MR. G. OKON & ANOR V. MR. SHAD B. OFFEIDEH
(2013)LCN/5909(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of February, 2013
CA/PH/97/2008
RATIO
EVIDENCE: MERE ASSERTION OF A FACT WITHOUT MORE IS NOT CREDIBLE EVIDENCE
“The mere assertion of a fact without more is not a credible evidence of the fact asserted. The party making the assertion must go further to prove or establish the assertion, in order to give it some evidential weight.” Per EKO, J.C.A.
EVIDENCE: THE BURDEN OF PROVING THE EXISTENCE OR NON-EXISTENCE OF A FACT
“The burden of proving the 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 from the pleadings. See Section 137(1) of the Evidence Act 1990 (then extant of the time of the proceedings in the trial court) and EGHAREVBA v. OSAGIE (supra)” Per EKO, J.C.A.
EVIDENCE: HE WHO ASSERTS MUST PROVE
“The law is trite; he who asserts must prove. No burden rests on the Respondent to prove otherwise until after the Appellants had discharged their primary burden of proof. What is alleged without proof can be denied without proof.” Per EKO, J.C.A.
EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS THE BEST EVIDENCE
“The law is now firmly settled that documentary evidence is the best evidence, and it is preferred to oral evidence. It is the best proof of the contents of such document, like Exhibits C, and D. As such no oral evidence will be allowed to discredit or contradict the contents of such documents except where fraud is pleaded. See VINCENT U. EGHAREVBA V. DR OROBOR OSAGIE (2009) 18 NWLR (Pt.1173) 299 SC.” Per EKO, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
C. E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
1. MR. G. OKON
2. MADAM NGENE NWOYIA Appellant(s)
AND
MR. SHAD B. OFFEIDEH Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of Rivers State High Court delivered on 17th May, 1999 in the suit No. PHC/517/93. The original notice of appeal has thee (3) grounds of appeal. The appellant, by leave of this court granted on 8th June, 2009 filed, on 11th June, 2009, five, five (5) additional grounds of appeal.
In the brief of argument, filed on 11th December, 2008 but deemed filed on 8th June, 2009, the appellant formulated Five (5) issues from the total of 8 grounds of appeal, including 3 original and 5 additional grounds of appeal. The issues at pages 3 of the Appellants Brief are as follows:
3.01 Was the Learned Trial Judge Right when she came to the conclusion that Plot 9 has no Access to it and was rendered useless without access.
3.02 In the light of the parties pleadings and evidence, was the Learned trial Judge right in holding that at some point plot 9 had an access which the fencing by Defendants have closed without considering the fact that it was the plaintiff who closed his access to plot 9.
3.03 was the Learned trial Judge right in coming to the conclusion that the Defence of having purchased the proposed road from the Landlord does not avail the Defendants and should the said Landlord chief Geofrey C. Ogbonda have been joined as a party in this case.
3.04 Whether the Learned trial Judge was right in ordering the Removal of a gate and electric pole standing on Land that was lawfully acquired by the 2nd Defendant from Chief Geofrey C. Ogbonda the original owner.
3.05 Whether the Learned trial Judge was right in relying on her observation at the Locus in Quo and not afforded the opportunity to testify there at.
The Respondents filed his brief on 14 January, 2011. The brief was deemed filed and served on 25th April, 2011. Four issues for determination were formulated at paragraph 4, page 4 of the said brief a follows:-
1. Was the learned trial judge wrong in awarding the reliefs claimed by the Respondent?
2. Was the learned trial judge wrong in rejecting the Appellants defence in of buying the access road because the landlord wanted to sell it?
3. Whether the reliance of the learned trial judge on her findings of the locus was wrong?
4. was the learned trial Judge wrong in holding that plot 8 and 9 belonging to the plaintiff were distinct plots with different access and that the actions of the Defendant had blocked the access into plot 9 chief Ogbonda Estate?
I have read all the briefs and the Record of Appeal. I have also read arguments on each issue, as presented by the parties.
The respondent had purported to raise preliminary objection at paragraph 3, page 3 of his brief to the effect that the Appellants” Brief was filed out of time and therefore incompetent. The Respondent paid no fee for the filing of this purported objection. Only the payment of filing fee in accordance with Order 12 Rule 1 and the Third Schedule to the Court of Appeal Rules, 2011 validates the process. See MOYOSORE V. GOVERNOR, KWARA STATE. (2012)5 N.W.L.R. (pt.1292) 242. Put differently, the non-payment of the prescribed filing fee renders the preliminary objection incompetent.
The objection even on its merits, is misconceived and lacking in substance. It was predicated on the Respondent’s misconception that this court granted the Appellants 7 days to file the Additional Grounds of Appeal on 1st June, 2009. That Order was made on 8th June, 2009. And so, Appellants were within time when they filed their Additional Grounds of Appeal on 11th June, 2009.
The disputed parcel of land was on the master plan or Layout of Chief G. C. Ogbonda Estate of Rumuogba Orowo Obia Clan of Port Harcourt, Exhibit “C”, identified and set aside as an access road. The parcel of land is between Plots 9 and 25 as could be seen from the Layout Plan, Exhibit “C”.
Plot 9 belongs to the Respondent. He also owns plot 8.
The contention of the Respondent, as the plaintiff, is that the disputed parcel of land is the only access road to plot 9, and that the Appellants by building a fence across the road had denied him the right of way to plot 9.
The Appellants, as defendants at the trial, claimed that they bought that portion of the access road from Chief G. C. Ogbonda when the latter was taking measurements of the same with the view of amending the Layout plan, as in Exhibit “C”. They had to buy the said portion to prevent Chief G. C. Ogbonda from selling it to Third parties and in order to protect the only right of way to their plot 25.
From their pleadings the Respondent obviously had bought plot 9 before the Appellants bought plot 25 and subsequently added the disputed parcel to their lot. The Appellants claimed, in the statement of defence, that the disputed parcel was fenced off “in bona fide claim of – right of purchase of the additional plot – to fence off trespassers”.
The Respondent, as plaintiff, testified as PW.1 in open court and of the Locus in Quo. Through him the Layout plan for Chief G. C. Ogbonda Estate and his Deed of Conveyance (with a plan for plot 9) were tendered in evidence. At the Locus in Quo one Mrs. Priscillia Ogo Okoh testified as DW.1, PW.1 and DW.1 were extensively cross-examined at the Locus in Quo by the Counsel for Appellants and Respondent respectively.
The complaint of the Appellants under their issue 5 is that they were denied fair hearing qt the Locus in Quo because; while the Plaintiff/Respondent was present with his counsel of the Locus in Quo they were not present. And that at the Locus in Quo evidence was taken in their absence. By these they argue that they were denied fair hearing. With their Counsel present at the Locus in Quo and the said Counsel participating in the proceedings of the Locus in Quo, unhindered and without any protest whatsoever, the Appellants can not be heard to say that they were denied fair hearing. See ADESINA v. AFOLABI (2002) F.W.L.R. (PT.105) 740 AT 752 cited by the Respondent’s Counsel. There had been no miscarriage of Justice. As rightly submitted for the Respondent relying on ONADEKO v. UNION BANK OF NIGERIA PLC (2005) All F.W.L.R. (PT.250) 57 at 78: a party is deemed to have notice of trial and present at trial, if he was represented by his counsel on the day the trial is fixed.
The minutes of the proceedings of 23rd January, 1998 shows inter alia that the case was:
Adjourned to 26th January, 1998 for a visit to the Locus as both Counsel are anxious (for) the Court to visit (the locus in Quo). Then the Defence would commence.
Defence Counsel, like Counsel for the plaintiff/Respondent, was present at that sitting and he heard the order. When the court resumed proceedings at the Locus in Quo on 26th January, 1998 the Defence counsel was also present and he participated fully in the proceedings at the Locus in Quo.
There is no substance in this Appellants’ issue 5. It is hereby resolved in favour of the Respondent against the Appellants.
The dispute was over the fencing off of the access road to both plots 9 and 25 by the Appellants. The Appellants admit the fact that the disputed land was the access road to both plots. They posit that their blocking of that access road was not prejudicial to the Respondent since he could access plot 9 through his plot 8 that is accessible to Okporo Road. They seem to be very unreasonable in this posture, as it does not behoove them to decide for the Respondent how he should exercise his right over his undisputed piece of land.
The Learned, trial Judge found that it was glaring, that plot 8 was distinct from plot 9 although both (are) owned by the plaintiff (now respondent). While plot 8 was accessible from Okporo Road, Plot was not and even had no access whatsoever. Thus that plot was rendered useless without access.
And that plot 9 could not be properly used by the Respondent “nor can he sell it to anyone else, as the purported buyer would not have access to it” By this finding the blocking of the access had seriously devalued plot 9.
At the Locus in quo the Respondent, as PW1, testified unchallenged that he had dropped long pipes on plot 9 for installation for a purpose before the access road was blocked and that:
We need a crane to get these long pipes in this premises installed and the entrance to plot 8 is not big enough to allow the crone gain entrance. The big pipes were brought in through this side ate at the back within plot 9 through the Estate which (gate) I was forced to close.
The PW.1 had testified earlier that he decided to seal off the gate he made earlier on plot 9 through the disputed access road when he discovered that the 1st Respondent/Appellant had been using the premises of plot 9 without his authority by “storing his cement in my batcher and using my security man and foreman and my wheel barrows”.
The Appellants, undisputedly, had built a wall across the access road and erected a gate at the fence. By this act they had completely denied the Respondent any access or right of way to plot 9. Appellants claimed that they had bought that portion of the access road from Chief G.C. Ogbonda when the latter was amending the Layout plan. That assertion was not proved. The Respondent disputed that assertion. The Appellants failed to discharge their burden to prove the positive assertion.
The law is trite; he who asserts must prove. No burden rests on the Respondent to prove otherwise until after the Appellants had discharged their primary burden of proof.
What is alleged without proof can be denied without proof.
The Respondent in addition to his viva voce evidence also produced and tendered Exhibits “C” and “D”. Exhibit “C” is the Layout plan of the estate. Exhibit “C” clearly shows and establishes that the disputed parcel of land was, and remains, an access road to plots 9 and 25.
Exhibit D, the Deed of Conveyancing between the Respondent and the Chief G. C. Ogbondo, shows and establishes, by the site plan thereto, that the disputed parcel of land is an access road to plot 9. It forms part of the appetunances to plot 9. From the totality of the evidence the Learned trial Judge was right, in my view, in holding that the plaintiff/Respondent proved his case that the disputed parcel of land was the access road to plot 9 “which the fencing by the defendants have closed.” The finding, backed by her observation at the Locus in Quo” is unassailable.
From all I had stated above, Appellants’ Issues 1 and 2 are hereby resolved against the Appellants and in favour of the Respondent.
The order directing the pulling down of the offensive gate “which has blocked the plaintiff’s right of way to and from plot 9 Chief Ogbonda Estate” is a consequential order made to strengthen, and in pursuance of, the finding of fact that the disputed parcel of land forms the access road or the right of way to and from so the plaintiff/Respondent’s plot 9. I had held earlier said that the finding is unassailable and it is supported by overwhelming evidence on the record which is further reinforced by the trial court’s observation at the Locus in Quo. The finding is not perverse. Therefore, in answering Appellants’ issue 4; my firm stance is that the Learned trial judge was right in ordering, consequentially, the pulling down the offensive fence and gate that have denied to the Respondent the enjoyment of his right of way to and from his plot 9.
I observe from page 88 of the Record that at the trial court the Appellants, through their Counsel, had conceded the pulling down of part of the offensive fence in the following terms:
In the face of (these) contending interests of the parties, we humbly persuade the court to open a gate 15th Feet from the right hand corner of plaintiff’s wall, and the Defendants offer to remove the gate leading into the proposed road and place such gate after the gate that the court is persuaded to open. This way, both parties may were be victims of Chief G. C. Ogbonda’s excesses and serve the interest of both parties.
Clearly, the parties were not in pari delicto in the collusion with Chief G.C. Ogbonda to warrant this compromise. On the part of the Appellants it is a case volenti non fit Injuria.
I resolve this issue 4 in formulated by the Appellants in favour of the Respondent, and against the Appellants.
Issue 3, formulated by the Appellants, is predicated on their assertion that (1) Chief G. C. Ogbonda had amended the Layout, evidenced by Exhibit “C” and (2) that the said Chief G. C. Ogbonda had sold the parcel of the disputed access road to them. The Respondent who had acquired his accrued right to the access road since his Deed of conveyancing, Exhibit D, vehemently denied the two assertions. Chief G. C. Ogbonda who allegedly amended the layout, as in Exhibit “C’, and sold the disputed parcel of land to the Appellants was not called to admit these facts, in verification of the same. He is a material witness whose evidence is also material to the defence. His transaction is also material to the defence. His transaction with Madam Ngene Nnonyia regarding the alienation of the disputed access road to the latter was copiously pleaded in the Statement of Defence, particularly paragraph 5 thereof. These pieces of evidence were not produced by the Defence. The effect of section 149 (1) of the Evidence Act, 1990 (then extant) is that a party who puts up a case, the proof of which requires the production of some evidence that is within his reach, and which evidence he has failed or refused to produce, can be presumed to believe that such evidence, if produced, would be unfavourable to his case. See TEWOGBADE V. KYARI (1968) N.W.L.R. 404; FIRST BANK OF NIGERIA PLC v. ASSOCIATED MOTORS LTD (1998) 10 N.W.L.R. (pt.570) 485; BUBA v THE STATE (1994) 7-8 SCNJ 472 at 478.
Only the DW.1 testified of the Locus in Quo. Part of her evidence, which smacks of hearsay or speculation goes viz:
One day I was bringing the Children from school and chief Ogbonda and his men were taking measurements of where we now have a gate.
When I asked him he said he wanted, to put up (sic) for sale. So I contacted my husband and he came in and met Chief Ogbonda. He bought the vacant area, so called proposed road.
It is not clear from this evidence that the DW1 was present when Chief Ogbonda and DW1’s husband
negotiated and concluded the transaction leading to the purported sale of the disputed parcel of land or the portion of the access road. I do not think that the sale of the access road by Chief Ogbonda to DW.1’s husband has been proved. The mere assertion of a fact without more is not a credible evidence of the fact asserted. The party making the assertion must go further to prove or establish the assertion, in order to give it some evidential weight. The Appellants submit that Chief G. C. Ogbonda is a necessary party and ought to have been joined to defend the suit. The only basis for this vehemence is the bogus sale of an access road to them by the said Chief Ogbonda. Until the purported sale is established the Plaintiff/Respondent would have no cause of action against Chief Ogbonda. Nothing stops the defence from causing Chief Ogbonda to be made a party, if they feel he was a necessary party, in view of their defence. They failed to take the steps. They cannot therefore, blame the plaintiff for not joining Chief Ogbonda as a party to defend the suit.
The pleaded amendment of the Layout plan of the estate by Chief Ogbonda entails the amendment of Exhibit C, and to some extent Exhibit D; both are documentary. The law is now firmly settled that documentary evidence is the best evidence, and it is preferred to oral evidence. It is the best proof of the contents of such document, like Exhibits C, and D. As such no oral evidence will be allowed to discredit or contradict the contents of such documents except where fraud is pleaded. See VINCENT U. EGHAREVBA V. DR OROBOR OSAGIE (2009) 18 NWLR (Pt.1173) 299 SC. I am firmly of the view that the oral evidence of the DW.1 cannot alter the contents of Exhibit C. The Layout plan of Chief Ogbonda, evidence by Exhibit C, remains extant.
The Appellant did not discharge the burden of establishing the alleged amendment of the Layout plan of Chief Ogbonda Estate. They did not also prove that Chief Ogbonda sold the disputed parcel of land to them. The burden of proving the 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 from the pleadings. See Section 137(1) of the Evidence Act 1990 (then extant of the time of the proceedings in the trial court) and EGHAREVBA v. OSAGIE (supra)
In any case, I agree with the Learned trial Judge that the defence that the Landlord, Chief Ogbonda, had sold the disputed parcel of land to the Appellants does not avail them. The Learned Defence counsel, the same counsel who settled the Defendants’ final Address, had submitted under issue 5 of the trial court that before Chief G. C. Ogbonda purportedly sold the disputed parcel of land to the Appellants, the Respondent and the Appellants had equal access to that road. This is an admission against interest. If the parties had equal access to the road then it is unconscionable on the part of the Appellants to overreach the Respondent by the purported transaction with Chief Ogbonda. Equity acts in personam and would not aid of party whose conduct is unconscionable.
I find no substance in the appeal, having resolved all the issues against the Appellants. The appeal lacks merits and it is hereby dismissed in its entirety. The decision of the Rivers State High Court (coram: Mary U. Peter- Odili; J. (as she then was)) in suit No. PHC/517/93 delivered on 17th May, 1999 is hereby affirmed. Parties shall bear their respective costs.
CHIOMA E. NWOSU-IHEME (Ph. D) J.C.A.: Having read in draft the judgment just rendered by my learned brother, EJEMBI EKO, JCA, I agree with and adopt his reasoning and conclusions. The appeal is clearly bereft of merit. It is accordingly dismissed.
I subscribe to the consequential orders made in the lead judgment inclusive of the one on costs.
MODUPE FASANMI, J.C.A.: I have read in draft before now the lead judgment of my learned brother EJEMBI EKO J.C.A just delivered.
I agree with his reasoning and conclusion that the appeal is without merit and should be dismissed accordingly.
I also abide by the consequential orders made in the said judgment including the order as to costs.
Appearances
Chizoba Atu, Esq, who settled Appellants’ Brief, Absent.For Appellant
AND
O. Ben-Whyte, Esq, who settled Respondents’ Brief, absent.For Respondent
