KHOLABE CONSOLIDATED (NIG) LTD v. DAUDA
(2020)LCN/14269(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Thursday, June 11, 2020
CA/MK/159/2014
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Between
KHOLABE CONSOLIDATED (NIG) LTD APPELANT(S)
And
SULEIMAN DAUDA RESPONDENT(S)
RATIO
WHETHER OR NOT EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE IS THE PRIMARY DUTY OF A TRIAL COURT
Evaluation of evidence and ascription of probative value to it are primarily the duty of a trial Court that had the opportunity of observing the demeanour of witnesses while they testified. The appellate Court that deals only with the cold evidence on record, being handicapped will not ordinarily interfere with the trial Court’s findings on evidence. Where a trial Court makes a finding on the credibility of a witness, an appellate Court would not ordinarily interfere unless it is shown to be perverse. Where the trial Court inspite of the advantage it has draws erroneous inferences from evidence and this occasions a miscarriage of justice, the appellate Court will be duty – bound to properly evaluate the evidence and make the correct findings to right the injustice occasioned by the trial Court’s wrong finding arising from its wrong evaluation of evidence. See Mogaji V Odofin (1978) 4 SC 91, Congress for Progressive Change V Independent National Electoral Commission (2011) 18 NWLR (Pt. 1279) 493 and Federal Republic of Nigeria V Umeh (2019) 7 NWLR (Pt. 1670) 40. PER EKANEM, J.C.A.
WHETHER OR NOT WHERE TWO OPPOSING PARTIES TRACE THEIR ROOTS OF TITLE TO THE SAME GRANTOR, THE LATER IN TIME CAN NOT SUCCEED AGAINST THE PARTY WHO FIRST OBTAINED A VALID GRANT
It is the law that where two opposing parties trace their roots of title to the same grantor, the later in time cannot succeed against the party who first obtained a valid grant. See Tewogbade V Obadina (1994) 4 SCNJ 161, Dantsoho V Mohammed (2003) 6 NWLR (Pt. 617) 457, Omiyale V Macaulay (2009) 7 NWLR (Pt. 1141) 597 and Adeniran V Ashibi (2004) 2 NWLR (Pt. 857)375. Nevertheless, the principle of law is inapplicable in this case. This is because for it to apply in any case, it must not only be shown that the parties have a common grantor but that a common or the same land was granted to them.
In Ilona V Idakwo (2003) 11 NWLR (Pt. 830) 53, 91 Iguh, JSC, opined that:
“The law is well settled that where……there are competing interests by two or more parties claiming title to the same piece or parcel of land from a common grantor the position, both at law and in equity, is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potiorest jure which simply means that he who is earlier in time is stronger in law”. PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Nasarawa State, Lafia Judicial Division (the trial Court) presided over by Abundaga, J. (as he then was) in suit No. NSD/MG95/2008 delivered on 10/4/2014. In the judgment, the trial Court, restricting its judgment to the portion of land it held to be in contest between the parties, granted the respondent’s counter – claim against the appellant. Aggrieved by the decision, the appellant filed a notice of appeal against the same on 24/6/2014. The notice of appeal incorporates only one ground of appeal, to wit; the omnibus ground of appeal.
The facts of the case leading to this appeal may be summarised as follows: On the part of the appellant as plaintiff, its case was that the land in dispute (measuring 2.031 hectares with its eastern boundary at a pond (now orchard) was originally owned by Gbangyi Aforo. He (Gbangyi Aforo) sold the land in the 1980s to HRH Etsu Karu Isiaku Bulus Chetubo who in turn sold the same to him in 1988. The respondent and his agent entered the land in September, 2008 and demolished his perimeter fence. The
1
appellant therefore sued the respondent at the trial Court claiming declaratory and injunctive reliefs.
The respondent filed an amended statement of defence sub-joined with a counter – claim. The case of the respondent was that the land in dispute was originally owned by Bangui Aforo who sold it to Zhiba Kpakumpe. The said Zhiba Kpakumpe sold the land on 5/3/1990 to Arusu Yegazie who in turn sold the land on 10/10/1991 to Danjuma Tuta. The said Danjuma Tuta sold the land on 17/7/1992 to the respondent. The respondent averred that the land sold to him measures 1.719 hectares with its eastern boundary being by a big tree close to Farin Ruwa. The respondent apart from denying the claim of the appellant counter – claimed for declaratory, injunctive and monetary reliefs for the land measuring 1.719 hectares.
Issues having been joined, the case proceeded to hearing with the appellant calling three witnesses and tendering three exhibits. The respondent led evidence through four witnesses including himself and tendered ten exhibits. The trial Court visited the locus in quo and after taking address from counsel, granted the counter – claim
2
of the respondent.
Appellant filed its brief of argument on 11/12/2014 but it was deemed duly filed and served on 8/6/2016. It also filed a reply brief on 8/11/2018. The respondent filed his brief of argument on 11/11/2016 but it was deemed duly filed and served on 16/11/16.
At the hearing of the appeal on 20/3/2020, Teryima J. Adi, Esq. (holding the brief of Chief A. Adeniyi) for the appellant adopted and relied on the briefs of argument filed on appellant’s behalf (settled by M.I. Sanni, Esq.) in urging the Court to allow the appeal. S.O. Ochaje, Esq. for the respondent adopted and relied on the respondent’s brief of argument settled by V.A. Ofikwu, Esq. in urging the Court to dismiss the appeal.
In the appellant’s brief of argument, a single issue is formulated from the sole ground of appeal for the determination of the appeal. The issue is:
“Whether it was right in law for the trial Court to have reached a conclusion in his (sic) judgment different from finding of facts on who proved better title to the land in dispute between the parties, thereby giving judgment to the Respondent on the part of the disputed
3
land, while dismissing the Appellant’s claim”.
The respondent’s counsel adopted by implication the sole issue formulated by appellant’s counsel. I shall therefore be guided by the said issue in the determination of the appeal though it is a bit prolix.
Appellant’s counsel, in his argument, referred to a portion of the judgment of the trial Court including the statement that the respondent bought the land on 17/7/1992 from his vendor who bought it from Arusu Yegazie in August, 1992. He submitted that the necessary implication is that the respondent’s title came into being on a date which predated his root of title. He further submitted that on this score, appellant’s title is better than the respondent’s as it is not possible for the respondent to have got title to the land in dispute before his vendor acquired his title. He contended that there was no sufficient trace of title on the respondent’s part as Zhiba Kpakumpe to whom the respondent traced his title does not have any proof of when he acquired his title from Bangyi Aforo. He therefore argued that though both parties traced their root of
4
title to a common grantor, the appellant established a better title that ought to have entitled him to succeed. He urged the Court to interfere with the finding of fact of the trial Court. He emphasised that while the appellant traced its title to Etsu Karu Isiaku Bulus Chetubo who bought the land from Bangyi Aforo in 1984, that of the respondent was traced to Zhiba Kpakumpe who bought from the same Bangyi Aforo in a year not known or specified. He posited that the trial Court failed to make necessary and proper finding and conclusion from the above situation.
Counsel continued by stating that the trial Court erred by relying on the hearsay evidence of DW4 and also taking judicial notice of its previous decisions to uphold the counterclaim of the respondent. He noted the said decisions were previous judgments of the trial Court which were not tendered by the parties and ended in non – suit and were irrelevant to the instant matter. He submitted that for a previous judgment to be relevant, it must be pleaded as estoppel per rem judicatam.
For the respondent, it was stated by his counsel that the trial Court gave judgment solely on the farmland
5
measuring 1.719 hectares claimed by the respondent in his counter – claim as proved. He further stated that the difference between the appellant and the respondent in respect of the farmland in dispute is at the eastern part; namely; while appellant claimed that its land ended at a pond (now orchard) by the east, the respondent said that his land stopped at a big tree close to Farin Ruwa. He referred to the evidence of PW3 who testified that the boundary of the land in east is a small tree and that there is an orchard there now. He noted that the respondent as DW1 testified that he did not dispute the part of the land on appellant’ survey plan (Exhibit A) from points P3, P2 and PW1. He also referred to the evidence of DW2 and DW3 in that regard. He then referred to the position of the trial Court that its judgment would be restricted to the portion of land in contest, to wit; 1. 719 hectares. He again referred to the finding of the trial Court that the land sold to appellant’s vendor by Gbangyi Aforo did not include the land in dispute.
Counsel contended that the finding of the trial Court that the respondent bought the land from Danjuma
6
Tuta on 17/7/1992 while Danjuma bought the land in August 1992 was a slip of the pen. He stated his reasons for so contending. He submitted that not every mistake or slip would result in the setting aside of a judgment except it occasioned a miscarriage of justice. He stated that the evidence on record shows that the purchase was on 10/10/1991 and so the title of the respondent did not pre – date that of his vendor. Therefore, he posited, the error did not occasion a miscarriage of justice.
Counsel thereafter plodded through the paragraphs of appellant’s brief of argument and answered them one by one. This resulted in a lot repetition, which I will endeavor to avoid in this summary of argument. Counsel noted that at the trial Court, the appellant did not contest the title of Zhiba Kpakumpe on the basis of year of purchase but that the farmland was sold to Bogobiri by Bangyi Aforo. He submitted that the assertion was not proved by appellant. He contended that the issue of the absence of year of purchase was a fresh issue which required leave of Court to raise, and no such leave was obtained. In any event, he posited, the absence of the year of
7
purchase by Zhiba Kpakumpe is of no moment. He noted that the appellant averred that the land sold to Bogobiri was not part of the land sold to its vendor; that since he did not prove sale to Bogobiri while the respondent proved sale to Zhiba Kpakumpe, appellant needed to lead evidence as to how the land in dispute became that of its vendor. This, he submitted, appellant failed to do.
Counsel argued that the farmland of the respondent is different from the land sold to appellant’s vendor and so the issue of priority of estate between appellant’s vendor and Zhiba Kpakumpe did not arise. He noted that there is evidence on record that appellant’s vendor admitted before DW3 and DW4 that he mistakenly sold part of the land in dispute which was sold by the respondent to DW4. He submitted that the evidence of DW4 was not hearsay. He further submitted that the trial Court did not take judicial notice of its previous decisions but rather acted on facts pleaded by the appellant. He noted that appellant’s counsel stated that the suits ended in non – suit in his brief of argument.
In his reply, appellant’s counsel contended
8
that this Court is not robbed with jurisdiction to countenance submission that the finding of the trial Court on the date of sale to respondent by his vendor was a slip, he having not filed a respondent’s notice.
Resolution
Evaluation of evidence and ascription of probative value to it are primarily the duty of a trial Court that had the opportunity of observing the demeanour of witnesses while they testified. The appellate Court that deals only with the cold evidence on record, being handicapped will not ordinarily interfere with the trial Court’s findings on evidence. Where a trial Court makes a finding on the credibility of a witness, an appellate Court would not ordinarily interfere unless it is shown to be perverse. Where the trial Court inspite of the advantage it has draws erroneous inferences from evidence and this occasions a miscarriage of justice, the appellate Court will be duty – bound to properly evaluate the evidence and make the correct findings to right the injustice occasioned by the trial Court’s wrong finding arising from its wrong evaluation of evidence. See Mogaji V Odofin (1978) 4 SC 91,
9
Congress for Progressive Change V Independent National Electoral Commission (2011) 18 NWLR (Pt. 1279) 493 and Federal Republic of Nigeria V Umeh (2019) 7 NWLR (Pt. 1670) 40.
The case of each of the parties at the trial Court has already been summarised at the beginning of this judgment. I do not need to repeat the same at this stage. The trial Court, after reviewing evidence led by both parties narrowed down the area of land in dispute between the parties at page 759 of the record of appeal thus:
“Before going into the main issues, there is need to clarify the issues as to whether the parties are disputing over the same land. This issue arises from the different figures in term of dimension given by the plaintiff and defendant in the plaintiff’s further amended statement of claim and defendant/counterclaimant’s amended statement of defence and counterclaim. The plaintiff claims 2.031 hectares, while the defendant/counterclaimant claims 1.719 hectares.
It is glaring from the exchanged pleadings of the parties that the plaintiff’s claim include portion of land not contested by the defendant/counterclaimant … Judgment in this case
10
will therefore be restricted to the portions of land in contest (that is 1.710 hectares) between the plaintiff and defendant/counterclaimant”.
In other words, the trial Court narrowed the area in contest and therefore its judgment to the 1.719 hectares of land claimed by the respondent in its counter – claim. It therefore did not consider the balance of the land claimed by the appellant, to wit; 0.312 hectares. There is no complaint on this in the notice of appeal or in the argument of the appellant and therefore it stands.
At page 783 of the record, the trial Court held:
“In view of the foregoing, I find that the land sold by Gbangyi Aforo to HRH Isiaku Bulus Chetubo did not include the land in dispute which was shown by pleading and evidence inclusive of the relevant Exhibits, particularly Exhibits “AA”, “AB1”, “AC” and “AD” to have been sold by same Gbangyi Aforo, first to Zhiba Kpakumpe and eventually to defendant.
Therefore the contention of the counsel to the plaintiff that the sale of the land by Gbangyi Aforo to HRH being first in time ranked in priority to the sale
11
by the same Gbangyi Aforo to Zhiba Kpakumpe is not sustainable”.
Thus, the trial Court found that the land it earlier identified as the land in dispute was not sold by Gbangyi Aforo to appellant’s vendor but rather he sold it to Zhiba Kpakumpe who sold the same to respondent’s vendor.
That was a specific and pivotal finding of fact by the trial Court. To be able to challenge and obtain a reversal of the finding, the appellant needed to raise a specific ground of appeal against it, otherwise the finding would remain valid and binding, and not subject to the reviewing power of this Court. In Mbang V State (2013) 7 NWLR (Pt. 1352) 48, 67 Chukwuma – Eneh, JSC, held that:
“… it is settled law that a complaint against a specific finding of a lower Court on a matter on appeal to this Court need to be raised in this Court by a specific ground of appeal from which an issue would have been raised for determination”. See also Agbakoba V INEC (2008) 18 NWLR (Pt. 1119) 489, 542 and Heritage Bank Ltd V Bentworth Finance (Nigeria) Ltd (2018) 9 NWLR (Pt. 1625) 420, 436.
The only ground of appeal in the notice of
12
appeal is the omnibus ground. The omnibus ground of appeal cannot be used to challenge and reverse a specific finding of fact as in this instance. In Osolu V Osolu (2003) 113 LRCN 2641, 2667 Musdapher, JSC (later CJN) stated:
“It should also be noted that the sole ground of appeal before the Court below was the omnibus ground of appeal and it is trite law than an Appeal Court dealing with such a ground of appeal, the legitimate complaint is limited to the appraisal of the evidence and not on finding or non – finding of a specific fact or issue. In the latter cases, the matter can only be raised by a substantive ground of appeal”.
The implication of the finding of fact by the trial Court is that the fact of there being no evidence as to the date Zhiba Kpakumpe bought the land in dispute from Bangyi Aforo is of no moment. The appellant’s vendor passed no interest on the land to it and so the appellant has no modicum of interest in the land sold to the respondent to have the standing to question the validity of the title of the respondent including the year the land was sold to Zhiba Kpakumpe by Bangyi Aforo. It is not even in a
13
position to say that the land was sold by Bangyi Aforo to Bogobiri and not Zhiba Kpakumpe. In any event, it did not lead any credible evidence to prove the assertion while the respondent led evidence to prove his assertion that the land was sold to Zhiba Kpakumpe.
Appellant’s counsel took up the comment of the trial Court at page 763 of the record that:
“On the other hand, the defendant’s position is that he bought the land from Danjuma Tuta on 17th July, 1992. That Danjuma himself bought the land from Arusu Yegazie in August, 1992 …”
He argued that the implication is that the respondent’s title predates the title of his vendor. The argument is, with due respect, nothing but clutching at straws. The statement of the Court above is not a finding of fact by the trial Court but only a summary of the respondent’s case. In any event, it is only a slip which has no effect on the judgment and therefore did not occasion a miscarriage of justice. What is pleaded and given in evidence by the respondent is that Danjuma Tuta bought the land from Arusu Yeguzua on 10/10/1991 while he (Danjuma) sold the land to the
14
respondent on 17/7/1992. See paragraph 2(c)(iii) of the amended statement of defence and paragraph 8(i) of the counterclaim as well as the written depositions of DW1 and DW2. Furthermore, the memorandum of sale between Arusu Yeguzua and Danjuma Tuta is dated 10/10/1991 (Exhibit AC). Infact, in his summary of evidence at page 748 of the record, the trial Court referred to the date of the memorandum as “10th October, 1991”.
It is not every slip by a trial Court that will result in the reversal of a judgment. It is only a slip that resulted in a miscarriage of justice that can have that effect on a judgment. See Agbeje V Ajibola (2002) 8 WRN 1 and Chukwuma V Federal Republic of Nigeria (2011) 13 NWLR (Pt. 1264) 391.
Appellant’s counsel submitted that the Court is not robbed with jurisdiction to countenance the contention of respondent’s counsel that the comment on the date of sale of the land to respondent’s vendor was a slip because he did not file a respondent’s notice. With due respect to counsel, I think he has mixed up the object of respondent’s notice with an innocuous slip in a judgment as in this
15
instance. A respondent’s notice is a facility for a respondent who has not appealed against a decision to contend (a) that the decision be varied or (b) the decision be affirmed on grounds other than those relied upon by that Court. The respondent has not asked for any of these. It does not require a respondent’s notice for a respondent to say that a statement in a decision was a slip which has no bearing on the decision and for the appellate Court to agree with him if that is the case. In any event, this Court is not hamstrung by the absence of respondent’s notice from affirming or varying a decision of a trial Court on grounds other than those relied upon by the trial Court provided evidence on record supports such a course of action. See Order 4 Rule 4 of the Court of Appeal Rules, 2016 and Edilcon (Nig) Limited V United Bank for Africa Plc (2017) 18 NWLR (Pt. 1596) 74, 95 – 96.
Appellant’s counsel harped on the point that though the appellant and the respondent traced their root of title to a “common root”, the appellant established a better title and therefore ought to have succeeded. It is indeed true that
16
the parties traced their roots of title to one person, viz: Bangyi Aforo. It is the law that where two opposing parties trace their roots of title to the same grantor, the later in time cannot succeed against the party who first obtained a valid grant. See Tewogbade V Obadina (1994) 4 SCNJ 161, Dantsoho V Mohammed (2003) 6 NWLR (Pt. 617) 457, Omiyale V Macaulay (2009) 7 NWLR (Pt. 1141) 597 and Adeniran V Ashibi (2004) 2 NWLR (Pt. 857)375. Nevertheless, the principle of law is inapplicable in this case. This is because for it to apply in any case, it must not only be shown that the parties have a common grantor but that a common or the same land was granted to them.
In Ilona V Idakwo (2003) 11 NWLR (Pt. 830) 53, 91 Iguh, JSC, opined that:
“The law is well settled that where……there are competing interests by two or more parties claiming title to the same piece or parcel of land from a common grantor the position, both at law and in equity, is that such competing interests will prima facie rank in order of their creation based on the maxim qui prior est tempore potiorest jure which simply means that he who is earlier in time is
17
stronger in law”.
So the competing interests must be over the same parcel of land and not different parcels of land. Since the trial Court had held that the land sold by Gbangyi Aforo to appellant’s vendor does not include the land in dispute which was sold to Zhiba Kpakumpe and eventually to the respondent, the idea of competing interest did not arise. The trial Court was right in so holding.
The other complaint of appellant is that the trial Court relied on the hearsay evidence of DW4 to hold that HRH told him (DW4) that he wrongly sold DW4’s land (which was sold to him by the respondent out of the land in dispute). Respondent’s counsel contented that the evidence of DW4 was not hearsay. The DW4 testified that HRH told him in the presence of the respondent that he had mistakenly sold his (PW4’s) plots of land to another person, that replacement would be given to him and that he (HRH) called DW 3 to compensate him with another plot of land. The trial Court at page 782 of the record held:
“I find the evidence of the defendant’s witnesses as more convincing. In particular, the evidence of DW 3 and DW 4
18
was not discredited under cross examination. I therefore believed DW 4 when he told the Court that HRH in the presence of DW 3, a chief under him (DW 3 was the chief of Masaka) to source for land to compensate Alh. Suleiman Abdul (DW4).”
Section 37 (a) of the Evidence Act, 2011, provides that:
“Hearsay means a statement –
(a) oral or written made otherwise by a witness in a proceeding”
Section 38 of the same Act makes hearsay inadmissible except as provided in that part of the Act or under the provision of the Act or any other Act.
Section 37 (a) supra is a codification of the common law principle of hearsay as postulated in Subramanian V Public Prosecutor (1956) IWLR 965 which is to the effect that where a piece of evidence being a statement (oral or written) made by a person who is not called as a witness in a proceeding is offered in proof of the truth of that statement, it is hearsay. But if it is offered in proof of the fact that the statement was made then it is not hearsay. See Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 556. The evidence of DW4 quoted above was offered as part of proof of the fact that
19
the land sold to the respondent was different from the land sold to appellant’s vendor. It ordinarily should be hearsay. But this is where Sections 39 (a) and 42 of the Evidence Act, 2011 come on stage.
Section 39 (a) and 42 provide thus:
“39. Statements, whether written or oral of facts in issue or relevant facts made by a person
(a) who is dead … are admissible under Section 40 to 50”
“42. A statement is admissible where the maker had peculiar means of knowing the matter stated and such statement is against his pecuniary or proprietary interest and –
(a) he had no interest to misrepresent the matter, or
(b) the statement, if true, would expose him to either criminal or civil liability”.
It was pleaded and given in evidence that HRH was dead (See paragraph 3 of the amended statement of claim) and PW2 testified to the same effect in paragraph 2 of his written deposition. HRH had peculiar means of knowing the land that was sold to him and the land that he sold to another person and the statement was against his pecuniary and proprietary interest and it exposed him to civil liability. I do
20
not see any interest he had to misrepresent the matter. The evidence of DW4 was therefore admissible under Sections 39 and 42 of the Evidence Act, 2011, being an exception to the hearsay rule. See Obawole V Williams (1996) 10 NWLR (Pt. 477) 146, 164.
In any event, the finding of the trial Court that the land sold to HRH was not part of the land in dispute was founded on other pieces of evidence apart from the admission against interest by HRH. An example is at pages 782 – 783 of the record where the trial Court held that HRH signed change of ownership of land between respondent and DW4 (Exhibit AG) on 24/3/1994 (in respect of a part of the land in dispute) only to turn around on 12/4/1998 to sign a document for the appellant (on the same land).
The complaint by appellant’s counsel about the comment of the trial Court on the suits instituted by some persons described as Ambassadors is of moment. The trial Court only said that the claimants were non-suited which is also the position of appellant’s counsel at page 12 paragraph 4.22 of his brief of argument. The trial Court did not rely on it to give judgment in respondent’s
21
favour.
A complaint that the judgment of a trial Court is against the weight of evidence means that when evidence adduced by appellant is balanced against that adduced by the respondent, the judgment in favour of respondent is against the weight which should have been given to the totality of the evidence before the Court. See Uwaifo V Uwaifo (2005) 3 NWLR (Pt. 913) 479, 495.
The trial Court properly assessed evidence before it and found on the totality of evidence that the respondent proved his counter-claim. I therefore see no reason to interfere with the finding. Since the complaint of the appellant is only as to weight of evidence, I shall not go beyond that point.
I therefore resolve the lone issue for determination against the appellant.
The appeal is devoid of merit and I accordingly dismiss the same and affirm the judgment of the trial Court.
I assess the costs of the appeal at N200,000.00 in favour of the respondent and against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have read an advance copy of the Lead Judgment delivered by my learned Brother, Hon. Justice J.E. Ekanem, JCA. I agree with the reasoning and conclusions
22
in the lead Judgment
It is not every mistake, error or blunder. etc a learned Judge commits which is substantial or occasioned a miscarriage of justice that should deprive the party that was able to prove the remedies in a Court of competent jurisdiction from reaping the fruits of his or her labour. See Amayo vs. Erinmwingbovo (2006) ALL FWLR (Pt. 318) 612/628 paragraph C-D; Bankole vs. Pelu (1991) 8 NWLR (Pt. 211) 523; Mora vs. Nwalusi (1962) 2 SCNLR 73; Alli vs. Alesinloye (2000) FWLR (Pt.15) 2610.
The onus of proof of who owns the land in dispute or a portion of it is never static but shifts according to the pleadings and it must be in tandem with the provisions of Sections 131 to 134 of the Evidence Act, 2011 thus:-
“131(1) Whoever desires any Court to give judgment as to my legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person Is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies on that person who would fall if no evidence at all were
23
given on either side.
133(1) in civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceeding.”
The appellant had to adduce oral or documentary exhibits how he acquired his portion of the farmland he claims to have been in occupation before the respondent acquired his land “…sometimes in 1998…” as pleaded in the Further Amended Statement of Claim and paragraphs
24
2(f) and 8(a)-(h) of the Amended Statement of Defence on the principle that possession is 1/10th of the law
For these reasons and the fuller reasons in the lead Judgment, I therefore find no merit in the appeal. I also dismissed the Appeal for lacking in merit. The Judgment of the learned Trial Judge is hereby affirmed.
I abide by the order(s) as to cost of this Appeal.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me in advance, a draft copy of the Judgment just delivered in which this appeal has been dismissed. The resolution of the issue arising for determination have been fully considered and resolved, and, I adopt same as mine.
It is settled that an appellate Court must approach the findings of fact of a trial Court with extreme caution and would only disturb those findings where it is satisfied that the trial Judge has made no use of the advantage which he had enjoyed of seeing the witnesses and watching their demeanour. Therefore, if the trial Judge has judiciously evaluated the evidence led before him, as he did in the instant case. It is not for this Court to re-evaluate the same evidence
25
and come to its own decision; Ladipo & Ors v. Ajani & Anor (1997) LPELR-1736(SC).
I therefore also dismiss this appeal and abide by the orders made in the lead Judgment.
26
Appearances:
Teryima I. Adi, Esq. (holding the brief of Chief A. Adeniyi) For Appellant(s)
O. Ochaje, Esq. For Respondent(s)
