when the Respondents exhausted selling their lands, they turned to the Cross-Appellants’ land and when the Cross-Appellants resisted, their resistance or refusal was met with fierce insults and misunderstanding. And at a time, the Cross-Appellant heard the Respondents claiming that the lands of the Cross-Appellants were gifted to them, but they did not take them serious.
That it was when the Cross-Appellant and their relatives were paid monetary compensation by Niger Delta Power Holding Company Limited sometimes in 2008 – 2009, that the Respondents became highly aggrieved and claimed that they have been ignored in the payment. This issue was heard by several arbitration panels and they all resolved in favor of the Cross-Appellants and urged the Respondents to desist from harassing the Cross-Appellants on their ancestral home.
That the Respondents formed themselves into tax collectors and it was when the 3rd Cross-Appellant came back home and fell a tree at his father compound to develop same that the youths from the Respondents side under the guise of tax collectors stormed the land and stop him with brute force that permission was not sought from them. That this act of trespassed transcended to mischief when on the 30/6/2014, the youths of the Respondents at the instance of the Respondents pulled down the 2 bedroom built by the 4th Cross-Appellant and inflicted grave wounds on him.
This led to the reporting of the incident to the Nigeria Police Force, Makurdi, until the elder of Ugondo intervened and waded into the case to try and settle the dispute. The elders and chiefs all resolve the dispute in favor of the Cross-Appellants and urged the Respondents to desist from their acts of trespass and disturbance of peace, but all to no avail. See pages 29 to 36 of the Record.
The trial Court in her considered judgment delivered on the 26th day of May, 2017, found at pages 209 – 228 of the Records of Appeal entered judgment in favor of the Plaintiffs now Respondents, and dismissed the Defendants counter-claim, giving rise to the instant Cross-Appeal wherein the trial Court entered judgment partly in favor of the Respondents.
ISSUES FOR DETERMINATION
The Cross-Appellants’ amended brief of argument distilled four issues for determination by this Court as follows:
1. Whether or not the lower Court is right to hold that despite the DW1 statement been sworn before it at the hearing of the matter, it stands invalid because it was not signed before a commissioner for oath. (Covers ground one).
2. Whether or not the lower Court neglect and or failure to countenance Appellants’ counsel address on the issue that the Respondents did not counter the facts in the statement of defence and counter-claim when they did not testify on their reply filed on 15-12-2015 prejudiced the Appellants. (Covers ground two).
3. Whether or not the lower Court was right and justifiable in law to hold that contradictory evidence of the Respondents on genealogical tress succession on the land is a mere inconsistency and not fatal to their case. (Covers ground three).
4. Whether or not the lower Court is right and justifiable from available evidence and circumstances before it in holding that the Appellants were settled by the Respondents on the disputed land. (Covers grounds four and five).
The Respondents in their Cross-Respondents’ brief of argument adopted the four issues formulated by the Cross-Appellants and rendered argument on same.
In this appeal since both parties are at idem on the issues arising for determination, I shall adopt the four issues distilled in the Cross-Appellants’ brief as the proper issues arising for the just determination of this appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
ISSUE ONE
Whether or not the lower Court is right to hold that despite the DW1 statement been sworn before it at the hearing of the matter, it stands invalid because it was not signed before a commissioner for oath. (Covers ground one).
CROSS-APPELLANTS COUNSEL SUBMISSION
Counsel on this issue submitted that the evidence of DW1 was sworn on the 2/6/2015 at the trial Court, however under cross-examination, he stated that he signed same at his lawyer’s office, and on that note, the respondents’ counsel contended that same should be disregarded, and the trial Court agreed with the Respondents on that regards that the evidence in chief of DW1 is invalid, but his answers under cross-examination are valid.
Counsel submitted that while it is true that DW1 admitted that he signed his sworn statement in the law firm of his counsel, he did not state that it was sworn at the same law office. That in fact, the statement of DW1 was sworn at the registry of Benue State High Court with the Registrar Litigation stamp dated 18/6/2015 and his signature seen at page 130 of the Record. Counsel submitted that admittedly DW1 did not sign his statement on oath before the commissioner for oath, however the registrar confirmed the authenticity of it when he stamped the statement, and again when the witness testified he swore the second time in Court. That the evidence of DW1 in the circumstance is merely irregular, a situation which the cross respondents’ counsel confirms.
Counsel referred to the persuasive decision of the Court in the case of Udeagha v. Omegara (2010) 11 NWLR (Pt. 1024) 168 at 195 where the Court held that a statement can be valid even if signed by a witness at a place other than before the commissioner for oath as it is confirmed on oath before the judge. This position according to counsel distinguishes the position in Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 as the circumstance and facts of this case is apposite to the ones in Udeagha v. Omegara (supra).
According to counsel, the Supreme Court has in the case of Gundiri v. Nyako (2012) NSCQR 52 (Pt. 2) 1 at 25 has laid down the legal benchmark to countenancing depositions of witnesses and this is by identifying it by the deponent who is a witness during trial. And DW1 in this case clearly took oath and identified his deposition on oath and adopted same as his evidence before the trial Court. This according to counsel was not prejudicial to the cross respondents, therefore, the adoption of the evidence by DW1 before the trial Court having not misled any person, counsel urge this Court to use the benchmark set up by the Supreme to hold that the lower Court erred in discountenancing the evidence of DW1.
Counsel submitted further that the cardinal position of the law is that the form of commencement of an action does not defeat it but justice of it is what matters. That discountenancing the deposition of DW1 by the lower Court is giving in to technicality by the trial Court at the detriment of merit. Counsel referred to the authorities of Agbakoba v. INEC (2009) All FWLR (Pt. 462 1037 at 1069 and Saeed v. Yakowa (2012) NSCQR 49 (Pt. 1) 453 at 491 where the Court held that procedural irregularities that does not amount to miscarriage of justice should not vitiate proceedings. Therefore the mistake of not signing DW1’s deposition before the commissioner for oath does not occasion miscarriage of justice, thus counsel is urging the Court to hold that it is merely procedural.
Counsel submitted that the office of the commissioner for oaths who accepted the deposition of DW1 could also be blamed for accepting his deposition and not returning it, making it to become a mistake of the officer of the Court which should not be visited on the innocent party. Counsel referred to the authority of Fidelity Bank v. Monye (2012) NSCQR 49 (Pt. 3) 1846 at 1869 where the Court held that litigant cannot be punished for mistake of Court official or counsel.
Counsel then urge this Court to resolve this issue in favor of the cross-appellants as the signing of DW1’s deposition though innocuous is attributed to both official and counsel mistakes and same is an irregularity which should not be visited on the Appellants.
CROSS-RESPONDENTS COUNSEL SUBMISSION
Counsel on this issue responded that the position of the law by S. 117 of the Evidence, 2011, is clear as to the manner and procedure by which a deponent can deposed to an affidavit by the signing or marking same personally in the presence of the person before whom it is taken, and the answer of DW1 under cross-examination that he signed the statement on oath in his lawyers chambers validated his invalid deposition.
That the presumption of law that the deposition of DW1 was regular was rebutted by him when he answered under cross-examination that he signed in his lawyer’s chambers. Counsel referred to the case of Chidubem v. Ekenna (2009) All FWLR (Pt. 155) 1692 at 1706 and 1722. That the oath taking by DW1 whom he testify does not cure the defect in his deposition as same was to confirm that he shall tell the truth with relation to his cross-examination, and he did spoke the truth by stating that he signed his deposition in his lawyer’s office.
Counsel submitted that the defect in compliance with S. 117 of the Evidence is not a mere irregularity, but same completely nullifies DW1’s evidence, therefore DW1’s swearing to tell the truth in open Court does not cure the defect. That DW1’ s failure to sign as require by law is not a mistake of Court officers either as it is DW1’s duty to depose to his statement as required by law because ignorance of the law is not an excuse. Therefore Counsel urged this Court to resolve the issue against Appellants.
RESOLUTION OF ISSUE ONE
The answer to this issue can very easily be found in the decision of this Court in ONYECHI EROKWU & ANOR V. JACKSON NWABUFO EROKWU (2016) LPELR-41515 (CA) Page 17-22, paragraph A per OGUNWUMIJU, JCA (as he then was, now JSC) stated: ‘’I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of Section 112 of the Evidence Act 2011, the subsequent adopting of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses’ statements which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Sections 112 Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari v. INEC (2008) 12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellant’s witnesses sworn before a Notary Public who was also counsel in the chambers of the senior counsel to the Appellant which was in violation of Section 19 of the Notary Publics Act and 83 of the Evidence Act (now Section 112). The term ‘affidavit’ is medieval Latin for ‘he has declared on oath’. It is a formal sworn statement of fact, signed by the deponent and witnessed as to the veracity of the deponent’s signature by the taker of oaths, such as the Commissioner for Oaths, Notary Public. It has been accepted that a Judge or Magistrate could also take such oaths. An Affidavit must comply with the requirements as set out in Sections 107-120 of the Evidence Act 2011. Let me state that the argument of learned counsel to the Respondent that it is not necessary for a deponent to sign before the oath taker is totally misguided. Counsel is of the erroneous opinion that what is important is that it was sworn before an authorized oath taker. He made a strenuous attempt at distinguishing between signing and swearing. The concept of oath taking involves: i. The deponent making a statement in writing, ii. The document is taken to a Commissioner for Oaths or any person duly authorized to take the oath, iii. The Commissioner for Oaths requires the deponent to swear on a holy book particular to the deponent’s faith or a mere declaration for a deponent whose faith forbids him to swear, iv. The Commissioner for Oaths then asks the deponent to verify what has been stated v. The deponent afterwards signs in the presence of the Commissioner for Oaths who witness that the Affidavit was sworn to in his presence. This explains the phrase ‘’Before me’’ usually signed by the Commissioner for Oaths. Any arrangement other than the above amounts to a nullity. The learned trial judge in his wisdom held at page 348 of the Record that the provisions of Sections 112 & 113 of the Evidence Act make the written deposition valid in law because it was sworn before an authorized person. The learned trial judge failed to avail himself of the provisions of Section 117 (4) of the Evidence Act 2011. Section 117 (4) of the Evidence Act is clear on this, it provides as follows: ‘’An affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark, in the presence of the person before whom it is taken’’ When a deponent swears to an oath, he signs in the presence of the Commissioner for Oaths who endorses the document authenticating the signature of the deponent. Signatures signed outside the presence of the Commissioner for Oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner for Oaths is not legally acceptable in Court. In Chidubem v. Ekenna & 12 Ors (2008) LPELR-3913, (2009) All FWLR (Pt. 455) 1692, this Court held as follows: ‘’The attempt by learned counsel for the Appellants to draw a distinction between signing a deposition and swearing an oath is in my humble view, merely splitting hairs. The two acts are of the same transaction. The law is that the deposition on oath must be signed in the presence of the person authorized to administer oaths.’’ In this case, the Respondent upon cross-examination stated when asked where he signed his statement on oath that ‘I guess in my counsel’s chambers’. This to my mind presupposes that the document was not signed before a commissioner for oaths. Respondent’s counsel’s reference to the word ‘guess’ as being a supposition and not definite or certain cannot obviate the implication of the response. Respondent would easily have said ‘I signed before the Commissioner for Oaths’ if he did. ‘I guess in Court’ or ‘I guess before the Commissioner for Oaths’ would confer another impression on the Honourable Court. The impression conferred is that he signed in chambers of his counsel but a Commissioner for Oath later attested to it. He simply did not sign it in the presence of a Commissioner for Oaths as required by law.
This is not a defect in form as envisaged by Section 113 of the Evidence Act 2011. It is a fundamental and statutory error that cannot be waived. Therefore the witness statement of the Respondent dated 9/10/2008 is incompetent and inadmissible, it is hereby expunged having failed the statutory test of authenticity and admissibility.’’
In the instant appeal, the decision of the learned trial Judge to invalidate the evidence of DW1 because his witness statement on oath was signed in chambers of his lawyer is in line with the law, thus issue one is resolved against the cross-appellant.
ISSUE TWO
Whether or not the lower Court neglect and or failure to countenance Appellants’ counsel address on the issue that the Respondents did not counter the facts in the statement of defence and counter-claim when they did not testify on their reply filed on 15-12-2015 prejudiced the Appellants. (Covers ground two).
CROSS-APPELLANTS’ COUNSEL SUBMISSION
Cross-Appellants’ grievance under this issue which stems out from ground two of the grounds of Appellant is that in response to their Defence/counter-claim, the Respondents filed an amended reply on the 15/12/2015 with on Akakpugh Torkya as a witnessed to be called, but throughout the trial, the Respondents only called two witnesses and made no mention of the averments in the said reply to the Defence/counter-claim of the cross Appellants.
Counsel submitted that the failure of the Respondents to call this Akakpugh Torkya to testify in response to their lethal evidence contained in their defence/counter-claim which was portrayed by the evidence of DW1, DW2, DW3, and DW4 means that they have clearly abandoned their defence to the cross appellants counter-claim. That serious averments as to acts of possession and ownership contained in the defence/counter-claim of the cross-appellants were not countered in the defence to counter-claim through the testimony of the Respondents at the lower Court.
That despite the disadvantage of the failure of the Respondents to adopt their reply as contended in the final written address by cross-appellants counsel, the trial Court did not consider counsel’s submission and pronounced on same and no reason was given for that non-consideration by the trial Court. According to counsel, this action of the trial Court and disposition is prejudicial to the cross appellants and against the holding of the Court in the case of Dibia v. State (2017) 2 SCNJ (Pt. 1) 100 at 128 where the Apex Court held that a Court must consider all issues placed before it. See also the case of Abila v. FRN (2015) All FWLR (Pt. 773) 1930 – 1950 cited by Counsel.
Counsel submitted boldly that the failure of the trial Court to consider the submission of cross appellants in their final written address regarding the failure of the respondents to adopt their reply to their defence/counter-claim and the germane issues therein engendered a breach of fair hearing to cross-appellants. Counsel referred to the authority of Agbo v. State (Supra) in urging this Court to resolve this issue in cross appellants’ favor.
Counsel submitted further that this Court also possess the powers to evaluate evidence where it perceived absence of evaluation by the trial Court, where the trial Court neglects and or fails to do so. Counsel relied on the authority of Ogunsola v. A.P.P (2004) All FWLR (Pt. 207) 727 at 744 – 745 and submitted that by the authority, it is apposite for this Court to make pronouncement on issue not considered by the trial Court having been canvassed by the cross-appellants and ascribe evidential value to the issues since they were not considered by the trial Court and same occasioned miscarriage of justice to the cross-appellants.
That the non-consideration of the submission of counsel on the failure of the respondents to adopt their reply to the defence/counter-claim is a breach of the fundamental rights of the Cross-Appellants which vitiate the proceedings or warrants the setting aside of the order made consequent upon the failure. See Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12, Alsthom S. A v. Saraki (2005) 3 NWLR (Pt 911) 208.
Counsel contended that a counter-claim is a separate suit and failure to testify on the defence to the counter-claim filed on the 15/12/2015 means that the pleadings was abandoned. Counsel referred to the authority of Magnusson v. Koiki & Ors (1993) 12 SCNJ 114 at 124 where the Court stated that where pleadings are not supported by evidence, those paragraphs of the pleadings are deemed abandoned. Counsel also referred to Order 18 Rule 1 and 2 of the High Court of Benue Civil Procedure Rules, 2007 which deals with the issue and submitted that in the circumstance, it was mandatory for the respondents to respond to the cross appellants counter claim accompanied by their defence.
That the failure of the respondents to offer any oral testimony on the filed reply means that the defence to counter-claim is abandoned and the averments in the counter-claim is unassailable as same remains unchallenged and un rebutted by the respondents, and the Court in the case of Bernard Okoebor v. Police Council & Ors (2003) 5 SCNJ 52 at 66, State v. Oladotun (2011) NSCQR 46 (Pt. 1) 47 at 63 held that unchallenged evidence must be accepted.
CROSS-RESPONDENTS’ COUNSEL SUBMISSION
Counsel on this issue submitted that the evidence of PW2, Orhe Akpehe who tendered EXH 2 found at pages 70 – 73 of the record clearly is in support of the Respondents’ reply to Cross-Appellants’ counter-claim, therefore, it is strange for Cross Appellants’ counsel to submit as he is doing that the Respondents did not file a defence to the counter-claim, and same is baseless.
Counsel admitted that the trial Court did not pronounce on the issue of no defence to the counter-claim raised by the Cross-Appellant, but that it is not every error or mistake of the trial Court that is fatal to its decision. Counsel referred to the authority of Ebenighe v. Achi (2011) All FWLR (Pt. 580) 1316 at 1326 paras H – A. See also the cases of Adegbuyi v. APC (2014) 12 KLR (Pt. 355) 3733 at 3748 and Azabada v. State (2014) KLR (Pt. 349) 2385 at 2399. Counsel on that note submitted that the non-pronouncement on the issue by the trial Court does not affect the outcome of the judgment.
That if my Lords hold a contrary view, then the Court may go ahead to evaluate the case of the Cross-Appellants and ascribe probative value to same bearing in mind that the evidence of PW2 now 2nd Cross-Respondent found at page 83 – 92 of the records is in all fours with the amended reply answers to the Cross-Appellants counter-claim.
RESOLUTION OF ISSUE TWO
It is pertinent to state here that it is not every error or slip by a lower Court that will lead to a reversal of the lower Court’s decision unless the findings of the said Court are not supported by oral and documentary evidence on record. The findings of the judgment of the lower Court in not making pronouncement on the issue of no defence to the counter-claim raised by the Cross-Appellant is no doubt a slip and avoidable error on the part of the lower Court. However, the slip is not fatal to the judgment given partly in favour of the Cross-Appellant. What is more the issue of the ownership of the land in dispute was resolved by the lower Court in favour of the Cross-Appellant and as rightly submitted by learned Counsel for the Respondent that the evidence of PW2, Orhe Akpehe who tendered Exhibit 2 found at pages 70-73 of the record clearly is in support of the Respondents’ reply to Cross-Appellants’ counter-claim.
An appellate Court will not concern itself with the route taken by a lower Court to arrive at its conclusion. The Appellate Court is only concerned about whether the conclusion as found by the lower Court is right and supported by oral and documentary evidence before the lower Court. Where the decision of the lower Court is right, it will be affirmed by the appellate Court.
In Alhaji Umaru Sanda Ndayako & Ors v. Alhaji Haliru Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 at 220 paragraphs F-G. Per EDOZIE, JSC Stated:
‘’An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons are. Where the judgment of the Court is right but the reasons are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.’’
In Dairo v. U.B.A. PLC (2007) 16 NWLR (Pt. 1059) 99 at 161 Per OGBUAGU JSC, Said:
‘’It is now firmly settled that where a decision of a Court is right, the reason given for so holding is immaterial.’’
This issue is hereby resolved against the Cross-Appellant.
ISSUE THREE
Whether or not the lower Court was right and justifiable in law to hold that contradictory evidence of the Respondents on genealogical trees succession on the land is a mere inconsistency and not fatal to their case. (Covers ground three).
CROSS-APPELLANTS COUNSEL SUBMISSION
Counsel on this issue commenced his argument by submitting that it is clear that the method of proof of ownership of the disputed land adopted by the respondents who were plaintiffs at the trial Court was traditional way of proof. This was demonstrated by the naming of 32 ancestors by the Respondents’ pleadings including their progenitor, however, during cross-examination, PW1 named only 6 ancestors, while PW2 in sharp contradiction to the evidence of PW1, mentioned 12 forefathers. That the contradiction of the evidence of the respondents on their pleadings and the evidence of PW1 and PW2 is clear, plus the contradiction in the evidence of PW1 and PW2 even concerns the hierarchy of their forefathers which was well captured by the final written address of the respondents before the trial Court.
That however, the trial Court held that this contradiction is mere inconsistency not fatal to the respondents’ case, and this according to counsel is surprising as the trial Court only laid focus on the contradictions in the realm of title to an order/hierarchy of the forefather, but did not grasp the issue canvassed by the cross-appellants which touches partly on the order of hierarchy of the forefathers in the genealogical tree, but most significantly in the disparity in the number difference of forefathers between the statement of claim, the evidence of PW1, vis a vis that of PW2 as elicited by counsel under cross-examination.
According to counsel the number of forefathers in a traditional inheritance must not only be consistent but must be same in number on the genealogical tree of succession. Counsel referred to the case of Osafile v. Odi (1994) 2 SCNJ 1 at 15 on the point and also the case of Akogun v. Asade (2004) All FWLR (Pt. 201) 1750 at 1762. That the Apex Court specifically in Osuji v. Ogualaji (2003) FWLR (Pt. 149) 1596 at 1603 specifically held that a party who relies on traditional history to assert ownership of land need to plead the names and history of the forebears as to disclose a continuous claim of devolution.
According to counsel, since it is mandatory for consistency in the genealogy of the forefathers in proof of traditional ownership, the trial Court erred in dismissing the contention of the cross-appellants that the respondents failed to prove their title to the disputed land and urged this Court to so hold.
Counsel submitted in addition that the trial Court is in error when it held that the contradictions are mere inconsistencies not affecting the life of the claim as the authorities cited above by counsel made it clear that one of the ways of proof of title is by traditional history. Therefore, contradiction on the traditional history is not just mere inconsistency, but is material and affects the core and soul of the matter. That corroboration in traditional his evidence is key and same is absence in the case of the respondents.
That the dearth of corroboration due to the huge inconsistency in the case of the Respondents in the evidence of PW1 and PW2 on customary evidence of traditional proof of ownership pointed out by counsel is fatal to the respondents’ case and the findings of the trial Court that same is mere inconsistency is a grave error. Counsel referred to the authorities of Eugene Nnaekwe Egesimba v. Onuzuruike (2002) FWLR (Pt. 128) 1386 at 1432, Adebayo v. Ighodalo (1996) 5 SCNJ 23 and Olaloye v. Att. Gen. & C.J Osun State (2015) All FWLR (Pt. 774) 37 at 62 on the fatal nature of an inconsistent traditional proof of title to a land.
CROSS-RESPONDENTS’ COUNSEL SUBMISSION
Counsel on this issue stated that the submission of Cross-Appellants counsel is misconceived as the Respondents by paragraph 10 of their claim clear narrated the chain of devolution from the founder Mondo Adigan to the present head of family Vegher Ajiva and same is unbroken as required by law. That the inconsistencies noted by Appellants counsel in the chain of progenitor of the Respodents and their forefathers is immaterial and do not affect the traditional history of the Respondents as it is trite law that it is not all contradictions that result in rejection of evidence by the Court. Counsel relied on the case of Wachukwu v. Owunwnne (2011) 5 KLR (Pt. 279) 1581 at 1599, Ogedengbe v. Balogun (2007) 83 KLR (Pt. 232) 1393 at 1416.
That the contradictions highlighted by the Cross-Apellants’ counsel can only matter where it affect substantially the live issue in the case to the extent of affecting the fortunes of the appeal in favor of the cross appellants, but the contradictions here do not materially affect the traditional history of the Respondents and the cases of Osafile v. Odi, Akogun v. Asade and Osuji v. Ogualaji cited and relied upon by the cross appellants in fact, support the Respondents’ case.
That counsel’s submission that the traditional history of the respondents was not corroborated was not canvassed at the trial Court and the Court did not decide on same, and it is trite law that an issue not canvass at trial Court and decided on cannot be appealed against. Thus, this Court cannot pronounce on same since the trial Court did not pronounce on same.
That counsel misconceived the issue of traditional history which is an issue of law and not customary law that need corroboration. That the evidence of traditional history a single witness which is not disturbed is enough and needs no corroboration in order for a party to establish his claims. That the history of the Respondents was given to establish how they got their lands and not to establish their custom.
RESOLUTION OF ISSUE THREE
The law is long settled by plethora of authorities that for any contradiction to be material, it must be one which has substantial disparagement of the witnesses, likely to result in a miscarriage of justice to rely on the evidence of the witness or witnesses. See Ogbu & Anor v. State (2007) 2 S.C. 273 at 292 -293.
It is not every contradiction in the testimony of witnesses that will render their evidence unreliable. The law allows room for minor discrepancies. See Akpan v. The State (1991) 3 NWLR (Pt. 182) 641, Dagayya v. The State (2006) All FWLR (Pt. 212) 1666, Popoola v. The State (2011) 47 WRN 88.
In the light of the above set out position of the law, I have compared the evidence of PW1 and PW2 with a view to ascertain if there are material contradictions. I will however agree with the finding of the trial Court to the effect that there is no material contradictions or fundamental discrepancies in the evidence of the two witnesses. The only discrepancies noticed relates to the fact that while PW1 under cross-examination named the 4th person in the line of devolution as Akpehe Chagh, PW2 under cross-examination named Agera Chagh as the 4th person in the line of devolution. It is a matter of not stating the correct order. It is not the evidence of PW2 that Akpehe Chagh was not their forefather. He placed him as the 5th in line of devolution. The contradiction is not material to affect the traditional evidence of the Respondents. It is not any and every discrepancy or inaccuracy in the evidence of witnesses that amounts to contradiction, especially where the witnesses as in the instant case are substantially saying the same thing. It is only material contradictions or fundamental inconsistencies that are relevant.
From the foregoing, issue three is resolved against the Cross-Appellant.
ISSUE FOUR
Whether or not the lower Court is right and justifiable from available evidence and circumstances before it in holding that the Appellants were settled by the Respondents on the disputed land. (Covers grounds four and five).
CROSS-APPELLANTS COUNSEL SUBMISSION
Counsel on this issue submitted that by the evidence before the trial Court the cross-appellants having denied the respondents’ claim that they settled the cross-appellants on the disputed land by acts of possession and administering the lands, which fact was admitted by the respondents, the respondents’ admissions means that the yardstick of customary tenancy alleged on the land of the Appellants by the respondents is not met. Counsel referred to the authority of Ojomu v. Ajao (1983) 2 SCNLR 156 where it was clearly stated that a plaintiff asserting customary tenancy of defendant must prove acts of payment to him of token of tributes or acts of allegiance of defendant on the land. See also Fakoya v. Ijelu (2015) All FWLR (Pt. 762) 1644 at 1658.
Counsel contended that since the respondents could not prove minimum standard of existence or sustenance of tenancy relationship on the disputed land but rather the cross appellants have graves, permanent structures, houses and absolute management of the land, the trial Court is perverse to have held that the cross-appellants were settled on the land by the respondents. That the admission of PW1 and PW2 that their brother Prof. Dick Gerna bought land from the cross appellants clearly shows that they were not settled on the land by the respondents.
Counsel submitted that the arbitration award in EXH 2 which the trial Court relied on to award the disputed land to the respondent does not supercede the real evidence of ownership of the land by permanent acts of ownership such as houses, burial of the families of the cross-appellant and administering the lands as evidence in the sale of land to the respondents brother Prof. Dick Gerna by the cross appellants which was admitted by PW1 and Pw2.
That the trial Court having agreed that the respondents’ brother bought land from the cross appellants, the issue of grant of same as a gift to settle as overlords of the cross-appellants becomes otiose, inchoate and requires no additional evidence, as you cannot put something on nothing and expect it to stand. Counsel urge this Court to hold that the cross-appellants are not the tenants of the respondents in resolving this issue in the interest of justice.
CROSS RESPONDENTS’ COUNSEL SUBMISSION
According to Respondents’ counsel, the Respondents satisfactorily proved their claim through traditional history by an unbroken chain of the history of their progenitor and their forefathers, while the evidence of the Appellants only supports the evidence of the Respondents on the fact that the land is situate at Mbaghan and they are from Mbaghan. That all appellants are from Mbainima which is different from Mbaghan and that the Appellants left their ancestral home at Mbanima to reside at Mbaghan.
That in view of the contradictory evidence of the cross-appellants as to where their progenitor migrated from to the disputed land, the trial Court was right to believe the respondents. That on the issue of the cross-appellants being the respondents’ tenants, counsel submitted that the respondents established that they placed the appellants’ forefathers on the disputed land this much was admitted by the Cross-Appellants. That cross-appellants having admitted by Exhibit 2 that the Respondents placed them on the land, they are estopped from stating otherwise.
Counsel submits that the act of respondents placing the cross-appellant on the land meant that they don’t enjoy their customary tenancy in perpetuity but subject to good behavior. See Kano v. Magaji (2013) All FWLR (Pt. 673) 1850 at 1880, para C. According to counsel, the cross-appellants counsel’s submission that respondents failed to prove customary tenancy by showing payment of tribute, or royalty is misconceived and Counsel’s contention of permanent features and economic trees on the land is misconceived also. This is so because according to counsel that the cross-appellants though tenant are allowed to build on same and alienate but subject to good behavior.
That the heavy reliance on acts of possession is of no moment because even though cross-appellant pleaded their traditional history, they failed to prove same. And the law is that a party who failed to prove his root of title cannot rely on act of possession to prove his title. Counsel referred to the authorities of Oyadare v. Keji (2005) 1 KLR (Pt. 190) 373 at 381 – 382, Gambari v. Ibrahim (2012) All FWLR (Pt. 644) 29 at 60 and Agaka v. Ayilara (2012) All FWLR (Pt. 608) 899 at 942 – 943.
That where a party could not prove his root of title pleaded, any act of ownership or possession so claimed becomes trespass. Counsel pray this Court to hold that the respondents established their claims against the cross-appellant on the authorities cited above and resolve this issue against the cross Appellants.
RESOLUTION OF ISSUE FOUR
Exhibit 2 is said to be the Customary Arbitration Award and according to learned counsel for the Cross-Appellant the learned trial Judge relied on it to award the disputed land to the Respondent.
Disputes have been known to be settled within Nigeria and other African communities by village elders whose decisions were accepted as binding and also attracted sanctions for non-compliance. The recognition of such customary settlement developed particularly with respect to disputes relating to land, family and chieftaincy affairs, have been pronounced on and acknowledge by the Courts. See LARBI V. KWASI (1952) 13 WACA 76.
The efficacy of the decision of elders in customary setting has long been acknowledge by the Courts which is to the effect that a customary arbitration was valid and binding and that it was adverse to good sense for a losing party to reject the decision of the arbitrator to whom he had previously agreed. In AGU V. IKEWIBE (1991) 3 NWLR (Pt. 180) 385 (SC). It was emphatically stated by the Supreme Court that customary law (which includes customary arbitration) is by virtue of Section 274 (3) and (4) (b) of the 1979 Constitution of the Federal Republic of Nigeria an existing law, being a body of rules in force prior to the coming into force of the 1979 Constitution and therefore saved. The Court also recognized the existence of customary arbitration as part of the Nigerian legal system and developed conditions for making it valid and binding. Furthermore, it established that customary arbitration can successfully be pleaded as estoppel.
The bindingness of the decision in customary arbitration has also been recognized in numerous cases. It is now settled case law that once parties submit to arbitration by choosing their own arbitrator to adjudicate over the dispute between them, thereby expressly or impliedly agreeing that the decision of such arbitration will be accepted as binding, it would no longer be open to either party to back out or resile from the decision so pronounced. See NWUKA V. NWAECHE (1993) 5 NWLR (Pt. 293) 295 (CA). The general rule is always understood to be that parties took their arbitrators for better or worse both as to decision of fact and decision of law.
In the present appeal Exhibit 2 was tendered by PW2 without any objection. The Cross-Appellant in paragraph 22 of their statement of defence also pleaded this document and as rightly pointed out by the learned trial Judge at page 222 of the record that this is to say that they were satisfied with the decision in Exhibit 2 and this apparently explains why they did not filed any action challenging the resolution in Exhibit 2. It is settled by long line of cases that where two parties to a dispute voluntarily submit their matter in controversy to arbitration per customary law and agreed expressly or by implication that the decision of the arbitrators would be accepted as final and binding, then once the arbitration reach a decision, it is no longer open to either party to subsequently back out of such a decision. See OJIBAH V. OJIBAH (1991) 5 NWLR (Pt. 191) 296 at 314. The learned trial Judge had no difficulty in relying on Exhibit 2 the two parties having pleaded same in their pleadings, the learned trial judge in his wisdom based on the evidence before him further stated inter alia at page 226 of the records that the Cross Respondents have neither permanent structures on the disputed land nor are living thereon, that the Cross-Appellants have permanent structures on the land and also harvest the economic Tress on the land, buried their dead undisturbed on the land the effect is that the land was not given to the Cross-Appellants forefathers by the Cross-Respondents forefathers for a temporary settlement but as permanent gift as a result the Cross-Appellants do not require the permission of the Cross-Respondents in their dealings with the land this is an act of absolute ownership. Thus this issue is resolved against the Cross-Appellant.
Issues 1-4 raise for determination in this cross-appeal is resolve against the Cross-Appellant and this Cross-Appeal is HEREBY DISMISSED.
Parties to bear their respective cost.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination.
Issues 1 – 4 raised for determination in this cross-appeal is resolve against the Cross-Appellant and this cross-appeal is hereby dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA. I agree entirely with the reasoning and conclusion reached therein.
My learned brother has elaborately dealt with all the issues relevant for the determination of the cross-appeal. I agree with him that it is lacking in merit and so it is dismissed by me also.
Appearances:
M.D. AULE, ESQ. For Appellant(s)
P.I. ACKOSIAH, ESQ., holding the brief of R.B. AYILA, ESQ. For Respondent(s)