IMANDE & ANOR v. IGBU & ORS
(2022)LCN/16905(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, June 10, 2022
CA/MK/299/2017
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. AWUA IMANDE 2. ISAAC ORHE AKPEHE (Suing For Themselves And On Behalf Of Mondo Adigan Family Of Mbagban, Ugondo, Makurdi L.G.A) APPELANT(S)
And
1. JOHN K. IGBU 2. MOSES TYEKU 3. KWAGHWA NGUCHI 4. CLEMENT DZEVER RESPONDENT(S)
RATIO
WHETHER OR NOT THE JUDGMENT OF THE COURT MUST BE READ WHOLE
I must stress that the judgment of a Court must be read as a whole and not to suit the whims and caprices of an Appellant wishing to have the judgment set aside. In Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367 per Niki Tobi, JSC stated:
‘’In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the judgment.’’ PER HASSAN, J.C.A.
THE POSITION OF LAW ON WHEN A REPLY IS NECESSARY
The plaintiffs having not responded to this averment in their reply to the statement of defence are deemed to have admitted the said averment and are estopped from denying the existence of the said custom. In MRS. IFEANYI OBIOZOR V. BABY NNAMUA (2014) LPELR-23041 (CA) Page 51-53, Per AGIM, JCA stated: ‘’As the Supreme Court held in UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1, a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See also EGESIMBA v. ONUZURUIKE (2002) 9-10 SC. Such fresh facts that have been elaborately pleaded with specific details require a specific denial, in a reply. In this case, there was no denial at all as no reply was filed. Where a fresh fact is pleaded in a statement of defence, if the plaintiff does not file a reply denying such fact, then he has admitted the fresh facts as correct’’. PER HASSAN, J.C.A.
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. Judicially established methods of proving title to land have been well articulated with foremost authority found in IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227; NWOKOROBIA V. NWOGU (2009) 10 NWLR (PT. 1150) 553. Where the supreme Court prescribed five ways of proving title to land thus;
(a) Traditional history (evidence); or
(b) Production of documents of title duly executed and authenticated; or
(c) Acts of long possession and enjoyment of the land; or
(d) Acts of ownership such as selling, leasing or renting of the land; or
(e) By proof of possession of connected or adjacent land. PER JOMBO-OFO, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): 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 granted the Appellants claims in part.
The Appellants were the Plaintiffs, while the Respondents were the Defendants/Counter Claimants at the trial Court. The Trial Court heard the case and parties at the close of pleadings filed written addresses and adopted same. The Appellants’ final written address is found at pages 191 to 208, while the Respondent’s final written address is found at pages 170 to 190 of the Record. The Appellants being aggrieved with the decision of the Trial Court found at pages 209 to 228 had appealed against same to this Court.
The Record of Appeal was compiled and transmitted to this Court on the 15th of December, 2017. The Appellants amended their brief and their amended brief of argument was filed on the 9th of December, 2020, but deemed properly filed and served by this Court on the 8th of February, 2021, while the Respondents’ brief was equally amended and the Respondents’ amended brief of argument was filed on the 11th of December, 2020, but deemed proper on the 8th of February, 2021. The Appellant upon being served with the Respondents’ amended brief of argument, filed Appellants’ amended reply brief on the 12th of January, 2021, but same was deemed proper before this Court on the 8th of February, 2021.
At the hearing of the Appeal, counsel to both Appellants and Respondents adopted their respective briefs. The Appellants amended their Notice of Appeal, and the said Amended Notice of Appeal filed on the 9th of December, 2020, was deemed properly filed and served by this Court on the 8th of February, 2021. The Appellant’s amended Notice of Appeal filed on the 9th of December, 2020, has 6 grounds of Appeal distilled by the Appellants, upon which counsel rendered argument on challenging the Judgment of the Trial Court.
The Appellants 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 Respondents who were tagged as the defendants at the Trial Court. The reliefs sought by the Appellant against the Respondent by Paragraph 28 of the Appellants’ 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 plaintiffs’ land.
d. Special damages of N800,000.00 only.
e. Seven Million Naira General damages. See Page 8 of the Record of Appeal.
The Respondents as the Defendants upon being served with the writ and accompanying documents, filed their joint defence and counterclaimed against the Appellants as Defendants to counterclaim respectively. The Respondents counterclaimed 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 Appellants against the Respondents 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 Appellants’ 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 son equally gave birth to 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 Appellants case was that their forefather Apir Chagh established the Market known as Apir Market. That when the Respondent’s 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 Appellants’ compound, they met Apir Chagh and his brothers who prevented them from proceeding to Mbamar and placed them on the eastern part of the Appellants’ land. That the Respondents settled there but later some of their descendants proceeded to their maternal kinsmen Mbamar leaving behind only Igyuun.
The Appellants’ case is that many of the Respondents’ 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 Appellants’ forefathers placed them, the returnees decided to spread on the Appellants’ land with the excuse that Igyuun had witchcraft that was killing them, and now the Respondents have replaced their forefathers on the land and have refused to go back to their ancestral home in Mbanima.
That although the Respondents have been living on the disputed land, the problem began in 2008 when they commenced selling the Appellants’ land without consent, an act which the Appellants warned against, summoned them and persist that the trespass should stop. But the Respondents sometimes in 2013, trespassed into the Appellants land again and sold part of it measuring 200ft x 200ft at the cost of N800,000.00 only to one Elizabeth Mbafan.
The Appellants’ case was that this act of the Respondent led them to report the matter to the traditional rulers and on 5/04/2014, the traditional council led by Ter Makurdi met with the elders on the issue and resolved that the land belonged to the Appellants and the Respondents should stop dealing with same without the consent of the Appellants who are their landlords.
That however, the Respondents continued with their acts of trespass and in July, 2014, the 4th Respondent sold part of the land, and when the 1st Appellant asked his younger ones to instruct the 4th Respondent to stop, he turned violent and chased them away. That the 4th Respondent demolished four round houses built by Nee Apir, and since then the Respondents had been intimidating the Appellants’ family members by making frivolous police reports leading to the arrest of the family members of the Appellants on several occasions. See pages 5 to 8 of the Record of Appeal.
The Respondents’ case which formed their counterclaim is that the land in dispute exclusively belonged to them and not the Appellants who are from Mbagbam and have their separate lands in Apir and some surrounding area that does not extend to the farms of the Respondents, and both parties maintain their respective boundaries over several decades until the recent troubles by the Appellants to the Respondents.
The Respondents’ 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 Respondent.
The Respondents’ case is that Angyom Naku came to the land as a virgin land with his wives and lived there as a farmer by tilling the land with his family and participating in hunting exercise. That the land of the Respondents 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 Respondents 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 Appellants, 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 Appellants.
That however, when the Appellants exhausted selling their lands, they turned to the Respondents land and when the Respondents resisted, their resistance or refusal was met with fierce insults and misunderstanding. And at a time, the Respondents heard the Appellants claiming that the lands of the Respondents were gifted and they did not take them seriously.
That it was when the Respondents and their relatives were paid monetary compensation by Niger Delta Power Holding company limited sometime in 2008 – 2009, that the Appellants 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 Respondents and urged the Appellants to desist from harassing the Respondents on their ancestral home.
That the Appellants formed themselves into tax collectors and it was when the 3rd Respondent came back home and fell a tree at his father compound to develop same that the youths from the Appellants 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 Appellants at the instance of the Appellants pulled down the 2 bedroom built by the 4th Respondent 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 Respondents and urged the Appellants 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, and dismissed the Defendants’ counterclaim, giving rise to the instant Appeal wherein the Respondents also crossed appeal.
ISSUES FOR DETERMINATION
The Appellants’ amended brief of argument distilled five issues for determination by this Court as follows:
1. Whether or not the trial judge was right after having resolved the sole issue for determination in favor of the Appellants and awarded the disputed piece of land to them to turn around to hold that same was given to the respondents’ forefather as a permanent gift. (Distilled from ground 1).
2. Whether or not the lower Court is perverse and unjustifiable in holding that the piece of land in dispute was given to the respondents’ forefathers by the Appellants’ forefathers as a permanent gift. (Distilled from grounds 2 and 6).
3. Whether or not the learned trial judge was right to have relied on acts of possession to decline evicting the respondents from the disputed piece of land. (Covers ground 4).
4. Whether or not the lower Court was right to have believed the mere assertion that the Tiv people neither allow nor permit the burial of deceased strangers on a land that is subject of customary tenancy even though same was not proved by the respondents as required by law. (Covers ground 4).
5. Whether or not the trial judge was right to have relied on Exhibit 3 to hold that Dick Gerna bought a piece of land from the Respondents on the land in dispute after invalidating the evidence in chief of the DW1 through whom Exhibit 3 was tendered and admitted in evidence. (Distilled from ground 5).
The Respondents in their amended Respondents’ brief of argument adopted the five issues formulated by the Appellants and rendered argument on same. The Respondents however argued issues one and two together in their brief.
I have considered the facts and circumstances of this Appeal, the Judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the five issues distilled in the Appellant’s brief, and 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 trial judge was right after having resolved the sole issue for determination in favor of the Appellants and awarded the disputed piece of land to them to turn around to hold that same was given to the respondents’ forefather as a permanent gift. (Distilled from ground 1.)
APPELLANTS’ COUNSEL’S SUBMISSION
The grievances of the Appellants with the decision of the trial Court appealed against under this issue is the holding of the Court that the Appellants’ forefathers gifted the disputed lands permanently to the forefathers of the Respondents. This is so because according to counsel if the lands has been gifted permanently to the Respondents’ forefather, then the holding of the trial Court that the land belongs to the Appellants is contradictory and confusing.
That the trial Court having made a declaration that the land situate at Mbagan, Ugondo district of Makurdi Local Government belongs to the Appellant, it is contradictory to go further and say that the land was permanently gifted to the respondent’s forefathers as one cannot own what one has given out permanently. That since the trial Court believed the Appellants’ traditional history against the Respondents’ own, and resolved the sole issue in favor of the Appellants, it was only right for the trial Court to declare the disputed land as belonging to the Appellants.
On this note, Counsel urged the trial Court to resolve this issue in favor of the Appellants and against the Respondents.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel to the respondents in response to issues one and two of the Appellants brief submitted that it was rather the Appellants case that the disputed land in question was gifted to the forefather of the Respondents by their forefathers. That it was not the Trial Court that made up evidence on behalf of the Respondents as the issue of gift was abundantly pleaded in paragraphs 13 – 17 of the Appellants statement of claim found at page 7 of the Record, and it was a gift of permanent nature.
Counsel submitted that to further buttress the permanent nature of the gift, PW1 admitted under cross-examination that the Respondents bury their deceased family members on the disputed land, and the respondents have permanent structures like the NKST church, economic trees, built permanent structures and even administer same by sale of pieces of land, and this evidence was corroborated by PW2.
Counsel contended that the purport of the evidence of PW1 and PW2 to the effect of gift of the land is that it was a permanent gift. That burial of deceased family members on land of temporary gift is not allowed in Tiv custom as demonstrated by the Respondents’ evidence which is un-impeached, and logical. That the non-payment of tribute to the Appellants by the Respondents informed the decision of the trial Court to hold that the gift was permanent in nature. Counsel referred to the authorities of Ojomu v. Ajoa (1983) 2 SCNLR 156; and Fakoya v. Ijelu (2015) All FWLR (Pt. 762) 1644 at 1663 and Lasisi v. Tubi (1974) 12 SC 62 on the point.
That from the evidence of the two witnesses, there is no evidence of over lordship shown by paying tribute, rather, the respondents are shown to be the owners of the disputed lands, and the trial Court was right to hold that the gift to the Respondents by the Appellants was a permanent one.
Counsel submitted that Appellants’ counsel making a heavy weather of the issue of the lower Court descending into the arena of litigation by holding that the gift was a permanent gift is surprising as it is within the records that the Appellants provided the evidence of permanent gift as shown above. Counsel on that note submitted that the Trial Court only used the available evidence and circumstance in its discretion to arrive at its decision and that is right in law. Counsel referred to the authority of Waziri v. Gumel (2012) NSCQR (Pt. 3) 1346 at 1375.
That the Appellants’ contention that the trial Court abandoned the case made before it and considered extraneous issues in reaching its decision is unfortunate because the issue of settlement of the Respondents is pleaded by the Appellants in the statement of claim depicted above. Therefore the trial Court did not suo motu raised the issue, but that the Appellants clearly failed to substantiate their claim that the gift to the Respondents was a temporary one by their self-admitted evidence of permanent possession and acts of absolute ownership of the respondents on the disputed land.
That the finding of the trial Court of the gift of the land being a permanent one is a consequential finding which the trial Court has the power to do in line with her discretional powers to evaluate evidence before her. Counsel cited the authority of Aiguokunrue Ghan v. Imaruagheru (2015) All FWLR (Pt. 785) 269 at 293 – 294, Akapo v. Hakeem-Habeeb (1992) NWLR (Pt. 247) 266, Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 565 and Baya v. Njidda (2004) FWLR (Pt. 192) 10 at 42, on the power of the trial Court to grant consequential reliefs.
Counsel submitted that flowing from the holdings of the Court above, even though the Appellants were unable to establish temporary gift of land to the Respondents, they showed plethora of evidence that the gift was a permanent one, and the trial Court was right in exercising its discretionary powers to grant consequential reliefs as it did. Therefore according to counsel, the trial Court did not suo motu made its order as counsel is alluding in his brief, and since it is the Appellants that raised the issue of gift, they are estopped by conduct to complain of the consequential orders that ordinarily flowed and has nexus to the reliefs sought. Counsel referred to the holding in Ominyi v. UBA (2011) FWLR (Pt. 63) 54.
Counsel submitted that the argument of Appellants that the trial Court gave the Respondents a different land from the one they pleaded is erroneous as the Appellants admitted by their pleadings at paragraphs 12 -17 of their statement of claim, and paragraph 6, 13 and 15 of reply the gift of the land to the Respondents, and admissions need no further proof. Counsel referred to the authority of United Bank for Africa Plc v. Jargaba (2007) 5 SCNJ 127.
Counsel submitted that the submission of Appellant in their amended brief that the trial Court was a father Christmas in holding that the land in dispute is the same while the Respondents pleadings describe a different land is incredibility ridiculous as the Appellant by their final written address at page 199 of the record, paragraph 4.15 argued that the description of the land is certain. Therefore it amounts to blowing hot and cold, approbating and reprobating on the certainty of the land for Appellant to contend that the trial Court gave Respondents a land they did not describe in their pleadings. Counsel relied on the case of Edoho v. State (2010) NSCQR (Pt. 1) 451 at 482, where the Apex Court forbids blowing hot and cold on the same issue. See also Hameed A Toriola & Anor v. Mrs. Olushola Williams (1982) LPELR 3258 (SC) and Rajidat Koleosho v. Federal Republic of Nig (2014) LPELR 22929 (CA).
Counsel urged this Court not to overturn the decision of the trial Court and resolve issues one and two against the Appellants.
ISSUE TWO
Whether or not the lower Court is perverse and unjustifiable in holding that the piece of land in dispute was given to the respondents’ forefathers by the Appellants’ forefathers as a permanent gift. Distilled from grounds 2 and 6.
APPELLANTS’ COUNSEL SUBMISSION
On this issue which is similar to issue one, counsel commenced by submitting that by the evidence of both parties by their pleadings, the Appellants led evidence to the fact that their forefathers placed the respondents’ forefathers on the land when they fled their ancestral home, while the Respondent contended that their forefathers were not placed on the land by the Appellants’ forefathers but that they migrated from Ndema, now Taraba State and found the disputed piece of land.
Counsel submitted it is trite law that one cannot make a case different from his pleadings and cannot be given what he does not ask for, because the land counterclaimed by the Respondents by their evidence before the trial Court is clearly distinguishable from the one described by the Appellants. However, the trial Court awarded the Respondents a piece of land they did not claim for, thereby descending into the arena to make a case different for the Respondents from the one they made by their pleadings.
Counsel relied on the case of Adeosun v. Governor of Ekiti State (2012) All FWLR (Pt. 619) 1044 at 1059. Paras E – F to submit that cases are settled based on parties pleadings so as to avoid surprises, as it is not the duty of the Court to set up a case different from the one set up by parties themselves by their pleadings. That it is clear that the trial Court abandoned the case of the Respondents that they migrated from Taraba state and made a case different from the one they presented, as the findings of the Court that the land was given to the Respondents’ forefathers by the Appellants’ forefathers was clearly not supported by the Respondents’ pleadings. Counsel referred to the case of Ohochukwu v. Attorney General of Rivers State (2012) All FWLR (Pt. 626) 412 at paras A – B on the point. See also the authorities of Skye Bank v. Akinpelu (2010) (Supra), Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 605; Muniyas (Nig) Ltd v. Ashafa (2012) All FWLR (Pt. 642) 1772 at 1786; Anioke v. Anioke (2013) All FWLR (Pt. 658) 975 at 998; Yakubu v. PHCN (2012) All FWLR (Pt. 616) 529 at 550 and Julius Berger Nig Plc v. Ogundehin (2013) All FWLR (Pt. 676) 496 at 538 – 539.
Counsel contended that the trial Court abandoned the cases of the parties as made out by their pleadings and suo motu set up a case contrary to the Respondents’ claim in their counterclaim and awarded a different land to them on the basis that same was gifted to their forefathers. Counsel further contended that the trial Court ought to call parties to address the Court on the issue suo motu raised as decided in the case of Amale v. Sokoto Local Government (2012) All FWLR (Pt. 618) 833 at 846. That the failure of the trial Court to call on parties to address the Court on the findings that the Appellants’ forefathers gifted the land to the Respondents’ forefathers is a violation of Appellants’ fundamental right to fair hearing. Counsel referred to the authority of Victino Fixed Odd Ltd v. Ojo (Supra) and urge the issue to be resolved in the Appellants’ favor.
RESPONDENTS’ COUNSEL SUBMISSION
The Respondents’ submission on issue one shall be considered while resolving issue two, since counsel to respondents argued issues one and two together.
RESOLUTION OF ISSUES ONE AND TWO
The argument of the Appellant on these issues is that the trial Court having resolved that the land in dispute belong to the plaintiffs forefathers cannot turn around and said same was given to the defendants’ fore fathers as a permanent gift and that the judgment of the lower Court was perverse and unjustifiable.
I must stress that the judgment of a Court must be read as a whole and not to suit the whims and caprices of an Appellant wishing to have the judgment set aside. In Adebayo v. Attorney-General, Ogun State (2008) 2 SCNJ 352 at 366-367 per Niki Tobi, JSC stated:
‘’In order to pick faults in judgment of a trial judge, appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the judgment.’’
In the instant appeal, the findings of the lower Court at page 226 of the record is to the effect that the plaintiffs have neither permanent structures on the disputed land nor are living thereon, that the defendants have permanent structures on the land and also harvest the economic Trees on the land, buried their dead undisturbed on the land, that the plaintiffs have not denied the averment of the defendants that under Tiv custom, strangers are not allowed to bury their dead on the land which is subject of customary tenancy and that the land was not given to the defendants forefathers by the plaintiffs’ forefathers for a temporary settlement but as permanent gift, as a result, the defendants do not require the permission of the plaintiffs in their dealings with the land. What this simply means is that the plaintiffs’ forefathers having given the disputed land to the defendants’ forefathers on a permanent basis have relinquished their right of ownership on the said land. The findings of the lower Court on this issue is well founded and it accords with reasons without any contradiction contrary to the submission of the Appellant.
On the issue that the learned trial judge findings was perverse, the trite position of the law is that an Appellant who complains that the decision of a trial Court is wrong or perverse for lack of adequate or proper evaluation of oral and documentary evidence placed before the trial Court, must prove or establish that the trial Court made improper use of the opportunity of seeing the witnesses testified before him. The Appellant must show that there was misapplication of the oral and documentary evidence tendered and proffered before the trial Court. He must show that the relevant laws or decisions on the subject matter before the trial Court were misapplied or misconstrued. He must show above all that the wrong inferences or wrong evaluation of the pieces of evidence before the trial Court have led to miscarriage of justice making it imperative for the Appellate Court to intervene and re-evaluate the oral and documentary evidence.
I have considered the judgment of the lower Court on this issue and I hold that same considered the case presented by both the Appellant and the Respondents as it examines the evidence of PW 1 who gives his age as 95 years and said he witness the gift of the disputed land, DW 4 who gives his age as 71 years says he was born and met the defendants on the disputed land, this clearly shows that the Respondents have stayed on the disputed land for a long time. The trial Court equally examine the issue of exclusive possession of the disputed land by the Respondent and found that the Respondents buried their dead undisturbed on the disputed land. The trial Court also considered the fact that under Tiv custom strangers are not allowed to bury their dead on the land which is subject of customary tenancy when it held at page 224 of the record:
‘’That even the founder-Angyom Naku was buried on this land. They have pleaded in paragraph 9 of their defence thus- ‘’9—The Tiv people neither allow nor permits (sic) the burial of deceased strangers on a land that is subject to customary tenancy and the plaintiffs would not have allowed the Hundred of the dead persons of the Defendants to be buried on this land if it was subject of a gift or temporary settlement of the Defendants…’’ The plaintiffs made no response to this averment in their reply to the defence. However, PW1 testifying under cross-examination agreed that the defendants bury their dead relatives on the disputed land.’’
The learned trial Judge also consider the evidence of PW2 who under cross-examination said that the ‘’genger’’ and ‘’vambe’’ trees on the disputed land were planted by his father, but agrees that it is the defendants that are now harvesting them, that this is an act of absolute ownership. He equally examine the evidence of the defendants side by side with the plaintiff, that the defendants pleaded and testified that they established a church, called N.K.S.T Church Igbu on the land and PW1 under cross-examination said that there is a church called NKST Igbu on the disputed land. Igbu is a father to 3rd defendant and the trial judge concluded that the plaintiffs would not have allowed the defendants to so name the church if the land on which it is situate was not that of the defendants. See page 225 of the record.
The Appellant did not identify the case made by him which the trial Court did not consider before arriving at its decision. It is not enough for counsel to just submit at large that the holding of the trial Court is perverse because the trial Court did not consider the case of the Appellant and cite authorities on the point without pointing out the case of the Appellant which the trial Court did not consider.
From the foregoing, I hold that the finding of the trial Court is not perverse and I see no reason adduce to disturb the holding of the trial Court, thus issues one and two are hereby resolved against the Appellant.
ISSUE THREE
Whether or not the learned trial judge was right to have relied on acts of possession to decline evicting the respondents from the disputed piece of land. (Covers ground 4).
APPELLANTS’ COUNSEL SUBMISSION
On this issue, Counsel submitted that Respondents having failed to prove their root of title cannot rely on possession as considered by the trial Court in holding that the Land was gifted to the forefathers of the Respondents by the Appellants’ forefathers. Counsel relied on the decisions of Oyadare v. Keji (2005) 1 KLR (Pt. 190) 373 at 381 – 382; Gambari v. Ibrahim (2012) All FWLR (Pt. 644) 29 at 40; Agaka v. Ayilara (2012) All FWLR (Pt. 608) 899 at 942 – 943 and Intl Beer & Beverages Industries Ltd v. Mutuncico Nig ltd (2013) All FWLR (Pt. 670) 1253 at 1286.
Counsel contended that Respondents counterclaimed and pleaded their traditional history in prove of their counterclaim, and the trial Court having disbelieved their case and believed that the Appellants was wrong to fall back to the act of ownership and possession by the respondents to hold that they proved their claims.
That Respondents having failed to prove their root of title, at best, their acts of possession, is trespass. Counsel referred to the authority of Oyadare v. Keji (Supra) and Agaka v. Ayilara (Supra) on the point.
Counsel submitted further that on the parts of the Appellants, they led evidence establishing that they placed the Respondents on the land, therefore, it is normal for Respondent to have acts of possession on the land having been dwelling on same for a long time. However, it is the counsel’s contention that having failed to prove their root of title, the Court was wrong to hold for them as the trial Court did base on acts of possession.
On that note, counsel concluded that since Respondents failed to prove their root of title, it was wrong for the trial Court to hold that the land was gifted to their forefathers and urged this Court to resolve this issue in Appellants’ favor.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel contends that acts of ownership as exhibited by the Respondents by administering the disputed lands and selling as seen in EXH 3 transcends to ownership of land. Counsel submitted that Section 15 (a) of the Land Use Act 1978 confers right of absolute possession of improvement on holder, and the legal provision has made the Respondents absolute owners of the land having administered same with legion of permanent features.
Counsel contends that Appellants self-admission by PW1, and PW2 in their evidence of permanent gift to the Respondents is also responsible for the non-grant of eviction order by the trial Court. Counsel contends that it is impossible for one to sell a land without being the owner of the land. Counsel relied on the case of Gbadamosi v. Akinloye (2013) NSCQR 55 page 75 at 106 – 107. Counsel submits also that by available evidence before the trial Court showed that Appellants gifted the land permanently to the Respondent, therefore, the trial Court was estopped from evicting the respondents from the land.
Counsel submits that possession is one of the 5 ways of proof of title to land and relied on the authority of Odunukwe v. Ofomata (2010) NSCQR 44 page 403 – 404, thus the evidence of the Respondents of long possession is one of the proof of title to land, thereby enabling the trial Court to exercise her discretion in not granting the relief to evict the Respondents.
Counsel also contended that it is wrong for the Appellants to contend that Respondents having failed to prove traditional evidence of title, are entitled to be evicted on the land as it is the principle of law that the weakness of a party’s case does not strengthen his adversary’s case, but parties must success on the strength of their respective cases. See the authority of Dr. M. Anate v. Sanusi & Ors (2002) FWLR (Pt. 93) 1902 at 1905, Nepa v. Inameti (2002) FWLR (Pt. 130) 1695 at 1736.
RESOLUTION OF ISSUE THREE
Ways or methods of proof of title to land includes acts of long possession and enjoyment of the land and by acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it. See Odunukwe v. Ofomata (2010) NSQR 44 Page 379 at 403-404.
In the instant case, it is not in doubt that the Respondents have stayed on the disputed land for a very long time, the evidence of PW2 who is 95 years of age is to the effect that he witnessed the gift and DW4 who is 71 years old said that as at the time he was born he met the Defendants on the disputed land. The Respondents bury their deceased relatives on the land, build houses, establish churches plant and harvest economic trees and by evidence of PW1 under cross-examination, Dick Iorwuese Gerna, a brother to the Appellant paid for economic trees he acquired on the disputed land. In this instance, I agree with the learned trial judge that the plaintiffs have not disproved the fact pleaded and testified to by the defendants that Dick Gerna bought the land from the defendants. It is impracticable for an owner of land to turn round to buy a piece of it from a customary tenant. The foregoing show that the Respondents were able to establish acts of absolute ownership on the land, this issue is resolved against the Appellant.
ISSUE FOUR
Whether or not the lower Court was right to have believed the mere assertion that the Tiv people neither allow nor permit the burial of deceased strangers on a land that is subject of customary tenancy even though same was not proved by the respondents as required by law. (Covers ground 4).
APPELLANTS’ COUNSEL SUBMISSION
This issue arose from ground 4 of the grounds of Appeal and the Appellant’s case herein is that the Respondents made a case by their pleadings that Tiv people do not allow strangers to bury their dead on the land that is subject of customary tenancy, thus if they the respondents were tenants of Appellants, they couldn’t have buried their several deceased persons on the land.
However, Counsel contends that by the authority of Kano v. Maikaji (2013) All FWLR, (Pt. 673) 1850 at 1880 paras c – d, it is the law that a customary tenant enjoys his holding in perpetuity and therefore he can do anything he wishes to do on the land without being disturbed by the overlord, except to alienate.
According to the Counsel, the Custom of the Tiv people alluded to by the Respondents is contrary to well-established customary tenancy and therefore it is a matter that must be proved as required by law. Counsel referred to the authorities of Olubodun v. Lawal (2008) 6 KLR (Pt. 257) at 2800 – 2801 and Mtoh v. Mtoh (2011) All FWLR (Pt. 584) 73 at 110 paras B – F, and submitted that Respondents merely asserting that Tiv custom does not permit the burial of deceased strangers on a land that is subject to customary tenancy without proving same as required by the law by pleadings and calling of witnesses.
Counsel rounded up by submitted that the Tiv Custom alluded to by the Respondents has not become notorious that the Court would take judicial notice of, therefore, the trial Court ought to eject the Respondents from the land having failed to prove their case.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel contended on the submission of Appellant on Tiv tradition that the case of Kano v. Maikaji does not support the Appellants case as the case is not applicable to the Tiv people of Nigeria or cover the traditional culture of Tiv people. That for a custom and native law of a people to be believed by a Court of law, it must be corroborated by another witness in Court via evidence as enunciated in the case of Oyediran v. Alebiosu (1992) 7 SCBJ (Pt. 01) 187 NT 193 – 194.
That all the four witnesses that testified for the Respondents stated clearly that in Tiv Custom, it is not permitted for a tenant to bury in the land, and the evidence has not been impeached under cross-examination, but PW1 and PW2 rather admitted that the Respondents bury their deceased family on the land including the son of the respondents progenitor called Tanya Angyiom.
That the cases cited by Appellants in paragraph 4.23 of their brief are all sound decisions but same does not aid their case, and in fact, that counsel submission that an independent witness is required to prove customary law is not provided in the authority cited by counsel nor remotely contemplated by law. The only requirement of the law is the corroboration of the evidence of witnesses and the case of the Respondents is well corroborated, thus counsel urge this Court to discountenance the submissions of counsel and hold that the Tiv custom is established.
RESOLUTION OF ISSUE FOUR
Even though I have partially addressed this issue while resolving issues one and two, nevertheless, I will make some few comments under this issue while resolving same. The learned trial Judge has no difficulty of addressing this issue in his Judgment at page 224 of the record when he stated: ‘’In proof of their assertion that the land exclusively belongs to them, they have pleaded and testified that they bury their dead on the land. That even the founder-Angyom Naka was buried on this land. They have pleaded in paragraph 9 of their defence thus- ‘’9—The Tiv people neither allow nor permits (sic) the burial of deceased strangers on a land that is subject to customary tenancy and the plaintiffs would not have allowed the Hundred of the dead persons of the Defendants to be buried on this land if it was subject of a gift or temporary settlement of the Defendants—‘’ The plaintiffs made no response to this averment in their reply to the defence.’’
The plaintiffs having not responded to this averment in their reply to the statement of defence are deemed to have admitted the said averment and are estopped from denying the existence of the said custom. In MRS. IFEANYI OBIOZOR V. BABY NNAMUA (2014) LPELR-23041 (CA) Page 51-53, Per AGIM, JCA stated: ‘’As the Supreme Court held in UNITY BANK PLC v. BOUARI (2008) 2-3 SC (Pt. 11) 1, a reply is necessary where a statement of defence raises a fresh issue that was not raised or anticipated by the statement of claim. See also EGESIMBA v. ONUZURUIKE (2002) 9-10 SC. Such fresh facts that have been elaborately pleaded with specific details require a specific denial, in a reply. In this case, there was no denial at all as no reply was filed. Where a fresh fact is pleaded in a statement of defence, if the plaintiff does not file a reply denying such fact, then he has admitted the fresh facts as correct’’.
In the instant appeal I am incline to believe that such custom is in existence. I resolve issue four against the Appellant.
ISSUE FIVE
Whether or not the trial judge was right to have relied on Exhibit 3 to hold that Dick Gerna bought a piece of land from the Respondents on the land in dispute after invalidating the evidence-in-chief of the DW1 through whom Exhibit 3 was tendered and admitted in evidence. (Distilled from ground 5).
APPELLANTS’ COUNSEL SUBMISSION
Appellants’ complaint here is that the trial Court having found that the evidence of the DW1 which he admitted under cross-examination that he signed in his lawyer’s office is incompetent, and the Court was wrong to go further to hold that the owner of a land who sold it cannot be said to be a customary tenant.
According to Counsel, the trial Court having nullified the evidence of DW1 cannot rely on EXH 3 which was tendered in evidence through him, as the evidence of the Respondents to that regard is deemed abandoned. Therefore the trial Court erred to have relied on EXH 3 after setting aside the evidence of DW1, and Counsel urged this Court to so hold in resolving this issue in the Appellants’ favor.
RESPONDENTS’ COUNSEL SUBMISSION
Counsel submits on this issue that it is true that the evidence of DW1 was invalidated and it is also true that EXH 3 was tendered through DW1, but the findings of the Court according to counsel does not stem from the evidence of DW1, but the admission of Appellants’ witnesses especially PW1, that the lands were gifted to the Respondents. Therefore, it goes without saying that even if EXH 3 is taken off the records of the trial Court, the holden of the Court will remain same and unchanged following the self-admission of the Appellants PW1 above. Counsel referred to the authority of Akwe v. INEC (2012) NSCQR 49 (Pt. 3) 1380 at 1400 – 1401, where the Apex Court held that admission against interest by a party is best evidence in favor of the adverse party.
Counsel submitted that PW1’s admission is therefore the best evidence as the Appellant never denied that the Respondents sold land to Prof. Dick Gerna of the Appellant’s house. Therefore Counsel urged this Court to resolve this issue against the Appellants and in favor of the Respondents as the decision of the lower Court is in line with the principles of law encapsulated by the authorities aforementioned authorities.
RESOLUTION OF ISSUE FIVE
Let me state here that the lower Court was right to have invalidated the evidence in Chief DW1 on the grounds that his witness statement on oath was signed in the chambers of his lawyer this is in line with this Court decision in EROKWU & Anor v. JACKSON NWABUFO EROKWU (2016) LPELR-41515 (CA), Page 17-22. Where the Court of Appeal held that a witness statement on oath signed before the Counsel is no evidence at all when the witness answered under cross-examination when asked where he signed his statement on oath and he answered ‘’I guess in my counsel’s Chambers.’’ See also MADUAKOLAM SAMUEL CHIDUBEM v. OBIOMA EKENNA & ORS (2008) LPELR-3913(CA) Pages 13-17.
It follows therefore in my humble view that once the statement on oath, which is supposedly the evidence-in-chief, is invalid then, of course, everything based on it also goes with it including Exhibits tendered thereunder. The learned trial Judge ought not to have relied on Exhibit 3 tendered along with the invalidated statement, as they go together. They are inseparable twins. They either survive together or perish together. Exhibit 3 is hereby expunged from the record of this Court. Having said that the learned trial Judge did not only rely on Exhibit 3 and as rightly pointed out by the Respondent the lower Court also relied on the admission of the Appellant witnesses especially PW1 at page 105 lines 12 – 14 of the records where he said under cross-examination that Prof. Dick Iorwuese Gerna (brother of the Appellants) bought land from the Respondents. See page 225 lines 13-18 of the records. Exhibit 1 at page 106 of the records also confirms PW1’s evidence that unequivocally said in oral evidence that Dick Iorwuese Gerna bought a piece of the disputed land from a brother/relative of the Respondent. In the light of the above reasons issue five is resolved against the Appellant.
Having resolved all the five issues in this appeal against the Appellant, the appeal lacks merit and fails. It is accordingly dismissed.
The judgment of the lower Court Coram E.N. KPOJIME J delivered on the 26th day of May, 2017 in Suit No MHC/444/2014 is HEREBY AFFIRMED.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA, and there is no doubt that my Lord has comprehensively dealt with the salient issues raised by the parties in this Appeal.
Having resolved all the five Issues in this Appeal against the Appellant, the Appeal lacks merit and fails. It is accordingly dismissed.
The judgment of the lower Court Coram E.N. KPOJIME J., delivered on the 26th day of May, 2017 in Suit No: MHC/444/2014 is hereby affirmed.
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 properly and elaborately dealt with all the issues relevant for the determination of the appeal. I agree with him that the appeal is lacking in merit and should be dismissed. I shall make few comments for the sake of emphases.
Let me start with the issue as to whether or not the learned trial judge was right to have relied on the acts of possession to decline evicting the Respondent from the disputed piece of land.
It is the well-established position of the law that any person claiming a declaration of title to land must prove by evidence that he is entitled to the declaration he seeks. Judicially established methods of proving title to land have been well articulated with foremost authority found in IDUNDUN V OKUMAGBA (1976) 9 – 10 SC 227; NWOKOROBIA V. NWOGU (2009) 10 NWLR (PT. 1150) 553. Where the supreme Court prescribed five ways of proving title to land thus;
(a) Traditional history (evidence); or
(b) Production of documents of title duly executed and authenticated; or
(c) Acts of long possession and enjoyment of the land; or
(d) Acts of ownership such as selling, leasing or renting of the land; or
(e) By proof of possession of connected or adjacent land.
In this appeal, the respondents proved their claim to the disputed land by acts of ownership and enjoyment of the land. First, they established through DW4 who is 71 years of age that, at the time he was born, he met the respondents on the land in dispute. The respondents built houses and even establish a church called NKST Church Igbu on the disputed land, the said Igbu is a father to the 3rd respondent. The respondents also bury their deceased relatives on the land and harvest economic trees. The respondent again establish through the evidence of PWI who stated under cross-examination that Dick Iorwuese Gerna a brother to the appellants paid for economic trees he acquired on the land from the Respondent. There is another act of ownership exhibited by the respondents by administering the disputed lands seen in exhibit 3.
From the foregoing, it is not in doubt and I don’t find it difficult in holding that, the respondents succeeded in sufficiently establishing their acts of absolute ownership and lordship over the land. And Proof of one single root of title is sufficient to sustain the claimant’s claim for declaration of title to land, see ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (PT. 424) 252; OLAGUNJU VS. ADESOYE (2009) NWLR (PT. 1146) 225.
Learned counsel for the appellants again contented that, that they led evidence establishing that they placed the respondents on the land, and it is therefore normal for the respondent to have acts of possession on the having been dwelling on the land for a long period of time.
It is long settled that, a person is completely without power or competence to revoke a completely constituted gift of land made which let the donee in possession, unless he can show that such a gift was null and void ab initio or the gift was subject to a condition which was broken. Such a gift of land is completed with the delivery of possession which amount to total transfer of ownership of the land to the done, and it amounts to an extinction of rights of those who claim through the donor. See EKPA VS. UTONG (1991) 6 N.W.L.R (PT. 197) 131.
The appellants again failed to show that the possession and the enjoyment of the land in dispute was purely a license to use the portion for duration or was subject to a condition which was broken. I believe and I so hold, that the act of possession and enjoyment of the land in the circumstance has matured into proof and constitutes evidence of ownership that could warrant a declaration of title to the Respondent.
I am of the firm view that the appellants failed to prove their title to the disputed piece of land in the light of the challenge of the respondents. The point had been made that in land matter, it is trite that, once the plaintiff is unable to prove his root of title, the consequence is that his case stands dismissed; see AYANWALE VS. ODUSAMI (2011) LPELR- 8143 (SC); NNADOZIE VS. MBAGWU (2008) 1 SC (PT. 11) 43.
It is for these and other reasons elaborately set out in the lead judgment that I, also reach the necessary conclusion that the appeal is lacking in merit and must, and is in fact dismissed. The judgment of the trial Court, delivered by Hon. Justice E. N. Kpojime, in suit No MHC/444/2014, on the 26th day of May, 2017 is hereby affirmed.
Appearances:
M.D. AULE, ESQ. For Appellant(s)
P.I. ACKOSIAH, ESQ., holding the brief of R.B. AYILA, ESQ. For Respondent(s)
