NDUBUISIOTUOKERE v. OKPETUE (2020)

NDUBUISIOTUOKERE v. OKPETUE

(2020)LCN/13977(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/OW/419/2014

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

1. GODFREY NDUBUISIOTUOKERE APPELANT(S)

And

CHUKWUJINDU UMENWA RESPONDENT(S)

RATIO

THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT AND ASCRIBE PROBATIVE VALUE TO IT

It is trite that the trial Court has the bounden duty and responsibility to evaluate relevant and material legally admissible evidence and ascribe probative value to same. See the case of ALABURA VS MAINA (2015) LPELR – 41653 (CA) per Georgewill JCA pages 10- 11 paras D-A where it was held as follows:
“Now, while it is true that it is not the duty of the Court to do cloistered justice by embarking on an inquiry into the case outside of what was pleaded and demonstrated in the evidence before it, yet it is the sacred duty of the Court, particularly trial Courts, such as the Court below, to appraise, consider, review and evaluate the totality of the evidence led before it and in so doing to determine which evidence is admissible or inadmissible, relevant or irrelevant to the facts in issue, credible or incredible and of what weight. In law therefore, a Court that fails in this later duty fails in its entire duty of being an impartial arbiter in the adversary system of administration of justice in this Country.” PER ANDENYANGTSO, J.C.A.

TEH DUTY OF THE CLAIMANT TO ESTABLISH HIS CASE ON THE STRENGHT OF HIS CASE IN A DECLARATORY ACTION

It is difficult to understand where the trial Court, got the evidence with which it relied to dismiss Appellant’s claim/suit, in the circumstances of this case. Even though the law is trite, that a claimant, in a declaratory action, has the duty to establish his case, on the strength of his own case, and need not rely on the weakness of the defence, the law is equally trite, that the evidence needed to prove the claim, in the circumstances that there is no challenge to the evidence of the claimant, is on minimal of proof, Uwahianri & Anor Vs Onyemaizu & Anor (2017) LPELR – 41672 CA.
‘The law is that, where the evidence of the plaintiff is unchallenged, or admitted by the adverse party, the plaintiff can take the benefit of same and his case will be established on a minimal of proof”.
See also Bua Vs Dauda (2003) LPELR 810 SC Nwabuoku Vs Ottih(1961) All NLR 487, and Newbreed Organisation Ltd Vs Erhomosele (2006) LPELR 1984 (SC):
“… this is settled in a line of decided authorities that where a plaintiff adduces oral evidence, which established his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence, either by challenging the same under cross examination or by controverting the same in evidence, the plaintiff is entitled to judgment”. PER MBABA, J.C.A.

WHETHER OR NOT THE TRIAL COURT CAN SCOUT FOR EVIDENCE OUTSIDE WHAT IS BEFORE IT

The trial Court cannot scout for evidence, outside what is before it, to decide a case. See Obiukwu Vs Ugwueru Chukwu & Ors (2019) LPELR – 46616 CA:
“A judge must act and pronounce on the case and issues properly brought before it, based on the facts and evidence adduced, and is not permitted to wander from case and issues raised to scout for facts and evidence to make a case for or support the wish and/or fantasy of any party. See Suberu Vs The State (2010) LPELR —3120 (SC); (201 0)8 NWLR (Pt.1197) 596; Ajuwon Vs Akanni(1993) 9 NWLR (Pt.505) 422 Olorunfemi & Ors Vs Asho & Ors (1999)1 NWLR (Pt.585)1; Obi Vs AG. Imo State (2014) LPELR – 24280 CA.” PER MBABA, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): On the 22nd day of September, 2014, Hon. Justice A.U. Kalu, J. of the Abia State High Court sitting at Ikwuano Judicial Division, delivered judgment in Suit No. HIK/27/2012, wherein he dismissed the Suit of the Appellant, who was the Claimant therein. Piqued by that judgment the Appellant has approached this Court vide a Notice of Appeal filed on 30th September, 2014, 8 days after the delivery of the judgment appealed against. The judgment and the Notice of Appeal are contained on pages 115-118 and 119-121 of the Record of Appeal respectively, hitherto to be referred to as the Record for short. With the leave of this Court, granted on 20th February, 2016, the Notice of Appeal filed on 5th February, 2016, was amended. In paragraph 9 of the amended Statement of Claim (pages 51-53 of the Record) the Appellant had claimed before the Lower Court the following reliefs:-
“(a) A declaration of the Honourable Court that the defendants by clearing and cutting down 5 palm trees in the claimant’s land which formed part of a large expanse of land traditionally known as and called “UKWU

EHURU”, in Ikwuano Local Government Area of Abia State within the jurisdiction of the Honourable Court, trespassed to the said land.
(b) N500,000.00 (Five Hundred Thousand Naira) being special and general damages against the defendants for trespassing to the said land.
(c) Perpetual injunction restraining the defendants whether by themselves or through their servants, workmen, agents, privies or otherwise whosoever from further trespass to the land.”

Pleadings were filed and exchanged between the Appellant and 1st Respondent, and the matter went to trial, at the end of which the trial Court dismissed the claims of the Appellant, hence this Appeal.

Now, the grounds of appeal contained in the Amended Notice of Appeal read as follows:-
“GROUND 1: ERROR IN LAW
The learned judge of the lower Court erred in law and came to a wrong decision in holding that the Appellant failed to prove his case when there was overwhelming and unchallenged evidence in support and/or proof of the Appellant’s claim.
PARTICULARS OF ERROR
(a) The Appellant gave credible and unchallenged evidence of the

identity of the land in dispute.
(b) The evidence of identity and boundaries of the land in dispute adduced by the Appellant is sufficiently strong and satisfactory.
(c) Based on the unchallenged evidence, the learned trial judge was left with no other option but to hold that the Appellant has proved his case and grant his claim.
GROUND 2: ERROR IN LAW
The learned judge of the lower Court erred in law and came to a wrong decision by failing to properly assess and evaluate evidence thereby occasioning a grave miscarriage of justice.
PARTICULARS OF ERROR
(a) The Appellant proved his title to the land in dispute as required by law.
(b) There is sufficient evidence on record to show that the Appellant proved the identity and boundaries of the land in dispute.
(c) The Appellant called 3 witnesses including the boundary neighbor who testified as the PW2.
(d) The learned trial judge rather than relying on the material issues disclosed by the unchallenged evidence of the Appellant and his witnesses heavily relied on extraneous matters in dismissing the Appellant’s case.
GROUND 3:

ERROR IN LAW
The learned judge of the lower Court erred in law when he held as follows:
“Faced with challenge one expected the claimant to tender a survey plan to which the judgment of this Court could be tied and tender some of his boundary witnesses who can testify as to the presence of the claimant and his family on the land in dispute. After all it is the law that in an action for declaration of title the burden of proving title to a defined area rests on the claimant but in this instant (sic) the claimant has failed to do so and I cannot give him judgment.” and this has occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
(a) The lower Court ignored the undisputed evidence of the Appellant’s witnesses particularly regarding the land in dispute.
(b) The lower Court failed to evaluate the evidence of the Appellant’s 3rd witness.
(c) The lower Court relied heavily on the statement of claim (sic) of the 1st defendant which was abandoned by him and therefore lifeless.
(d) The lower Court failed to avert its mind to the fact that the 2nd defendant neither filed any

defence nor offered evidence.
(e) The identity of the land in dispute was therefore not in issue in view of the fact that the 1st defendant abandoned his statement of defence and the 2nd defendant did not file any defence at all.
(f) Against the background of the unchallenged evidence of the claimant particularly as to the identity of the land in dispute, the lower Court should not have dismissed the Appellant’s case.
GROUND 4: ERROR IN LAW
That the said judgment of the High Court Ikwuano in Abia State is erroneous and against the weight of evidence.”

The Reliefs sought from this Court are “to allow the appeal, set aside the decision and orders of the lower Court and grant the claim of the Appellant.”

From the 4 grounds of appeal set out above, contained in the Appellant’s Brief filed on 5/2/16, settled by Eze Ukattah Esq, the Appellant formulated two issues thus:

ISSUE 1
Whether on a proper consideration of the pleadings and evidence adduced and a proper application of the law the case of the Appellant before the lower Court should have been dismissed (Ground 1)

ISSUE 2
Whether the Court below properly and dispassionately evaluated the evidence before it in holding that the Appellant did not prove his case or; whether in the circumstances the lower Court’s gratuitous raising of the issue of the identity of the land in dispute when the 1st Respondent abandoned his statement of defence and the 2nd Respondent did not file any statement of defence is not perverse (grounds 2 and 3)”

The 1st Respondent did not file any brief of argument, neither did he participate in the appeal, though he was served with the Appellant’s brief on 24/2/2016, and hearing notice on 22/1/2020.

On 28/1/2020 when the appeal was heard, A.C. Nwosu Esq appeared for the Appellant and adopted the Appellant’s Brief of Argument and urged us to allow the appeal and set aside the judgment of the lower Court.

Before proceeding, it is appropriate at this juncture to summarize the facts of this case. It is the case of the Appellant that his family has been in exclusive possession and exercising maximum acts of ownership over the land in dispute such as farming and leasing same land to other

people for farming purposes, and reaping the economic trees/crops thereon; that the said land was deforested by the Appellant’s ancestor called Otuokere who used same for farming which later devolved upon the Appellant and his siblings through his father Omeruo who inherited same from his father Otuokere; that sometimes in November, 2012, the 1st Respondent, without leave or permission or consent of the Appellant or any member of his family, trespassed upon the said land and cut down some economic trees thereon, hence the Suit of the Appellant against the 1st Respondent.

The 1st Respondent filed a statement of defence but later abandoned same in the course of trial. The 2nd Respondent who was joined later upon the application of the 1st Respondent for whatever reason, neither filed any defence nor appeared even once at the trial.

At the end there was no defence to the Suit and the Appellant then applied to be allowed to prove his case. This he did by calling some witnesses who testified in Court.

At the end of trial the lower Court gave judgment dismissing the claims of the Appellant, as earlier indicated, hence this appeal.

Now, to the issues raised by the Appellant.

ISSUE ONE
“Whether on a proper consideration of the pleadings and evidence adduced and a proper application of the law the case of the Appellant before the lower Court should have been dismissed (ground 1).”

The learned Appellant’s Counsel submitted that the Appellant gave a clear unchallenged and overwhelming evidence of exclusive possession and identity of the land in dispute and therefore the lower Court was wrong in dismissing the claims of the Appellant in the circumstance it did, adding that though the 1st Respondent filed a statement of defence, he called no single witness to proffer evidence in proof of his averments therein contained while the 2nd Respondent neither filed a statement of defence nor proffer any evidence in the Suit.

Learned Appellant’s Counsel made elaborate submissions under the following subheads:
(1) The effect of pleading not supported by evidence
(2) The effect of the 2nd Respondent not filing defence
(3) The effect of unchallenged evidence.

I will take the above seriatim

thus:
(1) THE EFFECT OF PLEADING NOT SUPPORTED BY EVIDENCE
Learned Counsel submitted that it is trite that when a party filed pleading and did not offer evidence in support of same, it is deemed to be abandoned as has been done in this case by the 1st Respondent thereby not joining issues with the Appellant, relying on OLUSANYA VS OSINEYE (OSINLEYE) (2013) VOL. 225 LRCN (PT.1) 77; NEWBREED ORGANIZATION LTD VS ERHOMOSELE (2006) 140 LRCN 2064 OR (2006) 5 NWLR (PT.974) 499; CAMEROON AIRLINES VS OTUTUIZU (2011) VOL.195 LRCN 198 at 231 andDUROSARO VS AYORINDE (2005) VOL. 126 LRCN 1015 at 1035.

(2) THE EFFECT OF THE 2ND RESPONDENT NOT FILING DEFENCE
Learned Appellant’s Counsel submitted that since the 2nd Respondent did not file any defence and did not proffer any evidence he was deemed to have admitted the Appellant’s claims and/or reliefs in his statement of claim, relying on OKOEBOR VS IGP (2003) 6 MJSC 13 at 29.

(3) THE EFFECT OF UNCHALLENGED EVIDENCE
Learned Appellant’s Counsel submitted that since both Respondents did not lead any evidence in respect of the claims of the Appellant, the lower Court

ought to have accepted and acted on the testimony of the Appellant including the identity of the land as was done in the case of NDULUE & ANOR VS OJIAKOR & ORS (2013) VOL. 219 LRCN (PT.2) 186 at 203.

1 LLAC 99 at 106; that the lower Court was in error in importing into the proceedings extraneous matter by relying on averments in the 1st Respondent’s Statement of defence in support of which no evidence was called, thereby occasioning a miscarriage of justice, relying on OLALEYE VS ADEJUMO (2005) ALL FWLR (PT.254) 827. Learned Counsel urged us to resolve this issue in favour of the Appellant and against the Respondents.

ISSUE NO. 2
“Whether the Court below properly and dispassionately evaluated the evidence before it in holding that the Appellant did not prove his case; or whether in the circumstances of this case the trial Court’s gratuitous raising of the issue of identity of the land in dispute when the 1st Defendant abandoned his statement of defence and the 2nd Defendant did not file any defence at all, is not perverse (grounds 2 and 3).”

Learned Appellant’s Counsel adopted his

submissions in respect of Issue No.1 and added that the lower Court simply abdicated from its primary duty of properly evaluating the evidence before it, thereby arriving at a decision not based on averments and evidence called in this case. He then urged us to assume the duty of the lower Court in properly evaluating the evidence on record in order to do justice between the parties. He relied on UKA VS IROLO (2002) 12 MJSC VOL.177 LRCN 134 at 146.

Learned Counsel referred to the statement of facts summarized in paragraphs 3.01-3.15 of the Appellant’s Brief of Argument and submitted that the judgment of the lower Court was contrary to the evidence on record, since there was no facts averred and evidence in support thereof to warrant the decision rendered by the lower Court. This submission is premised on the ground that there was no issue to be resolved in favour of the Respondents since pleadings of the Respondent have been abandoned. The learned Appellant’s Counsel then raised the following questions in urging us to resolve this Issue No. 2 in favour of the Appellant and against the Respondent:
1. Whether issue exists when

pleadings are abandoned
2. Whether a survey plan is necessary in all cases to prove identity of land
3. Whether the Court misconceived the issue before it
4. Effect of misconception of the nature of a case before it.

Learned Counsel made submissions on each of the above stated questions to the effect that since the Respondent abandoned his defence there was no issue joined between them since the only case was that of the Appellant which he had proved according to the standard of the law; that it is not in all cases that a survey plan is needed to prove the identity of the land in dispute; that the lower Court misconceived the issues before it in this case, which has rendered its decision perverse, relying on ADEJUGBE VS OLOGUNJA (2004) 4 MJSC 49.

In summary the Appellant’s Counsel submitted that the Appellant had proved his claim before the trial Court, which completely ignored his evidence, thereby misconceiving the issues before it, resulting in miscarriage of justice. Furthermore, that the trial Court went outside the case by importing into same extraneous matters in respect of the identity of the land in

dispute, demanding a Survey Plan, rather than properly evaluating the evidence before it.

Counsel finally urged us to allow the Appeal, set aside the judgment of the Lower Court and grant all the reliefs sought by the Appellant at the lower Court.

RESOLUTION
A careful consideration of the grounds of Appeal and the issues distilled therefrom would appear that this appeal can be determined upon the consideration of Issue Nos.1 and 2 taken together which to me, appear similar as they dovetail into one another. I shall therefore consider the two issues together in determining the appeal.

The facts of this case have been contained in a summary given earlier in this judgment. I can only refer to the relevant averments as is necessary in this judgment.

The determination of the two issues in this appeal will entail the consideration of some facts and evidence adduced before the lower Court. The relevant averments are contained in paragraphs 2-8 of the Amended Statement of Claim, contained on pages 51-52 of the Record. For their relevance they are reproduced hereunder:
(2) The Claimant’s family has from time

immemorial been in possession and exercising maximum acts of ownership (such as farming and leasing to people for farming purposes) over a parcel of land which formed part of a large expanse of land traditionally known as and Galled (sic) “Ukwu Ehuru) lying and situate at Ogbuebule in Ikwuano Local Government Area of Abia State, within the jurisdiction of the Honourable Court.
(3) The exact area, boundaries and location of the said land are very well known to both parties. However, for the purposes of clarity, the said land is bounded on one side by the parcel of land of Uzondu Ojiabuo and on two sides by the parcels of the land of Okereke Nwaozuru and yet on another side by the parcel of land of Awa Ogbonna.
(4) The said land devolved from Claimant’s grandfather named Otuokere Okeaha who deforested it and used it for farming, to the Claimant’s father named Omeruo Otuokere (now deceased) who continued farming on it and then to the Claimant who is now the present head of their family (being the oldest male member of their family).
(5) At the death of the Claimant’s said father, his estate including the said land

was inherited by the Claimant and his siblings and is yet to be shared and/or partitioned. The Claimant being the present head of the family is having custody of the said estate pending sharing and/or partitioning.
(6) The Claimant’s family has since been farming and reaping the economic trees on the said land. However sometime in the month of November, 2012, the defendants without leave, permission or consent of the Claimant’s family broke and entered into the said land and maliciously cleared same and cut down 5 palm trees valued at N2000 each.
(7) Following the defendants’ provocative acts of hooliganism and trespass to the said land, the Claimant confronted the 1st defendant who admitted trespassing to the said land but refused to pay for the damages resulting from his intentional trespass to the said land hence the Claimant sued the defendants.
(8) The defendants are unrepentant and desperate in their resolve to remain in their trespass to the Claimant’s said land unless restrained by the Honourable Court. By reason of the defendants’ acts of trespass the Claimant has suffered great loss and his right

of quiet enjoyment of the said land seriously threatened.

The averments reproduced above are backed by evidence of CW1, CW2 and CW3 Elder Samuel Moneyhard Enyinnaya (pages 95-96); Godfrey Ndubuisi Otuokere (pages 98-101) and Rev. Amaechi Nwaozuru (pages 103-104) of the Record respectively.

It is worthy of note that the Respondent at the lower Court employed all sorts of tactics to defeat the claims of the Appellant by engaging in delay tactics and eventually abandoned the case, including their Counsel.

The only case before the lower Court was that of the Appellant as the Claimant. It is the primary duty of the trial Court to evaluate and ascribe probative value to the evidence before it.

The Appellant averred in his Amended Statement of Claim and supported same with evidence of being in exclusive possession of the land in dispute from time immemorial, same having been deforested by his grandfather Otuokere, which devolved to the Appellant through his father known as Omeruo. See paragraphs 4 and 5 of the Amended Statement of Claim (pages 51-52 of the Record), and the evidence in Chief of CW1 Samuel Moneyhard Enyinnaya paragraph 3

(page 95 of Record), CW2 Mr. Godfrey Ndubuisi Otuokere, paragraphs 3,4,5 and 6 (pages 98-99) of the Record) and that of the CW3, Rev. Amaechi Nwaozuru, paragraph 3 (pages 103-104) of the Record).

Throughout the Record, there is no other evidence proffered by the Respondent to counter or rebut the testimony of the Appellant. The facts and evidence were not evaluated by the lower Court.

relevant or irrelevant to the facts in issue, credible or incredible and of what weight. In law therefore, a Court that fails in this later duty fails in its entire duty of being an impartial arbiter in the adversary system of administration of justice in this Country.”

In this case the lower Court did not bother itself to consider and evaluate the evidence and ascribe to it probative value as earlier stated. This has rendered the decision that the Appellant failed to prove its case perverse. I so hold. I resolve these issues in favour of the Appellant and against the Respondent. It is also noteworthy to consider the attitude of the Respondent right from the trial Court to this Court. At the trial Court the Respondent, as Defendant, filed a statement of defence which he abandoned. In this Court he did not file any Respondents’ Brief, despite the fact that he was duly served with the Appellant’s Brief of Argument and hearing notice. This attitude or conduct shows that the Respondent has conceded to the appeal being allowed, as meritorious, as this Court has held in the HOUSE OWNERS/RESIDENTS’ ASSOCIATION OF SHELL HOUSING ESTATE & ORS VS. UDENSI

(2019) LPELR – 47501 (CA) Pages 55-57 para C-D.

In conclusion I completely agree with the submissions of the Learned Counsel for the Appellant that this appeal has merit and should be allowed. Accordingly this appeal is hereby allowed. The judgment of the lower Court is hereby set aside. The claims of the Appellant at the lower Court succeed and are granted. I hereby award the sum of N300, 000.00 only as damages for trespass and cost of N50, 000.00 against the Respondent.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, A. I. ANDENYANGTSO, J.C.A., and I agree with his reasoning and conclusion that the appeal is meritorious.

I think the Respondent’s attitude to this case, both at the trial Court, (where he engaged in dilatory tactics and later abandoned his pleading), and in this Appeal, (where he failed to file any brief), speaks volume about his gamble over the land, which he trespassed on. He failed to adduce any evidence of fact to justify his

forceful entry into the land in peaceable possession of the Appellant, as shown by the available evidence, adduced by Appellant.
It is difficult to understand where the trial Court, got the evidence with which it relied to dismiss Appellant’s claim/suit, in the circumstances of this case. Even though the law is trite, that a claimant, in a declaratory action, has the duty to establish his case, on the strength of his own case, and need not rely on the weakness of the defence, the law is equally trite, that the evidence needed to prove the claim, in the circumstances that there is no challenge to the evidence of the claimant, is on minimal of proof, Uwahianri & Anor Vs Onyemaizu & Anor (2017) LPELR – 41672 CA.
‘The law is that, where the evidence of the plaintiff is unchallenged, or admitted by the adverse party, the plaintiff can take the benefit of same and his case will be established on a minimal of proof”.
See also Bua Vs Dauda (2003) LPELR 810 SC Nwabuoku Vs Ottih(1961) All NLR 487, and Newbreed Organisation Ltd Vs Erhomosele (2006) LPELR 1984 (SC):
“… this is settled in a line of decided

authorities that where a plaintiff adduces oral evidence, which established his claim against the defendant in terms of the writ or statement of claim, and that evidence is not rebutted by the defence, either by challenging the same under cross examination or by controverting the same in evidence, the plaintiff is entitled to judgment”.

I too allow the Appeal and abide by the consequential orders in the lead judgment.

Appearances:

A.C. Nwosu Esq. For Appellant(s)

For Respondent(s)