MR. JOHNSON AGBAI & ORS v. MR. OKORONKWO IRE & ORS (2013)

MR. JOHNSON AGBAI & ORS v. MR. OKORONKWO IRE & ORS

(2013)LCN/6635(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/PH/508/2008

RATIO

WHEN IMPROPER EVALUATION OF EVIDENCE CAN AMOUNT TO PERVERSITY

Improper evaluation of evidence can amount to perversity where the inference drawn by the trial court does not follow from the evidence or the conclusion that should reasonably follow from the finding of fact made. See Okhuarabo vs. Aigbe (2002) 9 NWLR (PT. 771) at 40 SC. The apex court has also laid down the governing principles to proper evaluation of evidence in Mogaji & Ors vs. Odofin & Ors (1978) 3 SC. 91.
I have thoroughly considered and examined the evaluation of evidence done by the trial court without doubt that no wrongful conclusion or injustice was done to the Appellants. The Appellate Court is saddled with re-evaluation of evidence on facts where the trial court’s failure had occasioned a miscarriage of justice or led to a wrongful conclusion. See Guinness vs. Udeani (2000) 14 NWLR (PT 687) 367 at 390. Per UWANI MUSA ABBA AJI (PJ), J.C.A.

ON WHOM LIES THE ONUS OF PROOF IN A DECLARATION OF TITLE TO LAND?

It is the law that there cannot be concurrent possession. See Amakor vs. Obiefuna (1974) 1 All N. L. R (PT. 1), 119, and INCAR (Nig.) PLC & Anor vs. Bolex Ent. (Nig) Ltd (1996) 8 NWLR (PT. 469) 687 at 702.
The onus of proof is always on the Plaintiff in a declaration of title to land. However, onus shifts on the defendant in land matters only in recovery of possession and not for declaration of title to land as in the instant case. Per Udoma, J.S.C. in Odufuye vs. Fatoke (1997) II N.S.C.C. 141 at 147 held.
‘…It was a claim by the owner of a piece of land for possession thereof; and it was held that where the owner brings an action to recover possession thereof, the defendants being in possession, the onus of proof of their right to possession lies on the defendants.‘

And the appropriate relief for trespass to possession is damages in trespass and an order of injunction against the defendant. See Banjo & Anor vs. Aiyekoti & Anor (1973) 8 N.S.C.C 184 at 192 – 193.

Possession is subject to ownership and better title. The position of the law is that where there are adverse claim to land, the party that proves better title takes possession. Per Mukhtar, J.C.A in Eso & Ors vs. Adeyemi & Anor (1994) 4 NWLR (PT. 340) 558 at 571 relying on Amakor vs. Obiefuna (1974) 3 SC 67 held:
‘...Besides, the position of the law is that where parties claim to be in possession, it is the party who has better title that should succeed, and in the instant, the Respondents have shown that they have better title vide their evidence and pleadings.’ Per UWANI MUSA ABBA AJI (PJ), J.C.A.

WHETHER A PARTICULAR NUMBER OF WITNESSES IS REQUIRED IN PROVING FACTS

It is trite that no particular number of witnesses is required to prove any fact. See Section 200 of the Evidence Act, 2011 (as amended). Neither are blood relations rendered incompetent witnesses. However, a party ought to call the vital witness(es) whose evidence may determine a case one way or another irrespective of the fact that they are blood relations or not, and failure is fatal to the case of such a party. See Imhanria vs. Nigerian Army (2007) 14 NWLR (PT. 1053) 76 CA, and State vs. Nnolim (1994) 5 NWLR (PT. 345) 394 SC. Per UWANI MUSA ABBA AJI (PJ), J.C.A.

JUSTICES:

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. MR. JOHNSON AGBAI
2. MAZI OKOGBUE UKAM
3. MR. EMEKA UKAM OSONDU
(For themselves and as representing Umuokpo family of Ihenzu Ahaba Imenyi Isiukwuato) – Appellant(s)

AND

1. MR. OKORONKWO IRE
2. MR. OSONDU IRE
3. MR. CHINYERE IRE
(For themselves and representing Ndi-Ire family of Agbo-Egbu Ihenzu Ahaba Imenyi Isiukwuato) – Respondent(s)

UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court, Abia State, sitting at Isiukwuato delivered on 5/3/2008. The Appeal was initiated vide the Notice of Appeal dated 1/4/2008 and filed on 2/4/2008 but the Appellant subsequently amended the notice of appeal encompassing seven (7) grounds. Same is dated 19th day of January, 2011 and filed on 20/01/2011 pursuant to order of this Court made on the 17th January, 2011.

The Plaintiffs (hereinafter called the Appellants) at the trial Court took out an action on 21/4/2004 against the Defendants (hereafter called the Respondents) seeking:
1. A declaration that the Plaintiffs are entitled to the grant of statutory right of occupancy of that piece or parcel of land known as and called “Abouke Umuokpo” situate at Iheokwe and lying behind Iheokwe community, in Ahaba Imeyi Isiukwuato and having an annual rental value of not more than N20.00 (Twenty Naira), the Plaintiffs being in exclusive possession thereof, at all time before the Land Use Act of 1978.
2. N2,000,000 (Two Million Naira) damages for trespass, in that on, or about 6/4/2004, the defendants jointly or severally broke and entered the “ABOUKE UMUOKPO” (hereinafter referred to as the land in dispute) and thereon harvested oil palm fruit of the Plaintiffs without leave, license or consent of the Plaintiffs.
3. An Order of perpetual injunction restraining the defendant, by themselves, their agents, servants or workmen and privies from further trespassing into the land in dispute.
4. An order that the defendants forfeit to the Plaintiffs all land whatsoever they received from the Plaintiffs or the Plaintiffs ancestors since the defendants now contested title with their Customary Landlords.

Hearing commenced on 11/5/2007 and closed on 23/1/2008. The Plaintiffs called 2 witnesses, the 2nd witness being the 1st Plaintiff, while the defendants called six (6) witnesses.

As revealed by the evidence on record, both parties agree that the land in dispute is called “Abouke Umuokpo”. The Plaintiffs trace their root to the disputed land to Okpo; who owned a native cow killed by one Mboh Ogbatu and as compensation, Okpo was given Ndi Ogbatu land. The defendants on the contrary trace their root of title to one Izulanu whose native cow was killed by One Achaka Oriama and in exchange, Izulanu was appeased with Ndi Oriema land.

The trial judge’s decision against the Plaintiffs is what this appeal is predicated upon. Dissatisfied, the Plaintiffs filed a notice of appeal dated 1/4/2008 and filed on 2/4/2008 containing 4 grounds of appeal. (See pages 1223-128 of the records). However, they amended the notice of appeal which now consists 7 grounds of appeal with leave of Court granted on the 17/1/2011. It is dated 19/1/2011 and filed 20/1/2011 wherein the grounds are formulated as follows:
Ground 1: The learned trial judge misdirected himself in law and on the facts when he held in the following passage of his judgment, to wit; “my task in the case is to determine which of the parties established the case of owning the killed cow and so being the person compensated with the land in dispute…” The case of the Plaintiffs is that their ancestor Okpo who owned the cow. That it was Mboh Ogbatu of Ndi Ogbatu who killed the cow and Okpo was compensated with the land.”
Ground 2: The learned trial judge erred in law when he held in the following passage of his judgment that “the Plaintiffs had pleaded in paragraph 10 of their statement of claim that when the native cow incident happened, all Ahaba Imenyi and beyond in accordance with the custom and tradition of Isuikwuato of the old Bendel were representatively concerned and settled the outcome which was part of the land in disputed…; concerned to come and confirm their case. It is not good for the case of the Plaintiffs that they are the only ones who are asserting what they claim; they could not call as witness anyone who can be considered as independent witness to come forward and support their assertion.”
Ground 3: The learned trial judge erred in law when he made a case for the defendants by holding that “Apart from this land in dispute here, the Plaintiffs do not dispute the other land, Otuloba, also involved in that suit.”
Ground 4: The learned trial judge erred in law when he held that “The Defendants have shown that they have treated Plaintiffs’ wife as tenant in this land by allowing her operate a kiosk on the land on payment of rent. The Defendants have shown that they have sold portion of this land to one Sunday Emeji with the Plaintiffs doing nothing about it.”
Ground 5: The learned trial judge erred in law when he held in the following passage of his judgment to wit: “The submission of the defence counsel that the Plaintiffs contradicted themselves on the nature of their ownership of the land in dispute has merit. In their survey plan, Exhibit “A”, the Plaintiffs showed as bounding the land in dispute on the south, Plaintiffs plantation and Plaintiffs land not in dispute in evidence, PW2 denied this. He also denied saying that he and other members of his family own personal lands at the area in dispute. His previous testimony is Exhibit “E” in this proceedings. In this, he claimed personal ownership of land by members of their family.”
Ground 6: The learned trial judge erred in law when he held that “in this case however it is the defendants who led not only quantity of evidence but also quality of evidence while the Plaintiffs failed to lead either quality evidence or quantity evidence, their case must fail and it is accordingly dismissed in its entirety.”
Ground 7: The learned trial judge erred in law when he held that “it is believed the Plaintiffs before they could be said to have discharged the onus on them in this suit, not only have led credible evidence of their averments but also to have confronted the case of the Defendants to show that it cannot be true. In this regard the Defendants not only led evidence in proof of their case, they led evidence to show that PW1 is not from Ndi Ogbatu as he claimed.”

In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellants’ brief of argument was filed on the 12/10/2012 pursuant to Order of Court made on 9/10/2012 and his reply brief dated 10/12/2012 was filed on same date. The Respondents’ brief dated 20/11/2012 but filed on 22/11/2012 was deemed properly filed on 27/11/2012. Other applications of the parties came in during the pendency of this appeal. On 9/10/2012 the Appellants’ application dated 21/3/2012 was filed on 22/3/2012 to substitute the 1st Appellant who was deceased.
The Appellants’ brief of argument settled by E. C. Onumajuru, Esq. distilled 6 issues for determination as follows:
1. Whether the Appellants proved their case for declaration of title to Abouke land of Umuokpo in dispute in this case.
2. Whether the trial judge did not misdirect himself on the nature of onus and standard of proof required of the Plaintiffs/Appellants in proof of their case.
3. Whether the learned trial judge made a proper evaluation of the evidence led before it in this case.
4. Whether the trial court rightly dismissed the Appellants’ case.
5. Whether the misconstruing of the Plaintiffs/Appellants’ case by the lower Court did not occasion a miscarriage of justice when Otuloba land which was not in dispute and where the kiosk was built which was also not disputed formed the kernel of the decision of the lower court to the detriment of the Appellants’ case.
6. Whether the learned trial judge can pick and choose between the evidence of DW 3 and DW 4 on the one hand and DW 1, DW 2, DW 5 and DW 6 on the other hand, in dismissing the Plaintiffs/Appellants’ case.

The Respondents brief of argument settled by Emma E. Ukaegbu, Esq. adopted the issues for determination distilled by the Appellants. I have considered the six issues nominated by the Appellants in the determination of this appeal, the pleadings and evidence adduced by the parties and I will for the purpose of determining this appeal subsume all the issues into one bundle:
Whether the Appellants have proved their case for declaration of title to Abouke Umuokpo land.

It is the Appellants’ argument that the success of a Plaintiff’s case is on the adduction of credible and reliable evidence decided on the balance of probability and preponderance of evidence. He submitted that the Appellants have proved their case at the trial court entitling them to a declaration of Abouke Umouke land but their case was wrongly dismissed. He cited Elias vs. Omobare (1982) 5 SC 25, Woluchen vs. Gudi (1981) 5 SC 291, Odulaja vs. Haddad (1973) 11 SC 3-57, and George vs. U.B.A. Ltd (1972) 8 – 9 SC 264. He also heavily placed reliance on the evidence of PW1 and PW2 which he said were uncontradicted and unchallenged. He equally reproduced their evidence in chief and cross-examinations.
The Respondents on the other hand argued that declaration of title to land is granted to the Plaintiff on the strength of his case. He cited Rabiu vs. Adebajo (2012) 15 NWLR (PT 1322) 125 at 147. He contended that cases are not only proved on pleadings in the statement of claim but evidence in support of the pleaded facts. He relied on Omidora vs. Ademiluyi (1997) 6 NWLR (PT 508) 294 at 302, and Guiness (Nig.) Plc vs. Onegbedan (2012) 15 NWLR (PT 1322) 31 at 52. He submitted that averments do not take the place of proof of facts. He highlighted that the evidence of PW1 was inconsistent, scanty, contradictory and does not support their pleadings. He further submitted that PW1 was not a credible witness having impersonated to be from Ndi Ogbatu when it was revealed on cross-examination that he was not. He equally submitted that the evidence of PW2 was also not credible having failed to prove how they gave the land in dispute to the Respondents. He maintained that the Appellants have woefully failed to prove ownership of the land nor that they are from Umuokpo and consequently failed to discharge the burden and standard of proof on them. He nonetheless argued that the Respondents have proved ownership and possession of the land despite the fact that onus is not on them.

It is trite that a Plaintiff “claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the Defendant’s case. If this onus is not discharged, the weakness of the Defendant’s case will not help him.” Per Iguh, JSC, in Adesanya vs. Aderonmu (2000) 9 NWLR (PT 672) 370 at 382-383.

I have meticulously read the records with the understanding that both parties pleaded and led evidence on conflicting traditional histories. See pages 17-23 and 32-43 and 45-75 of the records. The Appellants traced their root of title to one Okpo, who allegedly owned a native cow killed, while the Respondents traced theirs to one Izulanu as the alleged owner of the native cow killed. On the devolution of the land to the said ancestor, the Appellants pleaded that Mboh Ogbatu was the one who killed the native cow and Ndi Ogbatu land was given Okpo in exchange. The Respondents however contended that it was Achaka Oriema that killed the native cow and Ndi Oriema land was given to Izulanu as compensation.

I perused through the testimony of PW1 with a baffling mind as to whether he knew what brought him to Court! If perhaps what he testified were slips of the tongue; was his lawyer absent or denied the right of re-examination to reconcile and rectify facts? Neither was it recorded that he was declared a hostile witness! I hereunder reproduce part of his testimony for clarity and reference:
“I know the land as our land. The land now belongs to Okpo people. The Plaintiffs. The land formerly belonged to us. A brother of the Plaintiffs killed native cow (ehi) and we used this land to pay him. Okpo Adi was the man who shot the cow. I have heard the name Abo Ogbatu; he was the man who killed the cow. I have heard the name “Ndi Ogbatu” that is our kindred (See page 45 lines 16-22 of the records).

The aforequoted testimony is not only irreconcilably inconsistent but manifestly contradictory visa-a-vis the Appellants’ pleadings and the evidence of PW2. It further reveals the incredibility, lack of integrity, interest and unreliability of PW1.
In one breath, he said the native cow was killed by a “brother” of the Plaintiffs. In another he said it was Okpo Adi, and in another breath, he said it was Abo Ogbatu. He again referred to the land used for compensation (Ndi Ogbatu) as “our kindred.” This impelled the trial judge at page 119 lines 19-23 of the records to say:
“I watched the PW1 testify, he did not impress me as someone who was sure of the matter he came to testify on…’ He was prompted and garged on before he could come up with anything.

I therefore agree with the submission of the Respondents’ counsel that the evidence of PW1 was inconsistent and contradictory. It is the law that where a witness gives a conflicting version in his evidence, this renders his evidence to be very unreliable. See C. D. C. (Nig.) Ltd vs. SCOA (Nig.) Ltd (2007) 6 NWLR (PT 1030) 300 SC. Such contradictions in the evidence of the Plaintiff’s witness is disastrous and has the effect of destroying the case of the Plaintiff. See Audu vs. Guta (2004) 4 NWLR (PT 864) 463. Such a witness is also treated as unreliable. See Ukut vs. State (1996) 1 NILR 1 SC.
The apex court in deciding the evidentiary and probative value of material contradictions in a Plaintiff’s witness testimony in National Investment Properties Co. Ltd vs. The Thompson Organization Ltd & Ors (1969) NMLR 99 at 104, held:
“A Plaintiff must call evidence in support of his pleadings and evidence which is in fact adduced, which is contrary to his pleadings should never be admitted. It makes no difference that the other side did not object or that the judge did not reject it. It is of course, the duty of counsel to object to in one word admissible evidence but if notwithstanding this, evidence is still through oversight or otherwise admitted, then it is the duty of the Court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.”

Touching on the credibility of a witness, it is our judicial attitude that the trial court is the best judge of his domain as it relates to believing or disbelieving a witness. See Nnorodim vs. Ezeani (2001) 5 NWLR (PT 706) 203.The trial judge was not oblivious of the incredibility of PW1 when at page 119 lines 11-15 of the records he held:
“The Plaintiffs in proof of their case fielded PW1 as a person from Ndi Ogbatu who killed the cow and gave Plaintiffs this land in dispute. From the cross-examination of this witness he turned out to be the son of the sister of the 1st Plaintiff who brought up the 1st Plaintiff.”
He in the same vein at page 120 lines 17-18 held that the Respondents “led evidence to show that PW1 is not from Ndi Ogbatu as he claimed.” Thus, where the issue turns on credibility of witnesses, an Appellate court which has not seen the witness must defer to the opinions of the trial court. See Sagay vs. Sajere (2000) 6 NWLR (PT 661) 360 and Fashanu vs. Adekoya (1974) 6 SC 83. On the principles governing the veracity and credibility of a witness, See Kwarra vs. Innocent (2009) 1 NWLR (PT 1121) 179 at 231 Paragraphs B – D.

PW2 is the 1st Appellant/Plaintiff and his evidence is found on pages 46-58 of the records. It is the Appellants’ case that they were born into possession of Abouke Umuokpo land; have been farming on it, gave portions of the land to the Respondents and that the Respondents trespassed on the land by harvesting palm trees and cassava. See pages 17-22 of the records.
At page 47 lines 3-7 of the records, PW2 led evidence which ran contrary and in conflict with the evidence of his principal and material witness, PW1. Aside Exhibit “A” (A survey plan) tendered which is not germane or material in establishing and proving their case; there is nowhere in the evidence he led where he confronted and demonstrated his assertions and claims to ownership and possession of Abouke Umuokpo land! He laid claims to leasing a portion of the land in dispute to the Respondents on page 47 lines 28 – 31 to live on and that the places given them are shown on Exhibit “A” without more to demonstrate and prove that. Besides, he was not the maker of Exhibit “A” and cannot be cross-examined on that. Documents do not speak for themselves and therefore cannot be dumped on the court. See Onimole V. Adefolabi (2008) ALL FWLR (PT. 438) 324 at 339 – 340 paras H – B, and Egba vs. Appah (2005) 10 NWLR (PT. 934) 164. PW2 also alleged at page 51 lines 3 – 5 that “it is true we showed Kanu where he built his house in Umuokpo. Kanu did not build the house as Umuokere claimed to be owner of the place”. This demonstrates that the ownership or possession is being disputed and challenged. It is the law that he who asserts must prove by leading credible and reliable evidence. See Okabule vs. Oyag Bola (1990) 4 NWLR (PT. 147) 723 at 736. The Plaintiff must establish a prima facie case, relying on his evidence alone. See Osidele vs. Sokunbi (2012) 15 NWLR (PT. 1324) 470 at 490 – 491.

It is the argument of the Appellants’ counsel at page 7 para 4.08 of his brief that there is no law prohibiting blood relations from testifying nor renders them incompetent. He cited Ezeakonam Nkebisi & Anor vs. The State (2010) All FWLR (PT. 521) 1407 at 7411, Arehia vs. State (1982) 4 SC 78, Adelumola vs. State (1988) 1 NWLR (PT. 73) 688, and Oguonzee vs. State (1998) 5 NWLR (PT. 551) 521. The Respondents’ counsel on the other hand submitted that since the native cow issue was widespread amongst the neighbouring communities, the Appellants ought to have led evidence and called witnesses to support their assertion. He relied on Onus vs. Idu (2006) 12 NWLR (PT. 995) 665 at 686 Para. G. He further submitted that the Respondents through DW6 proved ownership and possession of the land in dispute duly corroborated by the Respondents’ witnesses some of whose families were directly involved in the native cow incident.

The submissions of both learned counsel notwithstanding this case must be treated on its merit. The three (3) Appellants took out this action in a representative capacity and called only two (2) witnesses including the 1st Appellant/Plaintiff to establish and prove their case. It is trite that no particular number of witnesses is required to prove any fact. See Section 200 of the Evidence Act, 2011 (as amended). Neither are blood relations rendered incompetent witnesses. However, a party ought to call the vital witness(es) whose evidence may determine a case one way or another irrespective of the fact that they are blood relations or not, and failure is fatal to the case of such a party. See Imhanria vs. Nigerian Army (2007) 14 NWLR (PT. 1053) 76 CA, and State vs. Nnolim (1994) 5 NWLR (PT. 345) 394 SC. In the instant case, the Appellants had many avenues to establish and prove their case but for inexplicable reasons failed woefully. Evidence of tradition may be more easily established if it comes from members of the family or community concerned, such traditional evidence may still be admissible in land matters by virtue of Section 45 of Evidence Act, where it emanates from any other credible and reliable witness other than members of the said family or community. See Alli vs. Alesinloye (200) 4 SC. (PT. 1) III. The above short comings precipitated what the trial judge said on pages 119-120 lines 31-32 and 1-5 respectively that the Appellants made no attempts to call the witnesses and people concerned to prove their case. He further said that it is not good for the case of the Appellants that they are the only ones asserting what they claim. Oguntade, JCA (as he then was) in Gazu vs. Nyam (1998) 2 NWLR (PT. 538) 477 at 493, observed on such tactics thus:
‘In my experience, a decision not to call evidence always has been regarded as a legal strategy not a mistake. If the strategy succeeds, then it enhances the case of that party, but if it fails, such a litigant cannot ask for leave to adduce further evidence…’

On the onus and standard of proof required of the Appellants in proof of the case, learned counsel to the Appellants submitted that the Plaintiffs must prove their case on the strength of their evidence to be entitled to declaration of title. He however argued that the burden and standard of proof of each case depends on the nature of the case pleaded. He cited Anukam vs. Awukam (2008) vol. 159 LRCN page 33. He argued that the Appellants having established possession in their favour, the onus would automatically shift to the Respondents to establish a better title. He relied on Obodo vs. Ogbo (1987) 2 NWLR.

The learned counsel to the Respondents however argued that in land cases, the defendant is never called upon to proceed to defend the claim of the Plaintiff until the Plaintiff establishes a prima facie case. He cited Osidele vs. Sokunbi (2012) 15 NWLR (PT. 1324) 470 at 490. He submitted that despite the fact that there is no onus on the Respondents, they out of abundance of caution went ahead to prove a better title and right to possession.
It is the law that if a Plaintiff fails to establish his claim, the defence is not duty bound to call evidence. See Victor Okonkwo vs. George Okonkwo (1998) 7 SCNJ 146 at 255. See also S. 132 of the Evidence Act, 2011 (as amended) which provides on whom the burden of proof lies.

I must reiterate that this is an action for declaration of title to Abouke Umuokpo land wherein both parties lay adverse claims to possession of the Abouke Umuokpo land. The argument of the learned counsel to the Appellants that the Appellants having proved possession, the onus automatically shift to the Respondents is grossly misconceived. Obodo vs. Ogbo cited supra.

Onus was rightly decided by the trial judge on page 120 lines 10 – 15 of the records wherein he held:
‘It behoved (sic) the Plaintiffs, before they could be said to have discharged the onus on them in this suit, not only to have led credible evidence of their averments (sic) but also to have confronted the case of the defendants to show that it cannot be true.’

Learned counsel to the Appellants argued that the learned trial judge improperly evaluated the evidence consequently occasioning a miscarriage of justice. He cited Idundun vs. Okumagba (1976) 8 – 10 SC 227 which provides for five (5) ways of proving title to land. He submitted that by the evidence of PW1 and PW2, the Appellants traced the root of their title to Okpo. Thus, he relied on Adekanye vs. Grand Services Ltd (2007) All FWLR (PT. 387) 855. He further submitted that the trial judge’s finding on non-demonstration of their claim of possession was perverse and calls on the Appellate Court to evaluate it since it does not involve credibility. He cited Stragab Construction (Nig) vs. Ibitokun (2010) All FWLR (PT. 535) 203. He contended that the trial judge placed reliance on Otuluba land which is not in dispute and exhibits ‘D’ and ‘E’ affected its judgment. He submitted that the Court of Appeal must review those facts in the midst of improper evaluation. He relied on Ayanu vs. Mandilas Ltd (2007) vol. 147 LRCN 1036.

The counsel to the Respondents submitted that evaluation, analysis and ascription of probative value to evidence is the primary duty of the trial court. He contended that the Appellants did not prove being descendants of Okpo, failed to call vital and material witnesses to establish their case, did not prove the crux of the case of who owned or killed the native cow, that the evidence of PW1 is self contradictory and should not be relied upon while that of PW2 materially contradicts that of his sole witness, PW1, and contended that the Respondents proved ownership and long possession through the evidence of vital witnesses, Exhibit E, sale to one Sunday Emeji and leasing out. He submitted that the Appellate Court does not tamper with findings of the trial court on demeanor and credibility of witnesses by relying on Kamalu vs. Umunna (1997) 5 NWLR (PT. 505) 321 at 333 Para G.

The trial judge’s finding that the Appellants did not prove and demonstrate possession is not predicated on improper evaluation but on the weight of evidence and balance of probabilities. The admissibility of Exhibit ‘D’ is not wrongful since its exclusion will not in any manner affect the outcome of the case. Besides, it was admitted without objection as evident on page 70 lines 8 – 9 of the records. In Alade vs. Olukade (1970) 10 N.S.C.C. 34 at 37, the court held that wrongful admission of evidence cannot be complained of unless the Appellant had formally objected to the evidence at the trial. Though Exhibit ‘E’ was objected, the objection was only on its contents and not on irrelevancy or inadmissibility. See page 71 lines 15 – 17 of the records. It is on record at page 41 lines 7 – 17 that the said Exhibit ‘E’ was pleaded wherein Otuluba land also came to bear; and the Appellants did not file a reply to that as they amount to new issues; thus deemed admitted. See Section 123 of the Evidence Act, 2011 (as amended) and Sabru Ltd vs. Rajab Ltd (2002) 10 SCNQR 120. Exhibit ‘E’ is relevant and relevancy is the precursor to admissibility (See Nwabuoku vs. Onwordi (2006) All FWLR (PT. 331) 1236 at 1251 and the said Exhibit has met the criteria or condition for admissibility. See Daggash vs. Bulama (2004) FWLR (PT. 212) 1666 at 1676. It is therefore the law that wrongful admission or exclusion of evidence will not of itself be a ground for the reversal of any decision where it appears to the court on appeal that the evidence so admitted could not reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted or rejected. See Section 251 of the Evidence Act, 2011 (as amended) and Dagaci of Dere vs. Dagaci of Ebwa (2006) 7 NWLR (PT. 979 382 SC.

It is further argued by learned counsel to the Appellants that their case was dismissed on the ground that the Appellants did not call quantity of witnesses in proof of their case whereas the law provides that unless where corroboration is required, the evidence of a single witness where sufficient and credible is enough to prove a party’s case. He relied on Igbo vs. State (1975) 9 – 11 SC 129, Onafowokan vs. State (1987) 3 NWLR (PT. 61) 538, Nkebisi vs. State (2010) All FWLR (PT. 521) 1407 at 1411 – 1412.
Learned counsel to the Respondents however submitted that the trial judge dismissed the Appellants’ case because the Respondents proffered better quantity and quality of evidence. He submitted that where the trial court has properly appraised and evaluated evidence, the Appellate Court should not substitute it. He cited Iledare vs. Ajagbonna (1997) 6 NWLR (PT.507) 1 at 12.

I must confess that learned counsel to the Appellants’ argument here is tangential, lop sided and grossly misrepresented. For clarity and reference, the trial judge at page 121 lines 24 – 29 held:
‘In this case however, it is the Defendants who led not only quantity of evidence but also quality of evidence while the Plaintiffs failed to lead either quality evidence or quantity evidence.’

It is my profound consideration that the trial judge took a holistic and proper approach on the evaluation of the evidence of the Appellants encompassing weight of evidence and credibility of witnesses.
The counsel to the Appellants contended that the trial judge misconstrued the Appellants’ case when Otuloba land and the land where the Kiosk was built formed the kernel of his decision thereby occasioning injustice and urged the Appellate Court to set the judgment aside on the authorities of Oyewale vs. Oyesoro (1998) 2 NWLR (PT. 539) 51, Oniah vs. Oyia (1989) 1 NWLR (PT. 99) 514, Ojo – Osagbe vs. Adonri (1994) 6 NWLR (PT. 349) 131. He submitted that judgment or evidence which is at variance with the pleadings and evidence must be disregarded. He cited Emegokwe vs. Okadigbo (1973) 1 All NLR (PT.1) 314.

The Respondents’ counsel submitted otherwise that there was no misconstruction by the trial judge of the Appellants’ case that consequently occasioned a miscarriage of justice. He relied on the case of Eboade vs. Atomesin (1997) 5 NWLR (PT. 506) 490 at 507 – 508 Paras H – B, that the Appellate Court will not disturb the judgment of the trial court if it is supported by evidence even in the slightest degree just because it would have come to a different conclusion on the same facts.

I must make haste to state that the learned counsel to the Appellants’ reliance on the case of Oyewale vs. Oyesoro (supra) is misconceived. It is trite law that a misconstruction of a case may lead to a miscarriage of justice and constitutes a reason for allowing an appeal. See Oyewale vs. Oyesoro (1998) 2 NWLR (pt. 539) 663 at 679. However, the case cited by the Appellants’ counsel is not for a declaration of title but for continued possession. It was held thus:
‘where a finding by a trial court does not correctly reflect the claims of the parties before it, for instance, where as in the instant case the trial judge found that the claim of the Appellant is for a declaration of title which is not, such finding showing that the trial judge was confused about the claims of the parties will result in a miscarriage of justice and constitutes sufficient reason to allow an appeal against such decision.’

Learned counsel to the Appellants should not lose sight of the fact that they must succeed on the strength of their case and not on the weakness of the Respondents’ case. Possession is only accessory to ownership. I agree with learned counsel to the Appellants that it was wrong that the trial judge referred to the kiosk as being on the land in dispute. Nonetheless, such a slip has not occasioned injustice. Besides, the issues of Otuluba land, the kiosk and sale to Sunday Emeji were well pleaded by the Respondents. At page 40 lines 9 – 15, the Respondents pleaded that Aaron Agbai of the Appellants rented on behalf of his wife, Grace, a portion of land in Umuokpo from the Respondents for the construction of a kiosk. The sale to Sunday Emeji (century) was pleaded at page 41 lines 7 – 17 wherein the Respondents alleged they sued the Appellants’ family for harvesting palm fruits on Abouke and Otuluba lands in 1963. Otuluba land was also pleaded on page 33 line 23 – 24 and page 37 line 28. These being fresh allegations by the Respondents, the Appellants did not join issues with them by filing a reply. By virtue of Section 123 of the Evidence Act, 2011 (as amended), they are deemed admitted. The law is also trite that the Plaintiff is obliged to answer new allegations either by admitting or traversing them, otherwise he will not be allowed to lead evidence in rebuttal of same during the trial. See Spasco vs. Alraine (supra). Furthermore, I agree with the case cited by the counsel to the Respondents that the Appellate Court will not disturb the judgment of the trial court if it is supported by evidence even in the slightest degree just because it would have come to a different conclusion on the same facts.

The argument of the Appellants’ counsel is that the trial judge cannot pick and choose between the evidence of DW3 and DW4 on the one hand, and DW1 DW2, DW5 and DW6 on the other hand in dismissing their case. He unfortunately did not rely on any law. The Respondents counsel on the contrary maintained that the onus in a case of declaration of title is always on the Plaintiff but the Appellants have failed in this case to trace Okpo to the land as required by law. He cited Lebile vs. Reg. Trustees C&S (2003) 2 NWLR (PT.804) 379 at 478, Omin vs. Etim (2003) 6 NWLR (PT. 817) 587 and Meka vs. Aniafulu (2005) 13 NWLR (PT. 893) 668 at 677. He maintained that the evidence of DW3 and DW4 was not entirely rejected except for snippets of same for not being pleaded. He also submitted that the evidence of DW4, DW5 and DW6 was not challenged and there were only minor discrepancies and not contradictions that could be fatal. He cited Maigoro vs. Bashir (2000) 11 NWLR (PT. 679) 453 at 470 Para. D – G.

I have appreciated how beautifully the learned counsel to the Appellants was in the euphoria of digging chasms, loopholes and lacunae to bury the case of the Respondents forgetting the fact that he must rely solely on the strength of his case. Accordingly, a party is only entitled to judgment if a trial court believes and accepts his evidence and if such evidence supports his case. The mere fact that the court rejected the evidence of a defendant does not entitle the Plaintiff to judgment. See Bello vs. Aruwa (1999) 8 NWLR (PT. 615) 454.

The evidence of DW3 and DW4 was discountenanced by the trial judge because it was not pleaded (see page 118 lines 5 – 19) and not what the Appellants’ counsel is alleging. The trial judge dismissed the Appellants’ case because of the totality and weight of evidence before him. See page 121 lines 24 – 29 of the records. Be that as it may, it was held on the issue of credibility of a witness in U.N.I.C vs. U.C.I.C Ltd (1999) 3 NWLR (PT. 593) 17 at 25 that a trial court can believe part of a testimony and reject the other under certain circumstances. See also Lawson vs. Afani Cont. Co. Ltd (2002) 2 NWLR (PT. 752) 585 at 626 627. Thus, where the evaluation of evidence of witnesses is predicated on credibility, the Appellate Court is incompetent to make such evaluation. See Hayaki vs. Dogara (1993) 8 NWLR (PT. 313) 586 at 599. It was further held in Abdullahi vs. Katsina (2000) FWLR (PT. 15) 2512 that in evaluation of evidence, the trial court is entitled to select witnesses to believe and facts established.

‘An appellant who complains of improper evaluation of evidence must in order to succeed be able to identify or specify the evidence improperly evaluated or not evaluated and show convincingly that if the error had been corrected, the judgment appealed against cannot stand.’ See Dakur vs. Dapal (1998) 10 NWLR (PT. 571) 573 at 589.

The fate of the Appellants’ case has been decided by Mukhtar, JCA (as he then was) in Adeleke vs. Asani (1994) 1 NWLR (PT. 322) 536 at 556, wherein he held:
‘where in an action for declaration of title, the Plaintiff and his witnesses give conflicting stories of the Plaintiff’s root of title, such root of title would be treated as unreliable… A party who adduces conflicting stories of his ownership in support of his claim has failed to make out the case he set out to make. His claim must be dismissed.’

The remarks of the trial court at page 120 lines 10-15 is aright when he said that before the Appellants could be said to have discharged the onus on them, it behoved on them not only to have led credible evidence but to have confronted the case of the Defendants. There is absolutely no any legal evidence remaining for the Appellants to have proved their case to be entitled to Abouke Umuokpo land. Accordingly, as held in Ogundipe vs. A. G. Kwara State (1983) 8 NWLR (PT. 315) 558 at 568 ‘that it will be wrong for a Plaintiff to assume that he will be entitled to judgment as a matter of course, because the Defendant had failed to tender any evidence…, and is in no way mitigated by the opposing side’s election to blow a muted trumpet.’

On the whole, it is now elementary law that it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only where the error is so substantial in that it has occasioned a miscarriage of justice that an Appellate Court should interfere. See Alli vs. Alesinloye (2000) 6 NWLR (PT. 660) 177 at 213. I am of the profound opinion that the Appellants have not proved their case for declaration of title to Abouke land of Umuokpo. This appeal lacks merit and it is hereby dismissed. The judgment of the court below delivered on the 5th day of March, 2008 is hereby affirmed. There shall be costs to the Respondents against the Appellants assessed at N50,000.00 only.

PHILOMENA MBUA EKPE, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) J.C.A. I too am of the humble view that the Appellants have not convincingly proved their case for declaration of title to the said ABUOKE Land of UMUOKPO.

Accordingly this appeal is totally devoid of merit and is hereby dismissed. Consequently, the judgment of the lower court delivered on the 5th day of March 2008 is affirmed. I too assess costs at N50,000 against the Appellants.

PETER OLABISI IGE, J.C.A.: I have read in advance the judgment just delivered by my Noble Lord UWANI MUSA ABBA AJI JCA (PJ).
I agree with the reasoning and conclusions therein. I abide with the consequential order made on costs.

Appearances

E. C. Onumajuru, Esq. with C. C. Nwachukwu (Miss) For Appellant

AND

V. I. Onyeabo, Esq. For Respondent