SHANKE & ORS v. NODANBA & ANOR
(2020)LCN/15360(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, September 03, 2020
CA/YL/156/18
RATIO
WHETHER A DOCUMENT ADMITTED IN ERROR CAN BE REJECTED AND EXPUNGED EVEN AT THE JUDGMENT STAGE
The law is that if a document is admitted in error the Court can reject and expunge same even at the judgment stage on realizing that it is inadmissible. See BELL ATLANTIC TELECOMMUNICATIONS LTD & ANOR VS. NDON & ANOR (2018) LPELR – 44431 (CA) P. 29, PARAS. B – E. In MAGAJI VS. OGELE (2012) LPELR – 9476 (CA) PP. 89 – 90, PARAS. G – B, his Lordship Ogbuinya, JCA on the duty of the Court to expunge inadmissible evidence held thus:
“The law is that where an inherently inadmissible evidence, which encompasses documentary evidence, is admitted, even without opposition from an adverse party, a Court which received it in evidence and an appellant (sic) Court have the power, or duty, to reject and expunge the inadmissible evidence at judgment stage and on appeal respectively because a Court of law acts only on legal evidence, seeABUBAKAR VS. JOSEPH (2008) 13 NWLR (PT. 1104) 307; ABUBAKAR VS. CHUKS (2007) 18 NWLR (PT. 1066) 386.”
See PDP & ANOR VS. KAWUWA & ORS (2015) LPELR – 26044 (CA) PP.53 – 54, PARAS. E – F and MICHAEL HAUSA VS. THE STATE (1994) 7 – 8 SC, 144, AMAECHI VS. SOLAJA (2017) LPELR – 42890 (SC) P. 9, PARAS. A – D, OKONJI VS. NJOKANMA (1991) 7 NWLR (202) 131 and F.R.N. VS. USMAN (2012) 1 MJSC (PT. 1) 25.
POSSESSION OF LAND: POSITION OF THE LAW WHERE TWO PARTIES CLAIM POSSESSION OF LAND
The law is trite in this regard that where two parties claim possession of land the law ascribes such possession to that party who can show better title. See OLOWU VS. AMAYO (2012) ALL FWLR (PT. 574) 74 AT 78 RATIO 4. Also, the Court of Appeal held in the case of MAIKULIMIS VS. GASHIGAR (2011) ALL FWLR (PT. 597) 668 at 676 RATIO 11 thus:
“In determining which of the parties traditional history is more probable, the trial Court must make reference to the facts of case and possession in recent years as established by evidence and by seeking which of the two compelling histories is more probable.” PER CHIDI NWAOMA UWA, J.C.A.
COMPETENCE OF COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS AND DECISIONS OF THE TRIAL COURT
A miscarriage of justice entails a decision arrived at without regard to the law, in a fair manner. Justice in any case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done. It is a failure of justice, where there are grave or serious errors in the proceedings so as to make the proceedings flawed and a failure of the Court to do justice. See NWANKWOALA VS. FRN (2018) LPELR – 43891 (SC) P. 20, PARAS. A – D, ONAGORUWA VS. STATE (1993) LPELR – 43436 (CA) PP. 91 – 92, PARAS. E – B and AGBA & ORS VS. JUBU (2019) LPELR – 47189 (CA) PP. 94 – 96, PARAS. D – C. The Appellate Court would only interfere with the findings and decision of the trial Court where the decision is perverse, that is a decision with persistent error, different from what is reasonable or required and/or against the weight of evidence where the trial Court shuts its eyes to the obvious, this was not established by the Appellants. The decision of the trial Court cannot be rightly labeled as perverse. See CCS BOOKSHIP LTD VS. THE REGD. TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SCM 310, UBN PLC VS. CHIMAEZE (2014) LPELR – 22699 (SC) and OBAJIMI VS. ADEOBI (2008) 3 NWLR (PT. 1075) 1 at P. 19. PER CHIDI NWAOMA UWA, J.C.A.
DUTY OF COURT: EVALUATION OF EVIDENCE
Evaluation of evidence is the primary duty of the trial Court and unless it is perverse, this Court has no business to interfere with it. The trial Court heard and saw the witnesses as well as visited the locus in quo with the parties, saw the land in dispute as well as the features on the land which the trial Court tied with the pleadings and evidence adduced in Court before arriving at its decision. See ADELEKE & ORS VS. IYANDA & ORS (2001) LPELR – 114 (SC) PP. 20 – 21, PARAS. D – C, OLUBODE & ORS VS. SALAMI (1985) LPELR – 2607 (SC) PP. 18 – 19, PARAS. G – B and ODI & ORS VS. IYALA & ORS (2004) LPELR – 2213 (SC) P. 22, PARS. D – F. The duty of the trial Court is to place the evidence adduced by both sides on an imaginary scale and decide on the preponderance of evidence which weighs more, accept it in preference to the other and then apply the proper law to it, which is what the trial Court did in this case. See MOGAJI VS. ODOFIN (1978) (supra). PER CHIDI NWAOMA UWA, J.C.A.
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. RAVINBIYA SHANKE 2. PETER GWANKE GWAZINTARI 3. DIMAS GWAZINTARI APPELANT(S)
And
1. NARU NODANBA 2. NASHUN NARU RESPONDENT(S)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Taraba State delivered on 29/6/18 by J.D. Yakubu, J, (hereafter called the trial Court). The Appellants were the plaintiffs at the trial Court who commenced the action against the Respondents as defendants by a writ of summons filed on the 14th day of September, 2016 in which amongst other reliefs, sought for the Declaration of Customary Right of Occupancy to a portion of land measuring 6106.5m and 72.7 by 70m by 4.1m respectively, lying and situate at Tuye – Mang, Yorro Local Government Area, Taraba State said to have been encroached upon by the Respondents.
At the trial, the appellants called four (4) witnesses and tendered a site plan which was admitted in evidence without objection and marked Exhibit “P1”. The appellants made out that they inherited a parcel of land at Tuye – Mang founded by their grandfather named Shanke and that they share a common boundary with the land of the Respondents demarcated by a natural boundary created by a stream.
The Appellants alleged that the Respondents crossed over the natural boundary and encroached into the Appellants’ land cutting across two separate portions of land measuring 4.1m by 170m by 78.7m and 24.5m by 180m by 44.5m by 174m (totaling 6106.5m) as contained in Exhibit “P1”.
The Appellants also alleged that the Respondents chased their family members away from the land and claimed title. In their defence, the Respondents claimed that the land was deforested by their great grandfather Naru. It was contended that even though the case of the Appellants was restricted to two(2) portions of land, the defence of the Respondents was in respect of a vast land which they claimed was founded by their grandfather Naru.
At the close of the trial, the trial Court dismissed the appellants’ suit. Aggrieved by the judgment of the trial Court, the appellants appealed to this Court.
The appellants formulated the following two(2) issues for the determination of the appeal thus:
1. “Whether the failure by the learned trial judge to properly evaluate the evidence on record and consequently dismissing the claims of the Appellants occasioned a grave miscarriage of justice? (Distilled from grounds 1, 2, 3 and 6 of the Grounds of Appeal)
2. Whether the learned trial judge was in error when he relied on the Survey Law of Taraba State, 1997, to expunged (sic) Exhibit P1?” (Distilled from Ground 4 of the Notice of Appeal).
The Respondents on their part adopted the issues as formulated by the Appellants.
In arguing the appeal, the learned counsel to the Appellants, Martin Milkman Esq., adopted and relied on his brief of argument filed on 15/2/19, deemed properly filed on 19/2/19, as his argument in this appeal in urging us to allow the appeal, set aside the decision of the trial Court and enter judgment in favour of the Appellants vide their statement of claim. In arguing his issue one, it was submitted that the trial Court only considered as weighty, the evidence adduced by the Respondents who were plaintiffs at the trial Court rather than examine the pleadings on both sides. It was submitted that the trial Court ought not to have limited the appellants’ case to trespass into the appellants’ two portions of land in dispute as against a boundary dispute between the parties when the appellants made out that they share a common boundary created by a stream between them. Further, that all the appellants needed to show was the identity of the land in dispute and the boundary between the parties and the features on the land which would make it clearer to the Court whether the Respondents encroached onto the Appellants’ land as claimed. See OKUNADE VS. OBA OLAWALE (2014) LPELR 22739 (CA) PAGES 89 – 90, PARAGRAPHS G – F. It was alleged that the trial Court abandoned the boundary dispute between the parties and decided a case of trespass. It was submitted that the trial Court only considered paragraph 21 of the statement of claim and Exhibit ‘P1’ tendered by the Appellants while not considering the Appellants’ pleadings to the effect that they had been in possession of the land in dispute, contained in paragraphs 10 – 13, 22 – 23, 25, 26, 30, 31 and 33 of the statement of claim, also the evidence of the Appellants’ witnesses to the effect that they had been in possession. It was argued that the trial Court only attached value to the Respondents’ pleadings in their statement of defence, paragraphs 4, 6, 7, 8, 11, 12, 15 and 22, page 147 of the record of proceedings. It was submitted that the trial Court failed to consider the evidence of the PW1 and PW2 which established that the Appellants owned the land in dispute and had been in possession. It was argued that the trial Court erroneously held that the Appellants had not been in possession and failed to see that the Respondents encroached into the land and took over possession, reference was made to the Court’s decision at paragraph 2, page 150 of the records of Appeal.
It was argued that the trial Court was wrong to have relied on the principle in KOJO II VS. BONSIE (1957) 1 WLR 1223 which applies only where there is conflict in the traditional history. It was submitted that the trial Court did not evaluate the traditional evidence put forward by the parties for the principle to have applied. See TAIWO & ORS. VS. OGUNDELE & ORS (2012) LPELR 7803 (SC) PAGES 21 – 22, PARAS. C – D. Further, that the trial Court failed to consider the evidence of the PW3 and PW4 to the effect that the Appellants were in possession of the land in dispute before the Respondents crossed the natural boundary of the stream and encroached onto the Appellants land, now in dispute. Also, that at the visit to locus in quo, it was clear that the Appellants owned the adjoining land to the land in dispute which was traced to their grandfather Shanke, the trial Court was said to have seen the portions of the Appellants’ land encroached upon and the natural boundaries. It was submitted that the evidence of the PW1 and PW3 to the effect that they farmed on the land with the permission of the Appellants was not contradicted; also the root of title of the Appellants established through PW2 and PW4 was not considered by the trial Court. We were urged to re-evaluate the evaluation done by the trial Court, reliance was placed on the cases of AYORINDE VS AYORINDE & ORS (2011) ALL FWLR (PT. 563) 1893 at 1928, B – C and ADEEKO VS. MR. AMAECHI (2015) LPELR 24653 (CA) P. 15, PARAGRAPHS B – D. We were urged to intervene since there was improper evaluation by the trial Court. See, ABIODUN VS. STATE (2013) LPELR 20343 (SC) PAGES 10 – 11, PARAGRAPHS D – A. It was concluded on this issue that the improper evaluation resulted in an erroneous judgment.
In arguing issue two, it was submitted that a site plan was tendered through the PW4 without any objection and it was marked Exhibit ‘P1’, it was submitted that the trial Court was wrong to have expunged same for the reason that it did not comply with the Survey Law of Taraba State, reference was made to Section 3(b). It was argued that the above section did not stipulate that the qualification of the Surveyor must be contained in the document. Further, that Exhibit ‘P1’ was pleaded, therefore, relevant and admissible under the Evidence Act, 2011 which cannot be regulated by the Taraba State Survey Law. See A.G. FEDERATION VS. A.G. LAGOS STATE (2013) LPELR 20974 (SC) 121 – 122, PARAGRAPHS A – A; A. G LAGOS STATE VS. EKO HOTELS LTD & ANOR (2006) LPELR 3161 (SC) 84 – 85, PARAGRAPHS C – E and ANAGBADO VS. FARUK (2018) LPELR 44909 (SC) 31 – 33, PARAGRAPHS E – C. We were urged to hold that the Survey Law of Taraba State cannot make the site plan inadmissible in law, also to hold that the trial Court expunging Exhibit ‘P1’ is erroneous in law and to set aside the order.
In response, the learned counsel to the Respondents, L.P. Mahanan Esq., Principal Legal Aid Officer, Taraba State Office adopted and relied on his brief of argument filed on 14/10/19, deemed properly filed and served on 16/10/19 as his argument in this appeal, in urging us to dismiss the appeal and affirm the judgment of the trial Court. The learned counsel to the Respondents adopted the issues as formulated by the Appellants. In response to issue one, it was submitted that the trial Court painstakingly evaluated the evidence before the Court, before dismissing the claims of the Appellants. It was submitted that in a civil claim, the burden of proof is on the party who asserts a fact to prove same. See ONWULA VS. UCHE (2010) 2 NWLR (PT. 1179) 582 at 585 and OHOCHUKWU VS. A – G RIVERS STATE (2012) 6 NWLR. It was argued that the Appellants who alleged that the dispute was a boundary one ought to have proved same as opposed to trespass to land as held by the trial Court. It was argued that both parties gave evidence of traditional history which was inconclusive as rightly held by the trial Court which necessitated the application of the principle of law as enunciated in MOGAJI VS. CADBURY NIG. LTD. & ORS VOL. 3 LLAC 437 and KOJO VS. BONSIE (2001) 44 WRN 141 CA. It was submitted that the trial Court did not reject the traditional evidence put forward by the Appellants but, considered the traditional evidence of ownership and usage placed before the Court by each of the parties before deciding which was preferred. The trial Court was said to have rightly relied on the principle in KOJO VS. BONSIE (supra). It was argued that the area sought in the appellants’ reliefs differed from the area which the Respondents allegedly encroached upon and that it is the duty of the plaintiff to identify with precision in terms of the area (extent) and location, of the land he claimed. See JIMOH ATANDA VS. MEMUDU ILIASU (2012) VOL. 214 LRCN 220 at 225. It was also argued that the trial Court that saw and heard the witnesses has the duty to ascribe probative value to admissible evidence before the Court not the appellate Court. See EBBA VS. OGODO (1984) 1 S.C. NLR 372 and IGBEKE VS. EMMORDI (2010) 11 NWLR (PT. 1204) 1 at 7. In conclusion on this issue, it was submitted that the grounds upon which issue one was formulated were of mixed law and facts which needed the leave of this Court before formulating and arguing same, failure of which rendered the grounds and the issue formulated therefrom incompetent and liable to be struck out. See MARCUS OPUIYO VS. JOHNSON OMONIWARI, Suit No. SC. 131/2002 of 8th June, 2007. We were urged to hold that the trial Court properly evaluated the evidence before the Court.
On issue two, it was submitted that the trial Court had the right to expunge from the records a document which was wrongly admitted. Further, that if a document is admitted in evidence in error, the Court can reject and expunge the document from its records even at the judgment stage. See EBENIGHE VS. ACHI (2011) 2 NWLR (PT. 1230) 65 at 69. It was submitted that Exhibit ‘P1’ was inadmissible in the first place. It was argued that from Exhibit ‘P1’ itself and the Appellants’ pleadings the name of the author does not appear on it and even where the name of the Surveyor appears, it must have been prepared by a registered surveyor before the evidence adduced in respect of Exhibit ‘P1’ could be accepted and utilized by the trial Court, in line with the Surveyors Registration Council of Nigeria Act. See ALHAJI MANU KANO VS. ALHAJI HAMIDU GALEON (2012) ALL FWLR (PT. 613) 1968 at 1971. Further, the Surveyor was not called to testify to authenticate Exhibit ‘P1’ which rendered Exhibit ‘P1’ inadmissible. It was argued that Exhibit ‘P1’ did not show the features and landmarks on the land which created uncertainty as to the claim of the Appellants. SeeBARUWA VS. OGUNSHOLA & ORS (1938) 4 WACA 159 Exhibit ‘P1’. It was concluded on this issue that when a document is erroneously received in evidence without any objection this Court could expunge same. See KIEN A.M. SEIKEGBA VS. MR. KALANAMA PENAWOU (1999) 9 NWLR (PT. 618) 354 at 365 and OSAZUWA VS. EDO STATE CIVIL SERVICE COMMISSION (1999) 4 NWLR (PT. 597) 155 at 165. We were urged to uphold the decision of the trial Court.
I will determine the appeal based on the issues as raised by the Appellants and adopted by the Respondents. The appellants’ first issue questioned the evaluation of evidence by the trial Court. It is trite that in civil cases, the burden is on the party who asserts a fact to prove same. The law is that he who asserts must prove the fact asserted, this is the essence of Section 131 (1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all was given on either side, Section 132 of the Evidence Act. See DASUKI VS. FRN & ORS (2018) LPELR – 43897 (SC) P. 13, PARAS. D – F; (2018) 10 NWLR (PT. 1627) P. 320; (2018) 2 – 3 SC (PT. 1) P. 107; GIWA VS. ERINMILOKUN (1961) ALL NLR 294; (1961) 1 SC NLR 377, NNANNA & ORS VS. ONYENAKUCHI & ORS (2000) LPELR – 6805 (CA) P. 21, PARA. C, AYALA VS. DANIEL & ORS (2019) LPELR – 47184 (CA) P. 34 PARAS. A – C, OMISORE& ANOR VS. AREGBESOLA & ORS (2015) LPELR – 24803, and FAMUROTI VS. AGBEKE (1991) 5 NWLR (PT. 189) at 13. The burden at the trial Court was on the Appellants to prove that the case between the parties is a boundary dispute as opposed to trespass. The learned counsel to the Appellants alleged that the trial Court only considered the Respondents’ case and took a decision on trespass as opposed to boundary dispute as claimed by the Appellants. No doubt the parties agreed that the Respondents are in possession while the Appellants made out that the Respondents encroached onto the land in dispute, the Respondents claimed to be the owners of the land in dispute and traced their title through traditional history, same way as the Appellants. The law is that where as in this case, the Respondents who are in possession of the land in dispute are trespassers, the appellants who made such allegation have the onus of proving that he has a better right to the possession which was disturbed, unless that onus is discharged the party who alleged cannot defeat the other party. From the evidence adduced by the parties, both parties claimed title through traditional history. The trial Court examined and weighed the evidence adduced on both sides and decided which version it preferred in line with the principle in KOJO VS. BONSIE (supra). Evaluation of evidence is the primary duty of the trial Court and unless it is perverse, this Court has no business to interfere with it. The trial Court heard and saw the witnesses as well as visited the locus in quo with the parties, saw the land in dispute as well as the features on the land which the trial Court tied with the pleadings and evidence adduced in Court before arriving at its decision. See ADELEKE & ORS VS. IYANDA & ORS (2001) LPELR – 114 (SC) PP. 20 – 21, PARAS. D – C, OLUBODE & ORS VS. SALAMI (1985) LPELR – 2607 (SC) PP. 18 – 19, PARAS. G – B and ODI & ORS VS. IYALA & ORS (2004) LPELR – 2213 (SC) P. 22, PARS. D – F. The duty of the trial Court is to place the evidence adduced by both sides on an imaginary scale and decide on the preponderance of evidence which weighs more, accept it in preference to the other and then apply the proper law to it, which is what the trial Court did in this case. See MOGAJI VS. ODOFIN (1978) (supra).
This Court cannot substitute its views with that of the trial Court as urged by the learned counsel to the Appellants. See, A.G EKITI STATE & ORS VS. PRINCE MICHAEL DARAMOLA & ORS (2003) LPELR – 606 (SC), GABRIEL O. OKUNZUA VS. MRS. E.B. AMOSU & ANOR (1992) LPELR – 2531 (SC) P. 20, PARAS. D – F and MICHAEL IMODU NATIONAL INSTITUTE FOR LABOUR STUDIES VS. MALIKI, (2011) LPELR – 9100 (CA) P. 37, A –C. The Appellants alleged a miscarriage of justice which was neither highlighted nor proved. A miscarriage of justice entails a decision arrived at without regard to the law, in a fair manner. Justice in any case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done. It is a failure of justice, where there are grave or serious errors in the proceedings so as to make the proceedings flawed and a failure of the Court to do justice. See NWANKWOALA VS. FRN (2018) LPELR – 43891 (SC) P. 20, PARAS. A – D, ONAGORUWA VS. STATE (1993) LPELR – 43436 (CA) PP. 91 – 92, PARAS. E – B and AGBA & ORS VS. JUBU (2019) LPELR – 47189 (CA) PP. 94 – 96, PARAS. D – C. The Appellate Court would only interfere with the findings and decision of the trial Court where the decision is perverse, that is a decision with persistent error, different from what is reasonable or required and/or against the weight of evidence where the trial Court shuts its eyes to the obvious, this was not established by the Appellants. The decision of the trial Court cannot be rightly labeled as perverse. See CCS BOOKSHIP LTD VS. THE REGD. TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE (2006) 4 SCM 310, UBN PLC VS. CHIMAEZE (2014) LPELR – 22699 (SC) and OBAJIMI VS. ADEOBI (2008) 3 NWLR (PT. 1075) 1 at P. 19.
Further, the Appellants alleged that what was in issue was a boundary dispute and not trespass but failed to plead and adduce evidence to that effect. At page 149 of the printed records of appeal, the trial Court rightly highlighted the pleadings and evidence put forward by the parties and held thus:
“…the plaintiffs and indeed the defendants by their pleadings and evidence adduced before the Court they are all relying on traditional history/evidence as to the roots of their respective titles to the two (2) portions of the land in dispute. It is also on record that the Court also visited the locus in quo at the instance of the plaintiffs.
Let me further state that parties herein pleaded and also adduced evidence as to who founded the land in dispute, how the land was founded and particulars of the ancestors through whom they are claiming the land.
In a nutshell, parties in this matter are all laying claim to the possession of the land in dispute. The law is trite in this regard that where two parties claim possession of land the law ascribes such possession to that party who can show better title. See OLOWU VS. AMAYO (2012) ALL FWLR (PT. 574) 74 AT 78 RATIO 4. Also, the Court of Appeal held in the case of MAIKULIMIS VS. GASHIGAR (2011) ALL FWLR (PT. 597) 668 at 676 RATIO 11 thus:
“In determining which of the parties traditional history is more probable, the trial Court must make reference to the facts of case and possession in recent years as established by evidence and by seeking which of the two compelling histories is more probable.”
From the pleadings as well as the evidence adduced by the parties before the Court the defendants have being (sic) in possession of the two (2) disputed portions of the land in dispute. Also when the Court visited the locus in quo indisputably found that only the defendants are on the two (2) disputed portions of the land in dispute as against the plaintiffs.”
From the above findings of the trial Court that visited the locus in quo, saw the land in dispute, heard and saw the witnesses, the conclusion and decision of the Court cannot be faulted and it cannot be said to be perverse. The trial Court also observed whether it was an issue of encroachment and not trespass, also having also seen that the Appellants were not in possession of any part of the two portions of land in dispute even though the learned counsel tried to explain their absence on the land in dispute, alleging that they were driven out by the Respondents. Therefore, the trial Court was right at page 150 of the printed records of appeal to have held that on recent possession from the pleadings and evidence adduced by the parties before the Court, the Respondents exercised acts of ownership as opposed to the plaintiffs on the two (2) disputed portions of the land in dispute. I am of the humble but, firm view that the trial Court properly evaluated the evidence before it. I resolve issue one against the Appellants.
On issue two, the Appellants alleged that the trial Court was in error when it relied on the Survey Law of Taraba State, 1997, to expunge Exhibit “P1”. The law is that if a document is admitted in error the Court can reject and expunge same even at the judgment stage on realizing that it is inadmissible. See BELL ATLANTIC TELECOMMUNICATIONS LTD & ANOR VS. NDON & ANOR (2018) LPELR – 44431 (CA) P. 29, PARAS. B – E. In MAGAJI VS. OGELE (2012) LPELR – 9476 (CA) PP. 89 – 90, PARAS. G – B, his Lordship Ogbuinya, JCA on the duty of the Court to expunge inadmissible evidence held thus:
“The law is that where an inherently inadmissible evidence, which encompasses documentary evidence, is admitted, even without opposition from an adverse party, a Court which received it in evidence and an appellant (sic) Court have the power, or duty, to reject and expunge the inadmissible evidence at judgment stage and on appeal respectively because a Court of law acts only on legal evidence, seeABUBAKAR VS. JOSEPH (2008) 13 NWLR (PT. 1104) 307; ABUBAKAR VS. CHUKS (2007) 18 NWLR (PT. 1066) 386.”
See PDP & ANOR VS. KAWUWA & ORS (2015) LPELR – 26044 (CA) PP.53 – 54, PARAS. E – F and MICHAEL HAUSA VS. THE STATE (1994) 7 – 8 SC, 144, AMAECHI VS. SOLAJA (2017) LPELR – 42890 (SC) P. 9, PARAS. A – D, OKONJI VS. NJOKANMA (1991) 7 NWLR (202) 131 and F.R.N. VS. USMAN (2012) 1 MJSC (PT. 1) 25. The question is: was Exhibit “P1” admissible in law? On the face of Exhibit “P1” which was alleged to be a survey plan tendered through PW4, it did not qualify as a survey plan as rightly argued by the learned counsel to the Respondents. The name of the author was neither pleaded nor on the Exhibit and was not stated in evidence. There is nothing to show that the Exhibit was prepared by a registered surveyor in line with the provisions of the Surveyors Registration Council of Nigeria Act. Where a Surveyor testifies he would be expected to state his qualification and would show that he is a licensed Surveyor, by the provisions of Section 9(1), (a)(b), 14 and 23 of the Act. Worse still, the Surveyor was not called to testify that he prepared Exhibit “P1” and that he is a qualified Surveyor for the Exhibit to be admissible and when admitted to be utilized by the trial Court. As it is, it cannot be authenticated. See UMORU & ORS VS. ORIRE & ANOR (2010) LPELR – 9065 (CA) PP. 51 – 58, PARA. C and OYAWOLE VS. MAKAN & ORS (2018) LPELR – 43994 (CA) PP. 20 – 22, PARA. C. Further, a Survey plan in respect of a pending matter before the Court should show the features, landmarks, natural, manmade and other means of identification as rightly submitted by the learned counsel to the Respondents, for instance streams, mountains, trees, houses, ruins, huts, roads, footpaths and the like. Also, the boundaries of the Surveyed land in proximity with other surrounding portions of land (not in dispute). These must also be pleaded and evidence given in their support; this was not the case with Exhibit “P1”. Without these features, the portion claimed by the Appellants was not certain. I agree with the learned counsel to the Respondents that Exhibit “P1” is a mere sketch which does not qualify as a survey plan. On the other hand where an Exhibit is inadmissible in evidence and no objection raised, and is erroneously admitted by the trial Court, this Court is duty bound to expunge it from its records. See MAGAJI VS. OGELE (supra), BELL ATLANTIC COMMUNICATIONS LIMITED & ANOR (SUPRA), OWONYIN VS. OMOTOSHO (1961) 2 NSCC 179 at 180, IDOWU ALASHE VS. OLORIILU (1964) 3 NSCC 297at 302; NNUBIA VS. A.G RIVERS STATE (1999) 3 NWLR (PT. 593) 82 at 105 – 106, AKPAPUNA VS.NZEKA (1983) 7 SC and OKOREAFFIA & ANOR VS. AGWU (supra). I hold that the trial Court was right to have expunged Exhibit “P1” wrongly admitted in evidence. Issue two is resolved against the Appellants.
In sum, the appeal is unmeritorious and it is hereby dismissed. The judgment of the trial Court in Suit No. TRSJ/206/2016 delivered on 29th June, 2018 is hereby affirmed. I award costs of N50,000.00 (Fifty Thousand Naira) to the Respondents.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft of the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
My learned brother has dealt with exhaustively with the issues for determination. I have nothing more useful to add. I adopt the reasoning and conclusion in the lead judgment as mine in dismissing the appeal for lacking in merit.
I abide by all other orders in the lead judgment including the orders as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
MARTIN MILKMAN ESQ. For Appellant(s)
L.P. MAHANAN ESQ. PRINCIPAL LEGAL OFFICER, TARABA STATE OFFICE For Respondent(s)
