SAMUEL UGELA V. AKOHOL TARVENDA & ORS
(2013)LCN/6300(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2013
CA/MK/09/12
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
SAMUEL UGELA – Appellant(s)
AND
1. AKOHOL TARVENDA
2. AENDE DANIEL
3. ENGR. CYPRIAN TULE
4. HANAVE LANSHIMA (AKA AHIDJO)
5. POLYCARP ADYE – Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The lower court in my humble view did not abdicate the sacred duty of evaluating the evidence. From the findings reproduced supra it could be seen that the learned trial judge did ascribed probative value to the evidence adduced and proceeded to weigh the evidence before it on the imaginary scale upon preponderance of evidence to decide which side the scale weighed having regard to the burden of proof as in Agenifo V. Aiwreoba (1998) 1 NWLR (Pt. 70) at 325 and Mogaji V. Odofin (1978) 4 SC 91. The findings are not shown to be perverse and unsupported by evidence. The trial court properly evaluated the evidence adduced both oral and documentary. This court has no cause to interfere. Accordingly, issue 2 is resolved in favour of the respondents. PER MSHELIA, J.C.A.
ADZIRA GANA MSHELIA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Benue State, sitting at Makurdi delivered on the 30th of September 2011 by Onum J.
The plaintiff now appellant before this court claimed at the lower court against the respondents per his amended statement of claim.
Jointly and severally as follows:-
(a) That plaintiff is the bonafide Holder of Certificate of Occupancy in respect of BND 4286 measuring approximately 200m X 400m.
(b) That the sale of portions out of the said plot variously to the 2nd-5th defendants by the 1st defendant is wrongful and therefore Null and Void Abinitio.
(c) An order of this court evicting 2nd-5th defendants from plot No BND 4286.
(d) An order of perpetual injunction restraining 2nd-5th defendants of trespass on plot No. BND 4286.
(e) Ten Million Naira (10,000,000.00) damages in trespass against 1st – 5th defendants.
(f) The costs of this suit.
The respondents who were the defendants at the High Court filed a 22 paragraph further amended joint statement of defence and counter claim wherein they counter claim jointly against the plaintiff as follows:-
a. A declaration that the 1st defendant is a bonafide beneficial owner of plots sold to the 2nd – 5th defendants.
b. That the 2nd – 5th defendants having acquired their plots from the 1st defendant, the bonafide beneficial owner have acquired valid title.
c. Damages of N1 Million.
The appellant claimed that he purchased a piece of land measuring 200ft X 400ft at Nyor Gyungu area in Makurdi Local Government Area of Benue State. He claims to have bought this piece of land from one Wanhuan Audu a blood relation of late Nyor Gyungu through Akor Anye in the preference of Chief Terseen Ihwakar (DW6) the kindred Head of Mbaikya, Joshua Ikyar Ape and the 1st respondent. He claims it was the 1st respondent that introduced him to Akor Anye who coordinated the sale. Appellant stated his case further that he made his payment for the plot of land through DW6, the land became his and he then applied to the Benue State Ministry of Lands and Survey Makurdi for a C of O over the plot of land before he noticed the adverse claims of the 1st respondent in respect of the land. When 1st respondent made claims to his land both of them willingly submitted themselves to an arbitration over the plot in issue by a customary institution which heard them and asked the 1st respondent to leave the land and she accepted the award made at the time only for her to turn around after several years to make claims to the land again when Wanhuan Audu died. The transaction between Wanhuan Audu and appellant took place in 1999 and the payment of N25, 000.00 was also made in that year.
The case of the respondents was different. The 1st respondent stated that she had nothing to do with Nyer Gyungu’s land. According to her, the appellant did not come to her directly, he approached her though Zaki Terseer lhwakar (DW6) who is a friend of the appellant and her relation. She said she agreed to sell four plots of land to the appellant each measuring 100ft X 100ft at the cost of N25, 000.00 per plot. The appellant paid N25, 000.00 for one plot through Terseer Ihwakar (DW6) and failed to pay the balance of N75, 000.00 which would have brought the total cost of the four plots to N1 00,000.00. She then took control of the three plots which were not paid for as a result of which the suit arose.
On 30/9/2011 the lower court gave judgment in favour of the respondents and dismissed the appellant’s case. The appellant not satisfied with the judgment of the lower court filed a Notice of Appeal against the same on 20/10/2011 on four (4) grounds. With leave of this court sought and obtained on 17/01/13 the Notice of Appeal was amended and same filed on 18.01.13. The amended Notice of Appeal contained eight (8) grounds of appeal.
Pursuant to the rules of court parties filed and exchanged briefs of argument. Appellant’s amended brief of argument settled by B. Hanaze esq. was dated 11th day of December, 2012 and filed on 18/01/2013. The respondents’ amended joint brief of argument settled by Vincent T. Uji esq. was filed on 1st February 2012. Appellant also filed a reply brief on 11/02/13. When the appeal came up for hearing both counsel adopted their respective briefs of argument. Appellant’s counsel urged the court to allow the appeal while respondent’s counsel urged the court to dismiss the appeal.
Appellant formulated two issues for determination as follows:
(i) Whether or not the lower court was right in law to have held that Exhibit B3 (A customary Arbitration between the appellant and 1st respondent contained in pages 25 – 28 of the records of appeal) cannot be binding on the parties in this case for purposes of deciding any aspect of the case (Grounds 2 and 5).
(ii) Whether or not the judgment of the lower court is against the weight of evidence adduced at the trial (Grounds 1, 3, 4, 6, 7 and 8).
Respondents on their part did not formulate new issues but chose to adopt the issues formulated by the appellant.
This appeal will be determined on the two issues raised by the appellant as respondent also adopted same as being apt.
Issue No 1
While answering issue 1 in the negative learned counsel for the appellant submitted that since the Nigeria legal system recognizes customary arbitrations the courts of our land are required to recognize and uphold awards made by customary arbitral bodies. Reliance was placed on Ezeano Kwa V. Muoneke (2005) All FWLR (Pt. 256) 1327 at 1340 paras B-G; Odinisi V. Okeleke (2001) 2 SCNJ 198 at 213 lines 19-27; Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290 at 304 paras A-E and Eke V. Okwaranvia (2001) 4 SCNJ 300 at 323 lines 30-35. Appellant pleaded the issue of customary arbitration in paragraphs 9-13 of his statement of claim. According to him the Mbaakuva Land, disputes resolution committee arbitrated and settled the dispute over the land in issue in this case between the appellant and the 1st respondent on 16/3/2003 in his favor before the 1st respondent sold it to the 2nd – 5th respondent. A record of the arbitration/settlement of the dispute was admitted as exhibit B3. Learned counsel submitted that respondents admitted the fact that there was arbitration over the land in issue in the case which awarded same to him. It was contended that exhibit B3 before the lower court meets the requirement of a valid customary arbitration and ought to have been given judicial recognition by the lower court. In Eke V. Owaranva (supra) the Supreme Court enumerated the ingredients for a successful plea of a customary arbitration and all the ingredients were pleaded and proved before the lower court. Reference was also made to the case of Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) SC 290 at 304 paras D-E. It was submitted that the lower court held in its judgment that exhibit B3 relates to the subject matter of the case.
Reference was made to S. 128 and 132 of the Evidence Act 2011 and counsel argued that the lower court was not entitled to vary the terms of Exhibit B3 by adopting the evidence of DW6, having found that Exhibit B3 relates to the subject matter of the case. According to appellant’s counsel the lower court was wrong to hold that the exhibit B3 cannot be binding on any of the respondents for the reason that none of them participated at the arbitration. That respondent impliedly admitted appellant’s case that she participated. That 2nd-5th respondents could not have participated at the arbitration recorded in exhibit 83 because it was after the arbitration that 1st respondent sold the land arbitrated over to them. He urged court to resolve the issue in favour of the appellant.
In response, learned counsel for the respondent submitted that the document which is supposed to emanate from a body called the Mbaakuva Land resolution committee is suspect. It was submitted that Mbaakuva Land committee is supposedly headed by a chairman whose designation under the traditional council is non-existent. He said alone kindred attended and from all indications he was supposed to be the authority behind the Mbaakuva Lands committee. Though he filed statement on oath he failed to make himself available for cross-examination. It was contended that the same kindred head who was supposed to have participated in Exhibit 83 took part in the arbitration that constituted the consent judgment in MHC 24/2005 exhibit Q. He did not opine that the matter had been arbitrated before him. That appellant attended the exercise in exhibit O but he did not complain that the matter between him and the 1st respondent was settled. That the panel in Exhibit Q was the one that had the power to arbitrate being the higher panel. Learned counsel pointed out six short comings to show that exhibit B3 was not a valid or relevant arbitration. See page 6-7 of the brief of argument. It was contended that appellant did not appeal against the consent judgment to the Court of Appeal which means he accepted the verdict. Appellant even sold the single plot to his co-worker one Joseph Terrgu Zaki. He referred to page 173 and 281 of the record. That the consent judgment is binding on the appellant. Reliance was placed on Tavar V. Busari (2011) 1 SCNJ 1 at 16. Counsel further argued that exhibit B3 did not meet the ingredients or precondition for a valid customary arbitration. That appellant did plead exhibit B3 when the Ugondo Community elders met in exhibit Q of which he was present. The ingredients of or preconditions for a valid customary arbitration were stated in Okereke V. Nwankwo (2003) 4 SCNJ 211 at 221 222. Learned counsel submitted that the exercise in exhibit B3 did not qualify for a valid customary arbitration and gave five reasons to support his contention. See pages 10-11 of the brief of argument. That 1st respondent had maintained that her land was different from Nyor Gyungu’s land.
Appellant identified new points raised by the respondents in their brief of argument and responded accordingly. I will refer to same in the course of the judgment.
Before answering the question posed by the appellant, it has to be determined whether there is a valid customary arbitration between the appellant and the 1st respondent. The altitude of the court to the issue of customary arbitration is very clear as pronounced in a plethora of cases. The ingredients which must be satisfied before a decision of a valid arbitration can be enforced by a court as a binding decision are fully explained in these cases as follows:-
1. Voluntary submission of the matter in dispute to an arbitration of one or more persons.
2. That it was agreed by the parties that the decision of the arbitration would be accepted as final and binding.
3. That the said arbitration was in accordance with the custom of the parties.
4. That the arbitrators reached a decision and published their award.
5. That the decision was accepted by the parties at the time of award.
See Awosile v. Sotunbo (1992) 5 NWLR (Pt. 243) @ 514, Oparaji V. Ohanu (1999) 9 NWLR (Pt. 618) 290 @ 304, Eke V. Okwaranyia (2001) 4 SCNJ 300 @ 323, Ezeanoikwa V. Mouneke (2005) ALL FWLR (Pt. 256) 1327 @ 1327.
In the instant case Appellant pleaded in paragraphs 5 – 9 of his statement of claim that the Mbaakuva land disputes resolution committee arbitrated and settled the dispute over the land in issue in this case between himself and the 1st respondents in his favour. At the trial Appellant tendered a record of the said arbitration/settlement of dispute over the land in issue and same was admitted as Exhibit B3. Throughout the pleadings of the respondents i.e. the joint statement of defence contained at pages 50 – 54 of the record, the joint amended statement of defence at pages 218 – 222 and the further amended joint statement of defence contained at pages 241 – 247 of the record, respondents only made a general denial without move in respect of the issue of arbitration referred to by the appellant in paragraphs 5 – 9 of his statement of claim appearing at page 13 and 14 of the record. Respondent did not say anything about Exhibit B3. A denial in a statement of defence that “the defendant denies a paragraph in the statement of defence and put the plaintiff to the strictest proof thereof amounts to insufficient denial or insufficient traverse to put the matter thus denied in issue.” See Daniyan v. Iyasin (2002) 7 NWLR (Pt. 760) 345. There should be no general traverse in respect of essential and material allegations. It is trite law that mere general denials in pleadings are never sufficient traverse and amounts to no denials at all with the end result that the particular pleaded fact remains unchallenged and only required minimal evidence or none at all to be admitted as proved by the trial court. See Quality Finance Ltd (2003) 6 NWLR (Pt. 815) 147 and Eke V. Okwaranyia (2001) 12 NWLR (Pt. 726) 181. Appellant was also never cross – examined by the respondents on the issue of customary arbitration evidenced by Exhibit B3.
Respondents argued in their brief of argument that Exhibit B3 is not genuine. That same is false. It is well settled that he who asserts must prove. See Hillaru Farm Ltd. & Ors V. M. V. Mantra & Ors (2007) 14 NWLR (Pt. 1054) 210, Famfa Oil Ltd. A. G. Federation & Anor (2003) 18 NWLR (Pt 852) 453 and Onah V. Okenwa & 2 Ors (2010) LPELR 4781 (CA). The burden of proof is not static in civil case, as such the respondents who alleged that Exhibit 83 is not genuine ought to lead credible evidence to prove their assertion, address of counsel cannot take place of evidence. It is too late to challenge its authenticity in the brief of argument.
I note that the learned trial judge stated in his judgment at page 350 of the record “that Exhibit 83 relates to the land in issue in the trial”
I have examined Exhibit B3. In absence of credible evidence that the said Exhibit B3 is false document I would agree with the appellant to the extent that he referred their dispute over the land in issue to the Mbaakuta land disputes resolution committee for customary arbitration. From the contents of Exhibit B3 it appears both the appellant and 1st respondent appeared before the arbitration committee, though their names were not listed amongst those in attendance however, I have observed that the heading of Exhibit B3 bears the names of both appellant and 1st respondent. For clarity Exhibit B3 is headed thus:-
“MINUTES OF MEETING CONVEYED BY MBA – AKUVA LAND RESOLUTION COMMITTEE TO SETTLE LAND DISPUTE BETWEEN SAMUEL UGELA AND AKOHOL TARVENDA AT IKYEGHSUA IKYAV’S COMPOUND NYO GUNGU AREA ON SUNDAY 16TH MARCH, 2003.”
Pw3 in his statement on Oath (Exhibit D) confirmed that he attended the meeting of the Mba-kuva land resolution committee referred to by the appellant. See Exhibit 83. Having agreed with the appellant that parties did appeared before arbitration committee to resolve their dispute over the land in issue, the next question to be resolved is whether the pre-conditions for a valid customary arbitration have been satisfied. In order to attract judicial recognition, the decision of an arbitration which is called an award must be shown to be certain, final, reasonable, legal, and possible and must be shown to dispose of all the differences submitted to arbitration.
See Ezeonokwa V. Muoneke (2005) ALL FWLR (Pt. 256) 1327 @ 1340. In other words for customary arbitration to constitute estoppel the conditions precedent or ingredients referred to (supra) must be satisfied. From the contents of Exhibit B3, I cannot say with certainty that all the conditions have been fulfilled. The comment attributed to the 1st respondent when she was asked to state her side of the story before the committee was that she insisted appellant should pay the remaining three plots because he paid for only one plot. This is consistent with her stand that the land in dispute belonged to her. By this response it means 1st respondent did not accept the decision at the time it was made. It is risky under such circumstances to hold that the arbitration award is binding on the parties. There must be evidence to show that parties agreed either expressly or by implication that the decision of the arbitrator (s) would be accepted as final and binding. In Ohiaeri V. Akabeze (1992) 2 NWLR (Pt 221) 1 Akpata J.S.C., who read the leading judgment proffered a rationalization for the need to be circumspect about customary arbitration. He observed at page 24 thus:-
“Hence it is essential before applying the decision of a customary arbitration as estoppel for the court to ensure that parties had voluntarily submitted to the arbitration, consciously indicated their willingness to be bound by the decision and had immediately after the pronouncement of the decision unequivocally accepted the award”In the present case the required ingredients for a valid or binding customary arbitration have not been satisfied. For this reason, I will hold that Exhibit 83 is not binding on the respondents. The learned trial Judge rightly held that Exhibit B3 cannot be binding on the 1st respondent though for a different reason. Accordingly issue 1 is resolved in favour of the respondents.
Issue No: 2 is whether or not the judgment of the lower court is against the weight of evidence adduced at the trial.
Learned counsel for the appellant commenced the argument by contending that the judgment of the lower court is against the weight of evidence adduced at the trial. It was submitted that the appellant’s evidence at the trial is cogent, credible and compelling. Learned counsel submitted that appellant gave evidence as to how he bought a parcel of land from one Wanhuan Aduu in 1999 and how 1st respondent lay claims over the same piece of land which led to arbitral/settlement over the dispute as in Exhibit B3. Counsel contended that Wauhuan Aduu inherited the said land in issue from one Nyor Gyungun. Reliance was placed on Exhibit B5 (judgment) wherein 1st respondent litigated over a portion of land adjoining the land in dispute with one Tile T. Victor and the court held that land belonged to Nyor Gyungu. Appellant’s counsel submitted that one of the ways of establishing ownership of land is by proof of ownership of adjoining land. Counsel was of the view that it is probable that since late Nyor Gyungu owned the adjoining land, he could also be the owner of the land inherited by Wanhkan Aduu who sold the land to the appellant. That respondent never denied appellant’s averments and evidence as it relates to Exhibit B5.
Learned counsel further submitted that 1st respondent adduced very inconsistent evidence in suits No: MHC/86/1999, MHC/188/2006 and MHC/206/2002. That in spite of all the inconsistencies inherent in the evidence of 1st respondent the lower court still entered judgment in her favour against the weight of evidence. Counsel also contended that the lower court decided the case against the weight of evidence adduced at the trial and erred in law and fact to have based its decision on an extraneous matter of credibility when the 1st respondent was not any more credible than the appellant. Appellant also complained that the finding of the lower court at page 347 of the record that “there was indeed a transaction in which the plaintiff had bought a piece of land from the 1st defendant” is not supported by evidence on record. That the finding of the lower court that appellant bought land from 1st respondent is perverse and not supported by evidence. Counsel also referred to paragraphs 6, 7 and 15 of the respondents’ further amended statement of defence contained at pages 243-245 of the record and contended that same are deemed abandoned as no evidence was led in support of the averments. That the appellant bought a piece of land from the respondents. Reliance was placed on Kalgo V. Faruk (2009) ALL FWLR (Pt. 475) 1752 @ 1770 paragraph G. Abubakar V. Yar’Adua (2009) ALL FWLR (Pt. 457) 1 and Adeoti V. State (2009) ALL FWLR (Pt. 454) 1450 CA. It was argued that the court chose to rely on the evidence of DW6 to alter, vary and substitute the deposition contained in Exhibit B3 that it was done in breach of Section 132 Evidence Act 2004 and Section 128 of the Evidence Act 2011. Counsel further argued that the lower court failed to determine the ownership of the plots of land in issue before arriving at the conclusion that the 2nd – 5th respondents were entitled to the plots they bought from the 1st respondent. That the court ought to have determined who, has between Wanhuan Aduu and the 1st respondent, had the capacity to sale the land in issue in the case.
In reply learned counsel for the respondents drew the attention of the court to the actual claim by the appellant before the lower court. In presenting his case, the appellant stated how he bought the land. The 1st respondent on the other hand stated her case. One witness central to the case of the appellant is Dw6 his acclaimed friend and relation of 1st respondent. It was through DW6 that appellant knew of the land in issue. Appellant acknowledge that Dw6 was present when the sale took place. It was DW6 that collected N25, 000.00 and paid to the 1st respondent. Learned counsel contended that from the testimony of DW6, it was clear that the N25, 000.00 was paid to the 1st respondent and not Wanhuan Aduu nor Akor Anye. The dispute was not over land belonging to Nyor Gyungu as the appellant would want it understood. The N25, 000.00 he sent was paid to the 1st respondent. That neither Wanhuan Aduu nor Akor Anye sued the 1st respondent to reclaim the N25, 000.00.
Learned counsel further submitted that the appellant claimed 1st respondent had no land to sell. That appellant initially refused to accept that he was a witness to sale of land by 1st respondent to one Ajai Peterson (see cross-examination page 281) and even denied his own signature when put to him that he witnessed the agreement on page 147 of the record. When however another signature of his in a different document as contained on page 235 of the record, was put to him, he accepted the signature and also went back to accept the signature he earlier denied. It was also submitted that appellant gave the size of the plot as 200ft by 400ft, yet he relied on Exhibit B3 where the size of the plot was put at 121.55m x 97m x 20m x 97m. This piece of land is bigger than the piece of land that would contain four plots of 100ft x 100ft. Counsel submitted that Ikyav Ape the defendant in the consent judgment was appellant’s privy or agent.
It was contended that the action of the appellant is calculated to create some confusion where none should exist in the mind of the court. His effort at giving varying sizes of the land, his introduction of Wanhuan Aduu, Akor Anye and Nyor Gyungu land were deliberate diversions. The dispute was simply over his failure to pay all the four plots of 100ft x 100ft. He paid for one plot but wanted to claim all four plots. There was no dispute over land between 1st respondent and the estate or successors of Nyor Gyungu and neither Wanhan nor Akor Anye joined in the suit. That the exercise in Exhibit B3 was totally out of tune with the dispute at stake. The estate of Nyor Gyungu did not dispute the four plots with the 1st respondent. They did not appeal against Exhibit Q which is the consent judgment in MHC/24/2005. That the judgment is binding on the parties and their privies. That from all indications, all parties did accept the verdict at the time it was published and delivered by the community leader because the appellant went ahead and sold his one plot, while 1st respondent also sold her 3 plots.
Counsel concluded that on a preponderance of evidence adduced the weight of evidence was in favour of the 1st respondent. While 2nd – 5th respondents stood to swim or sink with the 1st respondent. They were bonafide purchasers of plots validly sold to them by the 1st respondent. He urged the court to dismiss the appeal.
Appellant responded to new points identified in the issue No: 2 of the respondents’ brief. Appellant maintained in his response that he is a more credible witness than the 1st respondent.
The second issue complained about the evaluation of evidence done by the learned Trial Judge before coming to a decision. The attitude of an appellate court to the evaluation of evidence by a trial court is well established. It is pre-eminently the duty of the trial court to see, hear and assess each witness so as to know whether he should be believed or not and where the trial court has discharged that responsibility, the appellate court will not interfere with such finding unless they are shown to be perverse, unsupported by evidence or based on evidence not legally admissible. See Atolagbe V. Shorun (1985) 1 NWLR (Pt. 2) 360; Woluchem V. Gudi (1981) 5 SC 291; Ike V. Ugboaja (1993) 6 NWLR (Pt. 301) at 539; Alli V. Alesinloye (2000) FWLR (Pt. 15) 2610, (2000) 6 NWLR (Pt.660) 177 and Mogaji & ors V. Odofin & ors (1978) 4 SC 91.The question now is did the trial judge abdicate the sacred duty of evaluation of evidence and approbation of weight thereto as contended by the appellant’s counsel? Evaluation of evidence entails the assessment of evidence so as to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record on indication of how the court arrived at its conclusion of preferring one piece of evidence to the other. See Akintola V. Balogun (2000) 1 NWLR (Pt. 642) 532 and Oyekola V. Ajibade (2004) 17 NWLR (Pt. 902) 336.
It is well established that a plaintiff seeking for declaration of title to land bears the enormous duty in law to adduce credible and admissible evidence in establishing of such title. The plaintiff must succeed on the strength of his own case except where the evidence adduced by the defendant strongly supports his case.
It had equally, been stated in a plethora of cases that for a plaintiff to succeed in such a case, he could prove his ownership of the said land or title therein through any of the five different ways long entrenched by the Supreme Court for proving the same, that is to say;
(1) By traditional evidence
(2) By production of document of title duly authenticated in the sense that their due execution must be proved unless they are documents twenty or more years old produced from proper custody,
(3) By positive acts of ownership such as (selling, leasing, renting out or farming on all or part of the land) extending over a sufficient length of time, or which are numerous and positive enough to warrant the inference that the person is the true owner;
(4) By acts of long possession and enjoyment of land;
(5) By proof of possession of connected or adjacent land in circumstance rendering it probable that the owner of such connected adjacent land would in addition be the owner of the land in dispute. See classicus case of Idundun V. Okumagba (1976) 9-10 SC 227; Alli V. Alesinloye (2000) FWLR (Pt. 15) 2610 at 2632 paras B-D and Queen V. Uche (1994) 6 NWLR (Pt. 350) 521 at 550 paras G. H.From the pleadings and evidence adduced by the plaintiff/appellant it is evident that he is claiming ownership of the land in dispute through purchase. Plaintiff/appellant alleged that he bought the plot in dispute from one Wuanhuan Aduu whom he describes as blood relation of Mr. Nyor Gyungu at the price of N25, 000.00 in the presence of witnesses. See paragraphs 5 and 6 of the statement of claim. Also in his sworn testimony admitted as Exhibit ‘A’ Appellant stated as follows:-
“1. I purchased a piece of land measuring 200m x 400m covering an area of TP1 to TP2 900 120m TP2 to TP3 183 97m TM3 to TP4 271o 121. 55m TP4 to TP1 3o 97m from Wanhuan Aduu a rel tion of Nyor Gungu. My application for title deeds is already being processed by the ministry of land and survey for C of O.
2. This transaction took place through Whanhuan’s younger brother Akor Anye who coordinated the transaction in the presence of Teruseer Ihwakar the kindred head of Mbaikaya, Joshua Ikyav, Akohol Tarrenda and Samuel Ugela.”
Appellant did not tender any document in respect of the transaction but called two witnesses to confirm the sale. PW2 in his sworn testimony marked exhibit ‘D’ stated in paragraph 8 that late Wanhuaan Aduu severed parts of late Nyor Gyungu’s vast land measuring 2008ft by 400ft to plaintiff, a transaction that was coordinated by his younger brother Akor who succeeded late Wanhuaan Aduu. He said the land sold to plaintiff measures 200ft X 400ft. PW3 Akor Anye in his written statement on oath which was admitted in evidence as exhibit ‘C’ had this to say:-
“Sometimes in the year 2009 Akohol Tarverda and Chief Terseer Hwakar brought Mr. Samuel Ugela to me that Mr. Samuel Ugela was interested in buying a piece of land out of Nyor Igungus vast land. I asked for some time to consult with my elder brother Wanhuan Aduu as the eldest brother of late Nyor Igurgu who was overseeing Nyors Ingungu’s interest. Seeing that Samuel Ugela was his relation, he did not hesitate in giving his approval to the deal, Samuel Ugela was asked to pay N25,000.00 for a piece of land of about 200 x 400 with assurance to get more if he had so wished. The transaction took place in the presence of Akohol Taruenda, Joshua Ikyav and Zaki Terseer Hwakar kindred Head Mba-Ikyav.”
For the defendants/respondents they filed joint further amended statement of defence and counter-claim. 1st respondent by the pleadings and evidence adduced traced her root of title to one Moji Anee Ikyoon whom she said was her mother. In paragraphs 6 and 7 of the statement of defence 1st respondent averred thus:-
“6(a) the land claimed as described by boundaries mentioned is part of her land which she inherited from her mother.
(b) She did not know the plaintiff who is not even related to her. She told one Ikyav Ape to find somebody to buy land from her. The said Ikyav Ape went to inform the kindred Head Zaki Terseer Ihywakaa of Mbakya kindred about my desire for a lease.
(c) The said Zaki Terseer Ihyawkaa came to ask for four.
(4) Plots of 100ft by 100ft inside the land described in paragraph 5 of the further amended statement of defence at N25, 000.00 each.
(d) Zakt Tersee Ihywakaa clearly mentioned to the 1st defendant that one Samuel Tyochier Ugela (the plaintiff) was the one interested in the land but that the plaintiff gave him only N25,000.00. The plaintiff said that he would pay for the other three
(3) Plots when he got money.
(e) When the plaintiff could not pay any additional amount but started laying claim to the other three plots, she resisted and the matter was arbitrated upon by the Ugondo Traditional council.
(f) The Ugongo Traditional Council limited the plaintiff to just one plot out of the four mentioned for him by the 1st defendant at the instance and approach by Zaki Terseer Ihwakaa. The minutes of the customary arbitration are hereby pleaded.
7. That the plaintiff paid N25,000.00 for only one out of the plots and declined, refused, neglected or failed to pay for other three plots upon which the 1st defendant rescinded the contract for non-performance and took possession of the other three plots unpaid for by the plaintiff.”
The testimony of the 1st respondent is contained in her sworn testimony admitted as exhibit ‘P’. Appellant is claiming that he did not purchase any land from the 1st respondent. While 1st respondent maintained that the land in dispute belonged to her and that appellant purchased the land through PW6. In his sworn statement admitted as Exhibit ‘O’ DW6 Zaki Terseer Ihywakaa, the kindred head of Mbakya stated thus:
“2. That sometime in 2000, Ikyav Ape approached me that mama Akohol was looking for somebody to buy part of her land. I contacted Samuel Ugela who went and negotiated to buy four plots of land Akohol Tarvenda
3. That a few days later Samuel Ugela who is a friend gave me N25,000 to pay for the plot and 1 paid the money to Akohol Tarvenda in the presence of Ikyav Ape, I am not aware that other payment whatsoever was made to Akohol Tarvenda in respect of the remaining three plots.
When cross-examined by appellant’s counsel he maintained that money delivered to 1st respondent was not for any other persons. PW2 Akor Anye confirmed under cross-examination that plaintiff sent the purchase money through Terseer Ihywakaa (DW6).
Having summarized the evidence adduced by both parties on the issue of the sale transaction, the question now is can it be said that 1st respondent is the original owner of the land in dispute or a mere witness bearing in mind the testimony of DW6. It is pertinent at this stage to note the findings of fact made by the learned trial judge at pages 350-351 of the record. He stated thus:-
“From the pleadings, the evidence and the line of written submission, the parties are common on certain points. The plaintiff and the 1st defendant are not total strangers to each other, the point of difference is whether or not the 1st defendant acted as a witness or as agent or as the substantive owner in respect of the land that the plaintiff claimed to have paid for, it is also a common point between the parties that the DW6 is a common factor in the dealings between the parties. The parties are also agreed that exhibit B3 relates to the land in issue in the trial.
“Given the forgoing circumstances, the issue turns on the credibility of the evidence led by the plaintiff as against those led on the side of the defence. As I have repeatedly observed in the earlier part of the judgment, the plaintiff’s case on the pleadings is that he bought the land in issue from Wanhuan Aduu with the 1st defendant acting as a mere witness to the transaction. On his own part the 1st defendant has said that she had entered into an arrangement to sell some four co-joined pieces of land to the plaintiff at the cost of N25,000.00 a piece but that the plaintiff paid for only one out of the four; that was the rest three of the four plots she latter passed on to the other defendants after the plaintiff failed to meet up with the time limited for him to pay for them. In his written deposition the plaintiff acknowledges that Akor Anye, Chief Terseer Ihwaker, Jioshua Ikyav and Akohol Taruenda were witnesses to the transaction on the land in issue in the trial. Akor Anye has also testified as the PW2 at the instance of the plaintiff. In his written deposition (Exhibit C) he also acknowledges that Chief Terseer Ihawakar was a witness to the sales transaction. Chief Terseer Ihawakar testified as the DW6; his written deposition is Exhibit O. He was called by the defendce, which makes him a common denominator in regard to the sales transaction. His evidence is therefore crucial to the just determination of this case. He has however aligned himself with the 1st defendant’s evidence on the point. According to him, Ikpav Ape had requested him to find a buyer for part of the 1st defendant’s land; he then informed the plaintiff whom he said to have negotiated to buy four plots of land from the 1st defendant. Further that the plaintiff gave him N25,000.00 to pay for “the plot”. He paid the money to the 1st defendant and is not aware if the plaintiff paid any other money to the 1st defendant “in respect of the remaining three plots”. In his additional deposition that is also a part of Exhibit O, he was certain that the N25, 000.00 that the plaintiff paid was for only one out of the four plots that he had initially expressed interest in. He was not discredited on the evidence that the money was indeed paid through him to the 1st defendant, which evidence puts the veracity of the plaintiff’s case that he had made the payment for all four plots to Wunhuan Aduu through Akor Anye in doubt. Chief Ihwakar’s evidence, in my view, carries more weight than the evidence of Zaki Orhena Akor whose presence at the time of the transaction has not been acknowledged by both parties as done in the case of the Chief Ihwakar. Beside this, I agree with Mr. Uji of counsel for the defence that it is regrettably a minus for the plaintiff on issues of credibility for him to deny his own signature until confronted with another document signed by him and after causing an adjournment for counsel to fetch the document. If he could be economical on a matter as obvious as his own signature then it is hard to trust him on matters that are often subject of proof by evidence. I do not believe that the N25,000.00, which the plaintiff admittedly paid was for the entire land made of up of four plots, particularly since the DW6 who was admittedly a common denominator in the transaction does not support him on the point. The case that the plaintiff’s counsel has tried to make of his evidence on the basis of his blood relationship with the 1st defendant cannot be of any moment as his evidence was not discredited on the basis of that relationship. The relevance of Exhibit B3 has also been commended to me in support of the plaintiff’s case. I have looked at the exhibit; pages 2 and 3 of it show that it was only the plaintiff who was heard in the matter as no other aspect of the document shows evidence of participation by the 1st defendant or any of the other defendants. The document can therefore not be binding on any of them. This also goes for Exhibit B, B1, B2, B4 and B5, none of which can be binding on the parties in the case for purposes of deciding any aspect of the case. Upon the foregoing premise, I do not see any other aspect of the evidence led that is capable of leading me to decide the main suit in favour of the plaintiff. I therefore see no merit in the suit and it is hereby dismissed in its entirety.”
I find nothing wrong with the findings arrived at by the learned trial judge. He was in the vantage position of seeing and hearing witnesses, and watching their demeanour. Whether appellant believed he was a more credible witness than the 1st respondent is not for this court to decide. Findings’ relating to credibility is exclusively within the domain of the trial court and the appellate court cannot interfere. After all appellant admitted he signed exhibit ‘N’ though he denied it when he was initially asked by respondent’s counsel. I am also satisfied that the finding of the lower court at page 347 of the record that “there was indeed a transaction in which the plaintiff had bought a piece of land from the 1st defendant” is supported by evidence. It is not perverse. The testimony of DW6 corroborated by that of PW2 and DW7 (1st respondent) points to the fact that appellant purchased the land in dispute from the 1st respondent. The 1st respondent received the money being the owner of the land in dispute. Appellant paid for one plot out of the four plots he initially proposed to purchase. Having failed to pay for the remaining three plots appellant cannot exercise ownership over same. The fact that the piece of land claimed in exhibit B5 belonged to Nyor Gyungu does not mean that the adjoining land also belonged to Nyor Gungu. There must be cogent and credible evidence adduced in support of same. As stated earlier the burden of proof is on the appellant to adduce cogent and credible evidence in support of his root of title. It is trite that the appellant must succeed on the strength of his case and not on the weakness of the defence. See Akinola V. Oluwo (1962), SCLR 352 and Igwe V. Alozienura (1980) 3 NWLR (Pt. 141) 735 at 747. I have resolved under issue No 1 that Exhibit 83 cannot be enforced against the 1st respondent. The dispute was simply over appellant’s failure to pay for all the four plots of 100 X 100ft. He paid for one plot but wanted to claim all four plots.The complaint of the appellant that the lower court failed to determine the ownership of the plots of land in issue is unfounded. From the conclusion arrived at in the substantive suit 1st respondent had the capacity to sell the land in dispute. 1st respondent testified as DW7 and she adopted her written deposition which was admitted as Exhibit P. In her written deposition she narrated how she inherited the land from her mother and that 2nd – 5th defendants acquired title from her. She also maintained that appellant bought only one plot from her. DW1 (2nd respondent) confirmed in his sworn testimony Exhibit ‘E’ that he bought the piece of land from DW7 at a cost of N90,000.00 (eighty thousand naira only). Under cross-examination he maintained that he bought the portion of the land he is occupying from DW7 (1st respondent). He denied the fact that the land did not belong to DW7. DW1 even tendered Exhibit ‘F’ the sales agreement. In his written deposition he stated that since he bought the land nobody disturbed him until in 2008 when the appellant claimed ownership of the piece of land. He stated thus:-
“6. Since 2004, along I build a standing structure there, where I am living with my family, nobody complained or question me till 2008 Ugela who even signed agreement of Mr. Ajai Peter signed between Akohol Tarvenda was the land owner is now claiming the land back which he signed for.”
DW2 (3rd respondent) also confirmed in his written deposition Exhibit ‘G’ that one Barrister Salemkaan sold to him a portion of the land he is now occupying. He also tendered the sale agreement Exhibit ‘H’, made between himself and late Barrister Salemkaan. He made several inquiries from the people around and he confirmed that DW7 (1st respondent) was the original owner of the land in dispute. His testimony was not discredited under cross-examination. Similarly, DW3 (4th respondent) confirmed in his written deposition Exhibit ‘J’ that DW7 the original owner of the land in dispute sold a portion to him and they signed sales agreement marked Exhibit ‘K’. He purchased the plot measuring 100ft by 100ft at a cost N240, 000.00 only. He maintained under cross-examination that he made investigations before buying the land. DW4 (5th respondent) equally confirmed in his written deposition Exhibit ‘L’ that he bought a land from DW7 (1st respondent). He occupied the two round huts built on the land since 2008 without disturbance. When cross-examined by appellant’s counsel he said he was introduced to the 1st respondent by one Udam Ukpo. He maintained that the said plaintiff did not confront him to say that the land belonged to him.
The 2nd – 5th respondents were bonafide purchasers of plots validly sold to them by the 1st respondent. The learned trial judge concluded the counter-claim which is a separate action as follows:
“On the basis of the conclusions reached while deciding on the main suit, and in view of the credible evidence of rights of ownership and occupancy of the respective pieces of land led by each of the defendants, which testimonies have not been discredited on the basis of want of authority in the 1st defendant to pass a valid title on any of the plots, I find the counter-claim as well founded for judgment that I hereby declare title to each of the defendants against the plaintiff. Accordingly, I hereby declare title to each of the 2nd, 3rd, 4th, and 5th defendants over their respective plots of land in the focus of the counter-claim as against the plaintiff.”
1st respondent had pleaded her root of title and led cogent and credible evidence to show that she inherited the land in dispute from her mother. The other defendants/respondents also claimed ownership of their portion having purchased same from the 1st respondent. Their testimonies were not discredited under cross-examination. The learned trial judge rightly entered judgment in their favour based on their counter-claim.
In conclusion and from all that I have said, I would answer the question earlier posed by me in the negative. The lower court in my humble view did not abdicate the sacred duty of evaluating the evidence. From the findings reproduced supra it could be seen that the learned trial judge did ascribed probative value to the evidence adduced and proceeded to weigh the evidence before it on the imaginary scale upon preponderance of evidence to decide which side the scale weighed having regard to the burden of proof as in Agenifo V. Aiwreoba (1998) 1 NWLR (Pt. 70) at 325 and Mogaji V. Odofin (1978) 4 SC 91. The findings are not shown to be perverse and unsupported by evidence. The trial court properly evaluated the evidence adduced both oral and documentary. This court has no cause to interfere. Accordingly, issue 2 is resolved in favour of the respondents.
In the final analysis having resolved the issues in favour of the respondents, I hold that this appeal lacks merit and same in dismissed. The judgment of High Court of Justice Benue State delivered on 30.9.11 in suit No. MHC/222/2008 is hereby affirmed. I shall assess costs of N30, 000.00 in favour of the respondents jointly and severally against the appellant.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother A.G. Mshelia JCA.
My lord has wholesomely dealt with all the issues that arose for determination in this appeal. I entirely agree with the reasoning and conclusions arrived at in dismissing the appeal and affirming the judgment of the lower court.
I need further emphasise that the evaluation of relevant and material evidence before the court and the ascription of probative value to such evidence are the primary and well recognized functions of the trial court, which saw, heard and assessed the witnesses called by both parties. Where it is manifest that the trial court properly evaluated the evidence and justifiably appraises the facts, before it, the appellate court will hardly intrude or interfere to substitute its own views for those of the trial court.
Thus, it is only where and when the trial court fails to evaluate such evidence properly or at all that an appellate court can intervene and re-evaluate such evidence. See Fagbenro V. Arobadi (2005) 7 NWLR (Pt 978) 174: Ojokolobo V. Alamu (1998) 9 NWLR (pt 565) 225: SHA V. KUAN (2000) 5 SC. 178 and Adebayo V. Adusei (2004) 4 NWLR (Pt. 862) 44. From the foregoing, I also dismiss this appeal for lacking in merit and affirm the judgment of the lower court.
I equally abide by the consequential order made in the lead judgment including that of costs.
MOHAMMED A. DANJUMA, J.C.A.: Having had the benefit of reading in draft the lead Judgment just rendered by my Lord Mshelia, JCA; I am in support of the reasons for and conclusion arrived thereat that this appeal has no merit and should be dismissed.
The Appellant sought to rely on an Arbitration evidenced by Exhibit B3 purportedly reached in his favour in respect of the claim that went on trial at the High Court and contended that the trial court ought to have considered Exhibit B3 as binding between the parties and was therefore wrong in holding to the contrary.
I have perused the content of the said Exhibit B3 as reproduced in the lead Judgment and have also noted the evidence of the 1st Respondent who did not accept the Result of the Arbitration Exhibit ‘A’ as published.
For there to be a binding arbitration Agreement, all the conditions enumerated by the apex court in Ohiaeri v. Akabeze (1992) 2 NWLR pt. 221 page 1 per Akpata, JSC must be complied with or exist. One of such conditions is that the parties must not only have voluntarily submitted to the published arbitration in accordance with their accepted custom and tradition but must have so agreed with the outcome of the arbitration and considered it binding.
Only recently on 5th June 2013, I had cause to answer this same issue on the binding effect of arbitration in Ahembe Acho v. Ioryina Ukarye at Page 28 of my Judgment in Appeal No. CA/J/159/2002 thus:
“The case of Ohieri v. Akabeze (supra) referred to by both Counsel is clear authority to the effect that the reliance placed on Exhibit ‘A’ as constituting a binding document and estoppel against the Appellant is not helpful to the Respondent but advances the Appellant’s case on issue No.2 that the lower court was wrong in holding as it did that Exhibit ‘A’ constituted estoppel against the Appellant”.
In that case too, the parties had shown that there was no consensus as to the outcome of the Arbitration.
On the second issue argued, there is no doubt that the trial Judge, who had the benefit of watching the demeanor of the witnesses who testified before him and listened to their evidence had the discretion of evaluating same and coming to a decision.
A decision arrived at in that circumstance must be respected and should not be lightly jettisoned, in the absence of perversity shown. See, 1. Alhaji Sani Mani & 2 Ors. vs. Alhaji Shehu Manu (2007) ALL FWLR (Pt. 345) 303 at 324 Par. E.
2. Ayorinde & Ors. vs. Sogunno & 5 Ors. (2012) 4 – 5 SC 160.
My Lord, Mshelia, JCA, had re-evaluated the evidence as done by the trial court and rightly arrived at the view that there was no perversity in the conclusion arrived at by the trial court. I agree.
In the decisions of this court delivered on 3rd June, and 5th June 2013 in Alhaji Rabiu Nunku and John Aya & 2 Ors. – Appeal No. CA/J/204/2006 and Appeal No. CA/J/159/2002 – Ahembe Acho V. Ioryina Ukagye respectively, I had cause to state that a finding of facts arrived at by a trial court after proper evaluation of evidence based on the opportunity of hearing and observing the witness and who is believed, should not be lightly jettisoned by an Appellate court.
Those views apply in the instant facts of this appeal. I reiterate same and hold that this appeal has no merit. It is dismissed and in terms of the order relating to costs as made in the lead Judgment.
Appearances
B. Hanaze
D. Ojile esq.For Appellant
AND
N. T. UjiFor Respondent
