MR. ADOLFUS AMADI v. MR. FRIDAY ECHENDU AMADI
(2010)LCN/4051(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of November, 2010
CA/PH/110/2006
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF ORDER 17 RULE 3 (1) OF THE COURT OF APPEAL RULES, 2007 AS REGARDS THE FORMULATION OF ISSUES BY A PARTY IN SETTLING HIS BRIEF OF ARGUMENT
Order 17, Rule 3 (1) of the Rules of this court, 2007 that enjoins a party, in settling his brief of argument, to formulate issues arising in the appeal as well as amended or additional grounds of appeal contemplates that the issues formulated from grounds of appeal should be precise and not clumsy. The issues formulated can not exceed the number of grounds of appeal they are allegedly formulated from. A proliferation of issues is clearly unacceptable in the appellate courts. See OKONOBOBOR v. EDEGBE & SONS TRANSPORT CO. LTD (2010) 41 NSCQR 331 at 339. PER EJEMBI EKO, J.C.A.
LIMITATION LAW : WHETHER A DEFENDANT INTENDING TO RELY ON A LIMITATION LAW BEING A SPECIAL STATUTORY DEFENCE MUST SPECIFICALLY PLEAD THE STATUTE
Limitation being a special defence must be specifically pleaded. Order 25 Rules 6(1) of the High Court (Civil Procedure) Rules 1987 of Rivers State under which the trial or the proceedings in this matter were conducted at the trial court makes it imperative that a defendant intending to rely on any special statutory defence, like a Limitation law, shall specifically plead the statute. Counsel’s address at the Bar is no substitute for pleading, or evidence. The supreme court in ISHOLA BALOGUN KETU & ANOR v. CHIEF WAHABI ONIKOKO (1984) 10 SC 265 at pages 267 – 268 per Obaseki JSC dealt with a similar situation thus It is a cardinal rule of pleading those specific matters as the limitation law must be expressly set out or pleaded in the statement of defence once it is not pleaded, the defendant can not be granted the protection of that law. In this case, it is not pleaded and even if it is applicable the court can not grant the defendant the benefit of the Limitation Law contrary to the rules of pleading and the principle of avoidance of surprise. See also SHITTA-BEY v. FEDERAL PUBLIC SERVLICE COMMRSSION (1981) 1 SC 40. PER EJEMBI EKO, J.C.A.
VARIATION OF TITLE TO LAND: WHETHER THE COURT CAN VARY A DECLARATION OF TITLE TO LAND TO A STATUTORY RIGHT OF OCCUPANCY
I am seriously convinced by the case of OGBONI v. OJAH (1996) 39 LRCN 1059 that the learned trial Judge erred in law in the view he expressed at page 95 of the Records, which I earlier reproduced. At page 1080 H of OGONI v. OJAH (supra) Iguh JSC has stated – Indeed where the circumstances of a case warrant it, a declaration of title simpliciter may be varied by the court to title to a statutory right of occupancy, as the courts have not, in appropriate cases, departed from the path of doing substantial justice in matters before them simply because a stressful party has in drafting his claims failed to empty the ipsissima verba of S.40 of the Land Use Act, In such a case, the trial judge, so long as the claimant has established his claim to the satisfaction of the court, is entitled to grant and may award declaration of title to a right of occupancy in respect of the piece of land pursuant to S.40 of the Land Use Act – – -‘ In FADORO v. BEYIOKU (1988) 2 NWLR [pt.76] 253 the Supreme Court similarly affirmed the decision of the trial court that the Plaintiffs are entitled to apply for “certificate of occupancy, though they claimed for declaration of title simpliciter on their writ and the statement of claim. PER EJEMBI EKO, J.C.A.
INTERFERENCE WITH FINDINGS OF FACT OF A LOWER COURT: INSTANCE WHERE THE APPELLATE COURT WILL READILY INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL COURT
I will start the consideration of this issue from the very basic principle that in the domain of findings of facts, particularly in the area of believing or disbelieving a witness, the trial court is the best Judge. An appeal court will not readily interfere with the findings of fact unless it is shown that inference drawn by the trial judge was not supported by the evidence and the facts before him or where such inference was perverse. See AGBI v. OGBEH (2006) 130 LRCN 173 at 1774. PER EJEMBI EKO, J.C.A.
INTERFERENCE WITH FINDINGS OF FACT OF A LOWER COURT: WHETHER THE BUSINESS OF THE APPEAL COURT IS MERELY TO FIND OUT WHETHER THERE IS ANY EVIDENCE ON WHICH THE TRIAL COURT COULD HAVE ACTED AND CIRCUMSTANCE UNDER WHICH IT IS BOUND TO INTERFERE WITH THE DECISION OF THE LOWER COURT
He submits further and correctly too that where a trial court, which had the advantage of seeing and hearing witnesses, has evaluated the evidence before it and appraised the facts; it is not the business of the appeal court to substitute its own views for those of the trial court. And that the business of the appeal court is merely to find out whether there is any evidence on which the trial court could have acted. He cited AKAGBUE v. OGU (1976) 6 sc 63; ODOFIN v. AYOOLA (1984) 11 SC 72; AMADI v. NWOSU (1992) 5 NWLR (pt.241) 273 at 280; WOLUCHEM v. GUDI (1981) 5 SC 291 at 320. Counsel submits further, still correctly, that it is not every mistake or error in a judgment that will result in an appeal being allowed. That it is only where the error is substantial and it has occasioned a miscarriage of justice that the appellate court is bound to interfere; relying on OGBE v. IDOWU (2004) ALL FWLR pt.2321 474. PER EJEMBI EKO, J.C.A.
CORROBORATION: WHETHER EVIDENCE OF TRADITIONAL HISTORY MUST BE CORROBORATED; WHAT IS A EVIDENCE
There is no requirement of the law, either in Evidence Act or decided authorities, that evidence of traditional history must be corroborated. Corroboration or corroborative evidence is that evidence that tends to support or confirm, in some materia particular some other piece of evidence on any given issue of fact in a trial. See S.T. HON: LAW OF EVIDENCE IN NIGERIA EVIDENCE IN SUBSTANTIVE AND PROCEDURAL page 587. A Corroborative evidence merely supports or confirms, in some materia particular and not the entirety of some other piece of evidence on any issue in the trial. PER EJEMBI EKO, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
MR. ADOLFUS AMADI Appellant(s)
AND
MR. FRIDAY ECHENDU AMADI Respondent(s)
EJEMBI EKO, J.C.A.(Delivering the Leading Judgment): This is an appeal by the Plaintiff against the decision of Hon. Justice E. K. Membere sitting in the High Court of Rivers State in the suit no PH/194/87. The judgment, the subject of this appeal dismissed the Plaintiff’s claim in its entirety.
The original plaintiff was chief Isaiah Amadi Ejekwu. He testified as PW.1, He died on 12th March, 1999 and was by order of the trial court substituted by ADOLPHUS AMADI. In the course of the trial the 2nd defendant died and his name was struck off processes as a party on 15th July, 1998. Before his death he had testified as DW.1 and he was duly cross-examined.
The Plaintiff, now Appellant, had sued the defendants, as they were then, claiming –
1. A declaration that the Plaintiff is entitled to the statutory right of occupancy over the piece of land called Ohia Wonka Rumuolosi situate at Eneka Obio Port Harcourt in the Rivers State of Nigeria.
2. The sum of N100,000.00 being damages for trespass committed by the defendants on the said land.
3, An injunction perpetually restraining the Defendants by themselves from further acts of trespass on the said land.
The Plaintiff took out the writ for himself and on behalf of Rumuolosi family in Rumuesara, Eneka. The parties are indigenes of Rivers State. They are of Ikwerre extraction. They all reside in Rumuesara Eneka. The defendants, now the Respondents in this appeal, belong to Rumuoparanwo family of Rurnuesara Eneka.
The parties at the trial court filed survey plans to identify the land in dispute. The Plaintiff/Appellant’s plan is Exhibit ‘A’ (id.1). PW .4, a practicising surveyor, did Exhibit ‘A’. The defence through the DW.4, a licensed surveyor, produced plan no ONC/89/Ro3 – LD, which is Exhibit ‘B’ in the proceedings.
The case of the Plaintiff/Appellant disclosed in the amended statement of claim is that the land in dispute is the portion of land verged RED on Exhibit ‘A’. The said portion verged RED together with two other portions verged GREEN on the plan respectively in the North and South of the disputed portion are said to belong to the Plaintiff/Appellant.
The Plaintiff averred in the amended statement of claim that they are grand children and descendants of Olosi; that the Sic OLOSI “was the first to clear the said land when it was a thick forest,” and that according to Ikwerre customary law the said Olosi, became the owner of the land. It is also averred in the amended statement of claim that the three sons of Olosi inherited the land in turn after the death of Olosi until it came to the turn of the plaintiff, “the current head of Rumuolosi family and the first son of Ejekwu” [one of the 3 sons of Olosi]. The amended statement further avers that in 1965 one Esau Echie Amadi (the father of the defendants’) approached Chief Nwachukwu (who was then the family head of the plaintiff family) with other principal members of Rumuolosi family still alive, to grant him a portion of “Ohia Nwunka Rumuolosi” to farm on. After much deliberation by the principal members of the Rumuolosi fanlily, which included the plaintiff, the land now in dispute and verged Red on the plan was granted to the late Mr. Esau Eche Amadi on a temporary native licence for fanning purposes only. The plaintiff contends that the license granted was subject, under Ikwerre native law and custom, to good behaviour and regular acknowledgement of ownership of the land by the plaintiff’s family. Late Esau Eche Amadi thanked the principal members of the plaintiff’s family with a jar of palm wine and a bottle of local gin.
It is further averred by the plaintiff that the said Esau Eche Amadi died during the Nigeria Civil war and that after the civil war in 1970 the plaintiff’s family took over the land the portion they earlier permitted the late Esau Eche Amadi to farm on. The amended statement of claim further avers that in 1972 the defendants entered the land without permission of the plaintiff’s family; that the plaintiff’s Rumuolosi family ordered them to vacate the land, and that upon the pleadings of the defendant of the Plaintiff’s family “forgave defendant’s misbehaviour and allowed them to continue farming on it with the acknowledgment that the plaintiff’s family owns the land”
Nothing again happened until April, 1987 when, according to the amended statement of claim, the plaintiff and other members of Rumuolosi family observed that the defendants had without permission of the plaintiff or other principal members of the Rumuolosi family, entered the and cleared the said land in dispute. They unlawfully proceeded to share the land in dispute among themselves and started preparations to erect permanent buildings thereon by depositing heaps of sand and block on the land. On or about the 22nd day of April, 1987, the defendants and/or their agents unlawfully commenced surveying the land, but were again challenged by the plaintiff and some members of his family.
The amended statement of claim further avers that with the help of the police from Elimgbu police station the defendants cordoned the disputed land and continued with the survey, and that the plaintiff and other members of Rumuolosi family were arrested and detained at the police station for 5 days. This is the trigger point that caused the plaintiff to take out the writ of summons against the defendants.
In their statement of defence the defendants aver that the original founder of the disputed land was their grand father/ancestor, Echie. That the said Echie was the first to clear the forest land, and that the said Echie had 3 sons – Nwanne Echie, Azunna Echie and Esau Echie. The defendants are the descendants or sons of Esau Echie. The defendant’s pleaded in the statement of defence that Nwanne Echie and Azunda Echie inherited the disputed land after the death of Echie, and that upon the death of Nwanne Echie and Azunda Echie between 1950 – 1960 the disputed land devolved to their father Esau Echie (also called Esau Amadi Echie or Esau Echie Amadi) in accordance with Ikwerre custom. They further averred that upon the death of their father, Esau Amadi Echie, they inherited the disputed land. In paragraphs 11, 12 and 13 of the statement of defence the defendant’s aver 11. Indeed in 1970 after the civil war, plaintiffs approached the defendants with the Customary wine and kola pleading to be allocated land to farm for that season only. The Defendants, according to tradition granted their request to farm and reap their crops for that season only. Plaintiffs complied with the terms.
But in 1972, to the surprise of the defendants, the plaintiffs for no just cause broke and entered the Defendant’s land in the same Ohia Wonka without the Defendant’s prior consent and cleared the land for farming. The Defendants reported the matter to Elder Isaac Chukwu, the Ojiowhor (Spiritual head) of Rumuesare Eneka, who intervened and admonished the plaintiffs for such misconduct. The spiritual head later pleaded with the Defendants to permit the plaintiffs to reap the crops already planted on the land for that farming season only. The plaintiffs never interfered with the land again.
13. Sometime in 1987, the Defendants cleared their land for development and brought in blocks and trips of sand for the project. Defendants’ surprise, the plaintiffs sent one Walter Odum to inform them to stop the project, since such permanent development would adversely affect their prospect of future request for farmland from Defendants. The Defendants rightly ignored them and proceeded with the project, and when later the plaintiffs made further attempt to physically stop them, Defendants called in the police who arrested the plaintiff and his agents for conduct likely to cause breach of the peace.
The foregoing is the summary of the pleadings on which the parties called evidence. A total of 8 witnesses/ including the original plaintiff (PW.1) and the 2nd defendant (Dw.1), testified. Two survey plans, Exhibits ‘A’ and ‘B’, were tendered in evidence. At the close of evidence, and after the respective counsel addresses, the learned trial Judge entered judgment dismissing the Plaintiff/Appellant’s case in its entirety. The summary of the judgment is
1. that the plaintiff suit was statute barred – page 94 of the Records;
2. that the evidence before the court was not in line with customary right of occupancy originally claimed, and not in line with statutory right of occupancy claimed on the amended writ and statement of claim page 95 of the Records; and
3. that on the totality of his evidence, the plaintiff did not prove his claims on the preponderance of the credible evidence. The plaintiff’s witnesses were said to be contradictory.
Against this decision the Plaintiff/Appellant filed his appeal on 21st November, 2002 with one ground of appeal. He subsequently amended the Notice of Appeal with leave of this Court, and came up with 9 grounds of appeal therein. Out of these grounds of appeal, Appellant’s counsel, U.B.O. Obinna, Esq., has formulated 3 issues for determination in this appeal. They are –
1. whether the learned trial Judge was right in holding that the Plaintiff/Appellant’s amendment of his claim from customary right of occupancy to statutory right of occupancy of the address stage is fatal as it is against the evidence led and raises a new issue (Ground 3)
2. whether from all the surroundings facts and circumstances of this case, the lower court was right in holding that thr case of the plaintiff/appellant was statute-barred (Ground 1)
i. From the surrounding circumstances the learned trial judge was right when he held that the Plaintiff/Appellant did not prove his case in it’s entirely.
ii. The trial court was right when it found that the DW.2 gave evidence that Echie disverging the land, Ohia Nwonka, farmed on the land before he died and his three sons in succession also farmed on it.
iii. The evidence of traditional history of the Defendants/Respondents was not at variance with their pleadings.
iv. The evidence of PW.1, PW.2 and the PW.3 contradict each other and support the case of the Respondents.
v. Whether the Respondents have been in undisturbed possession from time immemorial.
vii. The approach adopted by the trial court did not occasion a miscarriage of justice.
viii. The judgment was not against the weight of evidence. (Grounds 2, 4, 5, 6, 7, 8 and 9).
Order 17, Rule 3 (1) of the Rules of this court, 2007 that enjoins a party, in settling his brief of argument, to formulate issues arising in the appeal as well as amended or additional grounds of appeal contemplates that the issues formulated from grounds of appeal should be precise and not clumsy. The issues formulated can not exceed the number of grounds of appeal they are allegedly formulated from. A proliferation of issues is clearly unacceptable in the appellate courts. See OKONOBOBOR v. EDEGBE & SONS TRANSPORT CO. LTD (2010) 41 NSCQR 331 at 339. I have had critical examination of the Appellant’s issue 3, above reproduced. I can not say if it is one issue, with several issues or whether there are 8 issues from 7 grounds of appeal. The latter will amount to proliferation of issues. The former will make the issue clumsy and rather unwieldy. The Respondents’ lone issue is more concise and precise. It is as follows-whether from the state of pleadings and evidence, the learned trial judge could have a decision dismissing the Plaintiff’s claims.
This, however, could be reformulated to accommodate the Appellant’s unwieldy issue 3 some how, thus –
whether from the state of pleadings and evidence the learned trial Judge was right in the findings of fact and conclusions he made.
That is how I intend to approach both the Appellant’s issue 3 and the Respondents’ lone issue, before then I will take Appellant’s issue 2 first.
The substance of Appellant’s issue 2 is whether the lower court was right in holding, as it did at page 94 of the Records, that the suit of the Plaintiff/Appellant: “is therefore statute barred.” The issue of the suit being statute barred was not one of the issues pleaded and ‘in which the parties joined issues in their respective pleadings.
Appellant, therefore, submits that no where in the statement was any issue pertaining to limitation law pleaded and that defence counsel raised the issue for the first time in his reply, on, the points of law. I agree with the Appellant’s counsel, upon reading the, Records, that the issue: was not also raised in the address of the Plaintiff’s counsel at the trial court. On what basis, therefore, was the Respondent’s counsel given that liberty at the trial court to smuggle this issue in? The reply on points of law is not an avenue or opportunity for a party, or his counsel to steal a match from the opponent who, by the rules on the order of addresses, has no opportunity to fire back. Reply on points of law is simply a direct response argument that will hit the points of law raised. I do not think an opportunity to reply on points of law is an opportunity to deny the opponent a right to be heard on the new issue. The rule of audi alteram partem will lose meaning if it were so. I am in agreement with the Appellant’s submission that the trial court did not give the Plaintiff/Appellant an opportunity to address it on the issue of limitation of actions and this has occasioned a miscarriage of justice to the plaintiff as he was denied fair hearing. The Respondents seem to concede this issue. The only feeble response to it is that the pronouncement of the learned trial Judge on this issue of limitation of action was a mere obiter and therefore of no consequence. He cited NGIGE v. OBI (2006) ALL FWLR [pt.330] L04L, which states that a comment or statement in the judgment is merely obiter if the comment or statement is not necessary for the determination of the point on which issues are joined.
I do not agree with the Respondents that the decision of the learned trial Judge at page 94 of the Records that the action of the Plaintiff “is therefore statute barred” is a mere obiter. It is one of the reasons for the decision to dismiss the Plaintiff’s suit. Limitation being a special defence must be specifically pleaded. Order 25 Rules 6(1) of the High Court (Civil Procedure) Rules 1987 of Rivers State under which the trial or the proceedings in this matter were conducted at the trial court makes it imperative that a defendant intending to rely on any special statutory defence, like a Limitation law, shall specifically plead the statute. Counsel’s address at the Bar is no substitute for pleading, or evidence. The supreme court in ISHOLA BALOGUN KETU & ANOR v. CHIEF WAHABI ONIKOKO (1984) 10 SC 265 at pages 267 – 268 per Obaseki JSC dealt with a similar situation thus
It is a cardinal rule of pleading those specific matters as the limitation law must be expressly set out or pleaded in the statement of defence once it is not pleaded, the defendant can not be granted the protection of that law.
In this case, it is not pleaded and even if it is applicable the court can not grant the defendant the benefit of the Limitation Law contrary to the rules of pleading and the principle of avoidance of surprise.
See also SHITTA-BEY v. FEDERAL PUBLIC SERVLICE COMMRSSION (1981) 1 SC 40.
Appellant has made his point on this issue 2. I, hereby resolve the issue in favour of the Appellant.
Appellant’s issue 1 is, whether the trial court was right in holding that the Plaintiff/Appellant’s amendment of his claim from customary right of occupancy to statutory right of occupancy at the address stage is fatal as it is against the evidence led. The Appellant has devoted not less than 6 pages in his Brief to this issue.
The issue, as I see it, is simply, whether from the available evidence the trial court can make the appropriate order on the plaintiff’s relief praying that the Plaintiff is entitled to the statutory right of occupancy in and over the disputed rand. I have given serious, but dispassionate, considerations of the submissions of both counsels on this issue. The Respondents’ counsel does not think it is a serious issue. He submits that the pronouncements of the trial court on this are mere passing observations and are therefore of no consequence, At page 95 the learned trial judge stated that the-
Application for amendment of the writ the of summons and statement of claim was made to amend the writ of summons and statement of claim to read claim for statutory right of occupancy. The application was granted. From the facts of the case – no additional evidence was called to commensurate (sic) or be in line with the amendment.
The evidence before the court is in supoort of the claim for customary right of occupancy and not statutory right of occupancy. This anormally is fatal to the plaintiff’s case in that the amendment granted raised a new issue in the pleading, the evidence before the court is at variance with the pleadings. (Underlining supplied for emphasis)
With all due respect to the Respondents’ counsel this can not be a mere obiter dictum.
The substance of the Plaintiff’s evidence is that their progenitor was the first to occupy and own the disputed land under Ikwerre customary law, and that they, the descendants, inherited the land under and by operation of the said Ikwerre customary law. Part of PW.1’s evidence at page 24 of the Record is –
I want the court to declare that I own the land. Under Ikwerre native law and custom, I want the court to declare that the land belongs to me.
All that the plaintiff (pw.1) has said in his evidence is that the title to the land, which he is seeking in the suit, devolved unto him originally by operation of Ikwerre customary law. The only consideration, as Appellant’s counsel submits, is whether the Plaintiff/Appellant made out a case for the grant of the relief. I am seriously convinced by the case of OGBONI v. OJAH (1996) 39 LRCN 1059 that the learned trial Judge erred in law in the view he expressed at page 95 of the Records, which I earlier reproduced. At page 1080 H of OGONI v. OJAH (supra) Iguh JSC has stated –
Indeed where the circumstances of a case warrant it, a declaration of title simpliciter may be varied by the court to title to a statutory right of occupancy, as the courts have not, in appropriate cases, departed from the path of doing substantial justice in matters before them simply because a stressful party has in drafting his claims failed to empty the ipsissima verba of S.40 of the Land Use Act, In such a case, the trial judge, so long as the claimant has established his claim to the satisfaction of the court, is entitled to grant and may award declaration of title to a right of occupancy in respect of the piece of land pursuant to S.40 of the Land Use Act – – -‘
In FADORO v. BEYIOKU (1988) 2 NWLR [pt.76] 253 the Supreme Court similarly affirmed the decision of the trial court that the Plaintiffs are entitled to apply for “certificate of occupancy, though they claimed for declaration of title simpliciter on their writ and the statement of claim.
The Appellant is on firm ground on this issue 1. The issue is hereby resolved in favour of the Appellant.
Issue 3, as I had reframed it, is, whether the learned trial Judge is right in the findings of facts and the conclusions he had made in the circumstances of the pleadings and evidence before him. I have read the judgment of the trial court. It is contained at pages 80 – 97 of the Records. The area of attack of the Appellants on the judgment under the reformulated issue 3 is largely at pages 92 – 95.
The summary of these four pages of the judgment is
1. That the traditional history adduced by the pw.1 was not corroborated by pw.2 and pw.3 and it is “trite that evidence of witnesses by a party should corroborate each. Other” eventhough “it is trite that a party in a case does not need a host of witnesses to prove his case.”
2. That the evidence of pw.2 can not be believed because his evidence that his father’s land called Osukwu shares boundary at the North with the disputed rand has been debunked by Exhibit ‘A’ does not show such land.
3. That PW.2 evidence also contradicts the plaintiff’s pleading that in the North of the land in dispute is bounded by part of Ohia Nwnka Rumuolosi (pargraph 6 (a) of the amended statement of claim).
4. That the PW.2 can not be believed because “there is no iota of evidence (sic) how often FW.2 saw the plaintiffs or their ancestor farming on the land.
5. That the evidence of pw.2 that he knows that the defendants were permitted plaintiff’s to farm on the, land by family can not believed because from his, demeanour he is not a witness of truth.
6. That the PW.3’s evidence that the plaintiff’s family in 1966 permitted the Defendant’s farm on the disputed land supports the defence of long possession.
7. That the PW.3 who testified that the land in dispute belongs to the plaintiff is unreliable because he does not know how the plaintiffs came on the land. He also does not know “how the defendant got on the land.
8, That the PW.1 testified that the land in dispute, Ohia Nwonka Rumuolosi is in the middle of other lands of the plaintiff namely Ohia Osobiri Rumumolosi in the North and Ohia Osobiri in the South. That this evidence is at variance with the pleadings and therefore goes to no issue. And that from a cursory glance at Exhibit ‘A’ plaintiff’s plan, there is no indication of Ohia Osobiri Rumuolosi and Ohia Osobiri Rumuolosi in the North and South respectively.
I will start the consideration of this issue from the very basic principle that in the domain of findings of facts, particularly in the area of believing or disbelieving a witness, the trial court is the best Judge.
An appeal court will not readily interfere with the findings of fact unless it is shown that inference drawn by the trial judge was not supported by the evidence and the facts before him or where such inference was perverse. See AGBI v. OGBEH (2006) 130 LRCN 173 at 1774.
In the rather garrulous Appellants’ among other things, that the trial court did evidence of the PW.1, PW.2 and PW.3 and brief it was submitted, among other things, that the trial court did not properly evaluate the that on proper evaluation of the Plaintiff’s evidence the evidence of Pw.2 and Pw..3 corroborate the evidence of Pw.1. It is further the submission of the Appellant; that evidence of PW.1 does not need corroboration and that pw.1’s evidence alone, if believed, can ground the award of the reliefs of the Plaintiffs. For this Appellants cited USIOBAIFO v. USIOBAIFO (206) L25 LRCN 584 at 600, and section 179 of Evidence Act.
Appellants further submit that the trial court had misconceived the evidence of PW.2 and FW.3 in coming to the conclusion that “from the facts before me Pw.2 and pw.3 have no idea of how the Plaintiffs came about the land”, and that this misconception informed the reason that the trial court preferred the evidence of the defendants to that of the plaintiffs. Still on the use made of the evidence of PW.2 and F’w.3 by the trial court, Appellants submitted that their evidence that they saw the defendants on the land in 1966 does not contradict, but rather supports, the plaintiffs, claim. On Exhibit ‘A’ Appellants submit that the area of the plaintiffs, other lands not in dispute is verged green thereon, while the disputed are a is verged Red and that the area verged Red that is in dispute is in the middle of the area verged green at the North and South; that DW 2 under’ cross-examination confirms this. That the important thing is the area verged green North and south, is not in dispute and therefore it is not material that pw.1 calls the area Ohia Osob ri Rumuolosi in his evidence.
Respondents’ counsel has got it right in my view when he submits that from the grounds of appeal and the particulars thereof filed by the Appellant, the appeal essentially relates to the propriety of dismissing the suit in its entirety by the trial court in face of the totality of evidence before it. He submits further and correctly too that where a trial court, which had the advantage of seeing and hearing witnesses, has evaluated the evidence before it and appraised the facts; it is not the business of the appeal court to substitute its own views for those of the trial court. And that the business of the appeal court is merely to find out whether there is any evidence on which the trial court could have acted. He cited AKAGBUE v. OGU (1976) 6 sc 63; ODOFIN v. AYOOLA (1984) 11 SC 72; AMADI v. NWOSU (1992) 5 NWLR (pt.241) 273 at 280; WOLUCHEM v. GUDI (1981) 5 SC 291 at 320. Counsel submits further, still correctly, that it is not every mistake or error in a judgment that will result in an appeal being allowed. That it is only where the error is substantial and it has occasioned a miscarriage of justice that the appellate court is bound to interfere; relying on OGBE v. IDOWU (2004) ALL FWLR pt.2321 474. Respondents further submit that the findings of the trial court at pages 93 – 96 of the Records were reached in consequence of proper evaluation of the evidence of the parties. And that it is only when the trial court fails to evaluate or properly evaluate the evidence before it that the appeal court can review those facts on record and draw appropriate inference. A party, it is; submitted for the Respondents, who pleads traditional history in order to succeed must adduce cogent and uncontradicted evidence in line with his pleadings. He must succeed on the strength of his own evidence. That the evidence of plaintiffs’ witnesses was not cogent; they were also contradictory. In such a situation the court can not pick and choose which of, the contradictory evidence to believe or disbelieve.
I have read the Records of appeal. The evidence of PW2, considered to be the plaintiffs’ star witness, is found at pages 21- 27 of the Records. The only adverse comments the trial court made on the evidence of pw.1 are at pages 93 and 94 – 95 of the Records. At page 93 the trial court held that –
The evidence of PW. 1, the plaintiffs star witness as to the traditional history of how they inherited the land in dispute is not corroborated by the evidence of pW.2 and pW.3. And at pages 94 – 95 the trial court stated:
PW.1 testified that the land in dispute Ohia Nwonka Rumuolosi is in the middle of the other lands or n” plaintiff, namely ehja osobiri Rumuolosi in the North and Ohia Osobiri in the south. Parties are bound by their pleadings – –
This evidence is at variance with the pleadings and therefore goes to no issue. On a cursory look at Exhibit ‘A’ plaintiffs’ plan there is no indication of Ohia Osobiri Rumuolosi and Ohia Osobiri rn the North and south respectively.
There is therefore no proof by the plaintiffs that the land in dispute is surrounded by other lands belonging to the plaintiffs.-
Let me take this latter finding first. Had the learned trial Judge considered the evidence of DW.2 at page 42 of the Record to wit –
The plaintiff owns the land on the two sides of the land in dispute and he is farming on the land (I now say) he would not have come to the confusion that there is no proof that the land in dispute is not surrounded by of other lands belonging to tire Plaintiffs. This evidence of DW.2 is clearly an admission against interest.
Exhibit ‘A’ is the survey plan pleaded by the pfaintiffs in the amended statement of claim. Exhibit ‘A’ shows that the portions the of land in the North and south of the disputed and verged land belong to the Plaintiffs, that is the portions of land verged Green and that those portions are not in dispute. The PW. 4, who made Exhibit ‘A’ as a surveyor, testified at page 35 of the Record, without cross- examination, that the land ,on the North,, is not disputed and it is Plaintiff’s land. The trial court did not evaluate the evidence of PW.1. PW.2, PW.4 DW.2 and Exhibit ‘A’ on this point before it held, rather perversity, that there is no proof that the disputed land is surrounded in the North and south by plaintiff’s other lands undisputed. It made no effort, for what it is worth, to consider Exhibit ‘A’ vis-a-vis the area verged Green that is not in dispute.
Now, to the tacit rejection of the PW.1’s evidence of the traditional history because it was not corroborated by the evidence of PW.2 and PW.3. There is no requirement of the law, either in Evidence Act or decided authorities, that evidence of traditional history must be corroborated. Corroboration or corroborative evidence is that evidence that tends to support or confirm, in some materia particular some other piece of evidence on any given issue of fact in a trial. See S.T. HON: LAW OF EVIDENCE IN NIGERIA EVIDENCE IN SUBSTANTIVE AND PROCEDURAL page 587. A Corroborative evidence merely supports or confirms, in some materia particular and not the entirety of some other piece of evidence on any issue in the trial. The trial court therefore was rather unreasonable in insisting that every iota of the evidence of the pw.1 must be corroborated by RW’2 and PW’3 before the traditional history of the plaintiffs could be accepted.
The PW.1’s evidence on how the land in dispute was founded by Olosi and how he was succeeded on the land by his children or descendants up to the PW.1 was not tested or challenged under cross-examination. It was not discredited by cross-examination. It retains intact its quality. His evidence on how he became the head of Rumuolosi family and incharge of the disputed land was corroborated by the PW.2 at page 28 of the Records, thus-
I know how, the plaintiff became owner of the land. The plaintiff became the owner of the land because all the elders are now rate. I know Kasirim Nwachukwu, Ejekwu and Wachukwu. They are all indigenes of Eneka. The above stated 3 people are known because they are of the same father with the plaintiff.
Wuchukwu died during the civil war Wachukwu, Kasirim and Ejekwu were all farmers on the same land. After Nwachukwu, the plaintiff succeeded him.
This piece of evidence of PW.2 was left unscathed. It was neither challenged nor discredited under cross-examination. It corroborates PW.1’s evidence on succession and devolution.
The evidential value or potency of PW.2’s evidence, or the evidence of any witness in this case, is not diminished merely because the witness did not state how often he saw the plaintiffs and their ancestor farm on the disputed land. That is not the correct, barometer for measuring credibility of the witnesses in this case. Why therefore did the trial court pick only PW.2? The test is lopsided The PW.3 testified that he had always known the Plaintiff to be owner of the disputed land from his childhood. He further that the original owner was Olosi. That he also knew –
Kasirim Nwodukwu, Ejekwu and Nwachukwu are late.
Ejekwu the son of Olosi is at home. The father of the Plaintiff is late. The name of the father of the plaintiff is Ejekwu Nworolosi. Olosi is the owner of the land. After the death of Kasirim; Ejekwu and Nwachukwu, the Plaintiff became the owner of the land. This evidence was neither challenged nor discredited under cross-examination. The evidence of PW.2 and PW.3 that the defendants were on the land at the instance or permission of the Plaintiffs remains unscathed. Their evidence support or confirm PW.1’s evidence on how he came, in line of succession from Olosi, to be the “owner” of the land in dispute and that it was; the Plaintiff who permitted the defendants to be farming on the land.
The trial court seems to suggest that unless the evidence of PW2 and PW.3 are identical with that of PW.1 or exactly the same they can neither be true nor can they corroborate another evidence.
The passage at page 262 of ANNOTATION OF THE NIGERIA EVIDENCE ACT – SOTARI F. ORUWARI lifted from C.D. FIELD’S LAW OF EVIDENCE 11th ed Vol. 1(1981) at page 382 is apt to the point. It goes thus –
The qualitative and non quantitative character of evidence is what the law stresses. The law is also well settled that the evidence of a witness need not be necessarily true in all respects – it may be partly true and partly untrue. It is for the court to separate the truth from untruth. Untruth on a major point would undoubtedly shake the credit of a witness but not? Necessarily on a minor point – where the two are too intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety.
The Supreme Court citing with approval EKANEM v. THE KING 3 WACA 108 has held in KOIKI v. THE STATE (1976) 4 SC 107 that the court is entitled to believe part of the evidence of a witness that is true, and reject the other part that is untrue. This is the situation even in criminal cases, where poof beyond reasonable doubt is the standard of proof. In civil cases the standard is less. The proof is on balance of probability.
The law does not require a particular quantity of evidence or witnesses for proof of traditional history. A credible evidence of one witness could be enough. Even in criminal proceedings, where standard of proof is one of proof beyond reasonable doubt, there could be conviction on the testimony of a single witness unless the law requires corroboration under section 179 (2) of the Evidence Act. See IGBO v. THE STATE (1975) 9 – 11 SC 129 at 135; AGIH v. EJINKEONYE & BROS LTD (1992) 3 NWLR [pt.12B] 200 at 211 G.
In IGBO v. THE STATE (supra) the conviction for murder was sustained on the evidence of one witness alone.
The learned trial judge has not applied the law correctly when he rejected the evidence of PW.1, PW.2 and PW.3.
He erred in law when he held that the evidence of Plaintiffs traditional history must be corroborated before it could be acted upon in proof of the title asserted by the plaintiffs. He further erred when he held that the evidence of PW.1, PW.2 and PW.3 must be forensically true in every materia particular before they are reliable.
The trial court, in my view, was perverse in its finding that the PW.3 testified that he did not know how the plaintiffs came to own the disputed land. Throughout the evidence of PW.3 at pages 30 and 31 he never said such a thing. That is one of the grounds on which the trial court held that pw.3 was unreliable. The pw.3 in evidence in-chief averred that he did not know how Esau, defendant’s father, in 1966 came to farm on the land.
The learned trial Judge appears to equivocate. In one breadth he found that evidence of PW.3 was wholly not reliable to corroborate PW.1’s evidence, yet in another breadth he acted on the same PW.3’s evidence in finding that his evidence that in 1966 Plaintiff’s family permitted the defendants to farm on the land supports long possession in favour. If a piece of evidence is rejected as unreliable in the proceeding; it can not raked up and used for another purpose in the same proceeding without some purification rituals. The Judge is not permitted to approbate and reprobate on the same evidence. The law remains settled that a tenant, or customary tenant, does not, because of long possession, become the owner of the land he was permitted by the land owner to enter and farm on.
The moment the tenant sets up rival title to defeat the allodia right of the over lord he commits a serious misconduct and becomes a trespasser liable to forfeiture. See OSINIWO v. GBAMGBOY E (1940) 7 WACA 69; DOKUBO V. BOB-MANUEL (1967) 1 ALL NLR 113. The finding of the trial court that in 1966 the plaintiffs, family permitted the defendants to farm on the disputed land supports the case of the plaintiffs that the trial court wrongly dismissed.
On a final note on this issue – the learned trial Judge did not do proper evaluation before concluding that the evidence for the defendants was more preferable to him than those of the witnesses.
The rule in ODOFIN v. MOGAJI (1978) 4 sc 91 at 93 is that judge must consider the totality of the evidence of the parties. He has to place on an imaginary scale the set of evidence given by a party against the evidence of the other party in order to arrive at his preference of the evidence of one party for the other. The only defence evidence the learned trial judge considered is the evidence of Dw.2, which appears to him reverent and sacrosanct. As I pointed out earlier, Dw.2’s evidence at page 42 of the Record is an admission against interest. It reinforces the case of the plaintiffs.
The Dw.1, the 2nd defendant then, gave contradictory evidence even in his evidence-in-chief at page 38 that –
We became the owners of the land because our father was the first to disvirging the forest. My father’s name is Esau. Esau is the son of Echie. Echie had before he died. The land is Ohia Nwonka. The Ohia Nwonka in dispute and Ohia Nwonka owned by Echie are one and the same. Echie was farming in Ohia Nwonka. Echie became the owner of Ohia Nwonka because the land belongs to his father.
Ex facie this evidence that does so much violence to the defendant’s statement of defence is unreliable. And it is coming from the 2nd Defendant himself. The 1st Defendant did not testify. This evidence posts three different roots of title, that is: (1) Esau, defendant’s father; (2) Echie, Esau’s father, and (3) Echie’s father.
Clearly, the trial court was wrong in holding that the evidence of the defendants were preferable to the evidence of the Plaintiff. If he had done proper evaluation he would have held otherwise, and in favour of the plaintiffs. I hereby resolve this issue in favour of the Plaintiffs/Appellants.
I allow the appeal on all the three issues. The decision contained in the judgment of the trial court delivered on 12th November, 2002 is hereby set aside. In its place I enter judgment in favour of the Plaintiffs/Appellants. Consequently, I hereby declare in terms of the amended writ of summons and the amended statement of claim that the plaintiffs/Appellants are entitled to the statutory right of occupancy over all that piece or parcel of land called OHIA NWONKA RUMUOLOSI situate at Eneka, Obio, Port Harcourt in River State of Nigeria more particularly delineated in survey plan No A10/RV226/87LD dated 7th December, 1987 prepared by Mr. A’ Ikem Onochie, licensed surveyor, which is Exhibit ‘A’ in this suit. The Defendant/Respondents by themselves, agents and/or servants are perpetually restrained from trespass or further acts of trespass or otherwise interfering with the Plaintiffs/Appellants and Rumuolosi family in their possession occupation, use and enjoyment of the said piece or Parcel of land.
Considering the circumstances of this case particularly the circumstance the Defendants/Respondents were permitted to use the disputed land for farming purposes and their subsequent renunciation of the title of the Plaintiffs/Appellant with violence and their buying up and using the police to harass the Pw.1, who was the head of Rumolosi family and other members of Rumolosi family. The Plaintiffs/Appellant had proved trespass against the Defendants/Respondents. I should think an award of N100,000.00 damages for trespass as at 12th November, 2002, the date of the judgment appealed would not be too much. I hereby award the said N100,000.00 as damages for trespass in favour of the Plaintiffs/Appellants against the Respondent.
In addition, cost assessed at N60,000.00 are hereby awarded in favour of the Appellants against the Respondents.
ISTIFANUS THOMAS, J.C.A. I had the privilege of reading in advance, the lead judgment of my learned brother, EKO, JCA and I entirely agree that, the appeal is meritorious and I hereby allow same.
My learned brother painstakingly considered all the issues raised by the parties. I adopt the lead judgment as my own. I have nothing more to add. I abide with consequential orders including costs.
T.O. AWOTOYE, J.C.A: I have had a preview of the draft of the judgment just delivered by my learned brother EJEMBT EKO, JCA. I have nothing to add to it. He has done justice to art the issues raised. I am in complete agreement with his reasoning and conclusions.
I also allow this appeal. The judgment of the trial court delivered on 12.11.2002 is hereby set aside. I declare that the Plaintiffs/Appellants are entitled to the statutory right of occupancy over the piece of land called OHIA NWONKA RUMUOLOSI situate at Eneka Obio, Port Harcourt as per survey plan No A10/RV226/87LD dated 7.12.87 which is Exhibit ‘A’. I also give an order restraining the Defendants by themselves, agents/servants from trespassing or interfering in any way with the plaintiffs in their possession, occupation, use and enjoyment of the land.
I also award N100,000.00 damages for trespass having regard to the conduct of the Defendants/Respondents as at 12.11.2002 in favour of the Appellants.
The Respondents shall pay N60,000.00 as cost to the Appellants.
Appearances
U.B.O. Obinna Esq.For Appellant
AND
A.B. Adesemoye Esq.For Respondent
