NDUMATI & ORS v. WOKOMA & ANOR (2021)

NDUMATI & ORS v. WOKOMA & ANOR

(2021)LCN/15165(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, June 10, 2021

CA/PH/514/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

1. JOSEPH NDUMATI 2. JOSHUA EJEKWU 3. DAVIDSON NDUMATI 4. CHIEF JAMES O. AMADI (For Themselves And As Representing Members Of Rumu-Ndumati Family Rumuwokerebe, Rumukwurusi) APPELANT(S)

And

1. CHIEF THEOPHILUS EMEJOR WOKOMA (For Himself And As Representing Members Of Eliordorlu Family Of Rumuorianwo, Rumukwurusi) 2. OSARO GOMBA RESPONDENT(S)

 

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Rivers State, Coram Judice: Iyayi-Laminkara, Chief Judge, delivered on 1st July, 2019, in SUIT NO. PHC/507/2015: JOSEPH NDUMATI & ORS. (for themselves & as representing members of Rumu-ndumati family, Rumuwokerebe, Rumukwurusi) vs. CHIEF THEOPHILUS EMEJOR WOKOMA (for himself and as representing members of Eliordorlu family of Rumuorianwo, Rumukwurusi) & ANOR.

The Appellants were the Claimants at the lower Court and by their Further Amended Statement of Claim, they claimed the following reliefs:
“a. A DECLARATION that the Claimants are the owners of all that part of a piece or parcel of land called Ekwu Rumundumati lying at an area locally called ‘Ohia Owuru’ Rumuwokerebe Rumuokwurusi Town in Obio/Akpor Local Government Area of Rivers State of Nigeria more clearly shown, delineated and verged Red on the claimant’s dispute plan no. RV/1085/2016/001 dated 18/4/2016 prepared by Tunde Fakolobon, Fnis.
b. A DECLARATION that the Defendants’ interference or encroachment on the said land is

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trespass and award of the sum of N50,000,000.00 (Fifty Million Naira) only as damages for trespass in favour of the claimants.
c. AN ORDER of perpetual injunction restraining the defendants either by themselves, servants, agents, privies, workers, or howsoever from trespassing, and or interfering in any manner with the claimants said property.”

The parties filed and exchanged pleadings and the matter proceeded to a full-blown plenary trial at which testimonial and documentary evidence was adduced by the parties. In its judgment, the lower Court held that the Appellants’ action was statute barred and further held that on the evidence, the Appellants failed to prove their ownership of the disputed land by cogent and satisfactory evidence. The Appellants were dissatisfied with the judgment and appealed against the same by Notice of Appeal filed on 30th July, 2019. The judgment of the lower Court is at pages 303-313 of the Records, while the Notice of Appeal is at pages 314-318 of the Records.

​The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument which they adopted and relied upon

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at the hearing of the appeal. The briefs of argument on which the appeal was argued are:
1. Appellants’ Brief of Argument filed on 2nd December, 2019.
2. Respondents’ Brief of Argument filed on 5th February 2020.
3. Appellants’ Reply Brief filed on 20th August 2020.

The Respondents’ Brief and Appellants’ Reply Brief were deemed as properly filed on 24th March, 2021.

Let me post-haste state that the Appellants’ Reply Brief was largely a re-argument of the submissions already made in the Appellants’ Brief. This is not the purpose of a Reply Brief as stipulated in Order 19 Rule 5 (1) of the Court of Appeal Rules, 2016. It is not proper to use a reply brief to extend the scope of argument and submissions in the appellant’s brief. SeeYANATY PETROCHEMICAL LTD vs. EFCC (2017) LPELR (43473) 1 at 27-28, ABDULLAHI vs. MILITARY ADMINISTRATOR (2009) LPELR (27) 1 at 13 and ECOBANK NIGERIA LTD vs. HONEYWELL FLOUR MILLS PLC (2018) LPELR (45124) 1 at 9-11. The repetition of a submission already made in the appellant’s brief in a reply brief does not improve the quality of the argument or make it

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acceptable, if it were ordinarily unacceptable: FSB INTERNATIONAL BANK vs. IMANO NIG. LTD. (2000) 7 SCNJ 65 at 70 and MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2005) LPELR (1916) 1 at 13. Notwithstanding, I will not defenestrate the Reply Brief. However, in obeisance to the function of a reply brief, I will only refer to the submissions in the Reply Brief where it actually consists of a response to a new point, issue or argument raised in the Respondents’ Brief. See VODACOM BUSINESS (NIG) LTD vs. F.I.R.S (2019) LPELR (47865) 1 at 2-3.
In OLAFISOYE vs. FRN (2004) 1 SC (PT II) 27 or (2004) 4 NWLR (PT 864) 580 at 644, Tobi, JSC stated:
“The main purpose of a reply brief is to answer any new points arising from the respondents’ brief… A reply brief is filed when an issue of law or argument raised in the respondent’s brief calls for a reply…Where a reply is necessary, it should be limited to answering any new points arising from the respondent’s brief. A new point is a fresh point, which was raised by the respondent in his brief. A reply brief cannot be used to strengthen the appellant’s brief by way of

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repeating the arguments made in the appellant’s brief. A reply brief is not a recitation of the appellant’s brief.”
See also MOZIE vs. MBAMALU (2006) 15 NWLR (PT 1003) 460 at 469, OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277, DUZU vs. YUNUSA (2010) LPELR – 8989 (CA) and IGWE vs. THE STATE (2021) LPELR (53499) 1 at 3-4.

The Appellants formulated two issues for determination in the appeal, namely:
“1. Whether the appellants have proved their case. (distilled from grounds 1, 3 and 4 of the grounds of Appeal)
2. Whether the lower Court erred when it held that the action of the claimants/appellants is statute barred. (distilled from ground 2 of the grounds of Appeal)”

​The Respondents adopted the issues distilled by the Appellants and proffered their submissions thereon. The issues distilled by the Appellants are apt and adequately capture the complaints raised in the grounds of appeal against the judgment of the lower Court. Accordingly, it is on the basis of the said issues that I will consider the submissions of learned counsel and resolve this appeal. However, on account of its threshold nature, I will first deal

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with issue number two. SeeAJAYI vs. ADEBIYI (2012) LPELR (7811) 1 at 40-41.

ISSUE NUMBER TWO
Whether the lower Court erred when it held that the action of the claimants/appellants is statute barred.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants submit that the lower Court was wrong to hold that the action was statute barred as the Respondents’ act of trespass started in 2005 and the action was commenced in 2015, which is within ten (10) years of the institution of the action. It was opined that, contrary to the finding of the lower Court, there is no pleading or evidence that the Respondents had been in possession for fifteen (15) years, and that facts not pleaded must be jettisoned. The cases of GREIF (VAN LEER) CONTAINERS PLC vs. ONSON PLASTICS & INDUSTRY LTD (2015) ALL FWLR (PT 806) 247 at 263, ADDAH vs. UBANDAWAKI (2015) ALL FWLR (775) 200 at 215, DINA vs. NEW NIGERIA NEWSPAPER LTD (1986) 2 NWLR (PT 22) 353, ADENLE vs. OLUDE (2003) FWLR (PT 157) 1074 at 1087 and EZEKWESILI vs. AGBAPUONWU (2003) FWLR (PT 162) 2016 at 2049 were referred to.

​It was stated that Section 1 of the Limitation Law of Rivers State,1988, Cap. 80, Law of Rivers State ​

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provides for a limitation period of ten (10) years in actions for recovery of land and that the Appellants’ action was not brought after ten (10) years, the Appellants’ having pleaded in paragraph 14 of the Further Amended Statement of Claim, and accepted by the Respondents in paragraphs 4 and 25 of the Amended Statement of Defence, that the cause of action arose in 2005. It was maintained that the action which was filed on 5th August, 2015, is therefore not statute barred; as it is the writ of summons and statement of claim only that is examined in order to ascertain when the cause of action accrued. The cases ofVICTOR vs. FUTA (2015) 4 NWLR (PT 1448) 1 at 58 and ODUAH vs. FBN PLC (2011) FWLR (PT 59) 1304 at 1313 were relied upon.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondent referred to the case of ABOYEJI vs. LATEJU (2012) ALL FWLR (PT 648) 961 at 978 on the meaning of cause of action. It was posited that issues were joined on the pleadings as to when the cause of action arose and that in such a situation, oral evidence can be used to resolve the question of the period of limitation and

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whether the action is statute barred vide ADAJI vs. AMODU  (1992) 8 NWLR (PT 260) 472 and NDIC vs. UMANAH (2005) 4 NWLR [sic] (PT 292) 1994 at 2003. It was asserted that evidence elicited from the CW2 and CW3 on the Respondent’s possession of the land from over fifteen (15) years and more, and the sale of part of the disputed land to the 2nd Respondent, more than ten (10) years before the action was filed, was rightly relied upon by the lower Court to hold that the action was statute barred.

RESOLUTION OF ISSUE NUMBER TWO
The argument under this issue falls within a very narrow compass. The disceptation is on limitation of action and whether the Appellants’ action is statute barred, in which case, they would have no right of action and would be left with a bare and unenforceable cause of action. The facts necessary to resolve this issue of limitation of action are not convoluted. The facts are simple and straightforward.

Totidem verbis, in ascertaining whether an action is statute barred, the Court looks at the date when the action was instituted and the date when the cause of action arose. Now, a cause of action is the operative fact or

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facts (the factual situation) which give rise to a right of action. In simple terms, a cause of action arises the moment a wrong is done to the plaintiff by the defendant. See EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and ADEKOYA vs. FHA (2008) 11 NWLR (PT 1099) 539 at 551 and 557.
The determination of whether an action is caught by the statute of limitation is a matter of calculation of raw figures and a Court of law has no discretion in the matter: ADEKOYA vs. FHA (supra) at 557.  It is necessary to distinguish a cause of action from a right of action. A right of action is the right to enforce presently a cause of action. A right of action is a remedial right. A statute of limitation however removes the right of action and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See EGBE vs. ADEFARASIN (supra) at 20, EBOIGBE vs. NNPC (1994) 5 NWLR (PT 347) 649 at 659, ODUBEKO vs. FOWLER (1993) 7 NWLR (PT 308) 637, P. N. UDDOH TRADING CO. LTD vs. ABERE (2001) 11 NWLR (PT 723) 114 or (2004) 24 WRN 1 and MILITARY ADMINISTRATOR, EKITI STATE vs. ALADEYELU (2007) 14 NWLR (PT 1055) 619.

​Section 1 of the Limitation Law, Cap. 80, Laws of Rivers State, 1988  ​

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stipulates as follows:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
The above stipulation is explicit that an action for recovery of land, such as the instant one, has to be commenced within ten years of the accrual of the cause of action, otherwise, the cause of action would become statute barred and the right of enforcement of the cause of action would be lost.

The rationale behind limitation laws and its enforcement was eloquently stated by Edozie, JSC in AREMO II vs. ADEKANYE (2004) 13 NWLR (PT 891) 572 at 592-593 as follows:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the

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expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because, the period of the time laid down by the limitation for instituting such an action has elapsed. See the cases of Eboigbe vs. N.N.P.C. (1994) 5 NWLR (Part 347) 649; Odubeko vs. Fowler (1993) 7 NWLR (Part 308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Part 174) 379; Ekeogu vs. Aliri (1991) 3 NWLR (Part 179) 258. The rationale or justification supporting the existence of statute of limitation includes the following:
1. That long dormant claims have more of cruelty than justice in them…,
2. That a defendant might have lost the evidence to disprove a stale claim… and
3. That persons with good causes of action should pursue them with reasonable diligence…
The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which

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gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute-barred: See the case Egbe vs. Adefarasin (supra) at 20-21.”
On the settled state of the law, it is the writ of summons and statement of claim that has to be examined to ascertain when a claimant’s cause of action arose. Put differently, to ascertain when it is averred that the wrong on which the claimant predicated his cause of action happened and then calculate the dates to see if from the said date to when the action was filed is within the limitation period.

In paragraph 14 et sequentia of the Further Amended Statement of Claim (see pages 205-206 of the Records), the Appellants aver that, it was in 2005 that the Respondents started encroaching on the disputed land, so by the averment in the statement of claim the wrong which the Appellants complained about and on account of which they sought legal redress happened in 2005. The Respondents in paragraphs 3 and 25 of their Amended Statement of Defence (see pages 187-188 and 190 of

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the Records) equally averred that the dispute as to ownership of the land began in 2005. So the parties are ad idem that the cause of action and/or wrong on which the Appellants ventilate their right of action arose and/or happened in 2005.

In holding that the action was statute barred, the lower Court, after referring to the Appellants’ averments that they had been in occupation and possession of the disputed land from time immemorial until the Respondent’s encroachment reasoned and held as follows at page 312 of the Records:
“On the contrary, the evidence before me is that, the defendants have been in possession for over 15 years or more. This is inconsistent with the claimants’ claim of possession and I am minded to agree with the defendants that this suit by the claimants is statute barred.”

​The above periscope from the decision of the lower Court is lucent that the lower Court did not make any finding as to when the cause of action arose from the Appellants’ pleadings, or embark on any calculation of raw figures; before it arrived at the conclusion that on the “evidence before me” the action was statute barred.

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From page 1 of the Records, it is limpid that the Appellants commenced the action at the lower Court of 5th August, 2015. It is this date that would form the baseline in the computation of whether the action is statute barred, flowing from the raw computation of figures from when it is averred in the Further Amended Statement of Claim that the cause of action accrued. As already stated, the Appellants averred that the wrong which they complained about was the encroachment on the disputed land by the Respondents in 2005. A raw computation of the figures from when it is averred that the cause of action arose to 5th August, 2015 when the action was filed, makes it effulgent that the action was not commenced after the expiration of ten (10) years from the accrual of the cause of action. See WOHEREM vs. EMEREUWA (2004) LPELR (3500) 1 at 15-18, ADEKOYA vs. FHA (2008) LPELR (105) 1 at 7-11 and ADEJUMO vs. OLAWAIYE (2014) LPELR (22997) 1 at 33-35. The lower Court was therefore wrong when it held that the action was statute barred. This issue is therefore resolved in favour of the Appellants.

​The resolution of this issue number two in favour of the

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Appellants will not transmogrify into the appeal being allowed. This is on account of the fact that the lower Court did not merely dismiss the action on the grounds that the action was statute barred, the lower Court also dismissed the action on the merits, holding that the Appellants did not prove their claim of ownership of the disputed land by cogent and satisfactory evidence. Therefore, to now captivate our attention, will be the Appellants’ issue number one which interrogates whether the Appellants proved their case.

ISSUE NUMBER ONE
Whether the appellants have proved their case.

SUBMISSIONS OF THE APPELLANTS’ COUNSEL
The Appellants’ submission is that the lower Court having found that the parties own land which lie beside each other at Ohia Owuru, was wrong to rely on the houses constructed by the Respondents during the period of disputation over the land to hold that the Respondents were in possession of the disputed land. It was maintained that the said houses were the encroachment and trespass complained about by the Appellants in the action, which action was preceded by customary summons, arbitration, police

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intervention, exchange of letters by Solicitors; all of which show that the Appellants did not just stand by. It was opined that there were no buildings on the land as at 2005 when the dispute started.

It was asserted that the trespassory acts of the Respondents by building on the land cannot be lawful possession so as to give them better title. The cases of ADEBAKIN vs. ODUJEBE (1972) 6 SC 208, BANJO vs. AIYEKOTI (1973) 4 SC 89, ODUNUKWE vs. ADMINISTRATOR-GENERAL, EAST CENTRAL STATE (1978) 1 SC 25, OJOH vs. KAMALU (2005) 18 NWLR (PT 958) [no page stated] and OKEKE vs. NNOLIM (2015) 5 NWLR (PT 1453) 444 at 476 were cited in support. It was stated that, the lower Court rightly identified the disputed land in the judgment and that the best proof of the boundaries of disputed land is a survey plan, where available vide UDEZE vs. CHIDEBE (1990) 1 SCNJ 117. It was posited that the survey plans, Exhibits E and J, clearly show okpo trees as the boundary features, showing that the disputed land was within the Appellants’ part of the Ohia Owuru land. It was stated that, the lower Court did not properly evaluate the evidence and this Court was urged to

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re-evaluate the evidence and make the correct findings. The cases of MOGAJI vs. ODOFIN (1978) 4 SC 91, EYIBOH vs. ABIA (2012) 16 NWLR (PT 1325) 51 at 82 and ODUTOLA vs. MABOGUNJE (2013) 7 NWLR (PT 1354) 522 at 548 were called in aid.

SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that the lower Court rightly held that the Appellants did not prove the ownership of the disputed land by cogent and satisfactory evidence. It was stated that the evidence is that, the houses or buildings of the Respondents are on the disputed land and the Respondents have been on the disputed land for over fifteen (15) years and more. It was stated that the lower Court has the duty to evaluate the evidence and ascribe probative value thereto and that having done so properly, an appellate Court will not interfere. The cases of NGUMA vs. A-G IMO STATE (2014) 7 NWLR (PT 1405) 119 and MAFIMISEBI vs. EHUWA (2007) 2 NWLR (PT 1018) 385 were referred to.

​It was posited that the evidence of the DW2 on long possession of the land by the Respondents and the mini estate built on the land by the 2nd Respondent were not challenged under cross examination and so

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the lower Court rightly acted on the same. The cases of OMOREGBE vs. LAWANI (1980) 3-4 SC at 180 and MOBIL PRODUCING NIG UNLTD vs. MONOKPO (NO. 2) (2001) ALL FWLR (PT 78) 1210 were relied upon. It was further submitted, that the evidence elicited from the CW2 and CW3 under cross examination is relevant and covered by the averments in paragraphs 9-11 of the Reply to the Statement of Defence and paragraphs 19 and 35 of the Amended Statement of Defence and the Appellants were therefore not taken by surprise. The cases of AYOOLA vs. YAHAYA (2005) 7 NWLR (PT 923) 122 at 140, GAJI vs. PAYE (2003) 8 NWLR (PT 823) 583 at 603-604, EMEGOKWUE vs. OKADIGBO (1973) 1 NWLR 192 at 195 and ASADU vs. IFEANYI (2010) ALL FWLR (PT 517) 736 at 750 were cited in support.

The Respondents contend that in an action for trespass, the claimant in order to succeed has to prove exclusive possession and where the defendant asserts ownership, the claimant has to prove better title in order to succeed. The cases of ADEGBITE vs. OGUNFAOLU (1990) 4 NWLR (PT 146) 578, OGUNBIYI vs. ADEWUNMI (1988) 5 NWLR (PT 93) 213 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 at 4 were called in

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aid. It was asserted that the Appellants failed to prove possession or better title for them to succeed in their claim for trespass vide EKWERE vs. IYIEGBU (1972) 6 SC 116 at 138.

It was posited that the survey plans, Exhibits E and J, showing the Respondents’ building on the disputed land, established that the Appellants were not in possession and therefore, the lower Court was right in holding that the Appellants failed to prove their case. The Respondents maintained that there was nothing in the evidence showing that the buildings were constructed during the pendency of the suit and so the submissions of learned counsel in that regard cannot take the place of the evidence. The case of ARCHIBONG vs. EDAK (2006) 7 NWLR (PT 980) 485 was referred to. It was conclusively submitted that the evidence of the DW2 on the exercise of acts of ownership and possession on the land by the Respondents since 1999 was not challenged under cross examination and so the lower Court was right to act on the same. The case of OLOHUNDE vs. ADEYOJU (2000) 10 NWLR (PT 676) 562 at 589 was relied upon.

​APPELLANTS’ REPLY ON LAW
The Appellants submit in the

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Reply Brief that the fact that a party did not cross examine a witness on an issue does not mean that the evidence has become unchallenged when the Appellants had led evidence which materially contradicted the witness on the issue. The case of AKPORO vs. UGHALA (1995) 8 NWLR (PT 411) 118 at 125 was cited in support.

RESOLUTION OF ISSUE NUMBER ONE
From the pleadings, the parties rely on traditional evidence and acts of ownership and possession in prosecution of, and defence of the action. The case of the Appellants is that, the disputed land was part of a large parcel of land “disvirgined” and deforested by their progenitor, Chief Wokerebe, who exercised acts of possession and ownership over the land, planting traditional boundary trees called “okpo” on the land and that the chain of possession and ownership continued and passed on to the current Appellants until the Respondents encroached and trespassed on the land.

​For the Respondents, the disputed land was deforested by the 1st Respondent’s progenitor Elder Wokomati Widorlu who exercised acts of ownership and possession over the land and the land passed on to

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succeeding generations until it devolved on the 1st Respondent’s family, who continued to exercise acts of possession and ownership over the land until the Appellants started laying a false claim to the land.

It is hornbook law that, a claimant for a declaration of title to land must succeed on the strength of his case and not on the weakness of the defendant’s case, save where the defendant’s case supports the claimant’s case. See KODILINYE vs. ODU (1935) 2 WACA 336 at 337, FAGUNWA vs. ADIBI (2004) 14 NWLR (PT 903) 544 at 568, NSIRIM vs. NSIRIM (2002) 12 WRN 1 at 141, ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (PT 424) 252 and ASHIRU vs. OLUKOYA (2006) 11 NWLR (PT 990) 1 at 19-20. The Respondents did not counterclaim, so it was for the Appellants to establish the declaration of title sought over the disputed land. Therefore, the heavy burden of proving title to the disputed land rested squarely on the Appellants. There was no duty on the Respondents who did not claim any declaration to prove their title. See ADEKANBI vs. JANGBON (2007) ALL FWLR (PT 383) 154 at 160, 163 and 165 and OWOEYE vs. OYINLOLA (2014) ALL FWLR (PT 721) 1458 at

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1477.

The legal position has crystallized that, there are five ways or methods of proving title to land. The proof of any of the five ways or methods will suffice for the action to succeed: IDUNDUN vs. OKUMAGBA (1976) 9-10 SC 227 and THOMPSON vs. AROWOLO (2003) 4 SC (PT 2) 108 at 155-156. The Appellants relied on traditional history and acts of possession, to prove their title to the disputed land. The Respondents equally pleaded traditional history and acts of possession. Indeed, as found by the lower Court, the disputed land is well known to the parties and their respective land which is not disputed lie side by side. The parties in their pleadings on traditional history averred that, it was their progenitor that “disvirgined” and deforested the disputed land. The lower Court rightly found that the disputed land is the same and well known to the parties; so there is evidently a conflict in the traditional evidence as the respective progenitors of the parties could not both have “disvirgined” and deforested the disputed land. The settled legal position as established in the case of KOJO II vs. BONSIE (1957) 1 WLR 1223 is that, where

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the traditional evidence adduced in proof of title to land is inconclusive or in conflict, the Court should examine the acts of ownership or possession done by either party in recent times in relation to the disputed land. See IRIRI vs. ERHURHOBARA (1991) 2 NWLR (PT 173) 252, ELEGUSHI vs. OSENI (2005) 14 NWLR (PT 945) 348 or (2005) LPELR (1111) 1 at 15-16 and SALAMI vs. GBODOOLU (1997) LPELR (2984) 1 at 20.

The Judge at nisi prius is a peculiar adjudicator. He is the one in the heat of the battle at the trial. He sees the faces of the witnesses, hears their testimony, feels the tension and observes the demeanour of the witnesses. It is therefore within the province of the trial judge who saw, heard and assessed the witnesses to evaluate and ascribe probative value to the evidence adduced. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38. Where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court. The trial Court considers the evidence adduced, decides which evidence to prefer on the basis of how the evidence preponderates

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and then makes logical and consequential findings of facts: ADEYEYE vs. AJIBOYE (1987) 1 NWLR (PT 61) 432 at 451, STEPHEN vs. THE STATE (1986) 5 NWLR (PT 46) 978 at 1005 and UNITED MICROFINANCE BANK LTD. EKPAN vs. ADJAKA (2015) LPELR (24541) 1 at 41-43.

The law is that the conclusions of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT2) 66, BAMGBOYE vs. OLAREWAJU (1991) 4 NWLR (PT 184) 132 at 156 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43.

Let me iterate that, it is an established principle that an appellate Court will not substitute its own views with those of the trial Court, when as in the present case, the trial Court unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. Where the findings of the Court have been judicially and judiciously arrived at, flowing from the evidence before it, an appellate Court

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has no jurisdiction to interfere. See OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 217-218.

The lower Court, having found that the disputed land is well known to both parties proceeded to evaluate the testimonial and documentary evidence adduced and after due consideration of the litigation survey plan tendered by the parties, Exhibits E and J, held that the evidence showed that it was the Respondents that were in possession of the disputed land on account of the acts of ownership or possession in recent times. I have insightfully considered the survey plans, Exhibits E and J, and it is translucent that there are houses on the disputed land, which houses from the evidence are said to belong to the Respondents. The evidence on record as it relates to acts of possession in recent times is conclusive that it is the Respondents who have been exercising acts of ownership and possession over the land. In this wise, the findings of the lower Court are borne out by the evidence on record.

​I am not oblivious of the Appellants’ contention that the Respondents’ houses on the disputed land is the cause of action and that the Respondents cannot be

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said to be in possession on account of their trespassory acts. I am however not enthused by this contention as it is neither borne out by the evidence or by the pleadings of the Appellants. The Appellants’ cause of action as can be evinced from the Further Amended Statement of Claim is that the Respondents encroached on the disputed land, sold a portion to the 2nd Respondent who is making arrangement to build on the land and that the Respondents still intend to sell part of the disputed land to the third parties who will erect various buildings on the land and change the character of the land. See paragraphs 14, 20 and 22 of the Further Amended Statement of Claim. Furthermore, in replication to the Respondents’ averments in the defence that they have their houses on substantial parts of the disputed land, the Appellants, in paragraph 16 of the Reply to the Statement of Defence (see page 130 of the Records), averred that apart from the four-bedroom duplex built by the 2nd Respondent where he lives, no other house or estate has been built on the disputed land. Consequently, the facts as pleaded is not that the houses built on the disputed land is the cause

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of action. The Reply to the Statement of Defence was filed on 1st December, 2016; but most instructively, the Appellants’ litigation survey plan, Exhibit E, which was made on 18th April, 2016 (eight months before the Reply to the Statement of Defence was filed) shows several buildings on the disputed land belonging to the Respondents. The Appellants, on the basis of their pleadings cannot be heard to argue that the Respondents’ buildings on the disputed land was the cause of action. No. That is not the case they took to trial.

Now, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or, where the trial Court has drawn wrong conclusion from accepted evidence or, has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from

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accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (supra) or (1999) LPELR (1248) 1 at 47-48.

It is now settled law that, for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR 1 at 47:
“It is now settled that, if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order, merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the

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business of a Court of appeal to substitute its own views for the views of the trial Court.”

It cannot be disputed that the lower Court duly appraised the evidence. The findings and conclusions arrived at by the lower Court accord with common sense and reason based on the facts pleaded and the available evidence. There is therefore, no basis for this Court to interfere with the findings of facts made by the lower Court. Concomitantly, the Appellants have failed to displace the presumption that the findings of facts made by the lower Court are correct: EHOLOR vs. OSAYANDE (supra) and BALOGUN vs. AGBOOLA (supra).

The decision of the lower Court that the Appellants failed to prove their case by cogent and satisfactory evidence is the correct decision. This issue number one is resolved in favour of the Respondents. The Appellants did not prove their case.

​Though, I resolved issue number two on whether the action was statute barred in favour of the Appellants, signifying a success of the appeal in part, however, the resolution of issue number one against them necessarily connotes that the ultimate verdict is that this appeal must fail. The decision of the

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lower Court dismissing the Appellants action for failure to prove their claim of ownership of the disputed land by cogent and satisfactory evidence is hereby affirmed. There shall be costs of N250,000.00 in favour of the Respondents.

MISITURA OMODERE BOLAJI-YUSUF, J.C.A.: I have been privileged to have read before now, the lead judgment my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA. For the reasons which have been lucidly and elaborately stated in the judgment, I agree that the appeal should be dismissed. I too dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother, Ugochukwu A. Ogakwu, JCA, just delivered.

My learned brother has painstakingly examined the two issues raised and canvassed in the appeal. I agree entirely with his reasoning and conclusion arrived therein. I adopt same as mine and wish to add that a party seeking a declaration of title to land is not bound to plead and prove more than one root of title.

Whereas, in the present case, a party relies on traditional history and in addition, acts of ownership and long possession predicated on the traditional history as

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pleaded, he is not entitled to declaration of title based on the evidence of acts of ownership where the evidence of traditional history is unavailing.
However, such evidence of acts of ownership and long possession become relevant where the traditional histories given by both sides, though plausible, are in conflict. In such a situation, it will not be open to the Court simply to proffer one side to the other. Thus, to determine which of the histories is more probable is to apply the principles enunciated inKOJO II V. BONSIE (1957) 1 WLR 1223 to the effect that preference would depend on recent acts of ownership and possession shown by the parties that the Court would need to consider to make up its mind. See OHIAERI V. AKABEZE (1992)2 NWLR (prt. 221)1 at 19, EKPO V. ITA (1932 -34) NLR and MOGAJI V. CADBURY (NIG.) LTD. (1985)2 NWLR (prt. 2) 393.

In the instant case, the respondents were in possession of the disputed land on account of the acts of ownership and possession in recent times and therefore the findings of the lower Court is clearly borne out by the evidence on record.

​This appeal is unmeritorious and it is hereby dismissed. I also abide with the order as to costs.

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Appearances:

Uche F. Ewule, Esq., with him, Ms. S. A. Nwokoma For Appellant(s)

O. Waamah, Esq., with him, Ms. O. E. Imonivwerha For Respondent(s)