TERFA ANDIIR HON v. MRS. GLYADDIS UMENNADI (2019)

TERFA ANDIIR HON v. MRS. GLYADDIS UMENNADI

(2019)LCN/12597(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of January, 2019

CA/MKD/85/2011

RATIO

CRIMINAL LAW: BURDEN OF PROOF TO PROVE FAIR HEARING

“The burden is on the party alleging breach of fair hearing in a case to prove the breach; and he must do so in the light of the facts of the case, for only the facts of the case will show non-compliance with the principle of fair hearing; Maikyo v Itodo (2007) 5 MJSC 60; Bill Construction Ltd v Imani Ltd (2007) 3 MJSC 217. In the instant appeal, the Appellant was given every latitude to present his case. He called a witness, DW1, and personally testified as DW2. He also cross examined all witnesses of the Respondent. The Record of Appeal fails to bear out the complaint of denial of fair hearing before the trial Court.” PER ONYEKACHI AJA OTISI, J.C.A.

INTERPRETATION: CONSTRUCTION OF STATUTE

“In Udoh vs. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows: ‘It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended. Expressio unius est exclusio alterius. See A-G. of Bendel State Vs Aideyan (1989) 4 NWLR. (Pt.118) 46. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue. see Ogbunyinya Vs Okudo (1979) 6 SC 32; Military Governor of Ondo State Vs Adewunmi (1988) 3 NWLR (Pt. 82) 280.” PER ONYEKACHI AJA OTISI, J.C.A.

JUSTICES

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

TERFA ANDIIR HON Appellant(s)

AND

MRS. GLYADDIS UMENNADI Respondent(s)

ONYEKACHI AJA OTISI, J.C.A.(Delivering the Leading Judgment):

This is an appeal against the judgment of the High Court of Benue State, sitting in its appellate jurisdiction at Gboko, delivered on July 29, 2009 wherein the Court entered judgment against the Appellant and in favour of the plaintiff at the trial Court, Reuben Umennadi, now deceased.

The case of late Reuben Umennadi as plaintiff in the trial Court was that Plot 1312, Gboko East had belonged to late Tarkpel Tondo. Reuben Umennadi purchased the said Plot 1312 from one Simon Tondo who was the brother of late Tarkpel Tondo and left the Appellant, then in possession of the said plot of land, to remain resident thereon on compassionate grounds, with the understanding that the Appellant would vacate the plot whenever he, Reuben Umennadi, so required.

However, when Reuben Umennadi sent workmen on the plot, they were resisted by the Appellant who then asserted a radical title to the same plot of land. Aggrieved by this action, Reuben Umennadi went to the Benue State Rent Tribunal, then to the High Court, the Upper Area Court I Gboko, and finally to the Upper Area Court II Gboko seeking to secure a writ of possession amongst other reliefs. The Appellant on his part counter-claimed that he merely pledged his plot of land to the late Tarkpel Tondo so that late Tarkpel Tondo, whether by himself or through his successor-in-title, had no title to pass to Reuben Umennadi. The trial Court heard evidence on both sides and found in favour of Reuben Umennadi, holding that the Appellant’s transaction with the late Tarkpel Tondo was an outright sale. Dissatisfied, the Appellant appealed to the Benue State High Court in its appellate jurisdiction, sitting at Gboko. The Appellate High Court also entered judgment in favour of Reuben Umennadi against the Appellant. Further aggrieved by the said judgment of the lower Court, the Appellant lodged this appeal upon leave of the lower Court granted on 23/10/2009. The Notice of Appeal was filed on 26/10/2009 upon seven grounds of appeal, pages 159 – 163 of the Record of Appeal. Reuben Umennadi was the respondent but was substituted by order of this Court made on 10/11/2014, with his wife, the present Respondent.

The parties filed Briefs of Argument, pursuant to the Rules of Court. The Appellant’s Brief, settled by A.A. Aboh, Esq., was filed on 10/7/2015 but deemed properly filed and served on 23/5/2016. The Respondent’s Brief, settled by A.G. Ayua, Esq., was filed on 24/6/2015. At the hearing of this appeal on 16/1/2019, notwithstanding the fact that A.A. Aboh, Esq was served with a Hearing Notice electronically on 9/1/2009; and A.G. Ayua, Esq. was also served electronically on 9/1/2019 with a Hearing Notice, both Counsel were absent and there was no explanation for their absence before the Court. The Briefs of Argument of the respective parties being before the Court, the appeal was deemed duly argued, pursuant to the provisions of Order 19 Rule (4) of the Court of Appeal Rules, 2016. The Respondent’s Brief is also deemed duly filed and served.

Out of seven grounds of appeal, the Appellant formulated seven Issues for the determination as follows:

1. Whether on the evidence before it, the Benue State Appellate High Court was justified to uphold that the transaction between the Appellant and late Tarkpel Tondo was an outright sale and not a pledge (Ground 1, 6 and 7)

2. Whether Appellant was given a fair hearing by the trial Court, a trial which was upheld by the Benue State Appellate High Court. (Ground 2)

3. As between the Appellant and Respondent who made out a better case as to be entitled to the judgment of the trial Court which the Benue State Appellate Court upheld. (Ground 1, 4 & 5)

4. Whether Exhibit I and II were properly admitted in evidence and suo motu, speculated, compared other documents and admitted despite objection in both cases and thereby occasioned a miscarriage of justice. (Ground 1, 2, 4 &5)

5. Whether the Agreement dated 21st November, 1994, made on behalf of Tarkpel Tondo (deceased) who died on the 5th April 1993 with the Appellant was capable of conferring title on the Respondent. (Ground 2 and 3)

6. Whether the Appellate High Court was right in upholding Exhibits 1, 16, 17 and 18 in the face of cancellation on them when there was evidence from Pw2 and Pw3 that the plot file in respect of plot 1312 Gboko East was missing and was in possession of the Respondent?s Counsel. (Ground 4)

7. Whether the Court below was right in dismissing the Appellant’s appeal before it and affirming the decision of the trial Court despite the fact that the photograph at the back page of the plot file in Exhibit 16 purporting to be that of the Appellant was not his photograph but was acted upon by the Gboko Local Government in purporting to effect change of ownership (Ground 5 & 6).

For the Respondent, a sole issue was distilled for determination of the appeal, as follows:

Whether the appellate High Court of Justice Benue State sitting at Gboko was right in upholding the earlier finding of the trial Upper Area Court Gboko to the effect that the transaction between the appellant and late Tarkel Tondo was an outright sale as opposed to a pledge.

There are established principles that govern formulation of issues for determination in an appeal. At the core is that issues distilled for determination in an appeal must flow from the grounds of appeal. An issue formulated for determination that does not relate to or arise from any of the grounds of appeal is not competent and ought to be disregarded; Oyegun v Nzeribe (2010) 16 NWLR (PT 1220) 568 S.C.; Kalu v Odili (1992) 6 SCNJ 76; Oje v Babalola (1991) 5 S.C. 128. An appellate Court lacks the necessary vires to consider for determination of an appeal an issue that does not relate to or flow from a ground of appeal.

Furthermore, issues formulated for determination reduce the grounds of appeal from which they are distilled into compact formulations; Sanusi v Ayoola (1992) 11//12 SCNJ 142. Thus, several grounds of appeal could, where appropriate, be formulated into a single issue running through them;Amodu v The Commandant, Police College Maiduguri (2009) LPELR-467(SC), (2009) 15 NWLR (PT 1163) 75. Though there need not be a separate issue formulated for each ground of appeal, a ground of appeal cannot be split to raise two issues; Ogbe v Asade (2009) LPELR-2275(SC); Society BIC S.A. & Ors. v Charzin Industries Ltd (2014) LPELR-22256(SC); Duwin Pharmaceutical and Chemical Co Ltd v Beneks Pharmaceutical and Cosmetics Ltd (2008) 1-2 S.C. 68. It is patently undesirable to split the issue in a ground of appeal; per Karibi Whyte, JSC in Labiyi v Anretiola (1992) LPELR-1730(SC). While an issue can be formulated from two or more grounds of appeal, two or more issues cannot be formulated from the same ground of appeal.

Thus, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. Two different issues cannot be formulated from a single ground of appeal. It amounts to proliferation of issues, which is not permissible;Nwankwo v Yar’Adua (2010) 12 NWLR (PT 1209) 518 S.C.; Okwuagbala v Ikwueme (2010) 19 NWLR (PT 1226) 54 S.C.; Okonobor v Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC). These are established principles.

The issues formulated for determination in the Appellant’s Brief have patently been framed in complete disregard of these established principles. Issues 1, 3 and 4 were framed from ground 1. Issues 2, 4 and 5 were framed from ground 2. Issue 5 was framed from a combination of grounds 2 and 3. Issues 3, 4 and 6 were framed from ground 4. Issues 3, 4 and 7 were framed from ground 5. There has been proliferation of issues which is not at all acceptable practice. In such instances, the incompetent issues would have to be discountenanced, fundamentally because it is not the duty of the Court to make a choice for the party between different issues framed from one ground of appeal;Society BIC S.A. & Ors. v Charzin Industries Ltd (supra); Amodu v The Commandant, Police College Maiduguri & Anor (supra). The issues as formulated by the Appellant herein are therefore incompetent and shall be discountenanced. I shall adopt for determination of this appeal the sole issue as distilled by the Respondent.

The main contention between the parties revolved around whether the Appellant had outrightly sold Plot 1312, Gboko East to Tarkpel Tondo, now deceased, or whether the Appellant merely pledged the said Plot 1312 to late Tarkpel Tondo so that late Tarkpel Tondo, whether by himself or through his successor-in-title, had no title to pass to the Respondent. The trial Court heard evidence on both sides and found in favour of the Respondent, holding that the Appellant had outrightly sold the said plot. The appellate High Court had upheld the said findings of the trial Court. As rightly submitted by the Respondent, it is well settled that where there are concurrent findings of fact by two lower Courts, the appellate Court would not interfere with those findings unless there is manifest error apparent on the record occasioning a miscarriage of justice, or a violation of some principle of law or procedure; Famuroti v Agbeke (1991) 6 S.C. 1, (1991) LPELR-1240(SC); Amadi v Nwosu (1992) 6 SCNJ 59, (1992) LPELR-442(SC); Mainagge v Gwamma (2004) LPELR-1822(SC), (2004) 19 NSCQR 204; Okoye v Obiaso (2010) LPELR-2507(SC); Ibekwe v Nwosu (2011) LPELR-1391(SC); Atungwu v Ochekwu (2013) LPELR-20935(SC). In the case of Arum v Nwobodo (2013) LPELR-20390(SC), the Supreme Court, per Aka’ahs, JSC explained this principle as follows, pages 35 – 36 of the E-Report:

‘The attitude of this Court is to discourage appellants coming here on adventure of attempting to set aside concurrent findings of fact made by two or more lower Courts. Unless the findings of fact as accepted by the trial Court which was upheld by the High Court sitting on appeal and further affirmed by the Court of Appeal is against the trend of evidence or is based on evidence that in law is inadmissible this Court will not interfere with such findings?the explanation of this principle is simple and it is this: the trial Court had the best opportunity of seeing the witnesses and hearing them give evidence; that Court was best placed to assess such evidence bases(sic) on the demeanour of each witness. The appellate Court has not got these opportunities, it only sees written records and counsel who are not legal witnesses. And so when the High Court agreed with the findings of fact made by the Customary Court which were affirmed by the Court of appeal, the attitude of this Court is clear; the concurrent findings of fact of the Courts below will never be disturbed so far as the findings are not tainted with miscarriage of justice.’

Therefore, there must exist exceptional circumstances revealed in the Record of Appeal to ground or to justify a decision to disturb the concurrent findings of the two lower Courts leading to this appeal. The proceedings and evidence adduced by the parties and upon which the lower Courts relied shall now be examined.

The evidence of PW1, who was the plaintiff (now deceased), was that he purchased the land in dispute from Simon Tondo. The land had belonged to late Tarkpel Tondo, Simon Tondo was his brother and next of kin. The Appellant was at the time resident on the said land. Upon enquiry, he was told that the Appellant was the vendor?s kinsman from Gaav. Late Tarkpel Tongo had purchased the land from the Appellant. PW1 said he and his witnesses confirmed from the Appellant that the plot belonged to late Tarkpel Tongo. The Appellant pleaded for time to look for a place and vacate the land. PW1 also testified that his enquiries at the Lands and Survey Department of the Gboko Local Government revealed various documents in the file in respect of the said plot, including the following: a cancelled 1976 Certificate of Occupancy in the name of the Appellant; a certificate of occupancy issued in 1991 in the name of Tarkpel Tongo; a sale agreement between Tarkpel Tongo and the Appellant; a change of ownership. He then paid for the land. Exhibit 1 was a sale agreement stated to be between him and Tarkpel Tongo but executed by Simon Tondo as next of kin of Tarkpel Tongo. A Certificate of Occupancy was issued in his favour by the Gboko Local Government on 16/12/1994, canceling the Certificate of Occupancy of 1991 in favour of Tarkpel Tongo. Receipts issued by the Gboko Local Government for payments for the Certificate of Occupancy, the site plan, survey fees, change of ownership, ground rents, building plan, as well as documents handed over to PW1 by Simon Tondo were tendered in evidence by PW1.

PW2 was Simon Tondo who testified in line with the evidence of PW1. PW2 denied the assertion of the Appellant that he had pledged the land and that he had redeemed it to the tune of N1, 600.00 leaving a balance of N4, 000.00. He further said, page 42 of the Record of Appeal:

‘When the said plot was sold to my late brother Tarkpel he asked the defendant to continue staying on the plot ands(sic) leave at his convenience when he has built a house. The deft.(sic) Was there without payment of any rent.’

PW3 was the Principal Town Planning Officer and Head of the Lands and Survey Department with the Works and Housing Department of Gboko Local Government, while PW4 was the Land Registrar of Gboko Local Government. They both testified in line with the account of PW1 and PW2 and tendered Exhibits 16 and 17, which were files in respect of Plot 1312 in issue. PW5 and PW6 were witnesses to the purchase of the plot in issue by Tarkpel Tongo from the Appellant. They identified their respective signatures on the agreement made between the parties, found in Exhibit 16. PW7 was also a staff of the Lands and Survey Department with the Works and Housing Department of Gboko Local Government. He tendered Exhibit 18, which was an extract from Gboko Local Government Land Register for Gboko East, duly certified, which indicated that Plot 1312 had its first occupant as the Appellant. It was sold to Tarkpel Tondo, as second occupant; and then to Reuben Umennadi, as the third occupant.

In his defence, the Appellant testified as DW2 and called one other witness. DW1 was one of the elders of the Gaav community resident in Gboko who was invited to looked into the Appellant’s complaint that PW2, Simon Tondo, was claiming that the plot of land which he had pledged to PW2’s brother for N5, 000.00 when he was sick, was not a pledge but an outright sale. The elders asked the Appellant to refund the said N5000 to PW2 and advised that the sum of N2,000 be added to the money, if PW2 felt it was too small. PW2 refused to collect the money.

In his testimony, DW2 insisted that the transaction he had with Tarkper Tondo was a pledge not an outright sale of the plot in issue. He had pledged the said plot to raise funds to treat himself when he had health challenges. That Tarkpel Tondo had given him, initially N2000.00 and the balance through PW2, who also insisted that there should be some collateral to guarantee the money. He added, pages 68-69 of the Record of Appeal:

‘We were doing this transaction out of love and nothing was written and I told him that even if I died of the ailment my children will redeem the pledge by paying back the money. I have not paid the money up to this time.’

When he heard PW2 was trying to sell the said plot, he had reported to the Lands and Survey of the Local Government that PW2 was attempting to change his land documents. He also reported to Gaav community elders on the advice of Ter Gboko. The said elders, including DW1, advised that he should add N2,000.00 to the alleged pledged sum of N5, 000.00, if PW2 felt it was small. He further said that PW2 refused to accept N7, 000.00 but asked for N14, 000.00, which he accepted to give. DW2 further said PW2 later collected N1000.00 from him leaving a balance of N13,000.00, which PW2 failed to collect. He later heard from PW1 that the plot of land had been sold to him.

Under cross examination, DW2 admitted that he had no written evidence to show he pledged his land to Tarkpel Tondo but denied knowledge of the sale agreement made between himself and Tarkpel Tondo at page 1 of Exhibit 16. DW2 said he did not report to the police that there was any attempt by PW2 to forge documents to his land. He also did not report forgery of the sale agreement between himself and Tarkpel Tondo to the police. He claimed he had paid annual ground rent from 1991 ? 1996 on the plot but that his receipts were missing.

The trial Court, upon in evaluating the evidence adduced by the parties made the following findings, page 106 of the Record of Appeal:

‘The contest is on the basis that the defendant signed page 1 of Exhibit 16 and handed over title documents and also signed a transfer certificate to enable Tarkpel Tondo effect change of ownership. On defendant realizing hat (sic) his plot was going he raised the issue of a pledge first before Ter Gboko and secondly to Gaav sons. Defendant did not back up the plea of a pledge nor call any witness to warrant the Court to believe him. Defendant went further to explain that he pledged his house and said even if he dies of the ailment his children will redeem it. The Court will pause to ask how the children would have believed Tarkpel Tondo if he came to them without any document evidencing that (their father) defendant had pledged his plot o(sic) him’. Defendant has failed to convince the Court that this transaction was pledge and no more. Defendant has again stated that when the matter got to Gaav sons, it was resolved that he refund N5000.00 to PW2 and where it was not enough for him, he should add N2000 to the amount. That later when defendant discussed with PW2, PW2 insisted collecting N14,000 and yet defendant agreed to pay this amount. The Court is of the view that defendant agreed on those terms of increase of the said pledge sum because he knew he sold this plot out and was desperate to recover it.

The Gaav sons(sic) arbitration was only a forum to mediate on defendant’s behalf to have his plot he sold recovered back to him from PW2. defendant did not register his protest to the Local Government, who were said to be changing title documents yet the defendant wants the Court to believe him about the pledge plea. It is not clear as to when the pledge was made as defendant in his evidence in chief stated that it was on PW2’s insistence that he shows something to be looked unto and under cross examination defendant said he me(sic) Tarkpel Tondo at Taraku and demanded money for treatment and pledged his plot. The sum of the pledge is now ambiguous as defendant said it was added to N7,000.00 and N14,000.00 and he refunded N2,000.00 to Tarkpel Tondo and again refunded N1000 to PW2 which of these stories is the Court to believe and how much is the pledge sum and what is the balance if defendant is to redeem it?… the defendant has relied on his testimony of a pledge and DW1 is not a witness to the pledge and was only informed about it by the defendant. If the PW2 had agreed to accept the terms of Gaav sons(sic) arbitration the could(sic) would have held that the transaction was a pledge. There is abounding evidence that PW2 refused to succumb to the Gaav arbitration and the Court finds it difficult either way to believe that the transaction was a pledge.

There is no protest letter from defendant to the Local Government, in either exhibit 16 or 17 and the fraudulent nature of page 1 and exhibit 16 is not proved. I am convinced that page 1 and exhibit 16 was executed by the defendant who handed over 1976 certificate of occupancy to Tarkpel Tondo and signed transfer certificate to enable change of ownership effected. The defence of pledge defendant has raised is an after-thought and cannot avail him, I accordingly hold that defendant did not pledge plot 1312 Gboko East to Tarkpel Tondo but the transaction was on outright sale of plot 1312 Gboko East to the said Tarkpel Tondo at the rate of N5,000.

The trial Court further held, page 108 of the Record of Appeal:
‘Having already held that the deal between defendant and Tarkpel Tondo was a sale and not a pledge I hold that PW2 had a right to sell plot 1312 Gboko East to plaintiff as he did.’

On appeal to the lower Court, the lower Court upheld the findings of the trial Court as follows, page 156 of the Record of Appeal:
We have placed the summary of witnesses’ evidence for both parties before the trial Court side by side in this judgment for ease of reference and for the purpose of weighing them on the imaginary scale of justice. In civil cases, matters are decided on the preponderance of evidence.

Based on the record of proceeding of the trial Court which we read, we are convinced that the trial Court gave appropriate consideration to the issues before it and made valid findings of facts based on the evidence before it. It correctly admitted exhibits tendered before it. The evidence of both official witnesses (PW3 and PW7) and other witnesses for the plaintiff was consistent and pointed to the same direction that the transaction between the defendant and Tarkper Tondo was an outright sale transaction. The evidence of DW1 does not help the appellant’s case. Substantial portion of DW1 and DW2’s evidence support the plaintiff’s case. The evidence adduced for the plaintiff as shown in the record of the trial Court preponderate over the evidence for the defendant, in the circumstances it would have been bizarre if the trial Court made a contrary finding considering the enormous evidence before it showing that the transaction was an outright sale of the plot.

In the case of Folarin Vs. Durojaiye (1988) 1 NWLR (pt.70) 351, it was held that in order to transfer legal title under English law by purchase, there must be a valid sale, payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser. However, the plot in issue is within the Gboko Local Government and subject of customary Right of Occupancy. As there was evidence before the trial Upper Area Court that there was payment of money in the presence of witnesses and delivery of the land a valid sale was moved. The trial Court therefore made a valid finding that the transaction between the defendant and Tarkper Tondo was an outright sale.

In the light of the evidence adduced by the parties, I have to agree completely with the findings and conclusions of the lower Courts. It is the settled position of the law that a pledge can never ripen into ownership. A pledge is always a pledge. Thus, a pledge of land is redeemable no matter how long it has been in possession of the pledgee; Nwagwu v Okonkwo (1987) 7 SCNJ 72; Anyanwu v Iwuchukwu (2000) 12 SC (PT 11) 67, (2000) LPELR-514(SC); Okoye v Obiaso (2010) LPELR-2507(SC).

There must however be credible evidence in proof of an assertion that there was a pledge. The time worn evidential principle remains that he who asserts must prove; Hilary Farms v MV Mahtra & Ors (2007) 6 S.C. (PT 11) 85, (2007) LPELR-1365(SC); Agala v Okusin (2010) LPELR-221(SC). In his contributory opinion in Maihaja v Gaidam (2017) LPELR-42474(SC), Eko, JSC, said, at pages 61-62 of the E-Report:

‘Section 131(1) of the Evidence Act, 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist. Put streetwise, he who asserts must prove his assertion. It therefore logically follows that what is alleged without proof can be denied without proof. When a fact is asserted without proof then the existence of the alleged fact is not established. That is why Section 132 of the Evidence Act provides further that the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.’

The party asserting must prove, inter alia, that the pledge transaction actually took place in the presence of credible witnesses. He must also state the pledge sum, and the mode of redemption of the pledged property; Ezike v Egbuaba (2007) LPELR-5131(CA); Iroegbu v Mpama (2009) LPELR-8510(CA). However, none of these facts is in evidence. The Appellant had no witness to the alleged pledge transaction. There was no written document to evidence the transaction. There were no terms for redemption of the pledge given in evidence. Although the Appellant testified that the plot of land was pledged for N5, 000.00, he gave no reason for his alleged offer to pay as much as N14, 000.00 to PW2. That creates doubt as to the precise amount for which the plot of land was allegedly pledged. I also agree with the finding that the failure of the Appellant to report an alleged forgery of his signature on a document was suspect. No written report was made to the Gboko Local Government. It is strange that a person who alleged that documents of title in respect of his land had been forged made no concerted effort to report to the police to ensure the suspected forger is apprehended and his property saved.

The Appellant ought to have provided concrete, cogent and credible evidence in proof of his assertions. But he woefully failed to prove that there was any pledge transaction between himself and Tarkpel Tongo. Not even his witness, DW1, was any help in this regard. I completely agree with the lower Court which held that:
‘The evidence adduced for the plaintiff as shown in the record of the trial Court preponderate over the evidence for the defendant, in the circumstances it would have been bizarre if the trial Court made a contrary finding considering the enormous evidence before it showing that the transaction was an outright sale of the plot.’

On the other hand, the evidence of PW1, PW2, PW5 and PW6, as well as the evidence of the official witnesses, PW3, PW4 and PW7 were not diminished under cross examination. Exhibit 1, the sale agreement between Tarkpel Tondo and the Appellant has not been proven to be a forgery. The authenticity of the Gboko Local Government Lands and Survey file containing documentation and minuting thereon in respect of the Plot 1312 in issue, Exhibits 16 and 17 tendered by the official witnesses, was not impaired under cross examination.

The sale agreement for the said Plot 1312 made between Reuben Umennadi and PW2, Exhibit 1, was signed by PW2 as vendor:

for and on behalf of the Deceased

Estate of Late Tarkpel Tondo.

The lower Court held in this regard, page 156 of the Record of Appeal:

‘There is evidence of PW1, PW2, PW5 and even DWs 1 and 2 to the effect that PW2 was Tarkper Tondo’s brother and next-of-kin. Evidence shows his active participation in the transaction between the defendant and Tarkper Tondo. There is clear evidence on record that he sold the plot to the plaintiff because then Tarkper Tondo was already dead and he inherited the land. The ground of appeal touching on a dead person selling the land or plot is neither here or there.’

We also see nothing wrong in the next-of-kin of a deceased person succeeding to his landed property covered by a C of O since the plot could not be declared bona vacantia on ground or by reason of death of an occupant who at the time of death had successors to his estate.

I agree with this finding and conclusion. PW2 was not a stranger to Tarkpel Tondo and to transactions regarding the plot in issue. In any event, the validity of the sale agreement between Simon Tondo and Reuben Umennadi has nothing to do with the Appellant. Having outrightly sold the land in issue to Tarkpel Tongo, what the Estate of Tarkpel Tondo, represented by PW2, decided to do with the said land ought not to cause any apprehension for the Appellant. He had been divested of his interest in the said Plot 1312 in issue.

I will also mention that I agree with the lower Court that:
‘The record of proceeding of the trial Court shows that appellant adduced evidence and called DW1 as witness. There is nothing on the record to show that appellant’s right to fair hearing was in any form impaired.’

The right to fair hearing is constitutionally guaranteed by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Basic elements of fair hearing include that: the Court shall hear both sides in all material issues in the case before reaching a decision which may be prejudicial to any party in the case; and having regard to all circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done;Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (PT 98) 419; The Council of Federal Polytechnic, Mubi v Yusuf (1998) 1-2 S.C. 11. Each party has a right to be heard at every material stage of the proceedings; Agbahomovo v. Eduyegbe (1999) 3 NWLR (PT 594) 170. In Baba v. Nigerian Civil Aviation (1991) 7 SCNJ 1, (1991) 5 NWLR (PT 192) 388.

The burden is on the party alleging breach of fair hearing in a case to prove the breach; and he must do so in the light of the facts of the case, for only the facts of the case will show non-compliance with the principle of fair hearing; Maikyo v Itodo (2007) 5 MJSC 60; Bill Construction Ltd v Imani Ltd (2007) 3 MJSC 217. In the instant appeal, the Appellant was given every latitude to present his case. He called a witness, DW1, and personally testified as DW2. He also cross examined all witnesses of the Respondent. The Record of Appeal fails to bear out the complaint of denial of fair hearing before the trial Court.

All considered, there are no exceptional circumstances established by the proceedings and evidence adduced before the trial Court and upheld by the Court below that justify any interference by this Court. The Record of Appeal, including the evidence, the assessment and evaluation thereof do not demonstrate that the findings of the lower Courts were perverse. No miscarriage of justice has been revealed. I therefore see no justifiable reason to disturb the concurrent findings of fact of the lower Courts;Ogundalu v Macjob (2015) LPELR-24458(SC); Sogunro v Yeku (2017) LPELR-41905(SC).

I see no merit in this appeal. The appeal is therefore dismissed. The judgment of the trial Upper Area Court Il delivered on 15/11/2005 and upheld by the appellate High Court sitting at Gboko on 29/7/2009 in Appeal No GHC/20A/2005 is hereby affirmed.
The Respondent is entitled to costs which is assessed at N100,000.00 .

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the ?judgment? of my learned colleague, O. A. Otisi, JCA, I do concur with the reasoning and conclusion. I shall title the determination of the dispute or controversy as my ‘decision’ to conform with the provisions of Sections 294(2) and 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered to wit:

294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

318(1) In this constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.

Section 294(2) of the Constitution is authority that I can adopt the decision or opinion of any of my learned colleagues that heard argument on appeal or has rendered a written ‘decision’ or ‘opinion’. I may as well render a ‘decision’ or an ‘opinion’ independent of the other Justices that heard argument on appeal. Section 294(3) of the

Constitution is couched as follows: –
(3)A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members?.

I shall consider the dispute or controversy on the merit.

The dispute between the litigants was predicated on the ‘Further Amended Statement of Claim’ filed by the plaintiff at pages 5-7 of the printed record to wit:

1. The plaintiff is a Gboko based Businessman resident in Gboko within the jurisdiction of this Honourable Court.
2. The defendant is a farmer resident in Gboko within the jurisdiction of this Honourable Court.
3. That plaintiff is the registered owner and 3rd occupant of an undeveloped residential plot No. 1312 Gboko East measuring 100 x 50 by virtue of sale of the said plot unto the plaintiff by the predecessor in title and defure owner Mr. Tarkpel Tondo and a grant of the Gboko Local Government Certificate of Occupancy unto the plaintiff.

The plaintiff hereby plead the Gboko Local Government Certificate of Occupancy No. 00507 dated 16-12-94 registered as Vol. 1 page 142 of the Gboko Lands Register.

4. The said plot No. 1312 Gboko East is resurveyed in the name of the plaintiff and obtained the Gboko Local Government survey site plan in plaintiff?s name. The said site plan is hereby pleaded in evidence.

5.The plaintiff duly executed a sale agreement on 21st November, 1994 with Tarkpel Tondo as represented by Mr. Simon S. Tondo the successor in title who inherited his real estate as well as the customary estate trustee for the sale unto the plaintiff of the plot No. 1312 Gboko East. The sale agreement is hereby pleaded in evidence. The plaintiff also plead the relevant Tiv Native Law and Custom.

6.The plaintiff has been paying ground rent on the said plot No. 1312 Gboko East from 1999 till date. The ground rent receipts from 1994 to 1996 are hereby pleaded in evidence.

7.The plaintiff duly executed the Gboko Local Government plot transfer documents with Mr. Tarkpel Tondo as represented kin Mr. Simon S. Tondo and effected charge of ownership in his name. The plaintiff shall at the trial found upon the plot transfer document, minutes, extracts on the plot No. 1312 Gboko East file with the Gboko Local Government.?

The further Amended Statement of Claim pleads Tarkpel Tondo as the original owner of the plot in dispute but the sale transaction was between the plaintiff and Simon S. Tondo on 21st November, 1994.

Pages 10-13 of the printed record contains the ‘Statement of Defence’ which is predicated on the following facts:

SAVE and EXCEPT as hereinafter expressly admitted the defendant denies each and every material allegation of facts contained in the plaintiff?s statement of claim as of same were set out and traversed seriatim.

1. The defendant admits paragraph 1 and 2 of the plaintiff’s statement of claim.

2. The defendant denies paragraph 3 of the claim that the plaintiff is the owner of plot No. 1312 Gboko East. Plot No. 1312 Gboko East belongs unquestionably to the defendant. The defendant has been the owner and occupier of the plot from 1968 to date.

3. In further answer to paragraph 3 of the statement of claim the defendant states that he bought his own plot, that is to say, plot No. 1312 Gboko East from one ISHAR ACHAMBER on 4-10-68 for one Hundred and Three Pound #103.

He has developed the plot by building thereon five round huts, two have collapsed, leaving only three standing to date, an uncompleted four room house built of cement blocks. There is also a coconut tree there which he planted. He has since 1968 being occupying the houses with his family to date.

4. The defendant denies paragraphs 4 and 5 of the statement of claim.

5. In further answer to paragraph 5, the defendant avers that Tarkpel Tondo never executed any sale agreement with the plaintiff in respect of plot No. 1312 Gboko East on 21-11-64. As at 21-11-94 Tarkpel Tondo was no longer alive, he died on 8-4-93. Any sale agreement purporting to have been executed between short of forgery of the said agreement by either the plaintiff alone or by fraudulent means through connivance with some other living and mischievous person.

6. Still in answer to paragraphs 4 and 5 of the claim, the defendant states that should there be any other document obtained by the plaintiff consequent upon becoming possessed of the ‘sale agreement’ of 21-11-94, for instance, certificate of occupancy, change of ownership of the plot site plan, receipts for ground rents, etc he obtained them in furtherance of the forgery of fraud aforesaid.

PARTICULARS OF FRAUD
a. Defendant never sold plot No. 1312 Gboko East to Tarkpel Tondo and he (Tondo) could not have sold any to the plaintiff.

b. As at the date it is alleged Tarkpel Tondo sold the plot to the plaintiff, the former had died and buried for over a year.

c. The physical presence of the defendant and members of his family on the plot would have rang into the ears of the plaintiff that the defendant has not divested himself of his interest in the plot.

7.The acts of the plaintiff in paragraph 6 of his claim are done in furtherance of his fraud in respect of the plot.

8. The defendant stoutly denies paragraph 7 of the statement of claim and will at the trial put the plaintiff to the strictest proof of same.

9. Facts contained in paragraph 68 of the statement of claim are peculiarly within the knowledge of the plaintiff and plaintiff has to prove same strictly.

10. The defendant denies paragraph 9 of the statement of claim that he was divested of his ownership right over plot No. 1312 Gboko East by sale of same to late Tarkpel Tondo on 18-12-89. Defendant NEVER sold the plot to either Tarkpel Tondo or any other person at all.?

How come Tarkpel Tondo is connected to the plot in dispute is explained from paragraphs 11-17 of the statement of Defence:-

11(a) In further answer to paragraph 9 of the claim, the defendant states that he only pledge his plot to Tarkpel Tondo for the sum of Five Thousand Naira (N5,000.00). Defendant was very ill and had to go to hospital but had no money on him, hence, he had to pledge his plot to get money for the treatment of his illness.

(b) The defendant is related to late Tarkpel Tondo. The mother of late Tarkpel and the defendant are from the same sub-kindred, Mbagben – Gaav in Konshisha Local Government Area. In fact has defendant knew late Tarkpel Tondo when the latter was still a young man and an apprentice tailor under his (defendant?s) brother called Tivkaa Hembe, at Amua, Gaav in 1966.

(c)In 1989 when the defendant was pledging his plot to late Tarkpel Tondo, they were not known to each other.

(d)Because of the relationship that existed between late Tarkpel and the defendant, the whole transaction, that trust, mutual understanding between them and the confidence each had in the others, consequently upon which thought and believed then that nothing unusual would come out of. The defendant is therefore not aware of any sale agreement referred to in paragraph 9 of the statement of claim dated 18-12-89.

(e) The pledge remained unredeemed till Tarkpel Tondo died.

(f) Soon after the death of late Tarkpel, the defendant learnt that his (Tarkpel’s) brother, Samuel Tondo was attempting to tamper with the documents relating to the plot in question. Defendant quickly lodged a complaint as a result to Ter Gboko, Chief Akaahar Adi who advised that Samuel should stop what he was doing but meet defendant to settle with him. Following the advice, a meeting comprising almost all Gaav sons in Gboko was convened at the resident of Mr. Audu Gbaagire, Gboko West in August, 1993. Present at the meeting were: (1) Audu Gbaagire, who presided (2) Gberikon Ahnjir (3) Ayakpam Azenda (4) Samuel Tondo (5) Anayagher Akumba amongst many others. It was resolved that defendant should pay Five Thousand Naira (N5,000.00) to late Tarkpel’s brother, Samuel Tondo.

(g)The defendant brought the N5,000.00 and gave Samuel Tondo who took only One Thousand Naira (N1,000.00) out of it and asked defendant to keep Four Thousand Naira (N4,000.00) whenever he demanded same from him, defendant should give to him. Samuel’s fear was that if he took the entire N5,000.00 he would end up spending it all. Hence defendant was to keep the balance. Samuel is yet to demand for the outstanding balance of N4,000.00 from the defendant.

(h) The defendant is still waiting for Samuel Tondo to demand for and receive the outstanding balance of N4,000.00 when he was served with a writ of summons by the plaintiff a total stranger to the defendant at the Rent Tribunal, Gboko claiming possession of the plot and ejection of the defendant therefrom on the grounds that he had bought the plot from Tarkpel. The case was decided in favour of the defendant by the Rent Tribunal.

12. The defendant denies paragraph 10 of the claim that he executed a plot transfer in favour of Tarkpel Tondo or any other person at all.

13. Defendant vehemently denies the plaintiff?s averment in paragraph 11 of the statement of claim and states that his Certificate of Occupancy holding No. 1312 of 2-9-82 has not been cancelled or withdrawn by any person or authority.

14. In further answer to paragraph 11 of the claim, the defendant states that he still has in his possession he original copy of his certificate of occupancy No. 1312 of 2-9-82 and will tender and rely on same at the trial of this suit.

15.The defendant denies paragraphs 12, 13 and 14 of the statement of claim and avers that they are matters peculiarly within the knowledge of the plaintiff. Plaintiff is put to the strictest proof of the averment in the said paragraphs.

16. The defendant denies paragraph 15 of the statement of claim, and states that he has NEVER been divested of any of his interest in plot No. 1312 Gboko East by anybody or authority any time at all.

17. The defendant denies paragraph 17 of the statement of claim and states that he is not in any way holding over plot No. 1312 Gboko East or detaining same at all. He is the rightful owner and occupier of the plot and has so been since 1968 when he bought same from one Ishar Achamber. The plaintiff is a total stranger to the plot who is only aiming at reaping where he does not sow.?

The plaintiff’s explanation as to how Simon S. Tondo became the vendor of the plot is explained from paragraphs 8-17 of the Further Statement of Claim as follows: –

8. The plaintiff name is duly entered in the land register of the Gboko Local Government as the new registered owner/occupancy of plot No. 1312 Gboko East free from any third-party interest. The plaintiff hereby pleads the relevant page. Volume wherein wherein plot No. 1312 Gboko East is registered in the Gboko Local Government Land Register.

9. The defendant was divested of his hitherto ownership right upon sale of the said plot No. 1312 Gboko East to Mr. Tarkpel Tondo on the 18-12-89. The said sale agreement of 18-12-89 is hereby pleaded in evidence.

10. The defendant also executed a plot transfer in favour of the 2nd registered owner Mr. Tarkpel Tondo only approved dated 15-4-91 and approved on 5-11-91. The said plot transfer document is hereby pleaded in evidence.

11. That in consequence of paragraph (8) and (9) of the statement of claim both the original customary certificate of occupancy dated 13-10-96 registered in volume 1 of the land register with commencing effect from 13-10-1976 and also registered in the name of the defendant were concealed and rendered Otiose and the name of Mr. Tarkpel Tondo entered as new registered owner/occupant of plot No. 1312 Gboko East of the lands register.

12. The 2nd registered owner/occupant Mr. Tondo was consequently granted a certificate of occupancy No. 08852 of 16-4-91 registered as vol. 1 page 142 of the lands register.

13. The said certificate of occupancy granted unto Mr. Tarkpel Tondo was cancelled upon sale to plaintiff and transfer of ownership unto the plaintiff in 1994.

14. The plaintiff hereby plead all the certificate of occupancy granted to the defendant and plaintiff?s predecessors in title in evidence.

15. From 18-12-89 till date the defendant has been absolutely divested of his prior ownership rights but now a mere squatter and gratuitous tenant on plot No. 1312 Gboko East.

16. The plaintiff took steps on the 26-8-96 to recover possession of the said plot No. 1312 Gboko East by serving the defendant Notice of Quit dated 26-8-96 as well as seven days Notice of Intention to Recover Possession dated 5-9-96 and Writ of Summons dated 12-9-96 to no avail.

17. The defendant has now held ever and detailed the said plot No. 1312 Gboko East and refused to vacate possession purporting to be the rightful owner of the said plot.?

WHEREOF, the plaintiff claim from the defendant as follows:
a. A declaration that the plaintiff is the registered owner and current occupancy of plot No. 1312 Gboko East as per the particulars of Registration.

b. A declaration that the grant of the Gboko Local Government Certificate of Occupancy No. 00507 of 16-12-94 unto the plaintiff is valid and subsisting grant unto the plaintiff as title holder.

c. An order granting writ of possession unto the plaintiff in respect of plot No. 1312 Gboko East and the ejection of the defendant, his servant, relations, etc from the said plot.

d. A declaration that the Gboko Local Government customary certificate of occupancy on plot No. 1312 Gboko East dated 2-9-82 re-issued to the defendant together with the 1st renewal Gboko Local Government Certificate of Occupancy dated 13-10-96 unto same plot No. 1312 Gboko East issued to the have been superceded by the same Gboko Local Government Certificate of Occupancy No. 00507 dated 16-12-94 registered as Vol. 1 page 142 Gboko Lands Registry now issued to the plaintiff Mr. Reuben Umennandi on same plot No. 1312 Gboko East.

e. A personal injunction restraining the defendant and his servants, relation from further acts of holding over or trespass unto plot No. 1312 Gboko East.

f. Mesne profits at the rate of N1,000.00 per month in the residence held over by the defendant from 12-9-96 till date of liquidation of judgment debt.?

The defendant counter-claim reads as follows: –
WHEREFORE, the defendant denies plaintiff?s entire claim particularly that contained in paragraph 17 sub-paragraphs (a) – (f) thereof and will urge the Honourable Court to dismiss the plaintiff?s claim against him.
COUNTER-CLAIM:

18.The defendant adopts and will rely on the facts contained in paragraphs 1-17 of his statement of defence in his counter-claim.

19.The defendant states that the plaintiff with intent to mislead the Gboko Local Government did mis-represent the Government namely, that defendant sold his plot of land to late Tarkpel Tondo and caused a change of ownership to be effected in favour of the said Tarkpel, the late Tarkpel sold same to him (plaintiff) and transferred title to him on the basis of which the Local Government approved of his application and issued him with a certificate of occupancy No. 00507 at 16-12-94.

20.Defendant states that had the Local Government been properly informed of the true facts and position of the plot in issue it would not have issued the certificate of occupancy to the plaintiff at all.

21.The defendant states that his own certificate of occupancy holding No. 1312 dated 2-9-82 issued by the same Local Government covering the plot is still valid and subsisting. The same Local Government cannot issue another certificate of occupancy covering the same plot concurrently.

22.The certificate of occupancy No. 00507 of 16-12-94 issued to the plaintiff in respect of the same plot whilst his (defendant’s) is still subsisting has not only embarrassed the defendant but also given the plaintiff cause to harness insult and intimidate him.

WHEREFORE, the defendant is aggrieved and claim as follows:

i.Declaration of title to plot No. 1312 Gboko East in his favour.
ii. An order declaring the plaintiff?s certificate of occupancy No. 00507 of 16-12-94 null and void.
iii. Perpetual injunction restraining the plaintiff by himself his privies, servants or workmen from trespassing on or laying claim to the plot as being his or their own?.

The plaintiff did not file a defence to the counter-claim.
The parties relied on oral and documentary evidence to prove their assertions before Mrs. E. K. Achia, Ag. Sole Judge. The learned acting Sole Judge, relying on the oral and documentary evidence coupled with the addresses of learned counsel held on 15th January, 2005 from page 116 lines 7-21 of the printed record as follows:

The Court has considered the evidence and submissions in respect of this relief sought and is of the view that since this matter is dispute on plot 1312 Gboko East an action for recovering of rent arrears will not be maintainable. This is more so when plaintiff state in his evidence that he permitted defendant a period of grace to stay on plot 1312 to enable him prepare and relocate. An amount in case of default on the side of the defendant was not fixed or agreed upon.

It is in the circumstance I share same view with Ijirgba defence Counsel that no landlord and tenant relationship existed between the plaintiff and defendant to warrant the Court order for Mesne profit of N1000 monthly in favour of the plaintiff. This angle of claim is accordingly dismissed. This shall be the judgment and orders of this Court.

An appeal by Andiir Hon to the High Court of Justice of Benue State holding at Gboko, coram S.J. Ogwiji and T.A. Kume J.J., held at page 156 lines 35 to page 157 lines 1-8 of the printed record as follows:

‘There is evidence of PW1, PW2, PW5 and even DWs1 and 2 to the effect that PW2 was Tarkper Tondo’s brother and next-of-kin. Evidence shows his active participation in the transaction between the defendant and Tarkper Tondo. There is clear evidence on record that he sold the plot to the plaintiff because then Tarkper Tondo was already dead and he inherited the land. The ground of appeal touching on a dead person selling the land or plot is neither here or there.

The record of proceeding of the trial Court shows that appellant adduced evidence and called DW1 as witness. There is nothing on the record to show that appellant’s right to fair hearing was in any form impaired.

We also see nothing wrong in the next-of-kin of a deceased person succeeding to his landed property covered by a Certificate of Occupancy since the plot could not be declared bona vacantia on ground or by reason of death of an occupant who at the time of death had successors to his estate.

We are of the opinion that since the sale of the plot to Tarkper Tondo by the defendant/appellant divested the appellant of further title to the plot, appellant had no business parading the Certificate of Occupancy dated 2nd September, 1982 as evidence of his title so the trial Court rightly declared it a nullity.

On issue 8 of the issues for determination formulated by the appellant’s Counsel, we agree with him that cost of N16,674.00 was/is on the high side. It is excessive. We are of the opinion that the respondent should be satisfied with his success. If there must be a cost of the proceeding, we think N5,000.00 should do. We set aside the award of N16,674.00 and in its place grant N5,000.00 to the respondent.

Finally, we are of the view that PW2 having succeeded to the plot in dispute on account of his senior brother’s death validly sold it to the respondent.

The judgment of the trial Upper Area Court II, Gboko on appeal is substantially sound. We have no reason to disturb it. This appeal fails and it is consequently dismissed.
SGD. S.J. OGWIJI, J, 29/07/2009; SGD. T.A. KUME, J, 29/07/2009.

I shall take judicial notice of the fact that it is within the province of a Local Government Area to grant a Customary Right of Occupancy as defined in Section 51(1) of the Land Use Act, 1978 with effect from 29th March, 1978 to wit:
‘Customary Right of Occupancy’ means the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree.

A dispute is to be determined under Section 41 of the Act which shall have effect with such modification as would enable effect to be given to this Section? etc:

41.An Area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.

The Acting Sole Judge made findings of fact supported by documentary evidence. Evaluation of oral evidence is within the domain of the trial Judge and if there are documents, they will be used to test the veracity and credibility of the oral evidence. See Fashanu Vs. Adekoya (1974) 1 ALL NLR (pt. 1) 33 at 37; Olujinle Vs. Adeagbo (1988) 2 NWLR (pt. 75) 238 at 253; Onwuteako Vs. Darco Technical Service Supplies Ltd. (1980) 2 FCA 62 at 77 and Oscar Reynard Vs. William Allan (1934) 2 WACA 52 at 53. The High Court of Justice of Benue State, sitting and exercising appellate jurisdiction affirmed these findings hence there are two concurrent findings of fact supported by documentary exhibits. The law is well settled in Alhaji Barau vs. Board of Customs & Excise (1982) 2 NCR per Fatayi-Williams CJN at page 21-23 to wit:

‘In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.

In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that: –
‘Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.’

Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an Appeal Court in more detail as follows (1968 NMLR at 247):

A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimoh Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial. [These words do not appear in the report of the case at (1967) 1 All NLR 241).

It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.

The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.

That, if I may say so, is precisely what has happened in the present case. The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his ‘performance’ on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when ‘dealing only with the cold sullen print of the records before them’ decided to set aside the Chief Judge’s findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.

Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.

In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.?
In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282 Udoma JSC held at page 289 that:

‘The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial? According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.

We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence, It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 – 1911) I N.L.R. 35, in these words:

‘When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong.
If, however, the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.’

The Writ/the Further Amended Statement of Claim and the Statement of Defence/Counter-Claim were headed ?In the High Court of Justice of Benue State of Nigeria. In the Gboko Judicial Division, Holden at Gboko. Ikyegh, J., (as he then was) on the application of the legal representatives of the parties remitted the suit to be heard and determined by the Upper Area Court, Gboko on 29th November, 2000 based on the following reasons at page 14 of the printed record:-

Mr. Igbarago: We have seen that Gboko town is yet to be carried out as an Urban Area and since the Certificate of Occupancy in dispute is granted by the Gboko Local Government the suit should be sent to Upper Area Court, Gboko for determination.

Court: Remitted to Upper Area Court, Gboko for determination under Section 41 of the Land Use Act. It shall be mentioned there on 31st January, 2001.

SGD. JUSTICE J.T. IKEYH, J., 29/11/2000.

The plaintiff maintained their Further Amended Statement of Claim; the defendant relied on the Statement of Defence/Counter-Claim before the Upper Area Court Gboko presided by Mrs. E.K. Achia, Acting Sole Judge from 26th February, 2004 to 15th November, 2005 when the learned Acting Sole Judge heard oral and documentary evidence and relying on the addresses of learned Counsel decided the dispute in favour of the plaintiff at page 116 lines 7-21 of the printed record as follows:-

‘The Court has considered the evidence and submissions in respect of this relief sought and is of the view that since this matter is dispute on plot 1312 Gboko East an action for recovering of rent arrears will not be maintainable. This is more so when plaintiff state in his evidence that he permitted defendant a period of grace to stay on plot 1312 to enable him prepare and relocate. An amount in case of default on the side of the defendant was not fixed or agreed upon.

It is in the circumstance I share same view with Ijirgba defence Counsel that no landlord and tenant relationship existed between the plaintiff and defendant to warrant the Court order for Mesne profit of N1,000 monthly in favour of plaintiff. This angle of claim is accordingly dismissed. This shall be the judgment and orders of this Court.
SGD. R.K. Chia, Esq. Ag. Sole Judge.

While the plaintiff’s claims succeeded the defendant’s counter-claim was dismissed. The defendant proceeded to the High Court of Justice, Benue State holden at Gboko to contest the decision of the Acting Sole Judge but failed, the Court per Ogwiji, J., and Kume, J., holding at page 156 lines 1 to page 157 lines 1-8 of the printed record as follows:-

DW2 is the defendant/appellant. His evidence before the trial Court in highlight is that he bought Plot 1312 from one Ishar Achamber. He did change of name and ‘C’ of ‘O’ in his name at the Land’s Office. He took a loan of N5,000.00 from Tarkper Tondo to treat himself. At the insistence of PW2, Tarkper Tondo’s brother asked for a collateral for the loan; he pledged the plot in dispute. When he came back from Jos where he went for treatment he learnt of Tarkper Tondo’s death and the clandestine activities of PW2 in changing the documents of the plot. He reported the matter to the Local Government Land’s Office. PW2 was invited there but he refused to go. He reported the matter to elders of Gaav from where both himself and PW2 hailed. They decided that he should pay N2,000.00 extra to PW2 but he still refused to collect insisting on N14,000.00 which he (defendant) accepted to pay but after receiving N1,000.00 PW2 refused to collect the balance of N13,000.00. One day PW1 informed him that he had bought the plot.

That was the nature of the evidence before the trial Court. We have placed the summary of witnesses’ evidence for both parties before the trial Court side by side in this judgment for ease of reference and for the purpose of weighing them on the imaginary scale of justice. In civil cases, matters are decided on the preponderance of evidence.
Based on the record of proceeding of the trial Court which we read, we are convinced that the trial Court gave appropriate consideration to the issues before it and made valid findings of facts based on the evidence before it. It correctly admitted exhibits tendered before it. The evidence of both official witnesses (PW3 and PW7) and other witnesses for the plaintiff was consistent and pointed to the same direction that the transaction between the defendant and Tarkper Tondo was an outright sale transaction.

The evidence of DW1 does not help the appellant’s case. Substantial portion of DW1 and DW2?s evidence support the plaintiff’s case. The evidence adduced for the plaintiff as shown in the record of the trial Court preponderate over the evidence for the defendant. In the circumstance it would have been bizarre if the trial Court made a contrary finding considering the enormous evidence before it showing that the transaction was an outright sale of the plot.
In the case of Folarin vs. Durojaiye (1988) 1 NWLR (Pt.70) 351, it was held that in order to transfer legal title under English law by purchase, there must be a valid sale, payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance in favour of the purchaser. However, the plot in issue is within the Gboko Local Government and subject of Customary Right of Occupancy. As there was evidence before the trial Upper Area Court that there was payment of money in the presence of witnesses and delivery of the land a valid sale was moved. The trial Court therefore made a valid finding that the transaction between the defendant and Tarkper Tondo was an outright sale.

There is evidence of PW1, PW2, PW5 and even DWs 1 and 2 to the effect that PW2 was Tarkper Tondo’s brother and next-of-kin. Evidence shows his active participation in the transaction between the defendant and Tarkper Tondo. There is clear evidence on record that he sold the plot to the plaintiff because then Tarkper Tondo was already dead and he inherited the land. The ground of appeal touching on a dead person selling the land or plot is neither here or there.

The record of proceeding of the trial Court shows that appellant adduced evidence and called DW1 as witness. There is nothing on the record to show that appellant?s right to fair hearing was in any form impaired.

We also see nothing wrong in the next-of-kin of a deceased person succeeding to his landed property covered by a ‘C’ of ‘O’ since the plot could not be declared bona vacantia on ground or by reason of death of an occupant who at the time of death had successors to his estate.

One issue 8 of the issues for determination formulated by the appellant’s Counsel, we agree with him that cost of N16,674.00 was/is on the high side. It is excessive. We are of the opinion that the respondent should be satisfied with his success. If there must be a cost of the proceeding, we think N5,000.00 should do. We set aside the award of N16,674.00 and in its place grant N5,000.00 to the respondent.

Finally, we are of the view that PW2 having succeeded to the plot in dispute on account of his senior brother’s death validly sold it to the respondent.

The judgment of the trial Upper Area Court II, Gboko on appeal is substantially sound. We have no reason to disturb it. This appeal fails and it is consequently dismissed.
Sgd. S.J. Ogwiji, J., 29/07/2009; Sgd. T.A. Kume, J., 29/07/2009.

A Local Government Certificate of Occupancy is usually issued by the Local Government where the land or plot is situate under Section 6(1)(a) of the Land Use Act, 1976 which came into effect on 29th March, 1978 to wit:-

6(1) It shall be lawful for a Local Government in respect of land not in urban area:-
(a) to grant customary rights of occupancy to any person or organization for the use of land in the Local Government area for agricultural, residential and other purposes.

Section 51(1) of the Land Use Act, 1978 defines a ‘Customary Right of Occupancy’ to mean ‘the right of a person or community lawfully using or occupying land in accordance with customary law and includes a customary right of occupancy granted by a Local Government under this Decree.’

The parties were agreed that plot 1312 Gboko East is covered by a Certificate of Occupancy dated 13th October, 1996 after the coming into effect of the Land Use Act, 1978 on 29th March, 1978 hence a dispute involving the grant or the plot to the plaintiff was rightly heard and determined by the Acting Upper Area Court Sole Judge under Section 41 of the Land Use Act, 1978 which provides as follows:-

41. An Area Court or Customary Court or other Court of equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all laws including rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this section.

Section 41 of the Act shall have effect with such modification as would enable effect to be given to this section, by deleting the word ‘Area Court’ to retain a ‘Customary Court or other Court of equivalent jurisdiction in a State’ to hear and determine proceedings ‘in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purpose of this paragraph proceedings includes proceedings for a declaration of title to a customary right of occupancy and all law including rules of Court regulating practice and procedure of such Courts shall have effect with such modification etc. See Section 41 of the Land Use Act, 1978.

A right of appeal has to be conferred on a party, person, authority, etc, in accordance with the provisions of the Constitution or a statute. A right of hearing and determining a cause or matter or to enable a Court of Justice to hear and determine an appeal has to mention or list the Court that may exercise original, appellate or supervisory jurisdiction hence Sections 282-284 of the Constitution of the Federal Republic of Nigeria, 1999 as altered with effect from 29th May, 1999 provides as follows:-

282(1)A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involve questions of Customary law.
(2)For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.

283.For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Customary Court of Appeal of the State may make rules for regulating the practice and procedure of the Customary Court of Appeal of the State.

284.Subject to the provisions of any law by the House of Assembly of the State, the President of the Customary Court of Appeal of the State may make rules for regulating the practice and procedure of the customary Court of Appeal of the State.

Section 272(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered reads as follows:-

272(1)Subject to the provisions of Section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2)The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.

Those who enacted the Constitution of the Federal Republic of Nigeria, 1999 with effect from 29th May, 1999 did not confer original jurisdiction on any High Court of Justice in a State to hear and determine proceedings that the root of title is founded in respect of a customary right of occupancy granted by a Local Government under this Act?; or ?for a declaration of title to a right of occupancy but a ?Customary Court or other Court of equivalent jurisdiction in a State See Section 41 of the Act. A party aggrieved with a decision of a Customary Court or other Court of equivalent jurisdiction in a State is to proceed to the Customary Court of Appeal in a State under Section 282(1) of the Constitution in civil proceedings involving questions of customary law? with the following caveat:-

Section 282(2) of the Constitution provides that, For the purpose of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it was established.

To ‘prescribe’ is defined in Section 318(1) of the Constitution to mean ‘prescribed by or under this Constitution or any other Law, and a ‘Law’ means a Law enacted by a House of Assembly of a State.’ Section 283 of the Constitution is couched as follows:-

‘283.For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any law, a Customary Court of Appeal of the State may make rules for regulating the practice and procedure of the Customary Court of Appeal of the State.’

The qualification for appointment of a Justice of the Customary Court of Appeal is provided in Section 281(3)(a) and (b) of the Constitution to wit:-

281(3) Apart from such other qualification as may be prescribed by a law of the House of Assembly of the State, a person shall not be qualified to hold office of a president or of a Judge of a Customary Court of Appeal of a State unless –

(a)he is a legal practitioner in Nigeria and he has been so qualified for a period of not less than ten years and In the opinion of the National Judicial Council he has considerable knowledge and experience in the practice of Customary law; or

(b)in the opinion of the National Judicial Council he has considerable knowledge of and experience in the practice of Customary law.

Any litigant that is not satisfied with the decision of a Customary Court of Appeal established in the State is to invoke the provisions of Section 245(1)-(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered that provides as follows:-

(1)An appeal shall lie from decisions of a customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.

(2)Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be –

(a)exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;

(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal?.

The above provision is to be read with the provisions of Section 9(b) of the Court of Appeal Act, 2004 (as amended):-
9.For the purpose of exercising any jurisdiction conferred upon it by this Act, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal and in the case of appeals from:-

(b)a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in customary law.

Section 272(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides the subject causes or matters that if they are in dispute the High Court in a State is to exercise original, appellate or supervisory jurisdiction to wit:-

(3)Subject to the provisions of Section 251 and other provisions of this Constitution, the Federal High Court shall have jurisdiction to hear and determine the question as to whether the term of office of a member of the House of Assembly of a State, a Governor or Deputy Governor has ceased or become vacant.?

Neither the Constitution of the Federal Republic of Nigeria, 1999 as altered nor a Law of a State House of Assembly or an Act of the National Assembly has conferred original, appellate or supervisory jurisdiction or powers on the High Court to hear and determine disputes or conflicts that any of the parties pleaded a customary right of occupancy or a Local Government Certificate of Occupancy than a Customary Court or other Court of equivalent jurisdiction in a State (Section 41 of the Land Use Act, 1978). An appeal from the decision of such Courts is to be heard and determined as provided under Section 282(1)-(2) of the Constitution by a Customary Court of Appeal in a State. In Udoh vs. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows:

‘It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended. Expressio unius est exclusio alterius. See A-G. of Bendel State Vs Aideyan (1989) 4 NWLR. (Pt.118) 46. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue. see Ogbunyinya Vs Okudo (1979) 6 SC 32; Military Governor of Ondo State Vs Adewunmi (1988) 3 NWLR (Pt. 82) 280.

The Latin Maxim is expressed as ?expressio unius exclusio alterius?. In Attorney-General of Abia State vs. Attorney-General of the Federation & Ors. (2005) All FWLR (Pt.275) 414 at page 450 to wit:-

It is clear and as rightly conceded by the learned Attorney-General of Imo State, that nowhere in Decree 41 of 1991 was the word ?liability? mentioned. It is also good law that as a general rule of construction of statute that a Court is not entitled to read into a statute words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State vs. Attorney-General, Ekiti State (2001) FWLR (Pt.79) 1431, where at pp. 1472-1473, Karibi-Whyte, JSC observed that:

It is well established and cardinal principle of interpretation that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Awolowo vs. Shagari (1979) 6-7 SC 51, (2001) FWLR (Pt.73) 53; Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislature and give to them their intended meaning and effect. See Adeyemo vs. Governor of Lagos State (1972) 2 SC 45. See also Attorney-General, Ogun State vs. Attorney-General, Federation (1982) 1-2 SC 13; Bronik Motors vs. Wema Bank (1983) 1 SCNLR 296 for the principle that in interpreting the Constitution or a Decree amending it, the Court should take into serious consideration the preamble of the Decree and objects and purposes of the provisions sought to be interpreted.

In Attorney-General of Ondo State vs. Attorney-General of Ekiti State (2001)0 FWLR (Pt.79) 1431 the Supreme Court held at page 1463 paragraphs ‘E’-‘F’ as follows:-

It is certainly a cardinal principle of interpretation that where in their ordinary meaning, the provisions are clear and unambiguous, effect must be given to them without resorting to any aid, internal or external. It is the duty of the Court to interpret the words of the lawmaker as used. Those words may be ambiguous, but even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited (see for example: Magor and St. Mellow R.D.C. vs. Newport Corporation (1951) 2 All E.R. 839; London Transport Executive vs. BETTS (1959) A.C. 231, Attorney-General of Bendel State vs. Attorney-General of the Federation & Ors. (1981) 10 SC 1, (1981) 102 NSCC 314, Attorney-General, Bendel State vs. Attorney-General, Federation (2001) FWLR (Pt.65) 448.

I have arrived at the decision that the original jurisdiction of the High Court of Justice in any State of the Federation of Nigeria in lands where the root of title is a Statutory Certificate or right of occupancy is under Section 272(1) of the Constitution read together with Section 39 of the Land Use Act, 1978. Section 39 of the Act reads:-

39(1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-

(a)proceedings in respect of any land the subject of a statutory right of occupancy granted by the Military Governor or deemed to be granted by him under this Decree; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;

(b)proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Decree.

(2)All laws, including rules of Court, regulating the practice and procedures to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.?
Proceedings on appeals that emanates from the High Court in exercise of its original jurisdiction in the civil causes and matters where the root of title is a Statutory right or a Certificate of Occupancy is to be heard and determined by the Customary Court but certainly not before a High Court of Justice that purports to determine the dispute or controversy. The High Court would be acting without jurisdiction. A Court that has no jurisdiction to hear and determine a dispute or controversy (See Section 318(1) of the Constitution) cannot ?put an end? (See Deduwa vs. Okorodudu) to the controversy.

I am bound to take judicial notice of the fact that the High Court of Justice sitting and exercising appellate or supervisory jurisdiction, was not competent to adjudicate over the dispute that is covered by a Local Government Certificate of Occupancy. I do not need to call upon the learned Counsel representing the parties before I take judicial notice of the fact that a Court has acted without jurisdiction. I refer to Finnih vs. Imade (1992) 1 SCNJ 87, Babalakin, JSC held at pages 102 to 103 as follows:

‘The Court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No.N.S.L.N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:

‘(m)In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.’

This is inter-alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward ‘A’ because at one time the plot Allotment Committee Ward ‘A’ asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward ‘A’ and Ward ’17’.

The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.
By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No.4 formulated by the defendant/appellant is YES.

Section 73(1)(a) of Evidence Act provides:

73(1) The Court shall take judicial notice of the following facts:
(a)All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.

I shall set aside the decision of the High Court of Justice of Benue State on the basis that Ogwiji and Kume, J., had no jurisdiction to hear and determine the appeal.

But I am not in a position to dismiss the claims of the respondent before the Upper Area Court, Gboko on the grounds that the Court had the requisite jurisdiction to have heard and determined the dispute or controversy under the provisions of Section 41 of the Land Use Act, 1978. The parties adduced oral evidence. The learned trial Acting Upper Area Court Judge used documentary evidence to evaluate the oral evidence. The parties appeared before the Court of trial. The learned trial Acting Upper Area Court Sole Judge observed their demeanor before rendering a decision in favour of the respondent. See Fashanu vs. Adekoya (1974) 1 All NLR (Pt.1) 33 where Coker, JSC held at page 37 as follows:-

‘We did say earlier on in this judgment that this case resolves itself entirely on its facts. The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of appeal. The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a Court of appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.

The parties gave evidence and called witnesses and indeed there was on each side a great deal of hard swearing. Undoubtedly, the duty of the Court in ascertaining – the truth in those circumstances is all but easy and the best of logic may be as availing to one of the parties as it is to the other. But there was produced by both parties a large body of documentary evidence containing a number of letters and other documents and, as argued by learned Counsel for the plaintiff, it is the duty of the learned trial Judge in a case like the present to test the probability of the case of either of the parties by reference to relevant documents which represent evidence of some more or less permanent or perhaps unassailable character.

In Oscar Reynard vs. Williams Allan (1937) 2 WACA 52 appears the following statement at page 53:-

At the outset it may be noted that this is a case in which the trial Judge took the place of jury. It has been pressed upon the Court that he heard the witnesses, saw them in the witness box, and was thus in a better position to weigh their evidence than this Court. That is perfectly true, and did the decision arrived at by the learned Judge depend solely on the view of the credibility of the witnesses taken by him this Court should be very slow to interfere.
In the case of The Glannibanta L.R. 1 Prob. Div. 283, Baggaley, J., after referring to the great weight due to the decision of a Judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are material elements in the consideration of the truthfulness of their statements, goes on to say ?But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

And when as in this case the decision rests not only on the comparative truthfulness of the statements made by witnesses, but on its probability, and on the correctness of the conclusions drawn from their evidence by the learned trial Judge, and above all on the construction put by him on what he describes in his judgment as ‘a mass of documentary evidence’ there is an ample field, apart from that of the credibility of witnesses, in which this Court can exercise an unfettered judgment in coming to the conclusion whether the decision was right or wrong, and if on surveying this field it in fact appears that the probabilities are very strong on the side of the plaintiff, and that the documentary evidence also is overwhelming in his favour, and if in addition the difficulties raised by the learned Judge against accepting plaintiff?s story are capable of a reasonable solution, as they seem to me to be, it will, I take it, be the duty of this Court to set aside the judgment of the trial Judge and enter judgment for the plaintiff.

See Kimdey vs. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473. In Barau vs. Board of Customs & Excise (1982) 2 NCR 1, Fatayi-Williams, C.J.N. held at pages 21-23 as follows:-

In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.

In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that:-
‘Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.’

Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):
‘A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial. [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.

In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119): ‘The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.

Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.

In Lion Buildings Ltd. vs. Shadipe (1976) 2 FNLR 282, Udoma, JSC held at page 289 as follows:-

Order 4 Rule 9(1)-(2) of the Court of Appeal Rules, 2016 reads as follows:-

9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.

(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

The effect of my determination is to affirm the decision of the Upper Area Court that was rendered by the Acting Upper Area Court Sole Judge in favour of the respondent on 15th November, 2005. I shall rely on the authority of Chief Bola Ige vs. Dr. Victor Olunloyo (1984) 1 SCNLR 158 where Aniagolu, JSC held at page 178 as follows:-

‘I agree with the view expressed? that the judgment of an Appeal Court, allowing an appeal, has the effect of substituting the Appeal Court judgment for the judgment of the Court below set aside, making the decision appealed against disappear altogether.’

The powers of the Court of Appeal when hearing appeals from the decisions of courts below is provided in Order 4 Rule 9(1)-(3) of the Court of Appeal Rules, 2016 to wit:

‘9(1)On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2)The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

(3) A new trial may be ordered on any question Without interfering With the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of Justice as is mentioned in sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.”

I am of the humble opinion that the appellant has failed to discharge the burden of showing that the High Court of Justice of Benue State committed substantial wrongs or that the decision occasioned a miscarriage of justice to warrant this Court to interfere with the concurrent verdict or findings of fact made by the Courts below in favour of the respondent.

Accordingly, I affirm the decision of the Court of trial in favour of the respondent/plaintiff. The appeal, lacking in merit is dismissed.

JOSEPH EYO EKANEM, J.C.A.: I have had the privilege of reading in advance the judgment which has just been delivered by my learned brother, Otisi, JCA. I agree with my Lord’s and conclusion that the appeal has no merit.

Both the trial Upper Area Court II, and the High Court in its appellate jurisdiction held that the appellant sold plot 1312 Gboko East Taikpet Tondo and also that the transaction was a pledge as canvassed by the appellant. The findings amounted to findings of fact by the two lower Courts. It is the law that an appellate Court will not ordinarily disturb the concurrent findings of facts of lower Courts unless there is manifest error which leads to some miscarriage of justice, or there is a violation of some principles of laws or procedure or the findings are perverse. Enang V Adu 11-12 SC 25 and Ifeanyichukwu Trading Investment Ventures v Onyesom Community Bank Limited (2015) 17 (Pt. 1487) i.

Appellant has failed to demonstrate that the concurrent findings of lower Courts suffer from any of vices that would warrant the interference of the Court. In fact, there is unassailable evidence on record including Exhibit 16 (the sale agreement) and the evidence PW1, Pw2, PW5 and PW6 (witnesses to the transaction) to support the concurrent findings. I see no reason to interfere with the same.

Having sold his plot to the late Tarkpet Tondo the appellant has acted in a most unconscionable way in seeking to get back the plot by asserting that the transaction was a pledge transaction. The law cannot lend its support to him.
I have no hesitation in agreeing with his Lordship and dismissing the appeal. I assess the costs of this appeal at N100,000 against the appellant.

Appearances:

Appellant’s Counsel, A. A. Aboh, Esq., was served with Hearing Notice electronically on 9/1/2009 but was absent at the hearing.
For Appellant(s)

Respondent’s Counsel, A. G. Ayua, Esq., was served with Hearing Notice electronically on 9/1/2019 but was absent.For Respondent(s)