MR. GHASSAN SAIDI & ANOR v. MR. ALAKE OSAROBO IBUDE (2010)

MR. GHASSAN SAIDI & ANOR v. MR. ALAKE OSAROBO IBUDE

(2010)LCN/4120(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of December, 2010

CA/B/135/2006

RATIO

INTERFERENCE WITH THE EVALUATION OF EVIDENCE: WHETHER WHERE THERE HAS BEEN A PROPER APPRAISAL AND EVALUATION OF EVIDENCE BY A TRIAL COURT, AN APPELLATE COURT IS NOT EXPECTED TO EMBARK ON A FRESH APPRAISAL/EVALUATION OF SAME

…where there has been a proper appraisal and evaluation of evidence by a trial Court, an appellate Court ought not to embark on a fresh appraisal/evaluation of same. Also, because it is the duty of a trial court to evaluate the evidence it recorded from the witnesses that appeared before it and if it does that properly and accurately, it is not the business of the Court of Appeal to substitute its own views for the views of the trial Court. See WOLUCHEM V. GUDI (1981) S SC 291, BALOGUN V. AGBOOLA (1974) 10 SC 111, OBODO v. OGBA & ORS (1987) 1 ALL NLR (PT.1) 157. More recently, the Supreme Court in AKPAN V. OTONG (1996) l0 NWLR (PT.476) 108 reiterated these principles when it decided that where findings of fact of a trial Court are adequately supported by the evidence on record and they were neither established to be perverse nor reached as a result of a wrong approach to the evidence or any principle of substantive law or procedure, an appellate court must not interfere with such findings of fact. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A

PLEADINGS: EFFECT OF AN UNPLEADED FACT; CONSEQUENCE OF NOT ADDUCING ANY FACT TO SUPPORT AN ASSERTION OF FACT

It goes further that any fact that was not pleaded in the course of a matter goes to no issue. And very akin to this is that credible evidence must be adduced to support any assertion of fact, otherwise it is deemed to have been abandoned and not capable of being considered in establishing any claim or right. See ADIMORA V. AJUFO (19SS) 3 NWLR (PT.80). PER ALI ABUBAKAR BABANDI GUMEL, J.C.A

BURDEN OF PROOF: WHETHER A PLAINTIFF CAN ONLY SUCCEED OR FAIL ON THE STRENGTH OF HIS CASE AND THE EVIDENCE WHICH HE BROUGHT TO COURT NOTWITHSTANDING ANY WEAKNESS IN THE CASE OF THE DEFENDANT

A Plaintiff is said to succeed or fail on the strength of his case and the evidence which he brought to Court notwithstanding any weakness in the case of the defendant. See UMEJIAKO V.EZE NMUO (1990) I NWLR (PT.126) 253 at 272 where the Old decision in KODILINYE V. ODU (1935) 2 WACA 336 at 337 was considered and applied. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A

TITLE TO LAND: WAYS OF BY WHICH TITLE TO A PIECE OF LAND MAY BE PROVED

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1. MR. GHASSAN SAIDI
2. SAIDI HOTEL LTD, BENIN CITY Appellant(s)

AND

MR. ALAKE OSAROBO IBUDE Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High court in suit No.B/285/2000. The Respondent herein as the plaintiff before the lower court sought for the following reliefs against the Appellants herein, as the Defendants. They are:-
1. A declaration that the plaintiff is the person entitled to a certificate of occupancy in respect of the piece or parcel of land situate, lying and being along Sapele Road, being part of 2nd Defendants along Murtala Muhammed Way, Benin City, a place within the jurisdiction of this Honourable Court.
2. Two Hundred Million Naira (N200,000,000.00) general and special damages for the Defendants’ trespass and wanton destruction of the plaintiffs economic crops on the said land as follows:
a) 5,000.00 mature rubber trees at N200.00 from 1990 to the year 2000. N10,000,000.00.
b) 1,000 Bamboo stock at N200.00 each N2,000,000.00.
c) 1,000 Plantain stock at N200.00 each from 1990 to 2000. N2,000,000.00
d) 50 palm trees at N1,000 per tree from 1990 to 2000. N500,000.00 and
e) General damages N185,000,000.00.
Total = N200,000,000.00.
3. Injunction restraining the Defendants their agents servants and/or privies from continuing their trespass on and upon the land of the Plaintiff and;
4. An order for the immediate removal of all structures which the Defendants maintained as part of the said Saidi Hotels Limited on the Plaintiffs land.
Pleadings were duly filed and exchanged. Issues were joined and the matter went to trial. At the trial, documents were tendered and admitted in evidence through respective witnesses in the course of their oral testimonies. While the Respondent gave oral evidence in support of his claim, the Appellants relied on the oral evidence of 4 witnesses. After the evidence of the witnesses respective learned Counsel took turns to address the Court. At the conclusion of addresses the lower Court reserved judgment. In the judgment delivered on 30th November 2004, it found for the Plaintiff when it decided thus:-
“……… the Defendants trespassed into the land of the Plaintiff and therefore entitled to pay damages to the Plaintiff which need not be proved and which I fix and/or assessed at N200,000.00 (Two Hundred Thousand Naira).
The Defendants, their agents’ servants or privies are hereby restrained from continuing their trespass on or upon the land of the Plaintiff.
The Defendants are hereby ordered to remove it, within 30 days all structures on the land of the Plaintiff maintained as part of the 2nd Defendant.” (See page 62 record of Appeal).
Before going into the substance of this appeal, I wish to at this stage to highlight and resolve a very curious and remarkable feature about it, I believe that this is the appropriate stage to introduce and settle the issue. In the course of preparing this judgment I noted that the final addresses of counsel before the lower Court were made on 19th February, 2004 and the matter was adjourned to 2nd April, 2004 for judgment. Judgment was not delivered until 30th November 2004. The judgment itself was dated 22nd November, 2004.
By virtue of the provisions of S.294 (1) of the 1999 constitution judgments in this matter ought to have been delivered within 90 days from 19th February, 2004. There were also no explanations, in the body of the judgment itself accounting for the delay. None of the parties in this appeal made any issue of this failure to comply with the provisions of S.294 (1), Because of the provisions of S. 294(5) we decided to bring this curious feature of the matter to the attention of respective learned counsel and called on them to address the court on it.
In the course of addressing this issue, learned counsel Mr. K.O. Longe for the Appellants assured the court that the record of appeal was complete and correct and reflected the proceedings in the matter.
Against this background Mr. Longe recalled that the learned trial Judge, during the period he ought to have delivered judgment had suddenly taken seriously ill and had to be flown abroad for medical treatment. Learned Counsel Miss Ojeme for the Respondent also recalled this incident. Further to this respective learned counsel then assured the Court that they each do not have any complaints about the delay in the delivery of the judgment as it did not occasion any prejudice or miscarriage of justice to them.
Now having been thus assured and empowered by respective learned Counsel, I shall proceed to consider the merits of this appeal.
The Appellants were dissatisfied with this decision and appealed to this Court vides a notice of appeal containing 7 grounds and dated 1st December, 2004. In his brief of argument dated 20/07/2006 but deemed properly filed and served on 23/04/07 learned Counsel to the Appellants identified and argued 3 issues for the determination of this appeal. They are: –
1) Whether the Plaintiff proved his title to the land in dispute according to Benin Customary Law?
2) Whether the Plaintiff was entitled to damages; and
3) Whether the action is not statute barred.
The Respondent replied in a brief of argument dated 6/06/2007 but filed on 7/6/07. Learned Counsel to the Respondent also identified 3 issues for determination and though substantially similar to the issues identified by the Appellants, they are slightly differently couched. They are as follows:-
1) Whether or not the learned trial Judge was right in deciding that the Plaintiff established title to the land in dispute and so entitled to a Certificate of Occupancy over the said land.
2) Whether or not the learned trial Judge was right in awarding damages for trespass against the Defendants/Appellants, and
3) Whether or not the learned trial Judge was right in judging that the suit was not statute barred.
Respective learned Counsel have both raised and argued the issue of whether the suit before the lower Court and now on appeal was statute bared or not. A determination of this issue is very crucial because it pertains to a jurisdictional question. Because of the cornerstone effect of jurisdiction in any matter before a Court of law, it is necessary for this issue to be decided at the onset of this judgment as it affects the competence of the appeal itself.
This issue of limitation of time was argued as issue 3 in the briefs of respective learned Counsel. In arguing this issue at pages 10-12 of his brief of argument learned Counsel to the Appellants, Mr. K.O. Oladipo began by referring to paragraph 3 of the statement of claim and the oral evidence of the Respondent contained in lines 23-26 at page 21 of the record of appeal as well as the denial of the averment in paragraph 3 of the statement of claim in paragraph 17 of the 3rd amended statement of defence. Against this foundation, learned Counsel Mr. Oladipo then put in perspective the findings of the lower Court that the action in Suit No. B/285/2000 and now giving rise to this appeal was not statute barred. Against this background Mr. Oladipo of Counsel (SIC) went on to explain that this action was founded upon the tort of trespass and referred to S.4 (l) of the Limitation Law of Edo State contained in CAP 89, Laws of Bendel State of Nigeria applicable to Edo State. According to learned counsel this Law provides for a limited period of 6 years within which an action in tort must be prosecuted.
Learned Counsel also explained that the learned trial judge agreed with his submission that the action was statute-bared with respect to the claim for compensation with respect to damage on crops but went further to discountenance all his arguments on limitation of time with respect to the claim for compensation/damages for trespass. Learned Counsel then focused on the raison d,etre the learned trial Judge relied on to sustain the suit before him. He then identified it as trespass being a continuing cause of action. Learned counsel attacked this finding and the basis upon which it was made when he argued and submitted that the cause of action accrued to the Respondent immediately he found out that the Appellants had done acts which gave him a right to sue and time started to run from that date. He identified that date to be somewhere in the Month of March 1990 both on the basis of the pleadings and the evidence before the lower Court. Mr. Oladipo, of Counsel pointed out that the issue of trespass being a continuing cause of action was made and discountenanced by this Court in the case of PALMER V. DADA (1986) 5 NWLR (PT.43) 541 at 549. Learned counsel also added that if a claimant who may have a valid and genuine cause of action but remained lethargic or goes to sleep, would loose the right to litigate that cause of action if the time stipulated by law to do that elapsed or expired. He then referred to the cases of N.P.A v. LOTUS PLASTICS LTD (2006) 2 M.J.S.C. 41 at 57 ODUBEKO v. FOWLER (1993)11 KLR 106 at 123 as well as NWADIARO v. SHELL PET. DEV. CO. NIG. LTD (1990) 5 NWLR (PT.150) 322 at 339 per KOLAWOLE, JCA. Upon all the forgoing learned counsel urged this court to find that this action was statute-barred and thereby the lower court to that extent lacked jurisdiction to entertain it. He then urged this court to allow this appeal and dismiss the Suit of the Respondent.
In his response, learned Counsel to the respondent Mr. J.A. Ojeme began by also reviewing the pleadings and the oral evidence of the parties and thereafter submitted that this action was founded on title to land and not trespass per se. He then argued that the Appellants have not challenged the title of the respondent to the land but had sought to justify their occupation of the land based on a temporary occupation license. According to Mr. Ojeme, of Counsel, these questions of temporary occupation license remain adverse to the title of the Respondent. Against this submission, Mr. Ojeme maintained that the claim for trespass flows from the title of the Respondent and not possession per se.
Having this in focus, learned Counsel Mr. Ojeme went factual and explained that the respondent filed this Suit on 29h April, 2000 against a cause of action which was agreed by all parties to have accrued in either January or March, 1990. With this established position in view, learned Counsel referred to 5.6 (2) of the Limitation Law of Edo State (supra) which according to him provides for a period of 12 years as the time limit within which to bring actions for recovery of land. Learned Counsel did the arithmetical exercise and explained that this action was brought within 10 years of the accrual of the cause of action.
He also pointed out that it has remained crystal clear from both the pleadings and oral evidence in Court that the appellants are still in occupation of the land. He referred to the cases of AREMU II V. ADEKANYA & ORS 2004)11 MJSC 17 and AINA V. JINADU (1992) 4 NWLR (PT.233) 91 and forcefully submitted that a continuing trespass or wrong cannot be statute-barred as the cause of action has accrued and is still accruing.
He then submitted that to the extent that it was brought within 10 years of the available 12 years within which it ought to have been brought, it was well within time and thereby not statute-barred. He urged this Court to so hold and dismiss this appeal.
After referring to what he considered as the relevant parts of the pleadings of the parties and the oral and documentary evidence, the learned trial judge first found that the plaintiff/Respondent had proved his title to the rand in dispute based principally on Exhibit A, a conveyance executed in 1975 by Oba Akenzua II in favour of the Respondents’ father with respect to trespass vis-a-vis limitation of time, the lower court found and decided that the Appellants were still on the land and to that extent there was a continuing cause of action.
And while relying on the case of AREMO II V. ADEKANYE & ORS (2004) MJSC 17 it held that a continuing trespass or wrong cannot be statute-barred because the cause of action accruing thereby was a continuing one. Added to this, the learned trial judge remarked that because the Appellants had claimed to have acquired a temporary occupation license from a 3rd party, a position adverse to the interests of the Respondent the issue of title to the land in dispute was more paramount.
Buoyed by these factual and legal circumstances, the learned trial judge decided that this action was not statute-barred. While learned Counsel to the Appellants relied on the case of PALMER V. DADA (supra) to support the position that an action for damages for trespass to land is an action in tort and must therefore be instituted within 6 years of the act complained of or it would otherwise become statute barred under the Limitation Act, both the Lower and learned Counsel to the Respondent relied on the case of AREMO 11 V. ADEKANYE & ORS (SUPRA) to maintain that limitation of time stipulations in statute do not adversely affect a continuing cause of action.
Now apart from the fact that the facts and circumstances in the case of PALMER V. DADA (supra) can be distinguished from those in AREMO II V. ADEKANYE & ORS (supra), the former was a decision of this Court while the latter is a decision of the Supreme Court. To that extent the latter decision must be preferred as having stated the correct position of the law.
Further to this, the principal relief in this action is the claim for title to land and the issue of trespass is an ancillary and consequential relief based and flowing directly from the main or principal relief. And therefore having regards to the facts and circumstances of this matter, I do not see any reason or justification to interfere with the finding of the learned trial judge that this Suit is not caught up by limitation of time under the Limitation Law of Bendel State, applicable to Edo State. I agree with the decision of the lower Court and affirm same. Issue 3 is therefore resolved against the Appellants.
Issue one in the Appellants’ brief of argument was formulated out of grounds 1, 2, 3 and 4 of the grounds of appeal. In arguing this issue, learned Counsel Mr. Longe referred to paragraph 3 of the statement of claim which he typified as being the root of the Respondents’ title to the land in dispute. After having done that learned Counsel went further to point out that the appellants joined issues with the Respondent on this issue in paragraphs 2, 4 and 12 of the 3rd amended statement of defence. With this as his parameter, Mr. Longe of Counsel then referred to the oral evidence of the Respondent at page 19 of the record and also how the lower Court resolved the issue joined by the parties in favour of the Respondent.
In a further endeavour, learned Counsel Mr. Longe attacked the position taken by the lower Court when he pointed out and remarked that the Respondent did not plead inheritance as his mode of acquisition of title and to that extent any decision of the lower Court tending to anchor the title of the respondent as it did was abysmally erroneous. And he also pointed out that the finding of the lower Court that the respondent as the eldest son of his father inherited the land and crops on it or that there was no contrary evidence that the Plaintiff/Respondent inherited the land in dispute as the eldest son of his father was not supported by the pleadings or any lawfully received or adduced evidence. He submitted that all such findings were perverse and ought not to be allowed to stand. He referred to the cases of EZE V. ATASIE (2006) 6 SC (PT.1) 214 at 227 and EMEGOKWE V. OKADIGBO (1973) 3 SC 113 at 117 on the principle that any evidence not supported by pleadings go to no issue
Still on the issue of acquisition of title to land under Bini native law and custom, learned Counsel Mr. Longe pointed out that the Plaintiff/Respondent did not plead or lead evidence that his father acquired title to the land after having satisfied all the essential requirements in that regards as provided by law and recognized by the Courts. He referred to the cases of OKEAYA V. AGUEBOR (1970) 1 ALL NLR 1 at 8-10 and ARASE V. ARASE (1981) 5 SC 33 at 59. He also quoted extensively from the decision in ATITI GOLD V. OSARENREN (1970) 1 ALL NLR 125 at 34.
Mr. Longe downgraded and underrated the evidential value of Exhibit A and maintained that to acquire title to land in the circumstance of this matter a lot more needed to be done by the Respondent than to merely plead and adduce Exhibit A. Learned Counsel also pointed out that the lower Court seemed to have overlooked the requirements of Bini customary law on land tenure when it held that the Oba of Benin granted the land in dispute to the Respondents’ father in 1975 merely on the production of Exhibit A by the respondent. As an adjunct to this point, learned Counsel went back to his earlier argument that the Respondent did not plead inheritance as his mode of acquisition of title, so his oral evidence at page 19 lines 21-22 and the decision of the Court at page 60 lines 18-22 of the record were indeed wrong. He added that because when a claimant pleads his root of title, he must prove same by credible evidenced and because the lower Court has a duty to evaluate all relevant and material evidence in support of the pleadings before it decides any issue, the learned trial Judge was wrong when he decided the issue of acquisition of title through inheritance on mere imagination and consideration of extraneous matters. He then urged this Court to set aside this finding and allow this appeal.
In his response, learned Counsel to the respondent set the ball rolling by underscoring the basic fact in support of the claim for title by the Respondent and this is embodied in the statement that the land in dispute was acquired in 1975 from the Oba of Benin Akenzua II by the Plaintiffs father and upon his death, the Respondent being the eldest son inherited the land. According to learned Counsel, this was the case the Respondent, as Plaintiff established at the lower Court. He maintained that the decision of the lower Court was supported by the pleadings and the evidence on record. Against this background learned counsel submitted that the findings of the lower court were not perverse.
As a further clarification, learned Counsel reproduced paragraphs 1, 3 and 8 of the statement of claim in full alongside paragraphs 3 and 4 of the 3rd amended statement of defence and suggested that paragraphs 3 and 4 of the 3 amended statement of defence never equivocally denied paragraphs 1, 3 and 8 of the statement of claim. He suggested further that to the extent of not having been denied paragraphs 1, 3 and 8 must be deemed as having been admitted and thereby needed no further proof. Learned counsel went as bold as to suggest that based on this circumstance, the Respondent had, on the pleadings discharged the onus of proof placed on him by law. He relied on S.145 of the Evidence Act and submitted that the burden was on the Appellants to prove the negative i.e., that the Respondent is not the first son and that the land was not granted to his father by the Oba of Benin. In other words, according to learned Counsel it was the Appellants who had to prove that the Respondent was not the first child and that the land was not granted to his father and if the Appellants fail to prove this the claim of the Respondent ought to succeed without even the Respondent giving any further evidence. Learned Counsel relied on the cases of BURGE V. GOV. OF RIVERS STATE (2006) NWLR (PT.995) 573 at 601-602 C-B and ONOBRUDERE V. ESEGINE (1986) 2 SC 14 for this sweeping submission.
It was after this sign-post that learned Counsel, ex abundante, surveyed and reviewed what he considered as the most crucial oral evidence of the Respondent and juxtaposed same with Exhibit A and thereafter submitted that because Exhibit A supports the oral evidence of the respondent, it became more credible and according to the case of JULIUS BERGER NIG. PLC V. NWAGWU (2006) 12 NWLR (PT.995) 518 must be accepted and acted upon by the Court. Further to this, learned Counsel focused on the case of ARASE V. ARASE (supra) and sought to distinguish its facts and circumstances against this case and submitted that the principles of law defined by the Supreme Court cannot be applicable to this case because the adverse temporary occupation license granted to the Appellants expired on 31/12/1993 and it cannot supercede or defeat the title of the Respondent in Exhibit A. He added further that Exhibit A was never contoverted and therefore it remained unchallenged evidence before the lower Court as such it must be accepted and acted upon to establish the fact upon which it was based. He urged the Court to hold that the respondent had proved a good title to the land and that findings of the lower Court to that effect were not perverse.
On the issue of inheritance, learned Counsel referred to the pleadings in paragraphs 1 and 4 of the statement of claim together with paragraph 3 of the 3rd amended statement of defence and argued that rather than a denial, the statement of defence admitted the assertions of the Respondent. According to learned Counsel, paragraph 3 was evasive and not a substantial denial. He referred to order 25 r. 14 of the Bendel state High court civil Procedure Rules 1988, applicable to Edo State High Court. He ended his argument thus:
“It was never in contention that Respondent was a child of his father John Ibude. It was also not disputed by Appellants that Respondent said his father John Ibude had died. Also as submitted, on issue 1 that the Plaintiffs father is the owner of the said land having been granted same by the Oba of Benin.
The question now is, is the Respondent upon the death of his father entitled to the said land? The answer to the question should be in the affirmative as there is no contrary evidence from the Appellants. It follows that the Respondent upon the death of his father was entitled to the said land without more and the land devolved on him. There is no contrary evidence that Respondent is not the eldest son of his father or that some other person was entitled to the said land.” (See lines 25-37) at page 9 of Respondents’ brief of argument).
With this summing up encapsulating his arguments, learned Counsel urged the Court to resolve this issue against the Appellants and to dismiss the appeal.
On the issue of the relief for a declaration of title to the land in dispute, I find that following observations and findings of the lower Court as very crucial to the determination of this appeal. At pages 60-62 of the record of appeal, the lower Court said in its judgment thus:-
“There is no doubt that before the promulgation of the Land Use Decree now Act, under Benin Customary Land tenure system, the Oba of Benin was the sole Trustee of all communal lands. In 1975 when the land in dispute was granted to the Plaintiffs father, the Oba of Benin Akenzua II was the sole Trustee of all communal Benin land including the one now in dispute and the Plaintiffs father after the land Use Decree came into effect became the person entitled to the certificate of occupancy. On the death of his father, Plaintiff claimed as the eldest son, he inherited the land in dispute. There is no evidence to the contrary from members of IBUDE’S family or other claimant. It is not enough in my view for the Defendants to assert that the Plaintiffs is not the first son of his father without more.
DW1 referred to such lands including the one in dispute as presumed Government lands and that no building is allowed in any of them. There is no evidence that the Plaintiff has erected structure or building on the land which violation is being enforced. Instead exhibit “F” was granted which allowed the Defendants to build swimming pool, Lawn Tennis Court etc on part of the land in dispute.
There is no doubt that the Defendants either by themselves or through their Counsel or representative negotiated with the Plaintiff or his Counsel. There is also evidence that the said negotiation broke down or stale mated. In fact, from exhibits “B” and “C” it was more of crisis of confidence between the Plaintiffs Counsel and the 1st Defendant. Exhibit “C” was written in reply to exhibit “B” on the 21st of July 1992. In March, 1993, exhibit “F”, the Temporary Occupation Licensed was obtained as license to use the land.
The 1st defendant in exhibit “C” alleged that the Town Planning Law has reduced the size or dimension of the land in dispute to not more that 48 feet.
Exhibit “A” was duly registered in the Ministry of Lands and Survey as shown therein together with the Survey Plan No. M/GA/281/74. I have seen and considered the Litigation Survey Plan exhibit “J” prepared by D W IV, the said litigation survey plan only shown an area the Defendants were said to have encroached on the land behind the 2nd Defendant. The entire land in dispute from Sapele Road to the area behind the 2nd Defendant is not indicated. But the dimensions of the land is obvious from the Survey Plan attached to exhibit “A” and it is in my view and I hold that it is well known to the parties.
It is my view that the acquisition of the Temporary Occupation License exhibit “F” by the defendants, a license which on the face of it expired on the 31st of December, 1993 cannot defeat or supercede the title of the plaintiff, a title that was granted by the Oba of Benin Akenzua II himself the Sole Trustee of all communal Lands in Benin. It is in fact a land transaction between the Oba of Benin Akenzua II personally and the plaintiffs father.
Arising from the foregoing, it is my view and I hold that the Plaintiff on the balance of probability has proved his title to the land in dispute and he is the person entitled to be granted a certificate of occupancy of the entire land in dispute as claimed in paragraph 9(1) of the statement of claim. The complaints of the Appellants in issue one are against the above observations and findings of fact by the learned trial judge.
For these findings, the learned trial judge gave his reasons. The appellants complain that the findings were wrong having regard to the evidence on record. We are now invited to re-visit these findings.
Can we do so? The applicable laws and principles on this issue are very well defined and settled.
It is my understanding and it must be so underscored that where there has been a proper appraisal and evaluation of evidence by a trial Court, an appellate Court ought not to embark on a fresh appraisal/evaluation of same. Also, because it is the duty of a trial court to evaluate the evidence it recorded from the witnesses that appeared before it and if it does that properly and accurately, it is not the business of the Court of Appeal to substitute its own views for the views of the trial Court. See WOLUCHEM V. GUDI (1981) S SC 291, BALOGUN V. AGBOOLA (1974) 10 SC 111, OBODO v. OGBA & ORS (1987) 1 ALL NLR (PT.1) 157. More recently, the Supreme Court in AKPAN V. OTONG (1996) l0 NWLR (PT.476) 108 reiterated these principles when it decided that where findings of fact of a trial Court are adequately supported by the evidence on record and they were neither established to be perverse nor reached as a result of a wrong approach to the evidence or any principle of substantive law or procedure, an appellate court must not interfere with such findings of fact.
In approaching the respective arguments and submissions of learned counsel on issue one, I needed to be guided by the sacrosanct and cardinal principle of adjudication in civil matters that every case must be decided on the pleaded relevant facts upon which admissible credible evidence was adduced before the Court. It behoves on a claimant or defendant in a civil matter to assert every material fact grounding his claim in his pleadings.
It goes further that any fact that was not pleaded in the course of a matter goes to no issue. And very akin to this is that credible evidence must be adduced to support any assertion of fact, otherwise it is deemed to have been abandoned and not capable of being considered in establishing any claim or right.See ADIMORA V. AJUFO (19SS) 3 NWLR (PT.80)
The parties are held to be bound by their pleadings in, a “for better or for worse” type of relationship, the course of litigation in a civil matter.
For our purpose, the Respondent herein pleaded these facts in support of his claim for a declaration of title. They are:-
1. Plaintiff is the eldest son of John Ibude who went to join his Ancestors in January, 1990.
3. The piece or parcel of land measuring 800 feet long by 120 wide along Benin/Sapele Road by 75.8 feet at the back as shown on plan No. M/GAZ/281/74 and being behind the defendant was granted to Plaintiffs father by His Highness, Akenzua II in His capacity as the Trustees of all Communal land in Benin according to the Benin Customary Law.
Evidence shall be adduced documentarily as to how and when the said piece or parcel of land was acquired by plaintiff’s father.
4. After the Plaintiff’s father’s death in January, 1990. 1st defendant sent a bulldozer into the plaintiff’s lane measuring 100.9 feet wide and eight hundred feet long, converting in into part of the Saidi Hotel from where the defendants have been earning millions of Naira monthly.
8. A Deed of conveyance by Akenzua II Oba of Benin to the Plaintiff according and survey plan of the area of land acquired by the Plaintiff according to the Benin Customary Law shall be relied upon at the trial of this action.
Faced with these averments the Appellants, averred as follows in their 3rd amended statement of defence: –
2. The Defendants deny paragraphs 1, 3, 4, 3, 6,7a, 8 and 9 of the Statement of Claim and will at the trial put the Plaintiff to the strictest proof of such fact or allegations.
3. The defendants deny paragraph 1 of the statement of Claim and aver that even though the plaintiff has always claimed to be the eldest son John lbude, he has never really established that fact.
4. The defendants emphatically deny paragraphs 3 and 8 of the Statement of Claim and will contend at the trial that the Plaintiff is unable to show how he acquired the land.
5. The defendants deny paragraphs 4, 5 and 6 of the Statement of Claim and will at the trial rely on Survey Plan No. MSC/ED2000/146 dated 276 June 2000 prepared by registered Survey M.A. Imoroa.
6. The defendants will establish at the trial that by deed of lease dated the 23rd day of July 1974 and registered as No. 4 at page 4 in Volume 249 of the Lands Registry in the Office at Benin City the 2od defendant took a lease of a parcel of land abutting Sapele road. The parcel measuring approximately 4.17 acres. The 1st defendant made an additional acquisition to the north of the land registered as No. 44 at Page 44 in Volume 819 of the Lands Registry in the Office at Benin City. Both parcels are shown in Survey Plan MSC/ED200D/146.
12. In further answer to paragraphs 4, 5 and 6 of the Statement of Claim, the defendants deny ever bulldozing the said land. The defendants aver that as the land was close to a moat and was left unkempt and exposed the hotel to danger from robbers, the 1st defendant on 86 day of March 1993 applied to the Director-General of the Bureau of Lands and Survey in Benin-City for Temporary Occupation License G.O.L). The defendants wilt lead evidence on when the government issues Temporary Occupation License.
In my view these were the facts upon which issues were duly joined by the parties for and against the claim for a declaration of title. I therefore do not agree with the submission of learned Counsel Mr. Ojeme, for the Respondent at page 9 of his brief of argument that the appellants’ pleadings were evasive on the issue of title.
Learned Counsel Mr. Ojeme was, with all due respect, also wrong in his submission that issues were not joined in the pleadings on the question of title to the land in dispute or that the appellants admitted the title of the respondent.
In the course of the trial of this matter, the respondent gave oral evidence and tendered Exhibit A along with other documents. In his oral evidence he said in part:-
“I am in Court because the Defendants encroached into my father’s land which I inherited. My father acquired the land the Defendants encroached into from the Oba of Benin, Akenzua II. The land in dispute is situate along Sapele Road, 109 by the moat. The dimension (sic) of the land is 814 ft deep (length) and 120 ft wide.
There is a deed of transfer executed between Oba Akenzua II and my Late father John Osadolor Ibude. If I see the deed of transferred (sic) I will recognize it yes, this is the deed of transfer. ….,
See lines 21-30 at page 19 of record of appeal.
It was at this stage that Exhibit A was introduced in evidence.
Learned counsel Mr. Longe objected to its being admitted and full arguments on its relevance and admissibility were taken. In a ruling later, the lower Court held in favour of the relevance and admissibility of the deed of transfer and it was accordingly admitted and marked as Exhibit A.
Also, in the course of this trial DWI gave oral evidence on behalf of the appellants. He said in part:
“I know the parcel land, the subject matter of this suit……”
He added further: –
“I know that the 1st Defendant has a “Temporary Occupation License, in respect of the land on the side of the moat behind the 1st Defendant Hotel Complex.”
(See pages 28-29 of record of appeal.) It is also part of the evidence before the lower court that the Defendant/Appellants applied for and were granted a Temporary occupation License in respect of part of the land in Exhibit A by the Director General Bureau of Lands and Surveys, Benin City. It is No. 3048 dated 19/03193. It was tendered and admitted in evidence as Exhibit F.
In my view the above scenario captures the essence of the Claim of the Respondent for a declaration of title and the defence of the appellants. I understand it to be a well established principle of adjudication in civil matters that it is he who asserts that must prove any fact in issue in a trial. Also, it is the plaintiff who must first prove his case and make it a fortress strong enough to support his pleadings. Any weakness or failure on the part of the defence cannot alleviate this primary burden on a Plaintiff.
In other words a Plaintiff is said to succeed or fail on the strength of his case and the evidence which he brought to Court notwithstanding any weakness in the case of the defendant. See UMEJIAKO V.EZE NMUO (1990) I NWLR (PT.126) 253 at 272 where the Old decision in KODILINYE V. ODU (1935) 2 WACA 336 at 337 was considered and applied.

According to the locus classicus on the subject of title to land, the Supreme Court had long decided that it is settled that a party must prove title to a piece of land in any of the following 5 ways. The Court went on to itemize these ways. They are: –
a) By traditional evidence.
b) By documents of title.
c) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the interference of ownership.
d) By acts of long enjoyment and possession of the land.
e) By proof of possession of adjacent land in circumstances which render it probable that the owner of such land would in addition, is the owner of the disputed land.
See IDUNDUN & ORS V. OKUMAGBA & ORS (1976) 9-10 SC 227 at 248 and very recently AUGUSTINE OBINECHE V. HUMPHREY AKUSOBI (2010) 12 NWLR (PT.1208) 383 at 408.
These are the facts upon which the lower court ought to have found its decision.
On a proper evaluation Exhibit A would be seen to have been a deed of conveyance dated 12th July, 1975 between His Highness Akenzua II, Uku Akpolokpolo, Oba of Benin as the grantor and John Osadolor Ibude of No. 47, Iyobosa Street, Benin City as the grantee.
Exhibit F is dated 19-03-93 and was meant to expire on 31-12-93.
According to this document it was approved for use for the construction or provision of a Tennis Court Table Tennis and Badminton games. It is curious to note that this same document states: –
“No permanent structure is allowed to be erected on the land. This license is temporary and may be revoked at short notice.”
In his oral evidence, the Respondent told the Court that he inherited the land in Exhibit A. Inheritance is a means of acquiring title to land and is recognized by law. Inheritance is a matter of both law and fact.
While the word inheritance has appeared in the oral evidence of the Respondent, it is no where stated in the entire statement of claim. The averment of the Respondent that he is the eldest son of Mr. John Ibude without more needed to be very closely examined and fully evaluated as a fact. While succession to an “Igiogbe” by an eldest male child is very well known to law in Nigeria and more particularly Benin City, (Lex Situs), the land in dispute in the circumstance of this matter was not said to be an “Igiogbe” at all, because an igiogbe is said to be the house in which a Bini man lived and died or may be even buried within. IDEHEN V IDEHEN (1991) 6 NWLR (PT.198) 832 and OSULA (1995) 9 NWLR (PT.419) 259. Every Benin man knows that every eldest surviving son of a Benin necessarily inherits, for example, the mother of a son that can inherit the igiogbe must have been properly married to the man.
In upholding the title of the Respondent, the learned trial judge observed and remarked: –
“On the death of his father, Plaintiff claimed as the eldest son, he inherited the land in dispute. There is no evidence to the contrary from members of IBUDE’S family or other claimant. It is not enough in my view for the Defendants to assert that the Plaintiff is not the first son of his father without more.”
See lines 18-22 of the record of appeal.
With the greatest respect to the learned trial judge, there is no doubting the fact that this matter does not involve the respondent and any other member of the Ibude family. How then can any member of the Ibude family are directly involved in giving evidence upon which the learned trial Judge would make a finding in support or against the claim of the respondent. In the circumstance, the learned trial Judge misconceived the position of the law and the evidence before him when he made the above observation. The Plaintiff can only succeed on the strength of the case he made out before the Court. In the case of AYANRU V. MANDILAS LTD (2007) ALL FWLR (pT.352) 1847 at 1849, the Supreme Court decided that it is for a claimant to prove his case and not for the opposition to disprove the claimant’s claim.
Exhibit A, as document before the Court must be allowed to speak for itself. On the face of it, the Respondent is a total stranger to Exhibit A. But he claimed to have inherited the land in Exhibit A. His inheritance is a very crucial fact because it is that inheritance that he claimed linked him to the land in dispute. I think and I hold without any hesitation that that fact must be pleaded and proved by credible evidence. There are many methods of inheriting land for example by testamentary disposition or succession under customary law or upon intestacy. The mere ipse dixit of the Respondent that he inherited the land in Exhibit A without more’ cannot in any view establish his claim for a declaration of title to the land in Exhibit A.
The finding of the lower court that the Respondent inherited the land in Exhibit A is unwarranted in the circumstance of this matter.
The oral evidence of the Respondent that he inherited the land in dispute amounts to evidence on an unpleaded fact. Because of the need to avoid unpleasant surprises and litigation by ambush, the law requires the parties to a civil action to put all their cards face up, and to that extent parties are fully and absolutely bound by their pleadings and cannot be allowed to prosecute or defend a matter outside the pleaded facts. It is trite in our law that a party is not entitled to give evidence on a fact that Was not pleaded and where such evidence was given it must be held to be irrelevant and to be ignored. Any finding of the lower court tending to link the Respondent with the land in Exhibit A must remain erroneous and perverse.
The submission of learned Counsel Mr. Ojeme that the Appellants were deemed to have admitted the claim of the Respondent remains of no moment because a Court does not grant declaration on admission of parties as it must be satisfied that the claimant on his evidence was entitled to the relief claimed. Learned Counsel Mr. Ojeme, made reference to 5.145 of the Evidence Act against the requirement of the law on the burden of proof as to relationship of a landlord and tenant etc. with the greatest respect to learned Counsel and also having fully considered the provisions of the said s.145, I do not find it relevant or applicable to the facts and circumstances of this appeal. Any such reference, I dare say, is a total misconception of the law and facts in this matter.
In a long line of cases it has been held that a party who sought for a declaratory relief must adduce cogent and credible evidence that he was entitled to the relief. See KODILINYE V. ODU (supra), WULOCHEM V. GUDI (supra) and NDAYAKO V. DANTORO (2004) ALL FWLR (PT.216) 390.
The Plaintiff having totally failed to plead and prove by credible and legally admissible evidence root of title through inheritance as to entitle him to the declaratory relief, the lower Court ought to have dismissed the claim without even turning to consider the Appellants defence based on the Temporary Occupation License (Exhibit F) and the other facts and evidence in the Appellants’ case.
Because it is the duty of this Court re-evaluate or review the facts and evidence in a matter in appropriate circumstances, and in view of the inadequacy of pleadings and improper reception of evidence and erroneous inference and conclusion from same, I am of the view that this Court must find this case as an appropriate one when it ought to interfere with the findings of a trial Court.
Based on the fact that the fact of having inherited land through inheritance was not at all pleaded, the finding of the lower Court that the Respondent inherited the land as the eldest son, without more, remained erroneous and perverse and to that extent ought to be set aside by this Court. It is therefore accordingly so set aside. Without any doubt the Respondent did not prove that he was entitled to a declaratory relief that he was the one who inherited the land in Exhibit A as to also be entitled a Certificate of Occupancy in respect of same. Issue one ought to be resolved in favour of the Appellants and it is hereby so resolved.
“Now, because the Appellants have been in possession of the land in Exhibit A and have been in continued possession since 1993, and the Respondent having failed to prove a superior title, the issue of trespass would not arise. The award of damages for trespass and injunction against the Appellants also remain erroneous and a total misconception. The awards ought not to be allowed to stand and are hereby set aside.
In consequence of this, issue 2 is also hereby resolved against the Respondent. Having resolved issues 1 and 2 against the Respondent, this appeal is allowed. The judgment of the lower Court in Suit No. B/285 /2000 dated 30th November, 2004 is hereby set aside. I order for N30,000.00 costs against the Respondent.

AMIRU SANUSI, J.C.A: I had the advantage of reading in advance the judgment of my learned brother A.A.B. Gumel, JCA just delivered. His Lordship had ably and painstakingly dealt with all the salient issues canvassed by parties, learned counsel. I am in complete agreement with the reasoning of my learned brother and the conclusion he arrived at that the appeal is meritorious and ought to be allowed. I accordingly allow it and set aside the judgment of the lower court delivered on 30/11/2004. l abide by the consequential order made in the lead judgment including one on costs.

CHIOMA EGONDU NWOSU-IHEME J.C.A: I have read in draft the comprehensive Judgment just delivered by my learned brother GUMEL JCA. I agree completely with not only his reasoning but also his conclusions. The appeal is meritorious and same is hereby allowed by me. I abide by the consequential order as to costs assessed at N30, 000.OO00 against the Respondent.

Appearances

Mr. K. O. Longe (with him Miss J. E. Edosa)For Appellant

AND

Miss S.O. OjemeFor Respondent