NWAFOR EFONA v. CHRISTOPHER I. ANUMBA & ORS (2016)

NWAFOR EFONA v. CHRISTOPHER I. ANUMBA & ORS

(2016)LCN/8325(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/E/169/2006

RATIO

APPEAL: OMNIBUS GROUND OF APPEAL; THE NATURE AND SCOPE OF AN OMNIBUS GROUND OF APPEAL

The issue under consideration centres on the omnibus ground of appeal which encompasses all other grounds of appeal in this appeal. In ANACHUNA ANYAOKE & ORS. VS. ADI & ORS. (1986) 3 NWLR 731 AT 742, the Supreme Court explained the nature and scope of an omnibus ground of appeal as follows:
It is true that omnibus ground of appeal implies that the judgment of trial Court cannot be supported by the weight of the evidence adduced by the successful party, which the trial judge either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial Judge. A further implication of the omnibus ground is that when the evidence adduced by the appellant is weighted against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial Court. See CHIEF ABAH OGBODU M V. DANIEL ADELUGBA (1971) 1 ALL N.L.R. 68 AT P. 71; MBA NTA & ORS. V. EDE NWEDE ANIGBO & ORS. (1972) 1 ALL N.L.R (PART 2) 74 AT P. 80 AND MOGAJI & ORS. V. ODOFIN & ORS. (1978) 4 S.C 91 AT PAGE 93. In deciding upon these issues it may be relevant to consider whether the trial Judge was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would of course affect the cogency given to the testimonies.?
See also ATUYEYE VS. ASHAMU (1987) NWLR (PT.49) PAGE 267 AT 275 – 276 (F ? A). It is therefore settled that an omnibus ground of appeal is a complaint against the totality of the evidence adduced at the trial. See AKINLOGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) PAGE 60, OSHOLU VS. OSHOLU & ORS (2003) 11 NWLR (PT. 832) PAGE 608. Though the law is settled that evaluation and ascription of probative value to it is primarily the duty of the trial Court who had the opportunity of hearing and seeing the witnesses testify and the evaluation of evidence will not be lightly interfered with by the appellate Court unless it is shown that the trial Court failed to perform its duty according to the law. However, an omnibus ground of appeal that the judgment is not supported by the weight of the evidence is designed to allow a complaint on evaluation of evidence or improper evaluation of evidence. See AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PT. 476) PAGE 22. per. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

Before Their Lordships

RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIMJustice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria

Between

NWAFOR EFONAAppellant(s)

AND

1. CHRISTOPHER I. ANUMBA
2. ERIC ENENDU
3. HYACINTH KOKWELU
(FOR THEMSELVES AND ON BEHALF OF UMUONYENWEONWU FAMILY OF URUEKWULUM AMAWA VILLAGE, OGBUNIKE)Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.(Delivering the Leading Judgment): The respondents in this appeal instituted suit No. OT/33/2002 in the Otuocha/Awka Judicial Division of Anambra State High Court and claimed the following reliefs against the appellant:
(a) ?A declaration that the Plaintiffs are entitled to the Statutory Right of Occupancy in respect of the said land in dispute i.e. Owelle Umuonyenwonwu.
(b) An order of forfeiture against defendants.
(c) An Order of interlocutory injunction restraining the defendants their agents or privies, from further changing the character of the land now in dispute in any manner such as felling of trees thereon, erecting building, cultivating the land, uprooting boundary marks etc.
(d) N200,000.00 damages.?

The defendants were originally two but the name of the 1st defendant was struck out at the Court below leaving only the appellant in this appeal as the sole defendant.

Parties filed and exchanged pleadings. 1st and 3rd plaintiffs testified as PW1 and PW2 and called no other witness. The defendant now the appellant testified as DW1 and called 3 other witnesses. Counsel

to both parties filed and exchanged written addresses which they adopted. In a considered judgment delivered on 13th February, 2015 by Hon. Justice P. A. C Obidigwe, the Court below entered judgment against the appellant as follows:
(a) ?A declaration that the plaintiffs are entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land situate at Owelle Umuonyenwonwu, shown verged pink on Survey Plan No. FALS/AN/DL.10/2003.
(b) An order of forfeiture against the defendants.
(c) An order of injunction restraining the defendants, their agents and privies from further changing the character of the land in any manner such as felling of trees, erecting buildings, cultivating the land and uprooting boundary marks.
(d) N10,000.00 (Ten thousand naira) inclusive costs.?

The appellant was dissatisfied with the judgment and has appealed to this Court on five grounds of appeal contained in the notice of appeal filed on 13th March, 2006. The grounds of appeal are as follows:
(i) ?ERROR IN LAW
Denial of fair hearing to the Appellant by granting a relief not claimed and not calling on the parties

to address the Court on the issue.
(ii) ERROR IN LAW
The learned trial Judge erred in law when he held that the land the subject matter of this suit was a pledge redeemed in 1973 when the plaintiffs did not discharge the onus on them to prove that fact.
(iii) MISDIRECTION IN LAW
The learned trial Judge misdirected himself in law in the application of the principle of law stated Kojo vs. Bonsie.(sic)
(iv) MISDIRECTION OF LAW
The learned trial Judge misdirected himself in law when he accepted the two witnesses presented by the plaintiffs when their evidence was contradictory on the main issue in controversy.
(v) The judgment is against the weight of Evidence. Additional grounds may be filed on receipt of the record of proceedings.?
?
The appeal against the original 1st respondent was withdrawn by an application filed by the appellant on 12th April, 2012 and granted on 16th January, 2013.
The extant appellant?s brief of argument was filed on 31st January, 2013. Appellant?s counsel formulated the following issues for determination:
1. Whether or not the learned trial judge is justified to grant to

the 1st to 4th respondents the relief for injunction not claimed by them.
2. Whether or not the 1st to 4th respondents adequately made out a case of pledge of land to the ancestor of the appellant.
3. Whether or not the learned trial judge was right in his application of the principle in kojo vs bonsie in this suit.
4. Whether or not the judgment in this case is against the weight of evidence.?

The respondents? amended brief was filed on 4th March, 2013. The respondents? counsel formulated the following issues for determination:
1. Whether or not the principle in Kojo vs, Bonsie was correctly applied by the trial judge in this case.
2. Whether or not the grant of injunction by
the trial judge occassioned a miscarriage of justice.
3. Whether or not the judgment in this case is against the weight of evidence.

The appellant?s reply brief was filed on 22nd April, 2013 and deemed properly filed on 26th January, 2016. All the briefs were adopted by counsel to both parties on 26th January, 2016. I have considered the grounds of appeal and the issues formulated by counsel, I am of

the view that the following are the issues for determination.
(1) Whether the judgment of the Court below is against the weight of evidence adduced by both parties.
(2) Whether the Court below is justified in granting an order of injunction in favour of the respondents.

On the first issue which is whether the judgment of the Court is against the weight of the evidence adduced by both parties, the appellant?s counsel referred to the evidence of DW2, DW3 and DW4 and the decision of the Court that ?because these witnesses of the defendants had vengeance at the back of their minds and misrepresented facts, the Court cannot or may not attach weight to their evidence. Exhibits C and D show that the witnesses had animosity against the members of their family and that is the plaintiffs.? He submitted that the finding is perverse because the documents are not relevant, they are not pleaded and do not in any way advance the issues of pledge of land and outright sale of land in accordance with the custom of the parties as pleaded. He further submitted that the Court below fell into grave error and approached the assessment of the evidence

incorrectly when he relied on those two documents to discredit DW4. He referred to INCAR LTD. VS. ADEGBOYE (1985) 2 NWLR (PT. 8) PAGE 453, ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) PAGE 360.

Counsel referred to paragraphs 5, 6, 10 and 11 of the statement of claim and the evidence of PW1 and PW3, he submitted that the pleadings and the evidence of the respondents fall short of the requirement of the law in respect of proof of the pledge. He enumerated the requirements of proof of a pledge and referred to CHIEF MARCUS NDORO & ORS VS. NNDEEZIA PIANWII & 3 ORS (2003) 5 NWLR (PT. 812) PAGE 137 AT 151 ? 152.

On the application of the principle enumerated in the case of KOJO VS. BONSIE, counsel argued that the evidence of the respondents fall far short of what can be termed traditional history and the evidence of acts of ownership and possession given by them even if believable is an account of recent events which are within living memory and therefore very much inconsistent with the word immemorial, the Court below was therefore wrong when it held that the respondents proved their case.
?
In response, the

respondents? counsel submitted that the appellant admitted the pledge of the respondents? land to his ancestor by the averment in paragraph 5 of the statement of defence in response to paragraphs 5 and 10 of the statement of claim. He submitted that what is admitted needs no further proof. He referred to OBIAMI BRICKS & STONE VS. ACB (1992) 3 SCNJ 1. He further submitted that the Court below painstakingly evaluated the evidence from both sides before arriving at its decision and although the appellate Court is capable of reviewing the exercise of power of the trial Court to evaluate the evidence led, it does so hesitantly. He referred to CHIJIOKE VS. SOETAN (2006) 3 FNLR (PT. 323) PAGE 419 AT 420, OYEGOKE VS. HAMMAN (1990) 4 FWLR (PT. 143) PAGE 196.

On the application of Kojo vs. Bonsie, counsel submitted that the traditional history as given by the appellant on the sale of part of respondents? land to Obiaora Onyemaechi and a pledge of a contiguous portion of the land to the wife of Obiora Onyemaechi called Madam Udenkwo Obiora is neither credible nor plausible. Yet, the Court below went extra mile to examine the two traditional

histories vis-a vis acts and events in recent times. He urged the Court to discountenance the appellants argument on the meaning of ?immemorial? as it is not the focal point of the principle enumerated in Kojo vs. Bonsie and to hold that the Court was right in his application of the principle in Kojo vs. Bosie.
In his reply, the appellant?s counsel submitted that the transaction pleaded by the respondents even if believable took place around 1910 less than 100 years before the institution of this case in 2002 and it is inconsistent with an averment of time immemorial.

drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the findings of the trial Judge. A further implication of the omnibus ground is that when the evidence adduced by the appellant is weighted against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial Court. See CHIEF ABAH OGBODU M V. DANIEL ADELUGBA (1971) 1 ALL N.L.R. 68 AT P. 71; MBA NTA & ORS. V. EDE NWEDE ANIGBO & ORS. (1972) 1 ALL N.L.R (PART 2) 74 AT P. 80 AND MOGAJI & ORS. V. ODOFIN & ORS. (1978) 4 S.C 91 AT PAGE 93. In deciding upon these issues it may be relevant to consider whether the trial Judge was right in giving credibility to the testimonies of the witnesses called by the successful party. If the credibility was wrongly given, then, that would of course affect the cogency given to the testimonies.?
See also ATUYEYE VS. ASHAMU (1987) NWLR (PT.49) PAGE 267 AT 275 – 276 (F ? A). It is therefore settled that an omnibus ground of appeal is a complaint

against the totality of the evidence adduced at the trial. See AKINLOGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) PAGE 60, OSHOLU VS. OSHOLU & ORS (2003) 11 NWLR (PT. 832) PAGE 608. Though the law is settled that evaluation and ascription of probative value to it is primarily the duty of the trial Court who had the opportunity of hearing and seeing the witnesses testify and the evaluation of evidence will not be lightly interfered with by the appellate Court unless it is shown that the trial Court failed to perform its duty according to the law. However, an omnibus ground of appeal that the judgment is not supported by the weight of the evidence is designed to allow a complaint on evaluation of evidence or improper evaluation of evidence. See AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PT. 476) PAGE 22.

Applying the above to this appeal, I am of the view that ground 5 of the appeal is an invitation to the Court consider the entire evidence led, the findings of the Court below and the conclusion reached by the Court.
I have carefully considered the pleadings, the evidence led, the judgment of the Court below and the grounds of appeal. I agree with the Court

below that the issue in controversy between the parties is whether or not the land occupied by the appellant was part of the land pledged by the respondents? ancestors to Obiorah. I say so because both parties agreed that the entire land called ?Owelle Umuonyenweonwu? originally belonged to the respondents? ancestors. Both parties were also ad idem that part of the land was pledged to either Obiorah or his wife. Both parties agreed that the pledged land was redeemed in 1973. The only point of divergence is whether or not the land in dispute is part of the pledged land and the appellant?s ancestor was allowed to stay on it on the request of Obiorah or whether the ancestor of the appellant purchased the land in dispute.
?
I have carefully read the pleadings of both parties, I am of the firm view that the respondents have a duty not only prove the pledge but the identity and the extent of the land pledged. PW1 under cross-examination confirmed the fact that the land in dispute is demarcated with Ogilisi trees, mango trees and wall fence. Contrary to the contention of the respondents that the land in dispute is the entire

?owelle Umu-onyenwonwu?, the land in dispute is the area occupied by the appellant and clearly demarcated by Ogilisi trees, mango trees and wall fence on the plans of both parties. PW2 was asked under cross-examination whether there is a demarcation between the area redeemed and the area where the 2nd defendant is living. He said Ogilisi live sticks were planted to show where the defendants should stop. These pieces of evidence in my view clearly confirmed the fact that the area pledged and redeemed is clearly demarcated from the area occupied by the defendant. The demarcation in my view show that the land occupied by the defendant and before him, his ancestors, is not part of the land pledged.
?
The respondents? case is that the defendant?s ancestor, Efona was allowed to stay on part of the pledged land on the request of Obiorah while the appellant contends that Ahaka Mgbolu of the respondents? family sold the land to Efona out rightly. PW2 said he did not know Ahaka Mgbolu but he has heard about him. He said Ahaka Mgbolu died without a wife or a child. According to him Ahaka Mgbolu was of the same family as the 1st

respondent (2nd plaintiff at the Court below. PW2 said Okwuosa was the father of Nnanyelu. He denied that Mgbolu was the father of Okwuosa. He said Okwuosa was the father of Mgbolu. DW4, a member of the respondents? family said it is not true that Akaka Mgbolu had no wife or child. According to him, Akaka begat Okwuosa. Okwuosa begat Nnanyelu who begat Enendu and Anumba. Enendu was his own father and 1st respondent?s (2nd plaintiff) father. He said Akaka Mgbolu and his family members sold the land to Onyemeachi,the appellant?s ancestor. The learned trial judge rightly found that there was a conflict in the traditional history of both parties but proceeded to apply the rule in Kojo vs. Bonsie without first considering whether either of the traditional history is more probable or plausible. It is not the law that once parties give conflicting traditional histories in a land matter, the Court must automatically have recourse to the rule in Kojo vs. Bonsie. The Court has a duty to first of all consider the entire evidence adduced by both parties to ascertain whether either of the traditional histories is cogent and probable. It is only when

neither of the traditional histories is found to be plausible or probable that the traditional histories would be declared inconclusive which will warrant the application of the rule in Kojo vs. Bonsie. The duty of a trial Court when faced with competing traditional histories has been stated in a plethora of authorities. In OBIOHA VS. DURU (1994) 8 NWLR (PT.365) PAGE 631 AT 641(A-C), the Supreme Court stated the situation when the rule in Kojo vs. Bonsie is applicable as follows:
?In the instant case, the learned trial Judge found as a fact that the traditional histories of the plaintiffs and defendants as to ownership of the land in dispute were conflicting. It is not the law that once there are conflicts in the traditional histories, given by the two parties in a suit the trial Judge must promptly declare them inconclusive and thereupon proceeds to consider recent acts. What indeed happens, and that is why the principle in Kojo v. Bonsie (supra) was enunciated, is that the case itself being one fought on hearsay, the trial Judge has a duty to find which of the two histories is more probable or conclusive (See Summonu Agedegudu v. Sanni Ajenifuja

& Ors. (1963)1 All N.L.R. 109) It is when he can neither find any of the two histories probable nor conclusive that he would declare both inconclusive. See Oyibo Iriri v. Eseroraye Erhurhohara & Anor. (1991) 2 NWLR Part 173) 252; P.M. Alade v. Lawrence Awo (1975 Kojo vs. Bonsie) 4 S.C. 215 and proceed to decide the case on the basis of numerous and positive acts of possession and ownership.?

The Court below refused to ascribe any probative value to the evidence of DW4 on the ground that he had reasons to misrepresent facts. In OJO VS. GHARORO (2006) 10 NWLR (PT. 987) PAGE 173 AT 208 ? 209. The Supreme Court cautioned that ?a Court of law must be reluctant in disbelieving a witness on the ground that he is a tainted witness, because the expression is not only fluid but large and bogus. In AKALOLU VS. STATE (2002) LPELR ? 314 (SC) OR (2002) 6 SC (PT.11) PAGE 107 AT 110. The Supreme Court defined tainted witness as ?one who has his own interest to serve and as a result has a tendency to cover up the true facts of the case?. There is no doubt that DW4 had a dispute with his family but his evidence that he is a

descendant of Ahaka Mgbolu was not challenged or controverted under cross-examination.

The law is trite that a Court is entitled to rely and act on unchallenged evidence. In my view, DW4?s evidence knocks the bottom out of the assertion of the respondents? case that Akaka Mgbolu died without a wife or a child and did not sell the land in dispute to the appellant?s ancestor. Secondly, having found that the land occupied by the appellant is not part of the land pledged to Obiorah, then the story of Obiorah appealing to the respondents? ancestor to allow Efona to live on the land until he finishes his own house automatically collapsed. Since the land was not part of the pledged land, then Obiorah could not have made any appeal to the respondents? family to allow Efona to live on the land. No story can be more ridiculous than the one presented by the respondents. PW1 and PW2 confirmed the fact that the appellant?s ancestor, Efona built a mud house on the land. The ancestor of the appellant was allowed to stay on the land temporarily but he built a permanent house, lived there and had all his children there. It is unbelievable

that a person who could not finish his house on his family land could afford to build on a land pledged to another person which he knew could be redeemed at any time under native law and custom. Apart from that, one wonders how many centuries it would take the appellant?s ancestor or the appellants to finish their house wherever they are building it. From that time till now, the appellant and his descendants have continued to be in possession of the land. The house said to have been built by Efona fell into ruins during the civil war. After the civil war the appellant reconstructed the house without any challenge or protest from anybody. PW2 said Louis, the appellant?s father was born on the land in dispute in 1914. The appellant and his ancestor have been on the land for over a hundred years. The fact that the appellant did not bury his sister and son on the land in dispute is not an admission or a confirmation that the land in dispute belong to the respondents. There was clear evidence that the land on which the appellant buried his family members belong to his family. The appellant has a right to choose which of his family lands will be the

final resting place for family members. The fact that he started the construction of his personal house after the partitioning of his family land does not mean that the land in dispute which has not been shown to be part of the land pledged and redeemed ceased to be appellant?s family land. In my view, the Court below did not draw the right inference from the evidence led by the parties. If the Court below had drawn the right inference and conclusion from the evidence led, he would have found that the appellants have a strong case against the respondents. I am of the firm view that if the evidence of both parties are put on the imaginary scale of justice, the scale of justice clearly tilts in favour of the appellant. In my view, the traditional history of the appellant is more plausible than that of the respondents. The law is settled that once the traditional history of a party is found to be cogent and credible, it is sufficient to found a declaration of title. For the above reasons, issue 1 is resolved in favour of the appellant.

?Having resolved issue 1 in favour of the appellant, issue 2 has become an academic exercise as a decision either in favour

or against the appellant is of no practical utilitarian value to the appellant.

In conclusion, I find that this appeal has merit and it is hereby allowed. The judgment of the Anambra State High Court delivered in Suit No. OT/33/02 delivered on 13TH February, 2006 is hereby set aside. The respondents? claim is hereby dismissed. I hereby award a sum of N30,000:00 cost against the respondents and in favour of the appellant

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my brother MISITURA OMODERE BOLAJI-YUSUFF JCA.

I agree with his reasoning and conclusion that the appeal be allowed and same is hereby allowed by me. The Judgment of the Anambra State High Court delivered in Suit No. OT/33/02 delivered on the 13th of February 2006 is hereby set aside.

I abide by the consequential order made as to costs.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF JCA. I agree with reasoning, conclusions and orders therein.

Appearances

Chike Egbuna, Esq. holding the brief of Chief Ikenna EgbunaFor Appellant

AND

HRH Eze Dr. Ejike Ume SAN with I. Onyekwuluje, Esq.For Respondent