OBINNA ONWUAKPA & ORS v. NNENNA ONYEAMA & ORS
(2018)LCN/11990(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of July, 2018
CA/E/127/2016
RATIO
COURT AND PROCEDURE: WHETHER OPINION OF JUDGE IS SAME AS FINDING OF FACT
“That statement, in my view, is the opinion of the Judge. An expression of opinion is not the same thing as a finding of fact. A finding of fact means a determination of a fact by the Court, averred by one party and denied by the other, and founded on evidence in a case. See Edosa Vs. Ogiemwanre (2010) LPELR 8618 (CA); In Egbe V. Adefarasin (1987) 1 SC 1, the apex Court, per Oputa held:-
‘A finding is a result of the deliberation of a jury or a Court. It is a decision upon a question of fact reached as result of a judicial examination or investigation by a Court jury, referee, carrier etc. it is more appropriately called a finding of fact and as the name implies, it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side. Finding of fact are thus results of reasoning from evidential facts. They are conclusions drawn by the trial Court from the facts without the application of law or the exercise of legal Judgment.'” PER SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: WHERE CUSTOMARY LAW IS TO BE ESTALISH AS EVIDENCE
“Customary law is a question of fact to be established by evidence as held in Agbai vs. Okogbue (1991) 7 NWLR (Pt. 204) 391, unless through repeated usage in the locality, the practice or custom has assumed such dimension of notoriety that the Courts will take judicial notice of same. Agbai vs. Okogbue (supra); Olagbemiro V. Ajagungbade (1990) NWLR (Pt. 136) 37; Oko Vs. Ntukidem (1993) 2 NWLR (Pt. 272) 124; Kareem V. Ogunde (1972) 1 All NWLR (Pt. 1) 73, 80. Nsirim V. Nsirim (2002) 3 NWLR (Pt. 755) 697. Sections 16, 17 and 18 of the Evidence Act refers.” PER SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE
“At this point I should ask the question: what exactly is meant by ‘evaluation of evidence’ Oputa, JSC (as he then was) of blessed memory held in Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 187, 208-209, that:
”What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for it.
Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands that the evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Review of evidence is not the same things as evaluation of evidence. The former entails a reproduction of evidence of witnesses in summary form. Actual evaluation entails reasoned belief of evidence of one party to the other.. Aregbesola Vs. Oyinlola (2010) LPELR-3805 (CA); Attah V. State (2009) 15 NWLR (Pt. 1164) 284 (CA).” PER SAIDU TANKO HUSSAINI, J.C.A.
LAND LAW: POSSESSION OF LAND
“When the question arises whether any person is the owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See: Stephen Idubgue & Sons Ltd Vs. Arenih (2003) FWLR (Pt. 149) 148, 1442; Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141, 160. This Court in Ejezie & Ors Vs. Theosophy Theocrat Okoye (2013) LPELR-21877 (CA) rightly held that: ‘Possessory rights exist or arise by virtue of the protection the law accords the fact of actual physical occupation of land even if it is wrongful or adverse. The primary right which such physical occupation confers is the right to others. So a trespasser can therefore exclude all those interfering with his possession except the person with a better right to indicate possession. So the word possession includes the right to possession and the actual physical occupation of the land.” Per Agim, JCA.'” PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
1. OBINNA ONWUAKPA
2. EMEKA ONWUAKPA
3. CHRISTOPHER ONWUAKPA
4. CHIZOBA ONWUAKPA
5. CHINEDU NWANKWO
6. CHINEDU CHIJIOKE
7. EMMANUEL MARY UGWU
(For themselves and on behalf of Amufia Eke Udi Local Government Area, Enugu State) Appellant(s)
AND
1. NNENNA ONYEAMA
2. UZOAMAKA ONYEAMA
3. AOVI EDMUND ONYEAMA
4. ARTHUR CHARLES EDMUND ONYEAMA
(Representing members of family of Ozo Edmund Ihueze Onyeama of Iheagu Eke Amankwo Eke
Udi Local Government Area, Enugu State) Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The Respondents were plaintiffs at the High Court of Enugu State where a Writ of Summons was issued at their instance sometimes in October, 2003.
The Original Writ of Summons and Statement of claim had been revised a number of times culminating in the last pleading at pages 42-45 of the record of appeal, that is, the amended Statement of claim dated the 5th June, 2012 and filed on the 7th June, 2012.
By the said pleading, the claim of the plaintiffs now respondents at paragraph 8 of the amended Statement of claim is for:-
(a) N2, 000, 000. 00 (Two Million Naira) Special and general damages for trespass to the said land.
PARTICULARS OF SPECIAL DAMAGES.
i. Cost of rebuilding the extension of the piggery house knocked down. N400, 000. 00 (Four Hundred Thousand Naira).
ii. Cost of rebuilding the extension of the guest chalet knocked down N600, 000.00 (Six Hundred Thousand Naira)
(b) A perpetual injunction restraining the Defendants, their agents or privies from committing further acts of trespass to the said land, the boundaries of which are delineated in survey plan No. An/GA/125/77 incorporated in survey plan No. FCO/EN/V.5/2004 filed by the Plaintiff or in any manner whatsoever interfering with the Plaintiffs’ possession and user of the said land.
Upon the Originating Process being filed and served on them, the appellant as defendants filed their defence and denied the claim vide their last and final pleading, that is, the further further amended Statement of Defence at pages 61 – 69 of the record of appeal. At trial, parties on both sides elicited evidence of witnesses and also tendered in evidence documents as Exhibits 1 – 37.
The summary of the case for the respondents is that the land in dispute which their claim relate is situate in ‘Iheagu’ Amankwo Eke in Udi Local Government of ENUGU State and same is covered by Survey Plan No. AN/GA/1256/77/ (Exhibit 23). It is verged red in the plaintiffs’/respondents’ dispute Survey Plan, Exhibit 22. This land according to the claim, was founded and owned by the plaintiffs/respondents’ late father/grandfather, Ozo Edmund Onyeama, who is said to have acquired the land through the ‘Ivota Ani’ method of acquisition of land under the native law and Custom of Eke. This land, before its acquisition by Ozo Edmund Onyeama, was part of a large expanse of virgin land/wilderness in Amankwo village, Eke that belonged to no one in particular (Iheagu). Such portions of Eke Community land in virgin forest is open to appropriation or acquisition for personal ownership by any interested person from the village it is situated in by a system called ‘Ivota Ani’ that is, a system whereby any person in the village who is interested would go into actual possession of the desired portion of the land (Iheagu land) by planting economic trees, putting up building, consistent use and acts of farming on the land and thus acquires ownership of the ‘Iheagu land’ as recognised under the Native Laws and Custom of Eke.
The respondents contend that their father/grandfather (Ozo Edmund Onyeama) was the first and only person to appropriate or settle on this particular portion of ‘Iheagu land’, now in dispute as far back as 1950’s wherein he built a storey building sometimes in 1957 without hindrance from any quarters and had since then exercised various acts of possession and ownership over the land including planting numerous and various economic trees on the land, granting portions of the acquired land to various persons for various purposes. In the year, 2003 the appellants invaded the land in a violent manner and demolished a structure under construction, claiming that the land in dispute belongs to them.
The appellants on the other hand claim that Amufie, the Community they belong to is one of the villages in Eke and they are the owners of ‘Iheagu’ expanse of land in which the land in dispute is situate. That it was Amufie people who granted portions of the ‘Iheagu land’ measuring 150ff x 200ff to plaintiffs/respondents late’ father, Ozo Edmond Onyeama to build his house or compound but Ozo Edmund Onyeama exceeded the portion given to him and trespassed into a vast area not given to him. Defendants/appellants counter-claimed for title over the land and also counter-claimed for forfeiture of the portion originally allocated to Ozo Edmund Onyeama.
As indicated before, the trial Court, after taking evidence of parties to the case, gave Judgment and granted the claim of the plaintiffs/respondents and dismissed the counter-claim of the appellants.
It is against this order and Judgment the appellants have appealed to this Court vide the Notice of appeal dated and filed on the 11th December, 2015. The Notice contains 15 (Fifteen) grounds of appeal as at pages 208 to 224 of the record. Upon the transmission of the record, parties filed and exchanged their briefs of argument in terms of:
i. Appellants’ brief of argument dated 23rd February, 2017 and filed on 24th February, 2017. In it the appellants formulated 6 issues, namely:-
(a) Whether the learned trial Court was right in law when it held that it was the grandfather of the plaintiffs, Chief Onyeama Okwuluoha that entered the land under the customary law prevailing in eke known as Nvuta-Ani which is contrary to the pleadings and evidence of the plaintiffs. Grounds 3 to 5.
(b) Whether the learned trial Judge was right in law when he suomotu invoked Section 36 of the Land Use Act and said that the plaintiffs were entitled to the land in dispute as he believed that the Great Grandfather and the father of the Plaintiffs have been in occupation of the land since 1954. Grounds 6, 7 & 10.
(c) Whether the learned Chief Judge was right in Law when contrary to pleadings and evidence he held that the burial of the son of Okwuluoha (the plaintiffs great grandfather) among others, on the land in dispute strengthen the case of the plaintiffs. Ground 8.
(d) Whether the trial Court was right in law when it failed to evaluate plaintiffs? evidence and show in his Judgment how plaintiffs discharged the onus of proof of their right, title or interest in the land in dispute in accordance with the law. Ground 9 & 14.
(e) Whether the trial Court was right in law when it failed to evaluate the pleadings and evidence of the defendants and dismissed their counter-claim and their claim for forfeiture when it was not denied by the Plaintiffs who did not file a reply to it. Grounds 11, 12 and 15.
(f) Whether the Honourable Court was right in law when it delivered its Judgment 340 days after the conclusion of addresses by counsel when it had lost an impression of the pleadings, facts and evidence and whether the appellant suffered miscarriage of justice as provided in Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria. Grounds 1 and 13
ii. 1st respondent’s brief of argument dated 29th August, 2017 and filed same date. In it, 8 (eight) issues were formulated, namely:
1. Whether the Judgment delivered by the learned trial Judge was delivered outside the constitutional period of ninety days and whether learned trial Judge has lost an impression of the case as a result.? distilled from grounds ONE and THIRTEEN of the Notice of Appeal.
2. Was the learned trial Judge right when he held at page 16 of the judgment in page 205 of the record that:
‘Another piece of evidence which seems to strengthen case of the plaintiff is the burial of the son of Okwuluoha (The grandfather) among others on the land in dispute. The defendants contend feebly that the burials Ire with protests from their community. I say so because: (1) there is no evidence of report to the police and (2) there is no evidence of action commenced at the customary or High Court for the removal of the corpse buried on the land?. Distilled from ground EIGHT of the notice of appeal.
3. Whether the learned trial Judge was right when he found and held that:
Upon the evidence adduced at trial coupled with the pleaded facts, I am of the view that the great grandfather of the Plaintiffs Chief Okwuluoha entered the land under the Customary Law prevailing in Eke Known as ‘IVOTA ANI’- Distilled from grounds THREE and FOUR of the Notice of appeal.
4. Was the learned trial Judge right when he found and held that the Plaintiffs grandfather, Ozo Edmund Enyeama was not the customary tenant of the defendants. Distilled from Ground FIVE of the Notice of Appeal.
5. Whether there is anything wrong with the application of the provision of the Land Use Act in the resolution of the conflict in this case by the Learned Trial Judge. (Distilled from Grounds SIX, SEVEN and TEN.
6. Whether the learned trial Judge omitted the evaluation of the evidence of DW1 (Distilled from Ground ELEVEN).
7. Whether the learned trial Judge did not evaluate the evidence of the Plaintiff in the Judgment. (Distilled from Grounds NINE and FOURTEEN).
8. Was the Learned Trial Judge not right in dismissing in its entirety the counter-claim of the defendants and whether there was a valid claim before the Court that was uncontested by the Plaintiffs. Distilled from Grounds TWELVE AND FOURTEEN of the Notice of Appeal.
iii. 2nd – 4th respondents also filed their brief of argument dated 29th August, 2017 and filed 30th August, 2017 wherein they formulated 7 (Seven) Issues as follows:
1) Whether the trial Court delivered judgment in the case beyond the period prescribed by Section 294(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) for delivery of judgment after final addresses of the parties and if so, the legal effect (if any) of same. (Distilled from Ground 1).
2) Whether upon a wholistic consideration of the pleadings and evidence led on both sides, there is anything wrong in the learned trial Judges findings and holding that the plaintiffs’ grandfather/great grandfather acquired and occupied the land in dispute by the ‘Ivota Ani’. And that there is no sufficient credible evidence before the trial Court to substantiate the defendants/applicants case that the plaintiffs’ father/grandfather was a customary tenant of the defendants in respect of the land in dispute ((Distilled from Ground 3, 4, 5 and 6).
3) Whether the findings of facts the learned trial Judge made regarding the plaintiffs effective possession/occupation of the land in dispute and his application of Section 36 of the Land Use Act to the facts, are wrong and unjustifiable. (Distilled from grounds 7 and 10).
4) Was the learned trial Judge wrong when he held that ‘the burial of the son of Okwuluoha (Plaintiffs grandfather) among others on the land in dispute strengthen the case of the plaintiffs and that the contentions of the defendants that the burials were with protest from them is feeble and unconvincing as there were no reports to the police or legal actions taken by the defendants in the High Court or the Customary Court to exhume the bodies.’ (Distilled from ground 8).
5) Whether the learned trial Judge failed to evaluate the evidence led in support of the plaintiffs, case and yet entered judgment in their favour without showing the basis of his satisfaction that the plaintiffs proved their case of entitlement to the right, title and interest in the land in dispute (Distilled from Ground 9 and 4).
6) Whether the counter – claim was uncontested and yet unduly dismissed without an evaluation of the pleadings and evidence (including that of Dw2 of the defendants/appellants. (Distilled from ground 11, 12 & 15).
7) Whether there is any valid basis for the appellants contention that the judgment was delivered after the trial judge impression of the pleadings, facts and evidence in the case. ? Ground 13.
iv. Appellants’ reply to 1st respondent’s brief of argument dated 14th December, 2017 and filed same date.
v. Appellants’ Reply to 2nd – 4th Respondents’ brief of argument is dated the 12th December, 2017 and filed on the 14th December, 2017.
Counsel on both sides were on hand on the 23rd April, 2018 to adopt their respective briefs when the appeal came up for hearing.
Chief Ugola, SAN, after adopting his brief of argument urged on the Court to allow this appeal, set aside the Judgment of the High Court and grant the counter-claim of the defendants/appellants.
Nnenna Onyeama, speaking for herself in relation to the brief filed by her as the 1st respondent, she urged on the Court to uphold the Judgment of the trial High Court and dismiss this appeal with cost.
Chief P.M. B. Onyia, spoke in the same manner in relation to the brief of argument for the 2nd – 4th respondents. In adopting his brief of argument he urged us to dismiss this appeal and affirm the Judgment of the trial High Court.
I have before now made reference to issues formulated by respective counsel in their briefs of argument and reproduced same. To say the least, issues raised in those various briefs are to a large extent similar, both in scope and content, as for instance issue No. (a) formulated in the appellants’ brief of argument, issue No. 3 in the 1st respondent’s brief of argument and issue No. 2 in the 2nd – 4th respondents’ brief are similar as the question raised therein in each case, is whether the trial Court was right in the finding made by it that Chief Onyeama Okwuluoha was who entered the land in dispute under the customary law known as ‘Nvuta-Ani’ to acquire it.
Those set of issues can thus be taken and addressed together in this exercise. Other issues of similar character and identity raised in relation to the application of Section 36 of the Land Use Act to the facts are issue No. (b) in the appellants’ brief of argument, issue No. 5 in the 1st respondent’s brief of argument, issue No. 3 in the 2nd – 4th respondents’ brief of argument. Issues of same or similar content can be taken and addressed together.
Issues No. (C) identified in the appellants’ brief of argument is the same or similar to issue Nos. 2 and 4 respectively in the 1st and 2nd -4th respondents’ brief of argument. The said issues which are all on the question of the burial of corpses, can be considered under the same heading and addressed as such.
Issue No. (d) identified in the appellants’ brief of argument, issue No. 7 in the 1st respondent’s brief of argument and issue No. 5 in the 2nd – 4th respondents’ brief of argument are all on the question of whether or not the trial Court properly evaluated the evidence of the plaintiffs/respondents before reaching a conclusion. The three issues so identified belong to the same genus.
Under issue No. (e) in the appellants’ brief of argument, issue Nos. 6 & 8 in the 1st respondent’s brief, issue No. 6 in the 2nd – 4th respondents’ brief of argument, the question is whether the trial Court omitted to evaluate evidence adduced by the appellants before reaching a conclusion.
Issue No. (f) in the appellants’ brief of argument on the question of the delay in delivery of Judgment at the trial Court is similar to issue No. 7 in the 1st respondent’s brief of argument and issue No. 1 in the 2nd – 4th respondents’ brief of argument. The three(3) can be taken together as single issue.
The question raised under or by issued No. 4 in the 1st respondent’s brief of argument and issue No. 2 in the 2nd – 4th respondents’ briefs whether or not plaintiffs’ father/grandfather was a tenant of the defendants/appellants.
There is however a challenge being made to the constitutionality of the Judgment appealed against on account of the long delay in the delivery of Judgment outside the time limit prescribed in the Constitution.
This I think, should be the starting point and I so desire to commence this exercise by first reference to this fundamental constitutional question, that is Issue Nos. F, 1, 7, in the Appellants’ brief of argument, 1st respondent’s brief of argument and 2nd – 4th respondents’ brief of argument respectively.
By dint of the provision made under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999(as amended), all Courts are enjoined to deliver their decision (and this includes Judgments and rulings) not later than 90 days after the conclusion of evidence and final addresses. So, the question presented by this appeal is, as when, in point of time, was the final address made or taken at the trial Court?
Going by the submissions made from the appellants in their brief of argument, at page 24 it is contended that final addresses by counsel for both parties took place on the 13th October, 2014.That although the case was adjourned to 8th December, 2014 for Judgment, actual delivery of Judgment took place on 18th September, 2015 that is, some 340 days from the date of conclusion of addresses which he said, is contrary to the constitutional provision made under Section 294(1) and that the same impacted negatively on the appellant, in reference to Section 294 (5) of the same Constitution.
The 1st respondent on the other hand has argued in her brief that final addresses of counsel took place on 21st September, 2015 in reference to the proceedings of same date in the additional or supplementary record of Appeal at page 10 where both counsel readopted their respective written addresses on the said date, that is, 21st September, 2015.
To this extent it is argued that the Judgment delivered at the trial Court on the 28th September, 2015 was delivered only 7 days from the date of conclusion of final addresses hence, within the 90 days as prescribed in Section 294 (1) of the Constitution.
The 2nd – 4th respondents, in their brief of argument at pages 5 – 7 took the same position by reference to the additional record of Appeal transmitted to this Court on 21st July, 2017. It is argued that pages 9, 10 and 11 among others, of the additional record which were omitted in the compilation of the main record cannot be ignored when the question arises as to whether or not the Judgment of the trial Court was delivered outside 90 days.
That indeed is the position of the law as issues can only properly be raised and decided based on the completeness of the record of appeal produced or transmitted to Court. See: Ault & Wiborg (nig.) Ltd Vs. Nibel Indu. Ltd (2010) 11 NWLR (Pt. 1220) 486, 496; ACN Vs. Tunji (2012) LPELR-9461 (CA).
With the additional or supplementary record transmitted at the instance of the respondents on the 27th July, 2017, bring into focus aspects of the proceedings of the trial Court said to have been omitted during the compilation of the main record. With the main record transmitted on 7th April, 2016 and the addition or supplementary record now before us, a clear picture can now be painted on what the proceedings at the trial High Court look like particularly in relation to the date(s) counsel’s final written addresses were argued, adopted or readopted, as the case may be.
By the record of appeal before us, Dw4, the last witness called by defence to testify concluded his evidence on the 12th February, 2014. See pages 185 – 186 of the main record.
Defence counsel thereafter on the 1st April, 2014 applied to close his defence case having tendered in evidence certain documents which the Court also admitted and marked same as Exhibit (37). The Court at this point adjourned the case to the 23rd June, 2014 to enable counsel adopt their written addresses. On the said 23rd June, 2014 the case was further adjourned to 14th July, 2014 for the same purpose that is, for counsel to adopt their final written addresses. Again there was no sitting on the said 14th July, 2014 until on the 13th October, 2014 when counsel appeared and adopted their written addresses. See pages 187 – 189 of the main record of appeal. The trial Court thereafter on the same 13th October, 2014 adjourned the case to the 8th December, 2014 to deliver Judgment in the case.
Again the Court did not sit on the 8th December, 2014 until on the 9th March, 2015 when counsel in the matter readopted their respective written addresses. (see page 9 of the supplementary (additional) record of appeal).
O.C. Ugolo, Esq., learned counsel who appeared on the said date after readopting his written address, further prayed the Court to dismiss the claim of the plaintiffs, the respondents before us. Mr. C.K. Uba, on his part and speaking for the plaintiffs, that is the respondents before us, urged on the trial Court to consider and grant the claim or the reliefs sought by them. The Court thereafter adjourned the case to the 13th April, 2015 to deliver ‘final Judgment’.
Again, sitting did not hold or take place on the 13th April, 2015 until the 21st September, 2015. Even then the sitting of the 21st September, 2015 was to enable counsel who appeared on the said date to readopt their written addresses for a second time, consequent upon which the case was adjourned to the 28th September, 2015 for Judgment.
It is worthy of mention here that between the 13th October, 2014 when counsel first adopted their written addresses and the 8th December, 2014, the date initially set aside for delivery of Judgment in this case, is a period of about 66 (sixty-six) days. Given the provisions of Section 294 (1) of the Constitution of the Federal of Republic off Nigeria (as amended) the trial Court as at the 8th December, 2014 still had ample time to consider and deliver Judgment within the 90 days time limit hence I do not consider as valid the reason advanced in the respondents’ brief of argument that the meeting of the conference of Judges held on 8th December, 2014 was good reason for the trial Court’s failure to deliver Judgment within the time, prescribed under the Constitution.
Be that as it may, the question remains as to when as in point of time the written addresses of counsel were finally adopted? For the appellants, the final addresses of counsel for the parties took place on 14th October, 2014 but Judgment was delivered on the 18th September, 2015, that is, outside the period prescribed under the Constitution. For the respondents, it is argued that the date the trial Court took counsel’s final arguments or submissions was on the 21st September, 2015 after which the trial Court delivered Judgment on the 28th September, 2015, and thus, within time.
As indicated before in this write-up, besides the proceedings held or conducted by the trial Court on the 14th March, 2014 (pages 188-189 of record) the Court also sat on the 9th March, 2015 and on 21st September, 2015 where, in each case, counsel readopted their written addresses as their final arguments.
In the determination of the question as to when the final address of counsel took place, I cannot ignore the proceedings of the 21st September, 2015 at page 10 of the supplementary (additional) record of appeal wherein counsel readopted their written submissions. An address is final when it is the last or ultimate speech or submission made to the Court in respect of the issue before it before the delivery of Judgment. It is the last address before the delivery of the Judgment in issue. See Sodipo Vs. Lemminkainen (1985) 7 SC 301; Ijebu Ode L.G. Vs. Adeji Balogun & Cor Ltd (1991) 1 SC (Pt. 1) 1, 20; Mustapha Vs. Vs. Governor of Lagos State (1987) 2 SC 81. Submissions made by counsel on the 21st September, 2015 when written addresses were readopted by them qualify as final addresses.
In the face of the proceedings of Court held on the 9th March, 2015 and 21st September, 2015, arguments canvassed by counsel on the 13th October, 2014 cannot be reckoned with as final addresses of counsel in this case on appeal. In the same vein, the argument or contention that the Judgment of the trial Court was delivered on the 18th September, 2015 cannot be correct in view of the proceedings of the trial Court held on the 21st September, 2015. It rather, is consistent with common sense and the law that Judgment cannot be delivered unless and until final addresses of counsel were taken.
In this case, final addresses of counsel were presented on the 21st September, 2015. Between the 21st September, 2015 when counsel’s final addresses were presented and 28th September, 2015 when Judgment was delivered, is a period of 7 (seven) days, thus falling within the Constitutional time limit permitted by law for the delivery of Judgment. Consequently, the issue of the alleged non-compliance with provision of Section 294(1) of the Constitution in the delivery of that Judgment on account of delay or inordinate delay on the part of the trial Court is unfounded. It is only in cases where there is delay in the delivery of Judgment under Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that the issue of whether or not ‘a miscarriage of justice’ was occasioned, would arise under Section 294 (5) of the same Constitution. This, not being the case, I can safely ignore all arguments canvassed relative to this question.
However the question which I cannot ignore but ask, is the place or the relevance of the Notice of Appeal dated and filed on 11th December, 2015 to the Judgment delivered at the trial Court on the 28th September, 2015. Clearly, the said Notice and Grounds cannot be said is a Notice of Appeal against the decision delivered at the trial Court on the 28th September, 2015, rather the Notice is against the decision delivered on 18th September, 2015.
In case I am wrong in coming to this conclusion, I will proceed nonetheless, to consider and address other issues earmarked for determination in this appeal, as follows:-
Issue Nos. (a) in the appellants’ brief of argument; 3 in the 1st respondent’s brief of argument; 2 in the 2nd – 4th respondents’ brief of argument taken together.
The question here, put briefly is whether the trial Court was right in its findings that it was Chief Onyeama, Okwuluoha who founded the land in dispute under the ‘Ivota-Ani’ Customary Law prevailing in Eke.
The trial Court at pages 203 to 204 of the record of appeal held as follows:
‘Upon all the evidence adduced at trial coupled with the pleaded facts; I am of the view that the great grandfather of the plaintiffs, Chief Onyeama Okwuluoha entered the land under the Customary law prevailing in Eke known as Nvuta-Ani. By that holding or finding, the trial Court seem to give the impression that the land in dispute was founded by Chief Onyeama Okwuluoha, the father of Ozo Edmund Onyeama through the customary law practice in Eke, known as ‘Nvuta-Ani.’
The respondents in their amended Statement of claim at paragraphs 4, 5 and 6 pleaded facts of the existence of a vast area of land situate in Iheagu, Eke and extending to Amaekwe Ngwo, Ebe and Nsude of which Ozo Edmund Onyeama acquired, sometimes in 1954 covering an area of 34945 hectares and took effective occupation of the res nullius, by a method recognised in Eke Custom for the acquisition of such vacant land known as Ivota-Ani, wherein he (Ozo Edmund Onyeama) planted economic trees thereon.
Defendants, that is, the appellants through their further amended Statement of defence denied those averments in the respondents’ amended Statement of Claim including the averment that Ozo Edmund, founded the land in dispute. They also denied the fact that there is a customary law practice known as Ivota-Ani or Nvuta-Ani.
The point I want to make here is as regards the person put forward in the pleading of the respondents, said to be the founder of the land in dispute. Clearly, the name of Ozo Edmund Onyeama was put forward as the founder of the land in dispute by the Custom known as Ivota-Ani. Whether that custom of Ivota-Ani is known in Eke as a method for acquisition of virgin land or not is another thing altogether, which point I shall address in due course.
In the meantime, it is important to note that Pw2, Pw7 and Pw9, in reference to the land in dispute testified that it was Ozo Edmund Onyeama who acquired that land, and this piece of evidence of the Pw7 and Pw9 is consistent with the various paragraphs of the amended Statement of claim already referred to, that is paragraphs 4, 5 and 6. It will appear therefore, at first glance, that the finding made by the trial Court at page 203 is not consistent with those paragraphs of respondents’ pleading referred to earlier and evidence adduced through witnesses, particularly Pw7 and Pw9, in support of those facts. Ordinarily I should ignore that finding of Court as not having been founded on pleaded facts and evidence but I am loathe in doing so, at least for now in view of the suggestion being made by the 2nd – 4th respondents through their counsel in their brief of argument at pages 12-13 paragraphs 5.7-5.14 of the brief that the issue of the acquisition of the land in dispute is not principally on who, as between Ozo Edmund Onyeama and Chief Onyeama Okwuuoha acquired the land in dispute but whether the land in dispute which the respondents claim, they inherited from their father and grandfather, was land acquired by ‘Ivota-Ani’ custom of Eke or it is land granted by defendants/appellants to Ozo Edmund Onyeama as Customary tenant.
It is on this account that the 2nd ? 4th respondents, in their brief, have argued that the findings of fact that the trial Judge made in the Judgment and referred to earlier should not be disturbed since same was/is not perverse. That finding, if at all it is one, cannot be overlooked, it is one which the Appeal Court can look into, given the pleading at paragraphs 4, 5 and 6 of the amended Statement of claim and the evidence of Pw2, Pw7 and Pw9. By the pleaded facts and evidence, the land in dispute was acquired by Ozo Edmund Onyeama and that being the case, the Court below cannot be correct when it held that it was Chief Onyeama that acquired that land by method of ‘Ivota-Ani.’
Exhibit 1 is a deed of lease Agreement whereby Okwiluoha Oyeama leased to the Roman Catholic Mission, that piece or parcel of land situate at Eke in Empire Division of Onitsha province on the 13th March, 1931. Ditto is Exhibit 2, whereby the land covering an area of 22 acres at Eke in Enugu Division of Onitsha was leased to Roman Catholic Mission sometimes in May/June, 1928 by Chief Onyeama.
By reason of Exhibits 22 and 35 that is, Plan No. GCO/EN/D5/2004 and plan No. HT/END.09/2010 respectively, by which the land in dispute was delineated, the parcel of land leased to the Roman Catholic Mission in 1928 and 1931 covered by Exhibits 1 and 2, do not form part of the land in dispute. It follows therefore that the finding that it was Chief Onyeama who founded or acquired the land in dispute is clearly off the mark.
The case put forward by parties is founded on the pleadings. Pleadings set out the agenda and the modus aperendi in any given case begun by writ of Summons including the scope and the extent to which the parties can go. Just as parties are bound by their pleadings, so is the Court bound by what is pleaded before it. See: Ojo vs. Esohe (1999) 5 NWLR (Pt. 603) 444; Osuji Vs. Ekeocha (2009) 16 NWLR (Pt. 1166) 81.137. Therefore anything said or done which is inconsistent with the foundational framework as in the pleading(s) put in place, cannot be termed as inconsequential and thus ignored. Nowhere in the amended Statement of claim of the respondents or even the further amended statement of defence of the appellant is there a statement made attributing the founding of the land in dispute to Chief Onyeama Okwuluoha. The answer to this question should be in the negative. Findings of fact of a Court must be based on the pleadings and evidence adduced in the case. See: Durwode Vs. State (2000) 2 NWLR (Pt. 645) 392, 412, where this Court held:
‘No trial Court is allowed to draw a conclusion of facts outside the available legal evidence before it. When a trial Court veers off course and acts on speculations and possibilities rather than on the concrete evidence before it, it obviously had abandoned its proper role and such facts or conclusions of fact found without appropriate evidence in support thereof will be regarded as perverse by an appellate Court.’
Incidentally, the excerpt or passage under reference against which the complaint is laid or made in this appeal cannot be said is a finding or conclusion properly so called, but rather it is an expression of the opinion of the Judge. At the risk of being repetitive, this is what the Judge/Court said or wrote at page 203 of the record of appeal:
Upon all the evidence adduced at trial coupled with the pleaded facts, I am of the view that the great grandfather of the plaintiffs Chief Onyeama Okwuluoha entered the land under the Customary law prevailing in Eke known as ”Nvuta-Ani.”
That statement, in my view, is the opinion of the Judge. An expression of opinion is not the same thing as a finding of fact. A finding of fact means a determination of a fact by the Court, averred by one party and denied by the other, and founded on evidence in a case. See Edosa Vs. Ogiemwanre (2010) LPELR 8618 (CA); In Egbe V. Adefarasin (1987) 1 SC 1, the apex Court, per Oputa held:-
‘A finding is a result of the deliberation of a jury or a Court. It is a decision upon a question of fact reached as result of a judicial examination or investigation by a Court jury, referee, carrier etc. it is more appropriately called a finding of fact and as the name implies, it is a determination from the evidence of a case concerning facts averred by one side and denied by the other side. Finding of fact are thus results of reasoning from evidential facts. They are conclusions drawn by the trial Court from the facts without the application of law or the exercise of legal Judgment.’
An opinion on the other hand is what a person thinks about something based on the person’s personal Judgment, rather than actual facts. See: Dagayya Vs. State (2006) 7 NWLR (Pt. 980) 637. The excerpt referred to from the Judgment of Court are not findings of fact known in law, I should ignore the urge or call on us to so find and hold. This appeal cannot be sustained, at least on this account.
However, the question that remains to be considered are two, namely; whether there is in existence in Eke, the concept and/or custom known as (i) res nullius and (ii) Ivota-Ani or Nvota Ani or Ibota-Ani. The second is whether Ozo Edmund Oyeama was a tenant of Amufio-Eke, which the appellants claim he was, but the respondents have denied this.
The word ‘res nullius’ is latin by origin and it means ‘something that belongs to nobody.’ See Black’s Law Dictionary, 8th edition page 1337; something likened to a herd without shepherd, a concept which the learned trial Judge has held at page 203, of record, does not apply under the Ibo Customary Land law. The trial Court went further and held that:
”It follows therefore that the position that the plaintiffs forebears entered the land in dispute as bona-vocantia or res nullius must be further argued. Every place of land under Ibo Customary Land Law is subject to one form of ownership or another. It could be family, community or individual.”
The trial Court in the course of evaluation of evidence, rejected the claim or the contention of the respondents that the land in dispute initially, was a no man’s land, res nullius. The appellants have certainly not challenged this finding of Court, a fact pleaded at paragraph 5 of the amended Statement of claim at page 43 of the record neither is there a cross-appeal on that point by the respondents. To this extent therefore, the question whether or not the land in dispute was ‘res nullius’ has been laid to rest.
Not so on the question of the existence or non-existence of the custom or practice known as ‘Ivota-Ani’ or ‘Nvuta-Ani.’ I should say by the way and for the avoidance of doubt that the concept behind res nullius and the custom or the practice founded on ‘Ivota-Ani or ‘Nvuta-Ani’ are two separate and distinct concepts. I have before now explained what res nullius stands for. The custom of Ivota ‘Ani or ‘Nvuta Ani’ on the other hand postulates that whoever acquires land by going into an uninhabited and virgin land or dark forest to settle and put the land to use by planting economic trees and building of houses on it becomes the owner of the land.
In giving a nod to the existence of this custom, the trial Court held or found at page 203 of the record as follows:-
”However one principle of customary law which seems common is that he who first clears a virgin bush or forest or bad bush for purpose of occupation and use acquires some form of permanent interest over the area cleared on the principle that such exerted labour creates certain rights over the land. This is what is perhaps referred to under Eke Customary law as Nvuta-Ani.”
Customary law is a question of fact to be established by evidence as held in Agbai vs. Okogbue (1991) 7 NWLR (Pt. 204) 391, unless through repeated usage in the locality, the practice or custom has assumed such dimension of notoriety that the Courts will take judicial notice of same. Agbai vs. Okogbue (supra); Olagbemiro V. Ajagungbade (1990) NWLR (Pt. 136) 37; Oko Vs. Ntukidem (1993) 2 NWLR (Pt. 272) 124; Kareem V. Ogunde (1972) 1 All NWLR (Pt. 1) 73, 80. Nsirim V. Nsirim (2002) 3 NWLR (Pt. 755) 697. Sections 16, 17 and 18 of the Evidence Act refers.
Unless a custom was duly established by evidence, it cannot be acted upon as a valid and existing customary law practice.
Fortunately there is before us, the printed record of appeal, evidence of witnesses called by the parties on both sides from which I can draw inference. Counsel for appellant has urged us to look into those evidence, re-evaluate same and come out with a clear finding on this point and many others. I think, we as an appellate Court can do so. See decision in: Abisi Vs. Ekwealor (1993) 6 NWLR (Pt. 302) 643.
Before I embark on this journey, it is important that we identify the issue in contention between the parties on either side. Whereas it is the claim of the respondents that their father/grandfather, Ozo Edmund Enyeama, acquired the land in dispute through Ivota-Ani or Nvota-Ani or Ibota-Ani said to be a prevailing customary practice for acquisition of land in Eke, the defendants/appellants contend that Ozo Edmund Onyeama came into the disputed land by way of grant of a small portion of the land in dispute but which the grantee exceeded the portion given to him. The appellant equally contend that ‘Ivota-Ani’ does not exist in Eke.
By that stance of the defendants/appellants, Ozo Edmund Oyeama was a tenant to Amufio-Eke people so far as he (Ozo Edmund Oyeama) live on their land. The burden of proof however lies with the party who asserts the existence of any given state of affairs. See: Sections, 131, 132 and 139 (1) of the Evidence Act; Agbeotu Vs. Brisibe (2005) All FWLR (Pt. 257) 1454; Okadigbo Vs. Ojechi (2011) LPELR-4687 (CA).
Talking about the custom known as ‘Ivota-Ani’ the evidence of Pw2, Pw7 and Pw9 among others, come to mind. All of them acknowledge the existence of a customary law practice known in Eke as Ivota-Ani. Evidence of Pw6, Pw7 and Pw9 are instructive on the manner Ozo Edmund Oyeama acquired the land in dispute by this customary method. Pw9 partook in that exercise in 1950?s as a 14 year old. See also, Exhibit 7.
Defence, through their witnesses, Dw2 in particular stated in his evidence that the entry of Ozo Edmund Oyeama to the land where he built his house, is a grant by Amufio people. Exhibits 26, 27, 28, 29 tendered through this witness is intended to establish the fact that similar grants were made to other tenants just as Amofia people did to Ozo Edmund Onyeama. There is however no document tendered in the nature of Exhibits 26-29 to suggest that Ozo Edmund Onyeama like the beneficiaries of the land covered by Exhibits 26-29 was also a tenant of the appellant.
In the absence of any such evidence, of any such grant, the claim that Ozo Edmund Oyeama was given the land by words of mouth or oral agreement must be taken with a pinch of salt hence the postulations or the case put forward by the respondents on the acquisition of the land in dispute by their father and grandfather must be preferred. Respondents have, to my mind, by the facts averred and evidence adduced by them did establish facts as to:
(1) the existence of the custom in Eke, known as ‘Ivota-ani or Nvota-Ani’ or ‘Ibota-Ani’
(2) That their father/grandfather, Ozo Edmund Oyeama acquired the land in dispute through this customary practice known in Eke as ‘Ivota-Ani’ and proceeded thereafter to put up a storey building, plant economic tree and exercised other forms of control on the land since the 1950’s without any hindrance, molestation or visible dissent or disturbance until in the year 2003 or thereabout when the appellants among others, invaded his compound at a time Ozo Edmund Onyeama was lying on his sick bed. The man died later that year.
He was buried in his compound on the land in dispute. I will put a stop here for the time being.
The issues put forward for determination on this Head of discourse however, are all resolved in favour of the respondents and against the appellants.
Next in line for my consideration is the question of the correctness or otherwise of the trial Court invoking Section 36 of the Land Use Act, to enter Judgment for the respondents. This point is covered by issue No. (b) formulated in the appellants’ brief of argument, issue No. 5 in the 1st respondent’s brief of argument and Issue No. 3 in the 2nd – 4th respondents’ brief of argument. Put in another way, do the Courts have the power in the adjudicatory system, on its own to make reference to laws, statutes or other decisions of Courts outside those cited or referred to by counsel in their submissions.
The Court below in the course of its Judgment alluded to Section 36 of the Land Use Act to hold that even assuming that the entry of Ozo Edmund Onyeama was as a tenant, he had become, liberated by reason of Section 36 of the Land Use Act which came into force in 1978.
To the appellants the trial Court embarked on a voyage of discovery when the Court suo motu made reference to Section 36 of the Land Use Act to find in favour of the respondents thereby justifying the occupational and possessory status of their father/grandfather over the land in dispute. They further argue that a trespasser cannot suddenly acquire title to land on which they have trespassed and that Section 36 (4) of the Land Use Act did not so provide.
The point must be made straight away that the appellants as defendants and counter claimants at the trial Court who asserted that the respondents’ father/grandfather was initially a tenant and thereafter a trespasser to the land of the Amufia-Eke, have the burden of proof on them to discharge. As regards the claim that respondents’ father/grandfather was a tenant, they needed to establish by evidence the terms of that tenancy, how the tenancy was created. Not one person referred to by Dw2 in his evidence said to have made the grant was called to testify in support of that transaction that Ozo Edmund was let in as a tenant, or to state the size of the plot allocated to him then. It is claimed that the grantors were dead. The deceased grantors were not even referred to by their names. In absence of any such fact so documented, I begin to wonder how the appellants came to the conclusion that respondents’ father/grandfather was allocated a plot of land of a size measuring 200ff X 150ft.
There is indeed a consensus between the parties on both sides that Ozo Edmund Onyeama came to the land about the year 1954. He put up a storey building and moved into it in 1957. Since 1957 to the year 2003 when he (Ozo Edmund Onyeama) lived on the land, a period spanning over 50 (fifty) years, and all these to the knowledge of the appellants. At what point in time did the appellants suddenly discover that respondents’ father/grandfather was a trespasser and yet no legitimate steps were taken by them to arrest the act until now that the suit was instituted? In any case, the burden duty on the appellants to establish that the plaintiffs/respondents’ father/grandfather trespassed unto the land in dispute was not discharged by them.
One of the complaints in this appeal is that the trial Court on its own suo motu alluded to provisions of Section 36(2) & (4) of Land Use Act in its Judgment and proceeded thereto to enter Judgment for the Respondents without affording parties the opportunity to address on it to the detriment of the appellant. This, according to them is not only a breach of appellants’ constitutional right to fair hearing but this attitude of the trial Court in this regard run contrary to decided authorities on this point, citing: Ibrahim V. JSC (1998) 14 NWLR (Pt. 584) 1 46; Okonkwo V. Kpajie (1992) 2 NWLR (Pt. 226) 633, 656; Attorney-General, Federation Vs. Abubakar (2007) 10 NWLR (Pt. 1041) 1, 181; Egwunewu Vs. Ejeagwu (2008) 6 NWLR (Pt. 1031) 431, 448-449; M.I. & Sons Ltd Vs. FHA(1991) 8 NWLR (Pt. 209) 295, 307; Mojekwu V. Iwuchukwu (2004)1, NWLR (Pt. 883) 216.
Much as the Courts are enjoined to invite parties to address it whenever the Court has reason to raise any issue suo motu on its own, as exemplified in the cases referred to above, this rule or principle seem to give way in my view when it comes to the application of relevant statutes, case law decisions etc to the issue on hand in order to improve the quality of Judgment being considered, the Court can on its own refer and apply such statutes, laws or decisions of Courts without reference to counsel in the case. This is not a breach to rights of fair hearing. The apex Court in Orugbo V. UNA (2002) 9 -10 SC said this as much when it held that:
”A Court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in efforts to improve its judgment rely on authorizes not cited by the parties. ‘Historical books or whatever books’. This per se is not breach of fair hearing not even the twin rules of natural justice.” Per Niki Tobi J.S.C.
The same Court further held in Adenle V. Folarin Olude (2002) 9 -10 SC that:
”A Court must take all relevant evidence before it into account in the resolution of the question arising from the case it has to decide. In doing so, it must also take into cognizance the relevant provisions of the Evidence Act, all other appropriate statutes which has a bearing on the proper decision of the case.” Per Uwaifo J.S.C.
To do otherwise is to restrict the Judge and confine him only to the briefs submitted by counsel. The concept of doing substantial justice will remain elusive if the Courts cannot explore other areas of law and apply them where necessary or relevant.
Section 36 (2) & (4) of the Land Use Act provide that:-
(2) Any occupier or holder of such land whether under customary rights or otherwise however shall if that land was on the commencement of the Act being used for agricultural purposes continue to be entitled in possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government.
(4) Where the land is developed the land continue to be held by the person in whom it was vested immediately before the commencement of the Act as if the holder of the land was the holder of a customary right of occupancy issued by the Local Government.
Respondents’ father/grandfather had entered the land in dispute since 1954 or thereabout. This fact is not in dispute and for 50 (fifty) years he lived on the land. The Land Use Act only came into operation in 1978 that is, over 25 years after plaintiffs’/respondents’ predecessor had taken control and use of the land. No doubt the provision of Section 36 of Land Use Act applies based on the facts presented in this appeal case hence the trial Court in my view was right to invoke that law.
Given the facts on the ground, even without the provision of Section 36 of Land Use Act being invoked and applied to the case on hand, the fact that the respondents’ father/grandfather had been in possession of the land in dispute, it takes the person who claims that he has a better title to the land to displace respondents’ possessory title or status.
When the question arises whether any person is the owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See: Stephen Idubgue & Sons Ltd Vs. Arenih (2003) FWLR (Pt. 149) 148, 1442; Udeze V. Chidebe (1990) 1 NWLR (Pt. 125) 141, 160. This Court in Ejezie & Ors Vs. Theosophy Theocrat Okoye (2013) LPELR-21877 (CA) rightly held that:
”Possessory rights exist or arise by virtue of the protection the law accords the fact of actual physical occupation of land even if it is wrongful or adverse. The primary right which such physical occupation confers is the right to others. So a trespasser can therefore exclude all those interfering with his possession except the person with a better right to indicate possession. So the word possession includes the right to possession and the actual physical occupation of the land.” Per Agim, JCA.
It follows therefore that the argument or submission made in the appellants’ brief that by the Judgment of the trial Court, a trespasser to the land in dispute was reckoned with, did not truly appreciate that it was/is the appellants who had failed to make out a case for themselves, that is, to say: how they came by the land in dispute, how the respondents’ father/grandfather became their tenant, who made a grant of the land in dispute to him and what the terms are for that grant (if any). It is therefore not correct as the appellants seem to suggest in their briefs of argument that the basis for the finding made in favour of the respondents was because of the one found to be in possession even when it is clear that they failed to prove their ownership over the land in dispute. This submission of counsel for the appellant is clearly unfounded, given the fact that the respondents’ father/grandfather entered and acquired the land in dispute through ‘Ivota-Ani’, a custom known to Eke, hence the owner in possession. I resolve those set of issues in favour of the respondents and against the appellants.
Does the fact of the burial of a family member on the land which otherwise is disputed by the parties claiming adversely, mean anything significant to them? This question has been addressed by learned counsel on both sides in their respective briefs of argument. See appellants’ issue No. C; 1st respondent’s issue No. 2 and the 2nd – 4th respondents’ issue no. 4.
It will seem that the burial of corpses on any particular land is symbolic and has socio-cultural significance and this explains the contestations as exemplified in Exhibit 36, a letter or Notice tendered in evidence by the appellants. It signifies ownership of the land, where the person or family member of that family was buried.
In the book, ‘A.B.C. of Contemporary Land Law in Nigeria’ (Revised and Enlarged Edition), I.A. Umezulike wrote at pages 41-42 that:
”Customary land law attaches first or permanent importance and significance to burial of forebears, relations and, or family members on parcel of land. In strict customary land law such parcel of land is regarded as sacred and exclusive to the family or person whose dead ones were buried on the land.” See Egesimba Vs. Onuzuruike (2002) 15 NWLR (Pt. 791) 406 where, by the evidence on the printed record in that case, the appellant in that case made reference to the graves of some of his ancestors and family members as a mark of ownership of the land he claimed.
On this same point, the trial Court at page 205 of the record held that:
”Another piece of evidence which seems to strengthen the case of the plaintiff is the burial of the son of Okwuluoha (the plaintiffs grandfather) among others on the land in dispute. The defendants contend feebly that the burials were with protest from their community. I say so because: (1) there is no evidence of report to the police and (2) there is no evidence of action commenced at the Customary or High Court for the removal of the corpses buries on the land.”
The appellants in their brief of argument faulted that finding of the trial Court in that the Court misdirected itself in the finding relative to the evidence adduced by Pw4/Pw5. In reference to page 105 lines 1-4 of the record, it is argued that Henry Onyeama was not buried on the land in dispute but on a parcel of land lying opposite the land in dispute and to this end the trial Court came to wrong conclusions when it held that Ozo Edmund Oyeama was the owner of the land in dispute by reason of that finding.
It appears to me that the appellants were not just prepared to advert their attention to the evidence of witnesses called by them. Dw1 speaking on this point, at page 168-169 of the record, testified thus:
”I know Ozo Edmund Onyeama very well. He died where he built his house in Eke.”
Dw4, through whom Exhibit 36 was tendered and admitted in evidence said under Cross-examination at page 186 of record that:
”I attended the burial of Edmund Onyeama. I know the land in dispute” I was on the land in September, 2003 during the burial of Edmund Onyeama. It is common ground between the parties that Ozo Edmund Onyeama was the son of Chief Onyeama Okwoluoha hence the finding made by the trial Court at page 105 in reference to the burial of the son of Okwoluoha on the land in dispute could not have been reference to the burial of Henry Onyeama in 1937 at St. Paul’s Parish former burial ground, a place lying outside the land in dispute rather that remark or finding by the trial Court is more consistent with the evidence of Dw1, Dw4, Exhibit 36 and evidence of Pw9, that is to say, that Ozo Edmund Onyeama was indeed buried in his compound on the land in dispute in line with the averments at paragraph 24 of the Further Further amended Statement of Defence at page 67 of the record. I therefore cannot fault the finding made by the Court below on this point. Indeed the fact of burial of Ozo Edmund Onyeama on the land in dispute, which fact of burial had not been challenged or contested to its logical conclusion, informed the trial Court in coming to the conclusion as it did. I have no reason to fault that finding.
Accordingly, I resolve those set of issues on this Head against the appellants and in favour of the Respondents.
The complaints over the failure of the trial Court to evaluate evidence before it has two perspectives to it, first, is from the angle that the evidence of respondents was not evaluated by the trial Court to see to what extent they discharged the onus of proof on them. The second angle relates to the evidence called by defendants/appellants and the failure of the trial Court to evaluate same whose counter-claim, allegedly, was not denied.
As to be expected the appellants in their brief of argument faulted the Judgment of the trial Court on account of its failure to evaluate evidence of the plaintiffs/respondents as it relate in particular, to the concept of res nullius and Ivota-Ani. He argued that not one of the witnesses called by the Respondents, called evidence to state that the land in dispute was res nullius as at year 1954. That all the 9(nine) witnesses called by the respondents none gave evidence on ‘Ivota-Ani’, except Pw5. That by all the evidence of Pw5, respondents claim to ‘Ivota-Ani’ totally collapsed and yet the trial Court gave Judgment in their favour without evaluating evidence of plaintiffs/respondents’ witnesses.
The same argument was presented for the defendants/appellants, whose evidence led in support of the counter-claim, as it is argued, was not considered by the trial Court even in the absence of any denial or reply to that counter-claim and claim for forfeiture. It is argued that the respondents could not in the year 2005, have denied the counter-claim of appellants which was filed in 2012.
In absence of any defence to counter-claim, it is argued, the respondents are deemed to have admitted all the facts contained in the counter-claim, citing the decision in Akhigbe V. Paulosa (Nig.) Ltd (2006) 12 NWLR (Pt. 994) 373, 383; A.C.B. Plc Vs. N.T.S. Ltd (2007) 1 NWLR (Pt. 1016) 596, 629. In reference to the evidence of Dw2 and Exhibit 35 among others it is argued that the appellants proved their counter-claim such that the late Ozo Edmund Onyeama initially was their tenant on the land measuring 200 feet by 150 feet. That Ozo Edmund Onyeama was a trespasser in relation to the excess of the land to which a grant was not made.
In effect, they argue that the appellants proved their title to the land in dispute vide acts of ownership and long possession and the trial Court was/is in error when, despite the evidence at his disposal, refused to enter Judgment for the appellants.
In reference to the decision in Ogun Vs. Akinyelu (2004) 18 NWLR (Pt. 905) 362, 382; Jinadu vs Esurombi-Aro (2005) 14 NWLR (Pt. 944) 142, 201-202, it is argued that the respondents failed to file a defence against the claim to forfeiture. Learned counsel for the appellants urged us to grant their (appellants) counter-claim.
The 1st respondent and the 2nd -4th respondents in their respective briefs of argument, with reference to the record of Judgment, are positive that the trial Court carried out the evaluation of evidence of respondents’ witnesses and those of the appellants and came to the right conclusion. For this reason, we were urged to resolve those issues in favour of the respondent and dismiss the appeal.
As regards the submission that the counter-claim of the appellants in the Further Further amended Statement of defence was not denied, learned counsel to the respondents argue that there was no need to file a separate defence or reply to the said counter-claim which was never duly amended in the eyes of the law.
He argued stating that where only the Statement of defence was amended and not the counter-claim, by leave of Court, the respondents have no duty to further respond to a counter-claim (as in this case) which was not (by leave of court) amended.
As indicated before, the grouse or the complaint laid under the heading being discussed is that the trial Court failed in its duty to evaluate evidence of witnesses both for the respondents and those of defence.
At this point I should ask the question: what exactly is meant by ‘evaluation of evidence’ Oputa, JSC (as he then was) of blessed memory held in Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) 187, 208-209, that:
”What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for it.
Evaluation of evidence thus entails the assessment of that evidence so as to give value or quality to it. Evaluation demands that the evidence adduced by both parties is assessed and weighed so as to give probative value or quality to it. Review of evidence is not the same things as evaluation of evidence. The former entails a reproduction of evidence of witnesses in summary form. Actual evaluation entails reasoned belief of evidence of one party to the other.. Aregbesola Vs. Oyinlola (2010) LPELR-3805 (CA); Attah V. State (2009) 15 NWLR (Pt. 1164) 284 (CA).
The Judgment delivered at the trial Court is at pages 190-207 of the record of appeal. At pages 192-199. The trial Court gave the highlight of evidence of the witnesses. At pages 200-201 of the record, the trial Court presented in summary form, the salient issue raised in the case presented by parties on both sides and proceeded thereafter to resolve those issues at page 201 and beyond under the caption: RESOLUTION OF ISSUES, THE BASIC TESTS.
In the bid to address the question posed by parties, the trial Court at page 202, raised 3 (three) contentious issues and proceeded, from page 203 to the end of Judgment at page 207 to resolve those issues by way of the findings and the conclusion he made.
In the light of the reasoning of the Court below and referred to in the Judgment, I find it difficult to agree with the appellants in their brief of argument, that the case of the respondents was not evaluated. As can be seen in the Judgment the trial Court indeed jettisoned plaintiff’s claim and reliance on the concept of res nullius but found as a fact that the custom known as ‘Ivota-Ani’ does exist afterall. That it is through this custom that the land in dispute was acquired by respondents’ father/grandfather.
With regard to the entry of respondents’ father/grandfather on the land in dispute, the trial Court at page 203 dismissed the idea that Ozo Edmund Onyeama was a customary tenant. The Court observed:
”There is absolutely nothing convincing upon the oral and documentary evidence adduced at trial to prompt a holding of this Court that he was.”
Given the fact that appellants’ counter-claim was anchored on the grant allegedly made to respondents’ father/grandfather by appellants? forebears, the burden duty then lies with the appellants to lead evidence to prove that the respondents father was a customary tenant to the people of Amufia -Eke.
They are seeking a declaratory relief in their counter-claim to that effect hence the appellants, willy-nilly are bound to lead evidence of their entitlement to the reliefs contained in the counter-claim. This is why the respondents cannot be deemed as having admitted facts contained in the counter-claim, whether or not a reply or defence to that counter-claim was filed by them. In any case, pw2, Pw7, in their evidence, stated categorically, that their father never paid tribute to the people of Amofia-Eke in respect of the land in dispute to suggest that he was a tenant to them.
Contrary to the submissions made by the appellants, the trial Court indeed evaluated evidence before it whether rightly or wrongly but since the trial Court came to the right conclusion as it did, to found in favour of the respondents, I have no reason to fault that decision of the trial Court below.
In Abisi Vs Ekwealor (supra) the apex Court held that when the question of the evaluation of evidence does not involve the credibility of witnesses but the complaint is against the non-evaluation or improper evaluation of the evidence tendered before the trial Court, an appellate
Court is in a good position as the trial Court to do its own evaluation, and this, is what I have attempted to do in this exercise.
A [trial] Court may be mistaken in its findings but so far as it came to the right conclusion in its Judgement and there are evidence(s) to support that conclusion, the appellate Court can, I think, revaluate that evidence on the printed record to correct those mistake or flips. Such mistakes, errors or flips should not be the reason to have the Judgment of the trial Court set aside. For instance, the trial Court at a point instead of reference to Pw5, veered into the evidence of Dw4 as the person or witness who testified in relation to the burial of Henry Onyeama on the land in dispute. The Court in the same vein referred to the grandfather/great grandfather, Chief Onyeama Okwuluoha as the person who acquired the land in dispute whereas the acquisition of the land in dispute was made by his son, Ozo Edmund Onyeama, on the pleadings and evidence on the printed record.
Generally therefore, where reference is made by the [trial] Court to the evidence of a witness other than the relevant witness, the mention or reference to the wrong person (witnesses) should be taken as a flip and the case should not be set aside on account of such errors.
Consequently, issue No. (d) in the appellants’ brief of argument, issue No. 7 in the 1st respondent’s brief of argument; issue No. 5 in the 2nd- 4th respondents’ brief of argument are all resolved against the appellants and in favour of all the respondents.
In the same vein issue No. (e) in the appellants’ brief of argument, issue No. 6 in the brief of argument for the 1st respondent; Issue No. 6 in the 2nd – 4th respondents’ brief and issue No. 8 in the 1st respondent brief of argument, are all resolved in favour of the Respondents.
The appeal, on the whole, fails and same is dismissed. The Judgment delivered at the trial High Court of Enugu State in Suit No. E/187/2003 is affirmed.
Cost is assessed in favour of the respondents in the sum of N100, 000. 00 against the appellants.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, Saidu Tanko Husaini, J.C.A.
I agree completely with His Lordship’s line of reasoning and the conclusion reached in the said leading judgment that the appeal is bereft of merits. I also dismiss the appeal and abide by all the consequential orders made therein.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft the lead judgment just delivered by my learned brother SAIDU TANKO HUSAINI JCA.
For the reasons contained in the lead judgment which I adopt as mine, I dismiss the appeal.
Appearances:
Chief O. Ugolo, SAN, FCIArb with him, I. I. Iloani, Esq.For Appellant(s)
Nnenna Onyeama, Esq. for herself – 1st respondent.
Chief P.M.B Onyia, Esq. with him, Chidika Nwuzo, Esq. for the 2nd- 4th respondents.For Respondent(s)
