MR. SULEMAN MAITO & ORS V. MADAM YEMISI OGUNBODEDE
(2013)LCN/6310(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of June, 2013
CA/AK/37/2010
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. MR. SULEMAN MAITO
2. MR. AJIYE OLOYE (For themselves and on behalf of Oko Family, Ipele)
3. MR. ROTIMI LAGO
4. MR. ALABA DELE
5. MR. LATEEF YUSUF
6. MR. GBENGA
7. MR. TAYE
8. MR. OLAWOLE Appellant(s)
AND
MADAM YEMISI OGUNBODEDE (For herself and on behalf of members of Ujigan family) Respondent(s)
RATIO
THE POSITION OF THE LAW ON THE IDENTITY OF A LAND IN DIPSUTE IN AN ACTION FOR DECLARATION OF TITLE TO LAND
In resolving this issue, let me begin by setting out what the state of the law is on the identity of land in dispute with respect to a claim for a declaration of title to land. Since the decision in BARUWA V. OGUNSHOLA (1938) 4 WACA 159 the Supreme Court and lately this Court have consistently decided that the burden of proof is on the party who seeks for a declaration of title to show clearly the area of land to which his claim relates. According to the Supreme Court a claimant can discharge this onus by such oral description of the land that any surveyor acting on such description could produce a plan of the land in dispute. See JOSEPH OLUSANMI V. DAYO OSHASANA (1992) LPELR 2629 SC per Ogundere, JSC at pages 7 – 8 G. PER GUMEL, J.C.A.
WHETHER OR NOT A COUNSEL CAN EXTEND AN INVITATION TO APPELLATE COURTS TO RE-EVALUATE EVIDENCE ON RECORD WITH A VIEW AND POSSIBILITY TO COMING TO ANOTHER OR DIFFERENT CONCLUSION OR FINDING
It is a very recurring decimal in appellate adjudicatory duties, for counsel to extend an invitation to appellate Courts to re-evaluate evidence on record with a view and possibility to coming to another or different conclusion or finding than the one upon which the judgment of the lower Court was given. In popular parlance, an appellate Court is called upon to interfere and set aside some findings of a lower Court.
Against this background, it has been held in a number of decided cases of the Supreme Court and this Court that it is the duty of the trial judge to make primary findings of fact and this duty, unless it is shown not to have been done according to well laid down principles of law, an appellate Court cannot interfere with such findings. See OYIBO ERIRI & ORS. V. ESERORAYE ERHURHOBARA & ANOR (1991) 1 SC 1. Also by virtue of 5.16 of the Court of Appeal Act, this Court is empowered to review and evaluate evidence. The law however remains well defined and settled that an appellate Court will not interfere with findings of fact by a trial Court except where same was wrongly applied to the circumstances of the case or the conclusion reached was wrong or perverse. See also AKOMOLAFE V. GUARDIAN PRESS LTD. (2004) 1 NWLR (Pt. 853) 1. It is against this foundation that I will approach the determination of this issue.
While it is settled as to what the duty of a trial Court is with respect to the totality of evidence adduced before it in the course of a trial, it must be of great interest to know what this duff entails. In determining how to perform this important duty, I believe that the decision in the case of perform this important duty, I believe that the decision in the case of ODOFIN & ORS. V. MOGAJI & ORS (1978) NSCC 275 could serve as a very good guide. In that case, the Supreme Court elaborately set out what that duty must involve and embody as a minimum standard. Even at the risk of prolixity I feel compelled to set out in full this important guideline enunciated by the apex Court. The Court said as per Fatayi-Williams JSC at 277.
“…….. before a judge before whom evidence is adduced…in a civil case comes to a decision as to which he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities…in determining which is heavier, the judge will naturally have regard to the following: –
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.”
At the conclusion of this wholesome exercise the judge is expected to invoke the law that is applicable to the case, either in the form of statutory/regulatory provisions or judicial decisions etc and then come to his final decision based on the evidence he has accepted. PER GUMEL, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Ondo State High Court,Owo Division in Suit No.HOW19/08 delivered on the 8th day of October, 2010.
The Respondent as the plaintiff at the lower court sought for the following declaratory and injunctive reliefs as well as damages for trespass. They are:-
‘(a) A declaration that the orders made in suit No. HOW/21/86 and HOW/31/99 in respect of the land tying and being in Oyoyo farmland along Owo-Ifon Road, Owo particularity verged RED on survey plan No. AB/AD/87/08 are still valid and subsisting in favour of the plaintiff.
(b) A declaration that the defendants are trespassers on the land in dispute.
(c) An order for perpetual injunction restraining the defendants, their agents and or privies from further paying any visits to the land in dispute.
(d) The sum of N1 Million Naira General Damages against the defendants jointly and severally.”
The Appellants as the Defendants at the lower court denied the claim of the Respondent in their amended statement of defence. The 1st and 2nd Defendants/Appellants also counter claimed against the Plaintiff/Respondent. Issues were duly joined and the matter proceeded to trial. At the trial, the Plaintiff/Respondent gave oral evidence as PW1 and 5 other witnesses testified in support of her claim. Various documents were tendered and admitted in evidence in support of the case of the Plaintiff/Respondent. For the Defendants/Appellants, 1st and 2nd Defendants testified and gave evidence in defence of the action and support of the Counter claim. Four other witnesses also testified on behalf of the Defendants/Appellants some documents were also tendered and admitted in evidence through some of these witnesses.
At the end of the evidence of the parties, respective learned counsel delivered oral addresses. In its judgment, the lower court decided thus:-
“In sum therefore, and in view of all I have said above, the counter-claim of the 1st & 2nd defendants being unmeritorious fails and same is hereby dismissed.
On the other hand, the plaintiff has proved her case as required by law and is entitled to judgment as per her claim. Accordingly, the plaintiff’s case succeeds as follows:-
(a) A declaration that the orders made in Suit No. HOW/21/86 and HOW/31/99 in respect of the land lying and being in Oyoyo farmland along Owo-Ifon Road, Owo particularly verged RED on survey plan No. AB/AD/87/09 are still valid and subsisting in favour of the plaintiff.
(b) A declaration that the defendants are trespassers on the land in dispute.
(c) An order for perpetual injunction restraining the defendants, their agents and or privies from further paying any visit to the land in dispute.
(d) The sum of N200,000.00 (Two hundred thousand Naira) general damages against the defendants jointly and severally.
I also award N5,000.00 as costs in favour of the plaintiff against the defendants jointly.”
The Appellants were dissatisfied with this judgment and appealed to this Court in a notice of appeal dated 26/10/2010 but filed on 2/11/2010. To argue the appeal, learned counsel Mr. Funso Netufo filed a brief of argument on 20/11/11. It was deemed as properly filed on 29/2/12. For the Respondent learned counsel Mr. A. Olusegun filed a brief of argument dated 26/3/12. It was filed on the same 26/3/12. For the Appellants, learned counsel filed a reply brief dated 2/4/12. It was filed on 4/4/12.
At the hearing of the appeal, learned counsel to the Respondent, Mr. Aderigbigbe told the court that he raised and argued a notice of preliminary objection challenging the competence and jurisdiction of this court to entertain this appeal. Thereafter, respective learned counsel identified, adopted and relied on their briefs of argument.
On the notice of preliminary objection, learned counsel to the Respondent drew the attention of the court to pages 3 to 4 of his brief of argument where it was relying on the arguments and submissions therein canvassed, he urged on the court to uphold same to strike out this appeal. And while relying on his reply brief, learned counsel for the Appellants urged on the court to dismiss the notice of preliminary objection for being incompetent having not been raised properly as prescribed by the rules of this court.
With respect to the main appeal, briefs were identified, adopted and relied upon. Learned Counsel to the Appellants urged on the court to allow the appeal and set aside the judgment of the lower court and grants the counter claim of the 1st and 2nd Defendants/Appellants. For the Respondent, learned counsel urged on the court to dismiss this appeal in its entirety.
On behalf of the Appellants, learned counsel formulated and argued 2 issues for the determination of this appeal. They are:-
“i. Whether the judgment of the trial court follows its findings and if not is same not liable to be set aside. GROUNDS 1 and 2
ii. Whether the trial judge properly evaluated the evidence before him. GROUNDS 3 and 4.”
For the respondents learned Counsel also formulated his 2 issues for the determination of this appeal. They are very succinct and thus:-
“(1) Whether the Lower Court deviated from its findings to warrant setting-aside of its judgment.
(2) Whether the Lower Court properly evaluated the evidence before it”
This judgment must consider the preliminary objection raised and argued on behalf of the Respondent before going further, if need be, to consider the merit of this appeal.
The notice of objection is mainly predicated on a lone ground and according to learned counsel it is: –
The parties mentioned on the Appellants’ notice of appeal are unknown to the rules of court and as such the court lacks jurisdiction to entertain this appeal.
In arguing this ground learned counsel pointed out that while looking at the notice of appeal herein it would be seen that the parties are described thus:
– ” Defendants/Appellants”
– “Plaintiff/Respondent”
Against this background, learned counsel explained that the only parties recognized by the rules of this Court for the purpose of an appeal are simply – ” Appellant(s)” and ” Respondent(s)”. Upon this explanation he then maintained that since it is the notice of appeal that constitutes the fulcrum of any appeal, a defect in the notice of appeal is fatal and renders it incompetent. He referred to the case of MANSON v. H.E.S. Nig. Ltd. (2007) All FWLR (Pt. 358) 1067 at 1081 C-D) where it was held that a notice of appeal is a fundamental process in any appeal.
While also relying on the case of ADEGOROYE V. OMEGA BANK PL.C. (2004) All FWLR (Pt. 239) 879, learned counsel says that this court has the inherent power to strike out an incompetent notice of appeal, He further referred to REGISTERED TRUSTEES OF FOURSQUARE GOSPEL CHURCH IN NIGERIA V. OKOISOR & 8 ORS. (2007) All FWLR (Pt.357) 978 at 987 – 988 H-A and submitted that the notice of appeal purportedly filed on behalf of the Appellants was defective and incompetent and there is no need for this court to consider and take cognizance of any issues formulated thereon same having abated and therefore unnecessary. Upon this submission he urged on the court to strike out this appeal.
In his response learned counsel to the Appellants pointed out that no specific rules of this court have been referred to by learned counsel to the Respondent which prohibits parties to an appeal from being so described as was done on the notice of appeal herein. Learned counsel then submitted that this preliminary objection is misplaced and totally lacking in substance and it should be discountenanced. In a further explanation learned counsel remarked that to argue as was done on behalf of the Respondent that an entire appeal be held as incompetent and struck out because parties were so described would be to encourage an undue adherence to technicalities.
While referring to the case of MAESK LINE V. ADIDE INVESTMENTS LTD (2002) 11 NWLR (Pt. 778) 317, learned counsel quoted the words of Ayoola, JSC at page 383 A-C where in a dissenting view His Lordship remarked that:
“The judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated from technicality to technicality and thrives on technicalities. That is why at all times the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system.”
Also, while conceding that there is a defect in the presentation of the parties on the face of the notice of appeal, learned counsel maintained that it was an irregularity that was subsequently cured by the correct presentation of the parties on the face of the brief of argument filed on behalf of the Appellants. He added further that the case of REGD. TRUSTEES OF FOURSQUARE GOSPEL CHURCH IN NIG. (Supra) was quoted out of con and therefore inapplicable to the facts of this case. He urged the court to discountenance and dismiss this notice of objection.
Order 1 Rule 5 of the Court of Appeal Rules 2011 describes and define who the parties to an appeal are. They are well described as “Appellant” and “Respondent” Order 6 rule 2 and Civil Form 3 of the 1st Schedule to the Rules also provide a guide as to the form and content of a notice of appeal. I have carefully considered the notice of appeal filed in this appeal and contained at pages 129 to 132 of the record of appeal.
While there is nothing wrong with raising and arguing a notice of preliminary objection in the manner it was done in the circumstance of this appeal, I must point out that learned counsel to the Appellant is correct in his submission that the decision of this court in REGD TRUSTEES (Supra) was quoted out of con and therefore inapplicable to the facts and circumstances of this appeal. I must also point out that I do not see it as being a profound error as to warrant the striking out of this appeal by the mere description of the parties on the notice of appeal in this appeal as “Plaintiff/Respondent”. I also absolutely agree with the arguments and submissions on behalf of the Appellants that to strike out this appeal would be to pander and indulge in an undue adherence to technicalities against substantial justice. I do not feel so inclined as to so indulge in the slightest adherence to technicalities. This notice of preliminary objection is totally devoid of any merit and it is hereby dismissed.
Let me quickly point out that though ground 5 of the grounds of appeal is an omnibus ground, no issue was specifically formulated out of it. It is deemed as having been abandoned and is accordingly struck out.
In arguing the 1st issue learned counsel referred to some observations and remarks or findings of the lower Court at pages 99 and 102 of the record of appeal and pointed out that the remarks appear to him to be irreconcilable. He explained that these are very crucial observations because they relate to the very fundamental issue of identity of the land in dispute. He wondered how the Lower Court could make opposing and contradictory findings on one issue that is at the heart of the claim of the Plaintiff/Respondent and the counterclaim of the 1st and 2nd Defendants/Appellants. While referring to the case of ATT. GEN. OF KWARA STATE V. ARIWAJOYE (2001) 5 NWLR (Pt. 707) 525 at 547 – 548 G – A and maintained that a court is bound by its findings so long as they are not perverse.
Against this background learned counsel argued and submitted that the lower court was wrong to dismiss the counter-claim for failure to establish the identity of the land in dispute after what he believed was its observation that the identity of the land in dispute was not in issue but was very well known to the parties. Further to this learned counsel continued to pick holes and faulted the evaluation of the evidence on record by the lower court. He was more emphatic when he referred to the findings of the learned judge on Exhibits A and H on the identity of the land in dispute. He highlighted the observations of the lower court at pages 103 and 104 of the record and compared them with the one at page 124 and submitted that it was not possible, upon those observations, for the lower court to hold that the Appellants were privies to the judgment in Exh. A as to be fully bound by it.
Still on the question of the bindingness of the judgment in Exh. A on the Appellants learned counsel referred to S.54 of the Evidence Act CAP 112 LFN 1990, the recognized classes of privies together with the decision in ABUBAKAR V. FED. MORTGAGE BANK (2003) FWLR (Pt. 151) 1918 at 1927 C – E, and submitted that the lower court ought not to resile on its findings or approbate and reprobate on the same issue. In more specific or concrete terms learned counsel pointed out that having earlier found that the Appellants were not the privies of any of the parties to the judgment in Exh. A, it was wrong to turn around to hold that same judgment was binding on the Appellants. He anchored his submissions on the decisions in SAVANNA BANK v. AJILO (1989) 4 NWLR (Pt. 97) 308 and ONAMADE V. ACB (1997) 1 SCNJ 65 at 83. Upon all the foregoing, learned counsel maintained and concluded that the orders in Exhibits A and B, though still valid and subsisting it can only be binding against the parties and privies thereto. He urged on the court to so find and resolve this issue in favour of the Appellants and to also allow this appeal even on that alone.
It is a great pity that learned counsel to the Respondent did not relate any of the 2 issues he formulated to any of the grounds of appeal as is the usual practice these days and as was appropriately done by learned counsel to the Appellant. It is therefore very difficult to situate any of his arguments as to be his response to the specific arguments and submissions of learned counsel to the appellant on his issue one. The singular advantage of relating issues formulated to particular ground or grounds of appeal is to enable the court know or appreciate at a glance whether the issues formulated cover particular grounds of appeal and to allow for proper juxtaposition of submissions of one party to the response of another. This is more desirable in circumstances were respective parties to an appeal formulated different issues for the determination of an appeal as in the instant case. See the views of the Supreme Court and the appropriate prescription in the case of UNION BANK OF NIG. LTD. V. ODUSOTE BOOKSTORES LTD. (1995) 9 NWLR (Pt. 421) 558.
While I am in a great difficulty to align the Respondent’s brief to this desirable practice of relating issues formulated to grounds of appeal, I will endeavour to go the extra mile to pick and choose which aspects of the arguments and submissions of learned counsel relate to the decisions of the lower court on evaluation of the evidence on record on the identity of the land in dispute and the bindingness of the judgments in Exhibits A and B on the Appellants.
On the question of evaluation of evidence on the identity of the land in dispute, as part of his arguments on his issue one, learned counsel pointed out that the Appellants never challenged any of the pleaded documents of the Respondent, either in their statement of Defence and Counter claim or reply to the defence to their counter claim. Learned Counsel went further to add that the pleadings of the Appellants also never challenged the identity of the land claimed by the Respondent or that it was unknown to them. According to learned counsel, in evaluating the evidence before it on the identity of the land in dispute the lower Court had little option than to come to the irresistible conclusion that since there was no challenge to the boundaries of the land claimed by the Respondent the identity of the land she claimed was not in dispute.
With respect to the counter claim of the appellants, learned counsel pointed out and remarked that the Appellants clearly pleaded the identity of the land they claimed in paragraphs 13 and 28. Therein the boundaries to the land were clearly set out and earmarked. Against this background, learned counsel pointed out further that upon these pleadings of the Appellants, the Respondent pleaded the land claimed by the Appellants was either uncertain or non-existent.
Upon this state of the pleadings, learned counsel submitted that the Appellants have a corresponding burden to prove the counter claim as the Respondent with respect to her claim on the basis of balance of probabilities or preponderance of evidence. And while referring to page 100 of the record, learned counsel added that it was on this basis that lower Court examined the evidence adduced by the Appellants to prove these key averments on the crucial issue of the identity of land in dispute.
While referring to pages 100 to 102 of the record of appeal and also paragraphs 1 and 2 of page 125 thereto, learned counsel observed and pointed out that the lower Court evaluated the relevant evidence on record at pages 109 to 110 and found that the Appellants failed to prove the identity of the land they claimed because of the contradictory evidence they gave from the description of their various witnesses. According to learned counsel it was this failure of the Appellants that led to the findings by the lower Court that also culminated in the dismissal of the counter claim. Against this, learned counsel referred to the case of OSENI V. BAJULU (2010) All FWLR (Pt. 511) 813 and submitted that since the Appellants failed to challenge the numerous findings on their failure to discharge the burden of proof the law placed on them all such findings are binding on them and cannot be interfered with by this Court. Looking at the entire judgment and in its totality, learned counsel maintained that the lower Court painstakingly considered the issue of the identity of the land in dispute between the parties before allowing the claim of the Respondent and disallowing the counter claim of the Appellants. He urged this Court to so hold and decide this issue in favour of the Respondent and against the Appellants.
In resolving this issue, let me begin by setting out what the state of the law is on the identity of land in dispute with respect to a claim for a declaration of title to land. Since the decision in BARUWA V. OGUNSHOLA (1938) 4 WACA 159 the Supreme Court and lately this Court have consistently decided that the burden of proof is on the party who seeks for a declaration of title to show clearly the area of land to which his claim relates. According to the Supreme Court a claimant can discharge this onus by such oral description of the land that any surveyor acting on such description could produce a plan of the land in dispute. See JOSEPH OLUSANMI V. DAYO OSHASANA (1992) LPELR 2629 SC per Ogundere, JSC at pages 7 – 8 G.
It is clear that the claim of the Respondent is for a declaration of title upon traditional history and for land title to which had been adjudged previously by 2 Courts of competent jurisdiction. It is also that the claim of the Appellants is in the nature of a counter claim also involves some declarations for title to land. It is in realization of this that the learned trial judge, rightly referred to the decision of this Court on FBN Plc. V. FAIKO NIG. LTD. (2008) All FWLR (Pt. 416) 1960 at 1971 E – F per Alagoa JCA (as he then was) at page 100 of the record of appeal. The decision in that case was also very vividly captured by learned counsel to the Respondent. That decision emphasized that a counter claim is a separate, independent and distinct action by itself and does not lean on the statement of defence for support or sustenance even though it was filed along with the statement of defence. It must be taken as equal to and not subservient to the main suit and must as such comply fully with the law with regards to pleadings.
Another dimension to this issue relates to the challenge of the Appellants to the steps taken by the lower Court in the evaluation of the evidence before it. This is a normal situation in appellate adjudication.
It is a very recurring decimal in appellate adjudicatory duties, for counsel to extend an invitation to appellate Courts to re-evaluate evidence on record with a view and possibility to coming to another or different conclusion or finding than the one upon which the judgment of the lower Court was given. In popular parlance, an appellate Court is called upon to interfere and set aside some findings of a lower Court.
Against this background, it has been held in a number of decided cases of the Supreme Court and this Court that it is the duty of the trial judge to make primary findings of fact and this duty, unless it is shown not to have been done according to well laid down principles of law, an appellate Court cannot interfere with such findings. See OYIBO ERIRI & ORS. V. ESERORAYE ERHURHOBARA & ANOR (1991) 1 SC 1. Also by virtue of 5.16 of the Court of Appeal Act, this Court is empowered to review and evaluate evidence. The law however remains well defined and settled that an appellate Court will not interfere with findings of fact by a trial Court except where same was wrongly applied to the circumstances of the case or the conclusion reached was wrong or perverse. See also AKOMOLAFE V. GUARDIAN PRESS LTD. (2004) 1 NWLR (Pt. 853) 1. It is against this foundation that I will approach the determination of this issue.
While it is settled as to what the duty of a trial Court is with respect to the totality of evidence adduced before it in the course of a trial, it must be of great interest to know what this duff entails. In determining how to perform this important duty, I believe that the decision in the case of perform this important duty, I believe that the decision in the case of ODOFIN & ORS. V. MOGAJI & ORS (1978) NSCC 275 could serve as a very good guide. In that case, the Supreme Court elaborately set out what that duty must involve and embody as a minimum standard. Even at the risk of prolixity I feel compelled to set out in full this important guideline enunciated by the apex Court. The Court said as per Fatayi-Williams JSC at 277.
“…….. before a judge before whom evidence is adduced…in a civil case comes to a decision as to which he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities…in determining which is heavier, the judge will naturally have regard to the following: –
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) Whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.”
At the conclusion of this wholesome exercise the judge is expected to invoke the law that is applicable to the case, either in the form of statutory/regulatory provisions or judicial decisions etc and then come to his final decision based on the evidence he has accepted. I wish to consider if the learned trial judge had somewhat adhered to these guidelines and principles in the instant matter.
At page 100, the learned trial judge observed that;
“By virtue of the counter claim filed by the defendants, they too are in the position of the plaintiff and are thus expected in law to discharge the onus of proof placed on them by law on the identity of the land in issue before this Court can grant their counter claim.”
What follows this observation at pages 101 to 112 is what one may call a very methodical and clinical analysis of the pleadings of the respective parties, the oral evidence of some of the key witnesses as well as an examination of the documentary evidence.
And while relying on the case of WUROMA V. GASHUA (2002) FWLR (Pt. 106) 1030, at 1050 B – D where a similar remark, in fact identical remark to that of Fatai-Williams in ODOFIN (Supra), the learned judge of the lower court summed up at page 113 thus:-
“The plaintiff, by her evidence and those of her witnesses, is no doubt relying on traditional evidence, acts of possession as well as acts of ownership in proof of her ownership of the land in dispute. How well she has discharged this onus will be considered, but one can safely say that prima facie, she has established her case warranting the defendants’ case too to be considered to enable the Court see which of them preponderates.”
What immediately followed this summing up was a consideration and examination of the pleadings in paragraphs 9 – 14 and 15 to 20 of the statement of defence and counter claim as well as the oral evidence and cross examination of DW1, DW2, DW3, DW4, DW5, DW6, etc in that order and the status and effect of the judgments in Exhibits A and B.
In upholding the claim of the plaintiff/Respondent, the learned trial judge said at in part at page 121 thus:-
“On the issue of the traditional evidence proffered by the parties, that of the plaintiff, …is to be preferred to that of the defendants being more credible…”
After describing the attitude of the defendants/Appellants as blowing hot and cold at the same time and are not sure where they stand, the learned trial judge typified their case as hopeless because they failed to adduce credible evidence on their claim to title or ownership of the land in dispute.
While all the attack of learned counsel to the Appellants on the judgment of the lower Court on his issue had to do with the findings on the identity of the land in dispute, his arguments and submissions on issue 2 are connected with the evaluation of evidence of traditional history, the style of writing of judgment, and failure to decide on all the issues joined by the parties and upon which evidence was adduced.
In his arguments, learned counsel to the Appellants reproduced paragraphs 8, 9, 10, 11, 13 and 14 of the amended statement of claim of the Plaintiff/Respondent alongside paragraphs 8, 9, 10, 11, 12 and 14 of the statement of defence and counter claim to illustrate and highlight the fact that both parties sought to rely on traditional history to prove their respective claims for a declaration of title to the land in dispute. After an explanation of the pleadings, but without any review or analysis of any of the oral or documentary evidence, learned counsel referred to the cases of ONWUBUGOR V. OKOYE (1996) 1 SCNJ 1 at 20 and ALADE V. LAWRENCE AWO (1975) 4 SC 215 at 229 and submitted that the learned trial judge failed to apply the principles in the case of ONWUGBUGOR V. OKOYE on what type of evidence a claimant for title to land based on traditional history needed to adduce on the identity of the land in dispute. In paragraphs 5.09, 5.14 through to 5.22, learned counsel continued to submit and submit on very trite and basic principles of pleadings while doing a very selective and abstract reference to the evidence of traditional history as given by the Plaintiff/Respondent in support of her pleadings. However with respect to the case of the Defendants/Appellants, learned counsel was more forthcoming with an exhaustive reproduction of evidence of traditional history as adduced by the 2nd Defendant/Appellant. The submit and submit approach of learned counsel continued in his paragraphs 5.27 to 5.34 without any break and proceeded to paragraph 6.0 and 6.03 and 6.04.
While referring to the case of ONUOHA V. THE STATE (1988) 3 NWLR (Pt. 83) 400, learned counsel relentlessly continued to fault the judgment in this appeal and maintained that it failed to look into the points upon which issues were joined by the parties thereby occasioning a miscarriage of justice to the Appellants. So much of what learned counsel had to say in most of paragraph 6 at page 16 of the brief of argument appear to me to be a personal attack on the learned trial judge. I will not bother to repeat or use those words at all.
In his response, learned counsel to the Respondent tried to debunk all the arguments that the lower court failed to properly evaluate and consider the evidence of traditional history adduced by the parties. He then went to adumbrate and refer to particular and specific instances were all such pieces of evidence were evaluated. At the bottom of page of the Respondents ‘brief, learned counsel referred to pages 110 – 113, 114 and 118 as some of the instances he believed the lower Court evaluated evidence of traditional history led by the parties. Further to this learned counsel went further to set out what he considered as the 6 findings of the lower Court that the Appellants had failed to challenge in this appeal. The fast 2 are germane and relevant at this stage. They are:-
– The fact that the Appellants could not identify the land in their counter claim with certainty; and
– The fact that the case put forward by the Appellants was riddled with contradictions.
While relying on the case of ANYAWU V. UZOWUAKA (2009) All FWLR (Pt. 499) 411 at 446 E-F learned counsel pointed out that the Supreme Court had decided in that case that where a trial Court has carried out the essential duty of assessing and evaluating evidence satisfactorily, an Appeal Court shall be left with no option but to affirm such a decision. He urged on this Court to so hold and dismiss this appeal.
It is indeed a general principle in the adjudication of civil matters that it is the primary and exclusive duty of trial Courts to assess the character of the witnesses it saw and heard and to review and evaluate their oral evidence. With respect to documentary evidence, an appellate is in an equal position to re-evaluate such evidence upon a proper invitation. I have carefully read the whole of the very well considered judgments in Exhibits A and B. they, without any doubt, are very well written considered judgments.
It is the law that the judgment of a Court subsists in perpetuity notwithstanding any error in law or facts therein, and unless, it is set aside or vacated by a court of competent jurisdiction.
The judgment in Exhibits A and B were pleaded in paragraphs 5, 6 and 7 of the further amended statement of claim. They were tendered and admitted in evidence through the Plaintiff/Respondent as PW1. In the case of PURIFICATION TECHNIQUE (NIG.) LTD. V. JUBRIL (2012) 18 NWLR (Pt. 1331) 109, the Supreme Court was faced with a judgment of Lagos State High Court in similar circumstances to this appeal and it held that an action brought upon a judgment is an invocation of the coercive powers of the trial Court to enforce the enforceable orders and reliefs granted in the judgment. It is also intended to enforce specific orders in the judgments in Exhibits A and B in addition to other methods of proving ownership to land for purposes of granting a declaration of title to land.
Against the 2 issues formulated and argued for the determination of this appeal, I wish to re-state and recapitulate that over the years it has become a settled guiding legal principle that a trial judge at the stage of writing a judgment he appraises the evidence on each side of the divide and give any such evidence the probative value it deserves before arriving at a just conclusion of the case. In the course of this exercise he also determines which of the relevant evidence to believe; whether they are contradicted or not because he had the singular advantage of listening and watching the demeanour of the witnesses. In all these what is really important is that at the end of it the judgment contains what a proper judgment ought to contain and more important too, the learned trial judge, in writing the judgment, must have discharged that responsibility as to enable what he produced to be properly called a judgment. A judgment in this con and circumstance being a fair and just verdict on the case litigated by two or more contending parties. In other words, the discharging of this responsibility must involve the full appraisal, evaluation and weighing of the totality of the evidence on record. See DURU V. NWOSU (1989) 4 NWLR (Pt. 113) 24 and ODOFIN V. MOGAJI (Supra) etc.
In a number of decisions of the Supreme Court, it has consistently maintained that it is most significant that a judge must in the course of the adjudicatory process show a very clear understanding of the facts, issues raised in the case and the applicable legal principles and stipulations. See ADAMU V. THE STATE (1991) 6 SCNJ 33 at 40 and DAVID OMOTOLA & ORS. V. THE STATE (2009) 7 NWLR (Pt. 1139) 148.
Against my understanding of these settled and well defined principles of law and practice, and in the con of the judgment of the lower Court in the instant appeal, there appears to me to be real, proper and profound understanding of the facts in this matter by the learned trial judge. In my view he also fully underscored and appraised the facts as they arose from the oral testimonies remarkably of each of the witnesses and also each of the pieces of documentary evidence. There was also in the judgment an abundant and generous reference to some very well known decided cases on the applicable legal principles and guidelines.
While affirming the decisions of both the trial Court and the Court of Appeal, the Supreme Court in the case of ONUOHA V. STATE (Supra) per Oputa, JSC held that a judge should always show a very clear understanding of the facts in a case, of the issues involved; of the law applicable and from all these he should be able to draw the right conclusions and make a correct finding on the evidence before him.
Upon the foregoing and with respect to all the arguments and submissions of respective learned counsel, Mr. Netufo of Counsel, on behalf of the Appellants failed to canvass any ideas that can aptly be typified as a serious challenge to the integrity of the judgment of the lower Court. There is no significant substance in any of the arguments and submissions against any of the findings in the judgment. I am therefore of the firm view and also accept the views of learned counsel Mr. Olusegun for the Respondent that the application of the law to the facts in the judgment and every step taken towards any of the material findings was most impeccable and cannot be faulted in the entire circumstance. It is without any iorta of hesitation that I hold that all the arguments against the judgment in totality lacked substance or merit. The 2 issues formulated are hereby each resolved against the Appellants and in favour of the Respondent. Appeal is dismissed. The judgment of the High Court of Ondo State, Owo Division delivered on 8th October, 2010 by Adebusoye, J. in Suit No. HOW/19/08 is hereby upheld and affirmed. I order for N60,000 costs against the Appellants in favour of the Respondent.
PRONOUNCEMENT BY ALI ABUBAKAR B. GUMEL, J.C.A.: My learned brother K.M.O. Kekere-Ekun, JCA presided the panel at the hearing of this appeal. He subsequently participated at the conference that led to the judgment just delivered by me. He agrees that this appeal be dismissed, and abide by all the consequential orders in the lead judgment.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Ali A.B. GUMEL, JCA just delivered. I agree entirely with all the reasoning and conclusions of His Lordship. I adopt them as mine.
I abide by all the consequential orders of His Lordship as well as the order regarding cost.
Appearances
Mr. Funso NetufoFor Appellant
AND
Mr. O. S. AderibigbeFor Respondent
