NTOE ANDREW O. ANSA & ORS v. ADDAX PETROLUEM DEVELOPMENT (NIG) LTD (2013)

NTOE ANDREW O. ANSA & ORS v. ADDAX PETROLUEM DEVELOPMENT (NIG) LTD

(2013)LCN/6291(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2013

CA/C/153/2010

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. UDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. NTOE ANDREW O. ANSA
2. CHIEF BASSEY E. A. ODO
3. CHIEF AGBOR O. EDEM
4. ASSIM O. A. ITA Appellant(s)

AND

ADDAX PETROLUEM DEVELOPMENT (NIG.) LTD. Respondent(s)

RATIO

WAYS OF ESTABLISHING OWNERSHIP OF TITLE TO LAND

The law is settled firmly, that ownership or title to land is provable or can be proved in any one of the following ways:-
a) traditional evidence
b) production of documents duly authenticated.
c) by positive acts of ownership extending over a sufficient length of time.
d) by acts of long possession and enjoyment of the land.
e) by the possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See Idundun v. Okumagba (supra); Plaro v. Tenalo (1976) 12 SC, 31; Ayoola v. Odofin (1984) 11 SC, 120 Omorege v. Iduganwanye (1985) 2 NWLR (5) 41; Nkado v. Obiano (1997) 5 NWLR (503) 31; Nkwo v. Iboe (1996) 7 NWLR (558) 334; Ewo v. Ani (2004) 17 NSCQR 36. PER GARBA, J.C.A.

WHETHER OR NOT A PLAINTIFF MUST SUCCEED ON THE STRENGTH OF HIS OWN CASE IN AN ACTION FOR DECLARATION OF TITLE TO LAND

THE POSITION OF THE LAW ON RELYING ON TRADITIONAL HISTORY AS THE ROOT OF TITLE TO A LAND IN DISPUTE

However, the law is that a party relying evidence of traditional history must plead his root of title by pleading who his ancestors were and how they founded the land and how the land eventually came down to him. Put another way, such a party is required to plead the original owner who founded the land, how it was founded and how it devolved to him through an unbroken chain of transmission or in such a way that there is no gap which cannot be explained. See Eno v. Ani (supra) also reported in (2004) 3 NWLR (861) 610; Odi v. Iyala (2004) 8 NWLR (875) 283; Okoko v. Dakolo (2006) 14 NWLR (1000) 401; Elegushi v. Oseni (2005) 7 S.C. (III) 205; Osuji v Ekeocha (2009) 7 MJSC (Pt. II) 74. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A.(Delivering the leading Judgment): The Appellants had sued the Respondent before the High Court of Cross River State vide a writ of summon dated the 14/1/2002 and the following claims were endorsed thereon:-
1. An order for the defendant to produce a list of its employees from the Cross River State detailing their communities and local government areas of origin.
2. An order that the defendant as long as its operation shall continue/subsist in Calabar must recognize Kasuk Clans as their landlords and/or host communities entitled ‘ to benefit from employment, contracts, provision of social amenities and other infrastructure, etc.
3. An order that the defendant shall employ, award contracts, provide infrastructure and social amenities to the plaintiff’s equal in volume and/or value to what it has expended on hitherto supposed lost communities as at the date of judgment.
4. Perpetual injunction restraining the defendants by themselves, their agents, privies and/or assigns from continued operation at the base (Old Calabar Port) without its recognizing and treating the plaintiffs as their landlords and/or host communities.
5. N50,000,000.00 (fifty million naira) damages.
The above claims were repeated at paragraph 14 of the Amended Statement of Claim dated the 22/12/2006 but filed on the 11/1/2007 and the 4th Appellant testified as the sole witness in proof thereof.
Although the Respondent filed a statement of defence, no evidence was called in support thereof because an application to file written statement on oath of witnesses by the Respondent was refused by the High Court.
At the end of the trial, the High Court delivered judgment on the 5/8/2009 dismissing the Appellants’ action, and the present appeal was brought against that decision.
From the four (4) grounds contained on the Amended notice of appeal, two (2) issues were formulated in the Appellants’ brief filed on the 7/9/2010 for determination in the appeal. They are thus:
1. Whether the lower court understood the case put forward by the Appellants when it firstly rejected vital exhibits tendered by them only to later dismiss their case for failure to prove title to land. This issue with respect is supported by grounds (i), (iii) and (iv) of the amended notice of appeal.
2. Whether the trial court was justified to scrutinize a tendered exhibit to fish out evidence or contradiction that should have but was neither produced nor pointed out by the defendant. This issue is supported by group it, of the notice of appeal.
The two (2) issues were argued together in the brief settled by Chief Orok I. Ironbar, of counsel for the Appellants.
In the Respondent’s brief filed on the 24/8/2012 but deemed on the 15/1/2013, the following issues were raised for decision in the appeal.
1. Whether the lower court understood the case put forward by the claimants/appellants.
2. Assuming that the names “Kasuk Qua Clans”. “Kasuk” and “Kasuk Clans” which are used interchangeably by the claimants/appellants in this appeal mean one and the same name, whether paragraphs 5 and 14 (II) of the amended statement of claim in which they appear are not claims for title to the Old Calabar, Port by the Claimants/Appellants and, if they are, whether the court below was not right in treating exhibit “E” and the other documents mentioned in the last two lines of paragraph C.5 on page 3 of the Appellants’ brief as being irrelevant to the proof by the claimants/appellants of their title to the Old Calabar Port?
As can be seen, there is no indication as to which of the grounds of the appeal the above issues relate.
It must always be remembered by counsel that the right of a Respondent who did not have a cross appeal or a Respondent’s notice to formulate an issue/s for determination in an appeal is restricted and limited in the sense that if he chooses to formulate his own issue/s different from the ones formulated by the Appellant, such issue/s must come and be shown to have been derived from any of the grounds of the appeal contained on the Appellant’s notice of appeal. Such a Respondent does not have the right to formulate issues for determination at large without any indication as to from which of the grounds of appeal the issues were distilled. In the absence of the indication by the Respondent from which of the grounds of appeal he formulates his own issues, it would not be the business of the court to embark on speculation about the point and it would entitled to ignore such issues for which no basis is shown in the appeal. Okoye v. N.C. & F. Co. Ltd. (1991) 6 NWLR (199) 501; The Reg. Trustees, A.F.M. v. Umo Jawes (1987) 7 SCNJ, 117; Onifade v. Olayiwola (1990) 7 NWLR (161) 130; Ibator v. Barakuro (2007) 9 NWLR (1040) 475; Momodu v. Momoh (1991 ) 22 NSCC (1) 212.
It may be observed that the Appellants’ issue 1 and the Respondent’s Issue 1 are in substance the same and so I intend to consider the Appellants’ issues which have been shown and are derivable from the grounds of the appeal in the determination of the appeal.
The submissions by the learned counsel for the Appellants on his issues are that from the statement by the High Court at paragraph 2 of page 85 of the record of appeal (extract of which were set out) it did not understand the case put forward by the Appellant before it. He maintained that the Appellant’s made no claims to title for land and only mentioned the land and Exhibit ‘E’ to show that they are near or related enough for it to be regarded as host community and to benefit for being so. It was submitted that since the Respondent did not call evidence to support the statement of defence it filed, the evidence of PW1 that the Respondent was operating on the Appellants’ land was not contradicted and that the High Court in evaluating Exh. ‘E’ drew a distinction and difference that should have come from the Respondent as defendant, contrary to the authority of Tanko v. Maiwaka (2010) 1 NWLR (1126) 468 that a court should not make a case different from the case made by the party himself. In further argument, learned counsel said the Appellants had pleaded old port as the base of the Respondent in paragraphs 5 and 7 of the amended statement of claim and so it was wrong of the High Court to have stated at page 87 of the record of appeal that they made no mention of the Old Calabar Port as that amounted to reading out that which is on the record.
According to him, the evidence of PW1 is supported by paragraphs 6, 7, 8, 9 and 13 of the amended statement of claim and that the High Court in rejecting the documents tendered, went outside the issue of admissibility. He urged us to take a look at the rejected documents which show that they were on behalf of host/catchment communities of which the Appellants considered themselves as one. He insisted that the Appellants’ case of being a host community and entitled to benefits was never disputed but acknowledged by the Respondent in Exh. ‘D’ and that the High Court investigated Exhibit ‘E’ and used its findings to contradict the case of the Appellants contrary to the decision in West African Breweries Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (775) 401 at 426. Learned counsel said the High Court should have noted that the Respondent did not adduce evidence and so minimum evidence was required of the Appellants’ to prove their case, citing Newbreed Org. Ltd. v. Eromiosele (2006) 5 NWLR (974) 499 and Durosaro v. Ayorinde (2005) 8 NWLR (927) 407 at 425.
In conclusion, we were urged to resolve the issues in favour of the Appellants, allow the appeal, set aside the judgment by the High Court and enter judgment for the Appellants, granting their claims.
The learned counsel for the Respondent had submitted that the High Court had obviously, from the judgment appealed against, understood the case of the Appellants, making reference to paragraphs 5, 6 and 14 (ii) and (iv) of the amended statement of claim. He said by the assertions that they are a host community, the Appellants are clearly saying that they are the owners of the land on which the Respondent operates and so they are claiming title to it. Learned counsel conceded that the Appellants had mentioned the Old Calabar Port in paragraph 5 of the amended statement of claim but that the High Court had found that there was no evidence to prove the claim to the said land. It was his further submission that the absence of evidence from the Respondent does not excuse the Appellants from proving their claims, relying on Omoregie v. Omigie (1990) 2 NWLR (130) 29 at 39. It was his contention that the Appellants’ claim for title to the Old Calabar Port by virtue of which they allegedly became the Respondent’s host community and that Exhibit ‘E’ which relates to Ekoanim land and not Kasuk Qua land was irrelevant to the case of the Appellants.
Learned counsel’s submissions on his issue 2 are on his stand that the Appellants’ claim before the High Court was for the title to the land on which the Respondent operates as pleaded in paragraphs 5 and 14(ii) of the amended statement of claim. After setting out the five (5) ways by which title the land can be proved as enumerated by the Supreme Court in Idundun v. Okumagba (1997) 9-10 SC, 277, he said the Appellants had pleaded title by traditional evidence which they however failed to establish by the evidence of the only witness at the trial. It was submitted that the minimum evidence used in the Newbreed Oro. v. Eromosole (supra) must be evidence that is relevant and admissible to the claim of the Appellants, citing Nwogo v. Njoku (1990) 13 NWLR (140) 570 at 581 as authority on the point.
He then argued that the High Court dismissed the Appellants’ case because they failed to prove title to the Old Calabar Port and urged us to dismiss the appeal and affirm the judgment of the High Court.
In the Reply brief, learned counsel for the Appellants maintained that the Appellants’ claim was not for title to land but to be recognised as Landlords and/or host communities and so they were not required to tender a survey plan to identify the land. The other submissions in the Reply are mere repetitions of the earlier ones made in the Appellants’ brief and not on fresh or new points raised in the Respondent’s brief. By the provisions of
Order 18, Rule 5 of the Court of Appeal Rule, 2011, a Reply brief is filed by an Appellant when and where the Respondent in his brief had raised new points that call or necessitate for a response or answer from the Appellant and it is to be limited to answering such new or fresh points alone. Thus, a Reply brief is not and should not be used to repeat arguments already canvassed by the Appellant in his main brief or to present further arguments in an attempt to enhance what was argued in the main brief. Consequently, where no new points were raised by the Respondent in his brief, a Reply brief by an Appellant becomes unnecessary. See Nwali v. State (91) 3 NWLR (182) 662; Umeji v. Attorney-General, Imo State (1995) 4 NWLR (391) 552 at 593; Olafisoye v. FRN (2004) 4 NWLR (864) 580; Agala v. Okusin (2010) 10 NWLR (1202) 412; Ojiogu v. Ojiogu (2010) 9 NWLR (1198) 1.
For a comprehensive determination of the appeal, a full understanding and appreciation of the Appellants’ case before the High Court as presented in their amended statement of claim filed on the 11/1/2001, is necessary. For that purpose, it expedient to invite the averments in the said pleading to present the facts upon which the claims therein are premised. The fourteen (14) paragraphs of the amended statement of claim are as follows:-
1. The 1st plaintiff is the Clan Head of Kasuk Qua Clans, Calabar. While the 2nd and 3rd plaintiffs are Village Heads and Principal Members of the same clans with the 4th Plaintiff as their Secretary.
2. The Plaintiffs are suing for themselves and as representing Kasuk Qua clans, Calabar.
3. The 1st defendant is a Limited Liability Company engaged in crude oil exploration/drilling and has in its employ and/or contract services oil servicing companies including Esco Nigeria Limited and others.
4. The 2nd defendant was a Federal Establishment controlling seaports including the one at Calabar. It has been privatized or commercialized and was joined in this matter upon the application of the 1st defendant and after plaintiffs have concluded their case.
5. The plaintiffs’ ancestors founded Kasuk lands which is vast and includes all that land where the Calabar Cement Company Limited is situate and its beaches stretching to the Old Calabar Port from where the 1st Defendant operates and beyond. Plaintiffs are thus the host community (as known in the Oil Industry) to the 1st defendant.
6. It is the policy of government which is general or notorious acknowledgement that oil companies and oil services companies in their employments, contracts, establishment of infrastructure and provision of social amenities must consider, favour and allow a considerable percentage to their host community or communities.
7. With knowledge of the above the plaintiffs believed that the operations of the 1st defendant at the Old Calabar Port was going to be beneficial to them which was surprisingly not so.
8. The 1st defendant commenced operations and failed to make contact with the plaintiffs and even where the plaintiffs attempted to make contact it rebuffed and sometimes humiliated the plaintiffs and/or their representatives. The 1st defendant also caused its servicing companies to treat the plaintiffs in like manner. Letter from Solicitors to Esco Marine Nigeria Limited and statement of defence of Esco Marine Nigeria Limited in Suit No. HC/132/2001, are hereby pleaded.
9. The 1st defendant has employed from other communities and sometimes completely from outside the Cross River State and has also awarded contracts and provided infrastructure and social amenities in the same way. Copies of their employment and salaries lists will be founded upon at the hearing hereof.
10. The plaintiffs unable to bear this breach of promise/commitment/understanding and unfair treatment by the 1st Defendant caused their Solicitors to write letter dated 201112001, to the 1st defendant who replied by letter of March 1, 2001.
11. The 1st defendant in its reply acknowledged that plaintiffs community was one of the host communities appearing before a committee of the Cross River State House of Assembly.
12. The 1st defendant in a bid to dodge/evade this issue has deliberately been dealing with outsiders and representing them as members of host communities. The production and scrutiny of the list of employees and payments/salaries account will confirm this.
13. The 1st Defendant has failed, refused and/or neglected to see reason and discuss with the Plaintiffs and has threatened to continue with this conduct unless compelled by the court to comply with and effect their obligations.
14. The plaintiffs have suffered damages and claim against the 1st defendant as follows:-
i) an order for the 1st defendant to produce a list of its employees from the Cross River State detailing their communities and local government areas of origin.
ii) an order that the 1st defendant as long as its operations shall continue/subsist in Calabar must recognize Kasuk Clans as their landlords and/or host communist entitled to benefit from employments, contracts, provision of social amenities and other infrastructure, etc.
iii) an order that the 1st Defendant shall employ, award contracts, provide infrastructure and social amenities to the plaintiffs equal in volume and/or value to what it has expended on other or hitherto supposed host communities as at the date of judgment.
iv) Perpetual injunction restraining the 1st defendant by themselves, their agents, privies and/or assigns from continued operatives at the base (Old Calabar Port) without its recognizing and treating the plaintiffs as landlords and/or host communities.
v) N50,000,000.00 (Fifty Million Naira) damages.”
The sole witness called by the Appellants in proof of the claims, was the 4th Appellant; trader and Secretary of Kasuk Community. His evidence in chief was generally in line with the averments in paragraphs 5 and 6 of the statement of claim above.
In its judgment, the High Court had stated at page 85 of the record of the appeal that:-
“The first hurdle the claimants have to scale here is to establish that the “Old Calabar Port”, where the claimants say Addax Limited is situate, belongs to “Kasuk Clans”. All other claims of the claimants are dependent on crossing this hurdle.”
The High Court then went on to examine Exh. ‘E’, a copy of a judgment in suit No. SC/62/1949, and concluded at page 88 of the record of the appeal that:-
“Exhibit ‘E’ does not declare title to any Port in favour of the claimants here: KASUK QUA CLANS, I so find and hold. Claimants have failed to prove title to “Old Calabar Port” where they allege the only defendant on record now, Addax Limited, is situate. That was the only route of title they pleaded. All the reliefs of the claimants are accordingly dismissed.”
It may be recalled that the learned counsel had argued that the High Court misunderstood or did not understand the case of the Appellants when it rejected vital documents and dismissed the case for failure to prove title to land. He insisted that the Appellants’ case is not for title to land but being a host community. The averment in paragraph 5 of their statement of claim appears to be foundation of the claims by the Appellants in the case. The claim by the Appellants of being a host community to the Respondent is predicated on the fact which they asserted in the averment, that their ancestors founded the Kasuk land with beaches stretching to the Old Calabar Port where the Respondent operates. This simply means that because the land on which the Respondent is situate and it operates was allegedly founded by the Appellants ancestors, the Appellants claim, as owners of the land through the said ancestors, to be the host community to the Respondent. This position was put beyond argument by the evidence of 4th Appellant when at page 56 of the record of appeal he said:-
“We are not talking of landlord/tenant relationship. We are saying they are operating on our land. The land where Old Port Authority was, where the defendants are operating is Kasuk land by virtue of a judgment against Obutong Community.”
When the copy of the judgment mentioned by the witness was tendered and objected to by the learned counsel for the Respondent, this was the response by the learned counsel for the Appellants to the objection:-
“Ironbar: The judgment is evidence of ownership which is the basis of our claim. Defendant did not deny our title to the land.”
The judgment was eventually admitted as Exhibit ‘E’ in evidence.
In view of the state of the Appellants averment in paragraph 5 of their amended statement of claim, the evidence of 4th Appellant as the sole witness and the statement or position of the learned counsel for the Appellants above, can it seriously and reasonably be disputed that the primary claim of the Appellants against Respondent was not based on the ownership or title to the land on which the Respondent operates? The above record of the appeal clearly leaves no doubt that the claim by the Appellants is completely predicated on their assertion of being the owners of the land in question and so is one for title to the said land. The claim of being a host community to the Respondent is entirely dependent on the claim for ownership or title to the land in question admittedly made by the Appellants as demonstrated above. The High Court was therefore right in the statement that the first hurdle for the claimants to scale in their case against the Respondent was to establish that the land-on which it operates; i.e. Old Calabar Port, belongs to or is owned by them. In other words, the Appellants who claimed to be the owners of the land have the legal burden of proving their ownership of or title to the land first before they can succeed in the claims against the Respondent. In the above premises, the High Court undoubtedly and correctly too, understood the case presented by the Appellants in both pleadings and the evidence of the only witness which unequivocally, claim ownership or title to the land in question.
Although it is not the case of the learned counsel for the Appellant in this appeal that the Appellants had proved their ownership or title to the land in question since his position has consistently been that the Appellants’ case was not for title to land and so did not have to adduce evidence to that effect, the law is settled firmly, that ownership or title to land is provable or can be proved in any one of the following ways:-
a) traditional evidence
b) production of documents duly authenticated.
c) by positive acts of ownership extending over a sufficient length of time.
d) by acts of long possession and enjoyment of the land.
e) by the possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.
See Idundun v. Okumagba (supra); Plaro v. Tenalo (1976) 12 SC, 31; Ayoola v. Odofin (1984) 11 SC, 120 Omorege v. Iduganwanye (1985) 2 NWLR (5) 41; Nkado v. Obiano (1997) 5 NWLR (503) 31; Nkwo v. Iboe (1996) 7 NWLR (558) 334; Ewo v. Ani (2004) 17 NSCQR 36.

The law is also well known that it is the duty of the plaintiff in a claim for ownership or title to land to prove his claim and can only succeed on the strength of his evidence and not on the weakness of admission by or even absence of a defence. See Kodilinye v. Odu (1936) 2 WACA, 336; Owoade v. Onilola (1985) 5 SCNJ, 1; Famurobi v. Agbeke (1991) 5 NWLR (189) 1; Abisi v. Ekwealor (1993) 1 NWLR (302) 43; Salami v. Gbodoolu (1997) 4 NWLR (449) 377; Okelola v. Adeleke (2004) 7 SC (1) 35; Ndukuba v. Izundu (2006) ALL FWLR (343) 1740; Shasi v. Smith (2009) 12 MJSC (Pt. II) 150.
In the present appeal, even though the Appellants did not directly seek for a declaration of the ownership or title to the land in question in their pleadings, the fact that the claims they made therein are predicated on their ownership or title to the land which they directly asserted in paragraph 5 of their statement of claim, the ownership or title to the land had thereby been put in issue by them as shown by the evidence of 4th Appellant and position by the leaned counsel both set out earlier. The satisfactory proof of the ownership or title to the land in question is a condition precedent in the determination of whether the claims they make as host community to the Respondent are maintainable by them. The duty to prove the ownership or title to the land by sufficient and credible evidence is not mitigated by absence of a defence by the Respondent or failure to challenge or deny the claim of the Appellants.
By the averment in paragraph 5 of the statement of claim, the Appellants had pleaded that the land in question which they say is part of what they called Kasuk lands, was founded by their ancestors, who were not named therein. In his evidence, 4th Appellant had testified at page 52 of the record of appeal that:-
“Kasuk has a very vast area of land founded by Ntoe Odo Edem… the Old Calabar Port, are on Kasuk land. Defendant operates at the Old Calabar Port which makes Kasuk’s tenants. (sic)”
The pleading of and evidence by the Appellants above would appear to be a case of claiming ownership or title to the land by way of traditional evidence of history, one of the ways by which ownership/title to land can be proved in law on the authority of the cases cited on the point earlier. In addition, see Ohiari v. Akabeze (1992) 2 NWLR (221) 1; Oyadare v. Keji (2005) 7 NWLR (925) 571.
However, the law is that a party relying evidence of traditional history must plead his root of title by pleading who his ancestors were and how they founded the land and how the land eventually came down to him. Put another way, such a party is required to plead the original owner who founded the land, how it was founded and how it devolved to him through an unbroken chain of transmission or in such a way that there is no gap which cannot be explained. See Eno v. Ani (supra) also reported in (2004) 3 NWLR (861) 610; Odi v. Iyala (2004) 8 NWLR (875) 283; Okoko v. Dakolo (2006) 14 NWLR (1000) 401; Elegushi v. Oseni (2005) 7 S.C. (III) 205; Osuji v Ekeocha (2009) 7 MJSC (Pt. II) 74.
Apparently, the pleading by the Appellants in paragraph 5 of the statement of claim did not meet the above requirements of the law and the evidence by 4th Appellant did not better the case for them. That is why I initially said the Appellants appear to have pleaded traditional evidence of history in the claim for ownership or title to the land in question. The Appellants had also tendered a copy of a judgment in the suit No. SC/62/1949 which was admitted as Exh. ‘E’ which they as seen earlier, the learned counsel for the Appellants had said is evidence of ownership which was the basis of the Appellants’ claim. Again, I would say that it appears that Appellants’ case by that Exhibit is that of claim of ownership and so title of the land in question, was now based on document of title which the Exhibit represented. The judgment was clearly not part of the evidence of the initial case of ownership by traditional evidence as pleaded in paragraph 5 of the statement of claim by the Appellants. The Exhibit ‘E’ did not also go to support any of the other facts pleaded by the Appellants.
However assuming that it was put in as evidence of ownership pleaded in paragraph 5, the High Court had evaluated the said Exhibit before concluding that the Appellants did not prove their claim to the ownership of the land in question. The High Court had stated at pages 85-86 of the record of the appeal that:-
“The claimants tendered Exhibit ‘E’, statement of claim and terms of settlement reached between the parties in suit No. C/62/1949 over a Judgment Debtors summons filed therein. It is true that on the summons the people of Ikpai Qua Town and Ikot Akasuk Town, Plaintiffs in the case, are described on the judgment summons as “Plaintiff/Creditors” but that does not tell me what the Judgment in the suit was. The full terms of settlement also attached to Exhibit ‘E’ does not say what the judgment in C/62/1949 was as if only settled the “Judgment Debt” and said nothing about title to any port whatsoever.”
It then found and concluded that at page 88 of the record that:-
“Exhibit ‘E’ does not declare title to any Port in favour of the claimants here: KASUK QUA CLANS, I so find and hold.”
I have read Exhibit ‘E’ which appears at pages 98-105 of the record of the appeal, and from what I can make from the very badly photocopied order of the Supreme Court, Calabar at page 105, it was an order for the payment of a share of rents collected by the Defendants to the plaintiffs in the suit. The High Court was right that the said Exhibit did not declare any title to any port or land, which is shown to be connected or related in any manner however, to the land which the Appellants’ claimed ownership of through their ancestors who they did not name in their pleadings. Whereas the land in dispute between the parties in Exhibit ‘E’ was said to have been founded by one Kasuk in the statement of claim by the plaintiffs in that case, as borne out at page 104 of the record, the 4th Appellant in his testimony before the High Court had said the land was founded by Ntoe Odo Edem.
I am in agreement with the High Court that there was no evidence of ownership by the Appellants in respect of the land in question as claimed by them. It was not a question of calling or adducing minimum evidence by the Appellants in proof of the ownership claim they made because the Respondent did not defend the action. Rather it was an issue of complete absence of the very necessary and crucial evidence of the ownership of the land claimed by the Appellants which was the fulcrum of the claim of being a host community to the Respondent. The law is now common that where in a civil case which is proved on the preponderance of evidence, one party neglects, omits, fails or chooses not to call evidence in order to meet the evidence adduced by the other party, there would be nothing for the trial court to put on that party’s side of the imaginary scale of justice. In such a situation, the evidence adduced by one side will easily preponderate to his side of the scale, no matter how be it minimal or minimum. That is the logic behind the principle that minimum evidence is required in proof of an issue where only one party, either plaintiff or defendant as the case may be, called or adduced evidence on the issue. However, I should point out that proof where required by the law in civil cases has to be by admissible, credible and sufficient evidence which is capable of supporting the claims made on the balance of probabilities which is the standard required under the provision of Section 134 of the Evidence Act, 2011. Minimum evidence required therefore in cases where only side of case called or adduced evidence, as proof of a case is not any type of evidence but one which meets the standard of proof and is capable of sustaining the claims in respect of which it was adduced. Ineffectual, feeble, tenuous and weak evidence no matter the quantity or amount even if unchallenged cannot meet the required standard of proof on the balance of probabilities and cannot be acted upon and be the basis of a decision by a court to enter judgment in favour of the party calling the evidence. See Ibwa v. Imam Ltd. (1988) 3 NWLR (85) 633; Boshali v. Allied Comm. Exporters Ltd. (1961) 1 ALL NLR, 917; Nsirim v. Omima (1994) 1 NWLR (318) 1; Michael v Yousuo (2004) 15 NWLR (895) 90; Ogualaji v. Attorney-General, Rivers State (1997) 6 NWLR (508) 209.
The learned counsel for the Appellants had also said the High Court had scrutinized Exh. ‘E’ to contradict the Appellants’ case which was not proper relying on the case of West African Breweries Ltd. v. Savannah (supra). Let me say here that the learned justice of the apex court whose statement was quoted by the learned counsel had pointed out the very thin demarcation between evaluation of any piece of evidence, documentary or oral, admitted by a trial court which is its primary function, and investigation of such evidence which is said not to be proper. Examination was defined by the eminent jurist as an examination which leads to discovery of fresh facts the truth of which could have been challenged by fresh contrary evidence.
The learned counsel for the Appellants did not demonstrate in the brief which fresh facts were discovered and used by the High Court to contradict the Appellants’ case. The learned counsel had himself said that exhibit ‘E’ was evidence of the ownership of the land in question which formed the basis of their claim against the respondent. The High Court in its determination of that issue had the legal duty and primary obligation to consider, assess and evaluate the quality of the Exhibit in respect of the claim for ownership by the Appellants, for the purpose of ascribing probative value or worth on the issue. It should be noted that the process of evaluation of a piece of evidence after its admission by a trial court involves an examination of such evidence with a view to ascertaining its relevance, credibility, probability and its conclusiveness on the issue in respect of which it was admitted, which are the relevant factors to be considered before the ascription of probative weight or value to it in the case. See Mogaji v. Odofin (1978) 4 S.C. 91; Onwuka v. Ediala (1989) 1 NWLR (96) 186. A trial court is not to and should not blindfold, act or rely on a piece of documentary evidence merely because it was admitted in evidence without subjecting it to the requisite evaluation and assessment. The law is trite now that admissibility of any piece of evidence is different and distinct from the probative weight or value it may be worth in a case. Admissibility which is based on relevancy, is governed by principles of law while the ascription of weight or value to a piece of evidence depends on the factors which I have mentioned above. Thus, a piece of evidence may be admitted at a trial but when put through the process of evaluation and assessment by the trial court in its determination of case between the parties, it may be found to be of little or no probative weight or value. See Fawehinmi v. NBA (No. 2) (89) 2 NWLR (105) 558; Okonji v. Njokanma (1991) 7 NWLR (202) 131; IMB. Nig. Ltd. v. Dabiri (1998) 1 NWLR (533) 284; Buraimoh v. Karimu (1999) 9 NWLR (618) 310; Omega Bank Plc v. O.B.C. Ltd. (2005) 1 S.C. (Pt. 1) 49. What the High Court did in respect of Exhibit ‘E’ in the discharge of its primary duty, was to subject it to the process of evaluation in order to determine the appropriate weight or value it was worth on the issue of the Appellants’ ownership of the land in question in respect of which it was tendered and admitted in evidence. Like I said before now, the learned counsel had not pointed out any fresh fact found by the High Court which it used to contradict the Appellants’ case which was predicated on their claim for ownership of the land in question. The High Court did not investigate the Exhibit to discover facts the truth of which could have been challenged by fresh contrary evidence. That court simply evaluated the exhibit as it was under a duty to do and found it not of the probative worth to prove the claim for ownership of the land in question. It was entitled in law to do so and cannot properly be faulted on that ground alone. The general attitude of appellate courts in respect of evaluation of evidence by trial lower courts is that they do not as a matter of routine practice, interfere with the performance of such a function by them. It is only where and when a trial court is shown to have failed to evaluate the relevant and material evidence placed before it by the parties at all or properly that an appellate court would be justified to intervene and evaluate or re-evaluate the evidence. Otherwise, an appellate court has no business in interfering with the evaluation by a trial court. See Ogokolobo v. Adamu (1998) 9 NWLR (565) 226; Sha v. Kwan (2000) 5 S.C. 178; Highgrade Maritime Services Ltd. v. F.B.N. Ltd. (1991) 1 NWLR (167) 290; State v. Adie (2000) 7 S.C. (pt. 1) 24; Agbi v. Ogbeh (2006) 11 NWLR (990) 65.
In the result, for reasons set out above, I find no merit in the submissions on the Appellants’ two (2) issues which I resolve against them. The grounds of the appeal fail and it is dismissed accordingly.
Parties shall bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, J.C.A. On what basis can the orders the Appellant is seeking be granted? First, ownership of the land is immediately put in question. Without the determination of the ownership of the land, it would be absolutely impossible to grant the orders as contained in the statement of claim and the endorsement on the writ itself.
It has been said time without number that a claimant has the onus of proving his claims. He wins on the strength of his own case and not upon the weakness of the case of the defendant. The Appellants ought to satisfy the court that upon the pleadings and evidence adduced by them they are entitled to the orders sought. See Ajiboye v. Ishola (2006) 13 NWLR pt. 998 page 628, Onissoodu v. Elewuju (2006) 13 NWLR pt. 998 Page 517.
For this and the more detailed reasoning in the lead judgment, this appeal is unmeritorious and is hereby dismissed. I abide by all the orders in the lead judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading in draft the Judgment delivered by my learned Brother, Mohammed Lawal Garba, J.C.A. I am in agreement that this appeal fails; and, I also dismiss it.
It is trite law that where evidence called by the plaintiff in a civil case is neither challenged nor contradicted, his onus of proof is discharged on a minimal of proof because there is nothing on the other side of the scale. See: S. O. Nwabuoku v. P. N. Ottih (1961) 1 All NLR 487; Buroimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352. However, the plaintiff’s unchallenged evidence must be such as can ground his case.
A plaintiff bears the burden of proving his own case. It has been well articulated that in land matters, in particular, the plaintiff cannot rely on the weakness of the case of the defendant, but must rely on the strength of his own case. This is because the weakness of the defendant’s case cannot, as a matter of general principle, add strength or credibility to the case of the plaintiff. The plaintiff has to stand or fall by his own case. See: Ohaeri v. Akabueze (1992) 2 NWLR (Pt. 221) 1; Abraham v. Olorunfunmi (1991) 1 NWLR (Pt. 165) 53.
The Appellants had pleaded in paragraph 5 of their Statement of claim that:
“The plaintiffs’ ancestors founded Kasuk lands which is vast and includes all that land where the Calabar Cement Company Limited is situate and its beaches stretching to the Old Calabar Part from where the 1st Defendant operates and beyond. Plaintiffs are thus the host community (as known in the Oil Industry) to the 1st defendant.”
All their claims are premised on their claims to the Kasuk lands whereon they allege the Respondent is based. Although the Respondent filed a Statement of Defence, which they effectively abandoned since they failed to call evidence in proof of their defence, the Appellants who had the primary responsibility of presenting credible evidence in proof of their claims failed to do. Their case was therefore bound to fail.
For these reasons; and for the more comprehensive reasons given in the lead Judgment, I also dismiss this appeal. I abide with the Orders made in the lead Judgment.

Appearances

Orok I. IronbarFor Appellant

AND

Chief K. K. OgbaFor Respondent