JOHN F. ALARIBE v. CHIEF JERRY OKWUONU (2015)

JOHN F. ALARIBE v. CHIEF JERRY OKWUONU

(2015)LCN/7744(CA)

In The Court of Appeal of Nigeria

On Friday, the 23rd day of January, 2015

CA/OW/105/2011

RATIO

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF THE PLAINTIFF IN A CIVIL CASE, PARTICULARLY, RELATING TO TITLE TO LAND TO LEAD CREDIBLE EVIDENCE IN PROOF OF HIS CLAIM AND THAT HE MUST SUCCEED ON THE STRENGTH OF HIS CASE

The law is trite, that in every Civil Case, particularly, relating to title to land, the Plaintiff is expected to lead credible evidence in proof of his claim and he must succeed on the strength of his own case, not on the weakness of his opponent (defendant) unless where defendant has made concessions, amounting to admission of the Plaintiff’s case, for which he (Plaintiff) can take advantage of. See the case of Owoade vs Omitola (1988) 2 NWLR (Pt.77) 413; SMAB INTER-TRADE LTD vs BULANGU (2013) LPELR- 21414 (CA).
In the case of Gwantu vs. Yaki & Ors. (2013) LPELR – 21416 (CA), this court held;
“Though, by law, a Plaintiff (or Counter-claimant) must succeed on the strength of his own case and not on the weakness of the case of the opponent (See ADFPL vs NIWA (2012) ALL FWLR (Pt.611) 1563, held 3), the law is that such Plaintiff (Counter-claimant) will succeed on minimal of proof and can take advantage of admissions by the Defendant touching on material facts. See Ukpo vs. Imoke (2009) 1 NWLR (Pt.1121) 90 at 144; Agboola vs. Uba (2011) ALL FWLR (PT.574) 74”

Also in the case of Bala & Anor vs. Hassan (2014) LPELR – 23997 (CA), My Lord Aboki; JCA, said;
“It is trite that the person who asserts has the legal burden of proof… It was held in the case of Odon vs Barigha-Amange (2010)12 NWLR (Pt.1207)13, thus “The person who asserts bears or has the legal burden to prove, because judgment would be given against him, if no evidence was adduced in a case. Until the Plaintiff who usually asserts, discharges the legal burden, there will be no duty on the defendant to adduce evidence, because the Plaintiff has to succeed on the strength of his own case, and not on the absence of the evidence from the Defendant…” See also Ukpo vs. Nnaji (2010) 1 NWLR (Pt. 1174)175; Kalgo vs. Kalgo (1999) 6 NWLR (Pt.608) 639. per. ITA G. MBABA, J.C.A.

EVIDENCE; DOCUMENTARY EVIDENCE; THE EXCEPTION THAT DOCUMENTARY EVIDENCE MUST BE TENDERED BY THE MAKER

Of course, it is not at all times that documentary evidence must be tendered by the maker, as the person to whom it is made can also produce it in Court. See the case of Omega Bank plc vs OBC Ltd (2006) 4 WRN 1 at 43, where the Supreme Court said
“I should not be understood as saying the documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker.” See Igbodim vs Obianke (1976) 9-10 SC 179…”
See also the recent case of Theophilus Ajakaiye v The State: CA/OW/70C/2013, delivered on 5/12/2014, where we held:
“The law requires the maker of a document to be the one to produce it in Court, subject, however, to specific exceptions… See Section 83(1)(a)(b) of the Evidence Act, 2011.
“In a proceeding where direct oral evidence of fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of the fact, if the following conditions are satisfied
(a) ……
(b) If the maker of the statement is called as a witness in the proceeding;
Provided the condition that the maker of the statement shall be called as a witness need not be satisfied, if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.” per. ITA G. MBABA, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER A PARTY IS NOT ALLOWED TO OBJECT TO A PIECE OF DOCUMENTARY EVIDENCE THAT IS LEGALLY ADMISSIBLE AND ITS ADMISSION WAS NOT OPPOSED BY THE PARTY

The law is also trite that Appellant cannot validly complain against the Exhibit H, which was admitted without any objection by him at the lower Court, and for which he never raised any appeal against, its admission in the appeal. See also the case of BLESSING V FRN (2012) 12 WRN 36, where it was held;
“… once a piece of documentary evidence is legally admissible and its admission was not opposed by a party, such a party is not allowed to object to it on appeal. See the case of Oseni vs State (2012) 5 NWLR (Pt.1193) 351. Having regard to this cardinal principle of law, the Appellant is foreclosed by law from quarreling with the propriety or otherwise of the admission of the exhibit.” The law is also that a finding (in a judgment) not appealed against is binding and conclusive. See the case of Gwantu vs Isiyaku (2013) LPELR 21416 (CA); Shukka vs Abubakar (2012) 4 NWLR (Pt. 1291) 497; Nnadi vs. N.E.C.C. & Anor (2014) LPELR – 22910 (CA).

Appellant cannot also be allowed to approbate and reprobate on the same issue, alleging that Exhibit H was hear-say and in admissible, and at the same time, relying on it to prove his claim! That amounts to gambling and a dishonest advocacy. See Suberu vs. The State (2010) LPELR – 3120 (SC); (2010) 8 NWLR (Pt.1197) 586; Akpa vs. Itod (1997) 5 NWLR (Pt. 506) 589 per. ITA G. MBABA, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

JOHN F. ALARIBE Appellant(s)

AND

CHIEF JERRY OKWUONU Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court in Suit NO. HU/80/2006, delivered on 29/11/2010 by Hon. Justice Onuoha A.K. Ogwe wherein, the trial Court dismissed the Plaintiff’s (Appellant) claim and granted the Counter-claim of the Defendant (now Respondent).
At the lower Court, Appellant, as per the writ of summons, filed on 8/4/2006, had claimed as follows;
(a) A declaration that the Plaintiff is entitled to the statutory right of occupancy of a piece or parcel of land in an area of land traditionally known as and called ‘Okpulor Uwadileke, situate between in UMUMBA NSIRIMO and UMUERIM in Umuahia South Local Government Area of Abia State Nigeria, within the jurisdiction of this Court with annual rental value of N10,00.
(b) The sum of N10,000,000.00 (Ten Million Naira), being special and general damages for trespass to the aforesaid piece or parcel of land.
(c) An injunction…

The Appellant (as Plaintiff) had relied on the statement of claim, filed on 4/5/2006. The Respondent (as Defendant) had filed a defence and counter-claim on 13/7/2006, asserting claims on the land, saying that his late father, Sir Okwuonu, became the owner of the land in dispute by an exchange transaction, wherein the said Sir Okwuonu gave two pieces of land to the Uwadileke family (from whom the Appellant claimed to have bought the land) in exchange for the land in dispute. The fact of the said exchange of land was not denied, but Appellant’s contention was that the said exchange transaction had been rescinded by the Uwadileke family due to the failure of Sir Okwuonu to keep to the terms of the said transaction.

The facts of the case showed that the root of title of the land in dispute was not in dispute, being traced to the Uwadileke Njoku family. Appellant asserted he bought the land from the said Uwadileke Njoku family, while the Respondent asserted the exchange transaction of the same land with other land, of the Sir Okwuonu. Appellant said the terms of the land exchange transaction was that Sir Okwuonu was to surrender the purchase documents of the two pieces of land, which he bought in the exchange transaction to the Uwadileke Njoku family. But this was denied by the Respondent. The two pieces of land used for the exhange with the land in dispute, are in the area called “Akpala Ubad & Igbadu” in Umumba Nsirimo, Umuahia South Local Government Area of Abia State, area of the parties. The said two pieces of land were said to have been purchased by the said Sir Okwuonu for the purpose of giving them to the Uwadileke Njoku family, in exchange for the land in dispute. The sales were receipted by the Sellers, who testified at the trial Court as DW1 and DW2 and tendered the said receipts as Exhibits C & D, respectively.

The Appellant contended that due to the failure of Sir Okwuonu to surrender the said Exhibits C and D to the Uwadileke Njoku’s family, the said family rescinded the exchange transaction and retook possession of the land in dispute and sold it to the Appellant, and at the same time left possession of the said two pieces of land to Sir Okwuonu. Appellant said he bought the land in 2002 and was in possession up to 2006, when the Respondent disturbed his possession for the first time. PW2, a member of the Uwadileke Njoku’s family, testified in favour of the Appellant, that the exchange transaction had been rescinded for failure of the Okwuonu to surrender the title documents of the two pieces of land to them – Uwadileke Njoku’s family. (Page 65 of the Records).

The Respondent asserted that the exchange transaction was never rescinded and relied on a letter written by one Emmanuel Uwadileke, a member of the Uwadileke Njoku’s family to him over the exchange transaction – Exhibit H. Appellant denied the letter, that it was written by the said Emmanuel Uwadileke.

The trial Court, relying on the letter, Exhibit H, came to the conclusion that the exchange transaction had not been rescinded by the Uwadileke Njoku’s family. It also held that the land was purportedly sold to the Appellant, without the signature of the head of the Uwadileke Njoku’s family – Emmanuel Uwadileke, who authored the Exhibit H.

Appellant filed the appeal on 17/1/2011, raising 6 grounds of appeal, as per pages 143 to 152 of the Records of Appeal. He filed his brief of argument on 18/8/11 and formulated 6 issues for determination of the appeal, as follows;
“(1) Whether the learned trial judge was right in his conclusion in his judgment wherein he said that; Each sides (sic) claimed ownership of the land through purchase from the Uwadileke Njoku’s family. The claimant on 19/8/2002 and the Defendant in 1996”
(2) Whether the trial judge was right when he held that the land exchange transaction affecting the land in dispute was not rescinded.
(3) Whether the trial judge was right when he dismissed the Claimant’s claim on the ground that Emmanuel Uwadileke the head of the Uwadileke’s family did not sign the Agreement (Exhibit B) by which the claimant bought the land in dispute.
(4) Whether the trial Judge was right in his conclusion in his judgment wherein he said that “Dr. I.N. Ijioma (Counsel for the Claimant) canvassed possession, extensively, though there are no pleaded facts in support of it, and “supplied unpleaded facts and not evidence”
(5) Whether the trial Judge was right in the adverse value which he placed on the evidence of the PW1 and PW2 in this case.
(6) Whether the trial Judge was right when he held that the Defendant proved his counter-claim.”

Appellant did not relate the issues to the grounds of appeal, formally. The Respondent filed his brief on 17/6/13, which was deemed duly filed on 13/1/14. In it, the Respondent raised a preliminary objection to the Appellant’s grounds of appeal, praying us to strike out the 6 grounds of appeal raised by the Appellant for being invalid, on the ground that;
“The particulars to the grounds are prolix (sic) and argumentative, contrary to the provisions of Order 6 Rule 2 (3) of the Court of Appeal Rule, consequent upon which they are void.”
The Respondent, however, formulated two Issues for determination of the appeal, in the alternative, namely;
(1) Whether the lower Court’s dismissal of the Appellant’s case in the Court below was not proper
(2) Whether the grant of the Respondent’s counter-claim was proper in law.

The Appellant filed a Reply brief on 8/3/2013; doing so before the Respondent’s brief was regularised on 13/1/14!
Arguing the preliminary objection, the Respondent simply said;
“it is settled that any particulars which are conclusive, argumentative or vague are outside the precinct of the application of Order 6 Rule 2 (3) of the Court of Appeal Rules; where that has happened, as in the instant appeal, the Court will not give effect to the ground or grounds of appeal so affected. All the grounds will be rendered incompetent and shall be liable to be struck out.
See Belonwu vs. Obi (2007) 5 NWLR (Pt.1028) 488 at 529, para B – F; Okumodi vs. Sovunmi (2004) 2 NWLR (Pt.856), at 26; Bereyin vs Gbobo (1989) 1 NWLR (pt.97) 372-380. D – E”

Counsel submitted that all the Appellant’s grounds of appeal are not only argumentative but also contain legal findings, conclusions and narratives that should not be contained in a ground of appeal, and are therefore incompetent and should be struck out.

In his Reply brief, Appellant said that the Respondent had waived his right to object to the perceived irregularity in the Appellant’s notice of appeal, having filed a Respondent’s Notice on 20/1/11, thereby taking steps to defend the appeal; that if the Respondent had really wanted to object to the said irregularities, he would have reacted to the Notice of appeal first, by challenging the grounds of appeal, before filing the Respondent’s Notice. He relied on the case of Kossen Nig. Ltd. vs. Savannah Bank Nig. Ltd. (1995) 9 NWLR (Pt.420) 439 at 451, where the Supreme Court said;
“Where a wrong procedure was adopted in commencing a suit, or in an action, and no objection to the procedure was timeously raised by the opposite party, then the proceedings based on such wrong procedure is valid. See Adebayo vs. Johnson (1969) 1 ALL NLR 176 at 190 -191.

Counsel also relied on the case of HNB vs. Ochete (2000) 19 WRN 20 at 41.

The Respondent also argued (in the alternative, in case he is over ruled) that the notice of appeal was not defective; that the Respondent did not demonstrate in his argument any of the particulars of error in any of the grounds of appeal, to show any such defect alleged; that the Respondent cannot just make a general submission, attacking all the grounds of appeal; that the objection was made in vaccum. He urged us to ignore the objection.

I think, it is necessary to state, again, that there is a difference between raising a preliminary objection against an appeal, under Order 10 Rule 1 of the Court of Appeal Rules, 2011, and raising an objection against a ground(s) of appeal, for being defective. Whereas in the former, the Notice of Preliminary objection ought to be filed, separately, at least, 3 clear days to the hearing of the appeal, to give the opponent due notice before arguing it, either in the Respondent’s brief or separately, in the latter situation, the Respondent only needs to file a motion to highlight the defects in the ground(s), and the same can be properly raised in the Respondent’s brief and argued therein See the case of Innocent Okereke & Anor vs. Innocent Adiele CA/PH/421/2008, a recent decision of this court, delivered on 20/11/14, where we said;
“The position of this Court, as per the authorities of the Apex Court, has always been that, where an objection is against one or more grounds of appeal, then the objector need not file a “preliminary objection”, but a motion, notifying the Appellant of the Respondent’s intention to contest the competence of those grounds of appeal or issue(s). Of course, such objection can be raised and argued in the Respondent’s brief, without the need to file a separate process to that effect. See the case of General Electric Co. vs. Harry Akande (2011) 4 NSCQR 611… See also Adejumo vs. Olawiye (2014) 12 NWLR (Pt 1421) 252 at 265) where the Supreme Court said;
“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal…
Where a preliminary objection would not be the appropriate process to object or show to the Court defects in the processes filed before it, a motion on notice filed complaining about the grounds or defect would suffice…”

To that extent, I think the Appellant was in grave error to think and say that the Respondent had waived his right to raise objection to the ground(s) of appeal after having taken step(s) to defend the appeal by filing a Respondent’s Notice – (whatever Appellant meant by ‘Respondent’s Notice,” as I have not found any Respondent’s Notice in the file before me). That was a strange submission,indeed, as a Respondent is, perfectly, in order to raise complaint to the competence of an appeal or a ground(s) thereof and argue the same in the brief filed to defend the appeal. Arguing a preliminary objection or issue in a Respondent’s brief, together with the main appeal i.e. Respondent’s position, has become a welcome/acceptable innovation/practice in Appellate Courts, to kill time and dispose of the issues once and for all. See the case of Enukeme vs. Mazi (2014) LPELR – 23540 CA, where we held;
“It is also a common practice, now, to hear motions/objections raised against the hearing of a suit, together with the substantive matter, where time is of the essence, to determine the substantive matter.” See also Ajonuma & Ors vs Nwosu & Ors (2014) LPELR 24015 (CA).

But the objection raised by the Respondent in this appeal does not appear to be worth any further consideration, as the Respondent did not appear serious and diligent in his complaint, having only made a general submission on the alleged incompetence of the grounds of appeal, without relating the same to any of the grounds of appeal he intended to complain against. He had a duty to demonstrate how each of the 6 grounds of appeal fell short of the requirements of Order 6 Rule 2 (3) of this Court’s Rules, 2011, for being argumentative, legal conclusions or narrative! He merely said “all the grounds of appeal are not only argumentative but also contain legal findings, conclusions and narrative.” I think, that was a lazy way of arguing an objection, and amounted to generalization and speculation.
The law is however, trite that a ground of appeal must not be vague, general in terms, argumentative or narrative, except the omnibus ground. See Order 6 Rule 2 (3) and 3 of the Court of Appeal Rules, 2011; Uwazuruike vs. Nwachukwu & Ors. (2012) LPELR -15353 CA; Olufeagbu vs. Abdul Raheem (2009) 18 NWLR (Pt 1173) 384; NNPC vs. Aminu (2013) LPELR 21396 CA. But this Court is not expected to undertake the assignment posed by the speculation of the Respondent, to call up all the grounds of appeal and study to determine which one conforms with Respondent’s allegation and which one does not, if the Respondent failed to do his home work. I, therefore, strike out the preliminary objection, which I think has failed.

I also think Appellant’s issues for determination were too many and repetitive of the same issues. What stood out of the grounds of appeal is whether the trial judge was right to hold that Appellant did not prove that the land exchange transaction between Sir Okwuonu and the family of Uwadileke Njoku had been rescinded and so gave judgment to the Respondent, as per his counter-claim. I shall therefore consider this appeal on the above reframed issue, which tends to summarise the six issues by the Appellant and the two by the Respondent.
Arguing the Appeal, Appellant’s Counsel, Dr. I.N. Ijiomah (SAN), who settled the brief, submitted that the trial Judge was wrong to hold that each side claimed the land through purchase, whereas, he also held that the defendant’s (Respondent) counter-claim succeeded through land exchange and payment of supplementary sum of N25,000.00; that was contradictory. He also submitted that the trial court was wrong to hold that the land exchange transaction was not rescinded by the family of Uwadileke Njoku, relying on the evidence of DW4 and on Exhibit H – letter by Emmanuel Uwadileke Njoku. Counsel argued that the Exhibit H was not tendered by the maker; that the Appellant had denied that the document was written by the said Emmanuel Uwadileke Njoku; that the onus was on the Respondent to call the said Emmanuel Uwadileke Njoku to tender the letter, if he was the author. Appellant relied on the case of Omega Bank Plc vs. OBC Ltd (2006) 4 WRN 1 at 43, where the Supreme Court rather said;
“I should not be understood as saying the documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker.” See Igbodim vs Obianke (1976)9-10 SC 179…”

Counsel submitted the Respondent had opportunity to call the maker of Exhibit H to testify but failed to call him; that, that should be presumed against the Respondent by invoking Section 419(d) (sic) of the Evidence Act for failure to call the said Emmanuel Uwadileke as a witness! He relied on the case of Asaja vs NAC (2007) 1 NWLR (Pt. 1015) 408 at 425.

Appellant’s Counsel later somersaulted and submitted that the Exhibit H, made by Emmanuel Uwadileke, supported the Appellant’s case! He referred us to paragraph 2 of the letter (Exhibit H), where the author of the letter also harped on the need for the Respondent’s father to surrender the receipts of purchase of the two pieces of land, given in exchange for the land in dispute. Counsel argued that DW2’s evidence had rubbished the defendant’s assertion that the Uwadileke Njoku’s family was in possession of the two portions of land bought by Sir Okwuonu for the exchange with the land in dispute. He referred us to pages 79 and 80 of the Records.

On the issue that Emmanuel Uwadileke, (the head of the family) did not sign the agreement (Exhibit B) by which the Appellant bought the land from the Uwadileke Njoku family, Counsel submitted that the trial Judge was in grave error to hold that failure of the said Emmanuel Uwadileke to sign the Agreement was fatal; that that issue was not in dispute, that is, whether or not Emmanuel Njoku signed the Agreement; he said that going by the pleadings, the parties did not join issue as to whether or not the document (Exhibit B) was signed by Emmanuel Njoku; that the trial judge simply embarked on deciding an issue which was not before him; and referred us to page 136 of the records, where the trial court held that family land can only be disposed of with the authority or concurrence of the family head and the principal members of the family. Counsel said that by so doing the trial Court was making a case for the Respondent. He relied on the case of Shagari vs. C.O.P. (2010) 5 NWLR (Pt. 1027) 272 at 299.

Counsel also argued that the trial Court was wrong in his conclusion that Dr. Ijiomah (Appellant’s Counsel) canvassed possession, extensively, though there were no facts, in support of it; that he supplied unpleaded facts not given in evidence about the duration land is cultivated to be that interval of 4 year and came to the ingenious conclusion that the Claimant was in possession from 2002, when he farmed the land, until 2006 when defendant bulldozed the land. Counsel said the above conclusion was barren, in that all the facts canvassed by the Appellant’s Counsel were pleaded and given in evidence.

On whether the trial court was right in the adverse value it placed on the evidence of PW1 and PW2, Counsel answered in the negative and said that the reason the trial Court gave for rejecting the evidence of PW1 and PW2 was perverse. He drew our attention some aspects of the evidence of PW1 and PW2 in the Records of Appeal and said the trial Court did not properly evaluate those pieces of evidence and so reached a wrong conclusion.
On whether the trial judge was right to hold that the Counter-claim was proved, Appellant’s Counsel submitted that by his arguments above, the Appellant had proved his case and so it was wrong for the trial Court to allow the Counter-claim; that the Courts conclusion was perverse. He queried how the Respondent could be said to have proved the Counter-claim, when the Exhibit H, relied upon by the court to so hold, was a hear-say evidence, as the maker of Exhibit H (Emmanuel Njoku) I was not called as a witness! He urged us to resolve the issues he argued in favour of the Appellant and allow the Appeal.

The Respondent’s Counsel, Chief M.I. Ahamba (SAN), who settled the Respondent’s brief, submitted that the success of the entire case centred on whether the exchange transaction over the land between the Uwadileke family and Sir Okwuonu had been rescinded, as the Appellant claimed. He (Counsel) answered in the negative; he submitted that having admitted that there was “no dispute between the parties, as to whether the exchange transaction took place”, it was the duty of the Appellant to prove that the same (exchange transaction) had been rescinded; he submitted that the findings of the court on the matter was unassailed and could not be described as perverse; that a perverse finding it one in which there is no evidence in support. He relied on Overseas Construction Ltd vs. Creek Enterprises Ltd (1985) 3 NWLR (Pt. 13) 407 at 414; Ogbechie vs Onochie (1986) 2 NWLR (Pt.23) 484 at 492; Abba vs. Ogodo (1984) 4 SC 84 at 98-9; Balogun vs. Labiran (1988) 3 NWLR (Pt.80)66.

Counsel submitted that it was note worthy that Appellant never mentioned the alleged rescission of the exchange transaction in his Statement of Claim and that from averment in paragraph 5 of the Statement of Claim the land transaction Appellant had was with one “Mr. Uwadileke of Umumba Nsirimo”, who executed a power of attorney in favour of the Appellant in respect of the land; that Appellant never pleaded any transaction with Uwadileke family; that the alleged ‘Mr. Uwadileke’ only turned out to be Peter Uwadileke (father of PW2) while evidence was taken in Court. Counsel submitted that it is trite law that root of title, being the foundation of a claimant’s case, must be seen to have been pleaded in the Claimant’s Statement of claim, and evidence there upon, seen to be consistent with that pleading; that where a claimant pleads and claims title from an individual ownership, but in evidence rests on communal ownership, his case fails instantly. He relied on the Supreme Court case of Adesanya vs Otuewu (1993)1 NWLR (Pt. 270) 414 at 444, where Olatawura JSC said;
“The learned trial judge having found that the Respondents have failed to prove that the Medusope family land has been partitioned should have dismissed the Plaintiff’s claim which postulates title to the land in dispute.”

Counsel submitted that the trial court was right to hold that the said Peter Uwadileke had nothing to sell to the Appellant, without the approval of the Uwadileke family.

Counsel also submitted that Appellant, at the trial and in his pleading (Reply to statement of defence), had conceded that possession of the land at a time prior to his claimed “acquisition” from Mr. Uwadileke (not his family) was in the Respondent; that he must, therefore, prove that the possession conceded to the Respondent’s family, at any time, passed to the said Mr. Uwadileke (Appellant’s vendor), prior to the alleged sale of the land to him (Appellant); that Appellant failed to discharge that burden. Counsel submitted that possession is nine – tenth of the law and a person to which possession is conceded keeps it until a superior title holder emerges; that the Appellant made no effort to establish his root of title. Instead, he rested on a perceived weakness of the defence; that, by law, a Plaintiff in a land case can only succeed on the strength of his case and not on the weakness of the defence (Owoade vs. Omitola (1988) 2 NWLR (Pt.77) 413.

Counsel further submitted that the Appellant’s attack on the trial Court’s findings, on rescission, was based, completely, on the documents and oral evidence of the defence, instead of the claimant’s own evidence on the point. Counsel referred us to the Exhibit H, which he said was admitted without objection by the Appellant (page 85 of the Records).

He submitted that the complaint of Appellant against the trial Court’s findings on Exhibit H was, therefore, frivolous. He added that the trial Court’s findings, that there was no rescission was not based on Exhibit H alone, as there were other points of law and fact on which that findings was founded.

Counsel argued that the claim that Exhibit H was hear-say evidence was laughable, especially as the same (Exhibit) was admitted without objection, and there is no appeal against its admission; moreover the Appellant also sought to rely on the said Exhibit H (while also claiming it to be hear-say and worthless!) See paragraphs 4.11, 4.13 and 4.14 of Appellants’ brief. He relied on the case of Nwabueze vs. Okoye (1988) 4 NWLR (Pt.91)664 at 679 (that Appellant cannot complain against Exhibit H, having not appealed against its admission), and Omega-Bank PLC vs. OBC Ltd (2006) 4 WRN 1 at 43 (which shows that a documentary evidence can be admitted in the absence of the maker.

Counsel also submitted that Appellant’s curious complaint that the maker of Exhibit H (Emmanuel Uwadileke) was not called as a witness was knocked off by the case of Asaka vs. Nigerian Army Council (2007) NWLR (Pt.105)408 at 425 (relied upon by Appellant), in that the letter was written to the Respondent’s family, and they tendered what was received. Counsel also submitted that Section 149 (d) now 167 (d) of the Evidence Act should rather be presumed against the Appellant, who rather had the duty to produce the maker of Exhibit H (being a member of their family) to establish their claim of rescission, as he who alleges must prove – Section 135 (1) (now 136 (1) of the Evidence Act, 2011.

Counsel submitted that the trial Court was right, when it ascribed probative value to the letter (Exhibit H) by Emmanuel, who was the living head of the Uwadileke family, from which family the parties traced their roots of title. He observed that Appellant’s quarrel about the Courts treatment of Exhibit C & D, was completely misplaced, as the same were not Appellant’s documents and could not have helped Appellant, as they were not available for the Appellant at the close of Appellant’s case! He argued that Appellant was trying to rest on the perceived weakness of the case of the Respondent, to promote his (Appellant’s) case; that he cannot do that, as the Appellant’s case was fully presented before the Court at the close of his evidence, and if at the close of Appellant’s case, no prima facie case was established, or no evidence was led on the essential elements of the case, the case could have been dismissed. He relied on the case of Duru vs. Nwosu (1989) 2 NWLR (Pt. 113) 24 at 41.

On the grant of the Counter-claim, Counsel submitted that from the totality of the evidence on record, and the law, the Respondent was justifiably granted the counter-claim, Appellant having conceded possession of the land in dispute to the Respondent’s family, prior to the transaction he (Appellant) had with Mr. Uwadileke (in his individual capacity, not representing Uwadileke family). More-over, Counsel submitted, there was no proof that the exchange transaction between Uwadileke Njoku’s family and Sir Okwuonu had been rescinded, and there was proof of trespass, as Appellant could not establish superior title to the land. Counsel urged us to dismiss the appeal.

RESOLUTION OF ISSUES
I have already stated what I think is the summary of the main/real issue(s) in this appeal, that is;
“Whether the trial judge was right to hold that Appellant did not prove that the land exchange transaction between Sir Okwuonu (father of Respondent) and the family of Uwadileke Njoku had been rescinded and so gave judgment to the Respondent, as per his counter-claim.”

In this case, there was no dispute that the root of title to the land resided in the Uwadileke Njoku’s family, from whom the parties traced their rights to the land, (prior to the exchanged transaction). The parties also agreed that the Respondent came into possession of the land in dispute, because his father, Sir Okwuonu, had gotten it by right of exchange of two other pieces of land (which Sir Okwuonu bought for that purpose), as per Exhibits C and D, for the Uwadileke Njoku family. The Appellant admitted that much, when Appellant’s Counsel submitted that there was no dispute between the parties as to whether the exchange transaction took place.

What was rather in contention was the assertion by the Appellant, that the exchange transaction had been rescinded by the Uwadileke Njoku family, because the Respondent’s father failed or refused to surrender the documents of purchase of the two pieces of land (given in exchange for the land in dispute) to the Uwadileke Njoku family. Because, that formed the plank on which the case of Appellant was built, he had a duty to lead credible evidence in proof of the alleged rescission.

The Appellant had pleaded that he bought the land from Uwadileke Njoku family, the acclaimed ancestral owners of the land in dispute. The Respondent asserted in paragraph 19 of the statement of defence that;
“The land now in dispute was acquired by the father of the Defendant in 1996 from the family of Uwadileke Njoku. . . by way of the exchange with two pieces of land, one acquired by Defendant’s father from Joshua Ihuocha. . . and another acquired from Felix Oguine. . . plus an additional payment of N25,000.00”

It was then that the Appellant woke up to allege that the exchange transaction failed and pleaded in paragraph 14 of his Reply to the statement of defence and counter-claim, as follows:
“The Plaintiff avers that the two (2) pieces of land were given in exchange for the land in dispute, as aforesaid but which transaction later failed, are still in the possession of the Defendant’s family. Since the exchange agreement failed as aforesaid, the members of late Uwadileke Njoku’s family have not entered into it. The Defendant still occupy and use the said two (2) pieces of land.” (page 26 of the Records)

Appellant did not directly plead rescission of the land exchange transaction but simply alleged in Reply that it failed without stating how and why it failed.

Apparently, the Appellant did not know that he was sold a force/litigation, when he paid “Mr. Uwadileke of Umumba Nsirimo” money in 2002, who purported to have executed a power of attorney in favour of the Appellant in respect of the land. It was the Respondent who pleaded the letter (Exhibit H) by Emmanuel Uwadileke Njoku, eldest living member of Uwadileke Njoku family, which revealed that the family only threatened recission, if there was trespass on the 2 pieces of lands given to them by Sir Okwuonu. The sale was by individual member of the Uwadileke family – Peter Uwadileke (who was not even bold enough to state his full names in the purported power of attorney), and who never pretended he was acting for and on behalf of the Uwadileke family, as he did the entire transaction in his personal capacity as “Mr. Uwadileke of Umumba Nsirimo”. Of course, he had no mandate/authority of the family to sell the land, which, by this time, had been in possession of the Respondent’s family by reason of the exchange transaction.

I think, by this time (at the stage of pleading), the Appellant had sufficient notice that he had been dealing with fraudsters and should have pressed for refunds of his money. He rather pursued the case, relying on the same person(s) who defrauded him to give evidence to prove that the exchange transaction failed!

Surprisingly, his lawyer failed to call the head of the family Emmanuel Uwadileke as witness, who would have exposed the fraud by his relation, Peter. And, very strangely, too, the Counsel for the Appellant rather blamed the Respondent for not calling the said Emmanuel Uwadileke as witness, and wants us to invoke Section 149(d) of the Evidence Act against the Respondent! Counsel also alleged that Exhibit H, which was written by said Emmanuel Uwadileke to the family of the Respondent, was a hear-say evidence! And after urging us to reject the said exhibit and regard it as worthless (even when he did not appeal against its admission), Appellant’s Counsel also sought to use it (Exhibit H) to support his case! Such confused submissions tend to diminish the status of a Senior Counsel.

The law is also that a finding (in a judgment) not appealed against is binding and conclusive. See the case of Gwantu vs Isiyaku (2013) LPELR 21416 (CA); Shukka vs Abubakar (2012) 4 NWLR (Pt. 1291) 497; Nnadi vs. N.E.C.C. & Anor (2014) LPELR – 22910 (CA).

I do not think it was the duty of the Respondent to call Emmanuel Uwadileke, the head of the family that allegedly sold the land in dispute to the Appellant, as a witness. Appellant was the one who alleged that the land exchange transaction had failed, and so was the one to establish that, especially as the Respondent had pleaded the letter by the said Emmanuel Uwadileke to the effect that the exchange transaction did not fail. Section 149 (d) of the Evidence Act (now Section 167(d) can therefore not be presumed against the Respondent, who did not have any need for Emmanuel Uwadileke in Court (after having gotten his letter). That law should, rather, in my opinion, be presumed against the Appellant, who appeared to have shielded the said Emmanuel Uwadileke from appearing in Court, probably to avoid the open embarrassment of exposing that the family had not authorised Peter Uwadileke to sell the land (in possession of Respondent’s family) to the Appellant.

The relevant Content of Exhibit H is published on page 103 of the Records, thus;
“Sir, you promised us that you are going to see about the documentation of those lands as soon as possible. Everything about the land was done clearly and in broad day light in so much that there should be no doubt, and still it is very recent. I expected that by now every documents about i.e. two portions of land could have been received in so much that you know what people are capable of formulating… Finally, if there is any trespass in any of the two portions you gave us resulting from no proper documents or whatever I will surely take back my land, even if it has been developed. Therefore help to save situations which may be urgly in future thru (sic) proper documentations” (Underlining Mine)

There was nothing in the evidence to suggest that the fears of trespass materialised on the two piece of land, which Emmanuel Uwadileke Njoku admitted, were given to them, in exchange for the land in dispute, and so the threat of retaking the (or rescission, as Appellant alleged) could not be imagined. As a matter of fact, the trial Court, in its findings, had said;
“Emmanuel clearly stated the position of the family in Exhibit H, which remains the family’s final position. He said that as at 1998, that if Defendant did not convey the 2 parcels of land via an agreement to him and there was trespass to any of the two portions, he would take back the land. There has been no such trespass because the evidence before me (DW1, DW2 and DW4) is that Uwadileke is in peaceable possession of the pieces of land and that they even farmed on them, and harvested their crops on them this year… (See page 139 of the Records).

That, of course, completely, cleared every doubt that the Uwadileke Njoku family was in full possession of the two parcels of land for which the land in dispute was exchanged, as at 2010 when the judgment was delivered, and that, there was no trespass on any of them! There was, therefore, no rescission of the exchange transaction. What rather happened, as can be inferred, was that a member of the family, Peter Uwadileke Njoku, (Father of PW2) had fraudulantly, sold the land to the Appellant, and was trying to use allegation of ‘rescission’ of the exchange transaction to cover his track, on being exposed.

A look at the purported Power of Attorney (Exhibit B), which he allegedly executed in favour of the Appellant in 2002, shows the document was purportedly executed on 19/8/2002 by Peter Uwadileke (who simply wrote his name as Mr. Uwadileke), as an individual. Uwadileke Njoku had two sons, Emmanuel and Peter. In the recital of Exhibit B, Peter had claimed to be the beneficial owner of the land by inheritance from his father. He also said the land was free from encumbrances. Those were lies, as Peter could not have been the sole beneficial owner of the land by inheritance, when his Senior brother Emmanuel was still alive and the land had since been given out in exchange by their Father to Sir Okwuonu, many years back! See pages 135 and 136 of the Records.

Of course, the land had been encumbered, as it was no longer the ancestral property of the Uwadileke Njoku family. And even if the land had remained ancestral property of the Uwadileke Njoku, the father of PW2; (Peter Uwadileke) had no power to sell it or excute a Power of Attorney thereon, without the consent/authority of his senior brother, Emmanuel Uwadileke Njoku. As the trial Court held, family land can only be sold or disposed of with the consent of the head/principal members of the family. Even where a family makes the sale, he must receive the consent or ratification of the other principal members of the family for the sale to be validated. See Okonkwo vs. Okonkwo & ors. (1998) LPELR 2487 (SC) (1998) 10 NWLR (pt. 571) 554 Folami & Ors vs. Cole & Ors (1990) LPELR 1285 (SC); (1990) 2 NWLR (Pt 133) 445; Akano & Anor vs. Ajuwon (1966) 1 ALL NLR 246 at 249

It is, therefore, obvious that the Counter-claim by the Respondent had a smooth sail, as evidence, even by the Appellant, showed that the land had been given to the Respondent’s father, in exchange for the latter’s two pieces of land and additional N25,000.00, and there was evidence, too, from the Appellant that the Respondent’s family was in possession of the land before the same was purportedly sold to the Appellant by the father of PW2.

The Respondent’s counter-claim was for;
“(1) A declaration that the Defendant is in the statutory occupancy of the land in dispute known as and called ‘Okpulor Umuogu’ situate at Umumba Nsirimo in Umuahia South Local Government Area of Abia State, and described and verged pink in survey Plan No. HAS/ABDO14/2006
(2) N1,000,000.00 general damages for Claimant’s trespass to the said land, and
(3) An injunction restraining the Plaintiff by himself or through agents, assigns or personal representatives from entering or continuing to enter, dealing with or in any form or manner tampering with the said land, verged pink in the Survey Plan No. HAS/ABD014/2006, in any manner adverse to the defendant’s occupancy rights.”

The trial Court had granted the Counter-claim, but with N30,000.00 general damages, instead of the N1,000,000 claimed. I cannot fault the decision of the Learned trial Court, in the circumstances, as I resolve the issues against the Appellant, and dismiss the appeal.

Appellant shall pay the cost of this appeal assessed at N50,000.00 (fifty thousand naira) only, to the Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the privilege of reading the illuminating judgment of my learned brother I.G. Mbaba, J.C.A. in advance and I am in total agreement with his reasoning and conclusion that the Appellant’s case in the lower Court as well as his Appeal herein are unmeritorious.

As my Lord rightly observed, the Appellant only bought litigation when he paid Mr. Peter Uwadileke money in 2002, for land which was not of the said Peter’s beneficial ownership or inheritance as his Senior brother Emmanuel was still alive and kicking. The land was therefore encumbered even as their said father Uwadileke had since given out the said piece of land to Sir Okwuonu, many years back and title did not reside in the family any more. The Appellant therefore bought a void title from Peter assuming title was still in the Uwadileke. Okonkwo v. Okonkwo & Ors. (1998) LPELR (2487) (SC) (1998) NWLR (Pt.571) 554; the Locus classicus of Ekpendi v. Erika (1959) 4 FSC 79; (1959) SCNLR 221; Akerele v. Atunranse (1968) 1 ALL NLR page 201 and Akinfolarin v. Akinola (1994) 3 NWLR (Pt.335) 659 ALL cited per Ejiwunmi, JSC of blessed memory in Emmanuel Jiaza v. Hassan Bamgbose & Anor (1999) LPELR – 1161 (SC) (1999) 7 NWLR (Pt.610) 182 and (1999) 5 SC (Pt.1) 58.

The Respondent had counter-claimed in the lower court against the declaration of title to Statutory Right of Occupancy of the piece of land called “Okpulor Uwadileke situate between Umumba Nsimiro and Umuerim Umuahia South Local Government Area of Abia State of Nigeria, with annual rent of N10.00, the sum of N10,000,000.00 (Ten Million Naira) being special and general damages for trespass and injunction sought by the Plaintiff (now Appellant), that his father (deceased) Sir Okwuonu, became the owner of the land through an exchange transaction wherein two pieces of land were exchanged for the land.

The Learned trial Judge having satisfied himself on the preponderance of evidence that title rather resided in the Respondent had granted the Respondent’s Counter-Claim in terms of all the reliefs he sought for except that he reduced the general damages of N1,000,000.00 (One Million Naira) to N30,000.00 (Thirty Thousand Naira) only. I am also unable to fault the well reasoned judgment of the lower Court which I accordingly endorse in all its ramifications. I also shall dismiss this Appeal with Appeal with N50,000.00 costs against the Appellant.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned Brother, Ita G. Mbaba, JCA just delivered.

I agree with the reasoning and conclusion in the lead judgment that the Appeal be dismissed and it is accordingly dismissed.

Appearances

I.N. Ijeomah Esq. (S.A.N) with him U.K. Ike Esq.For Appellant

AND

Chief M.I. Ahamba (S.A.N) with him C.C. Okoroafor Esq. T.E. Nwokedi Esq. and K.O. Ahamba Esq.For Respondent