TIKU v. TANGBAN & ORS (2022)

TIKU v. TANGBAN & ORS

(2022)LCN/16487(CA)

In The Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/C/426/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MRS. JOY NDOMA TIKU APPELANT(S)

And

1. AMBA MGBE TANGBAN 2. EJI MGBE TANGBAN 3. OGAR MGBE TANGBAN (For and Representing The Family Of Late Mr. Mgbe Tangban Obi) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON THE BURDEN OF PROVING THE OWNERSHIP OF A LAND

It is clear from the above that the burden of first proving the ownership of the said farmland and settlement of the dispute by the family head lies squarely on the appellant who was the claimant before the lower Court. The law is also settled that where a party adduces sufficient evidence to satisfy the Court that the fact sought to be proved is established, the burden shifts to the person against whom judgment would be given if no further evidence were adduced. The burden of proof would then continue to shift until all the issues in the pleadings have been dealt with.

THE POSITION OF LAW WHERE PARTIES SUBMIT THEMSELVES TO CUSTOMARY ARBITRATION

Where parties consensually submitted themselves to customary arbitration for the resolution of their dispute and the verdict of the arbitration was acceptable to the parties, it would no longer be open to either of the parties to subsequently back out or resile from the decision or verdict reached and pronounced upon in the arbitration. See BENJAMIN V. KALIO (2018) 15 NWLR (prt.1641) 38 at 54 and OPARAJI V. OHANU (1999)9 NWLR (prt.618) 290. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE COURT CAN ACT ON AN INADMISSIBLE EVIDENCE

It is also the duty on every law Court in every proceeding to admit and act only on evidence that is admissible in law under the Evidence Act or any other relevant law validly enacted. See SHITTU V FASHAWE (2005) 14 NWLR (prt.846) 67. I therefore resolve all the issues against the appellant. PER SHUAIBU, J.C.A

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting at Ikom, Coram, Hon. Justice A. A Onyebueke, delivered on the 2nd day of October, 2017 dismissing the claimant’s claim and granting the reliefs in the defendants’ counter-claim.

The claimant commenced a civil suit NO HE/3/2016 through a writ of summons and statement of claim which was later amended on 15/3/2016 and claimed against the defendants as follows:-
1. An Order of declaration that the claimant is entitled to a customary right of occupancy over the said cocoa farm.
2. An order of injunction against the defendant and his agents or assigns from trespassing into the said farm.
3. Damages of N5,000,000.00 (Five Million Naira) for trespass.

Upon being served with the originating processes, defendant denied the claims and averred that it was the claimant who carved out a portion of their farm to himself by jumping over Ette Ette Egbe’s land and thus claiming a portion of their land. The defendants therefore counter-claimed against the claimant as follows:
(a) A declaration that the defendants upon the demise of their late father are entitled to customary and possessory right to their late father’s estate including the cocoa farm situate along Okondi Road and bounded with Mgbe Oru, Chief Ndoma Achu, Ette Ette Egbe and Batang Stream/swamp.
(b) A declaration that the land being laid claims to by the claimant/defendant is that of the defendants.
(c) An order of perpetual injunction restraining the claimant/defendant his agents, hires servants, privies, assigns and/or whosoever from entering, claiming, remains and/or trespassing into the defendants/counter-claimants’ property afore-mentioned.
(d) The sum of N10,000,000.00 (Ten Million Naira) for trespass and general damages.
(e) N1,000,000.00 (One Million Naira) cost of action.

Pleadings were exchanged and the matter went into trial with both parties leading oral and documentary evidence. At the end of the trial and in a considered judgment delivered on 2/10/2017, learned trial Judge found inter alia on page 107 of the record as follows:
“In the present case, the defendants withdraw from the arbitration before the decision of the arbitrators. Also by the evidence of CW4, he did not go to the land for inspection. Therefore, Exhibit C4 has not (sic) evidential value.
On the whole, the claim of the claimant fails and it is hereby dismissed. On the counter-claim, the defendant were able to prove their case and supported by the admission of CW3, the counter-claim succeeds and prayers, A, B and C are granted while I award the sum of N400,000 (Four Hundred Thousand Naira) only as compensation for act of trespass. Also the sum of N20,000 cost of action.”

Miffed by the above decision, appellant approached this Court via a notice of appeal filed on 5/10/2017 containing three grounds of appeal located on pages 108-110 of the record of appeal.

At the hearing of the appeal on 7/6/2022, S. O. Ijoma, Esq. adopted and relied on the appellant’s brief filed on 11/3/2022 together with appellant’s reply brief filed on 21/4/2022 in urging this Court to allow the appeal. Daniel Mgbe, Esq. adopted and relied on respondents’ brief filed on 01/04/2022 in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled three issues for determination as follows:
1. Whether the claimant/appellant proved his case on the preponderance of evidence for a declaration of title over the farm?
2. Whether the defendants/respondents provided cogent evidence of the identity of the parcel of land alleged to have been trespassed into by the claimant/appellant to warrant judgment being entered in their favour?
3. Whether the customary arbitration by the council of Chiefs had no evidential value by the mere fact that the CW2 did not go for land inspection as well as the defendants?

Learned counsel for the respondents adopt the issues distilled by the appellant.

In arguing issues 1 and 2 together, learned appellant’s counsel referred to the pleadings and Exhibits C1-C3 to contend that the respondents having admitted the appellant’s ownership of the farmland the appellant need not to go further to show proof. He submitted that documentary evidence being the fulcrum of oral evidence should not be treated with levity by any Court and had the trial Court carried out proper evaluation of the documentary evidence, the judgment would invariably be in favour of the appellant.

Counsel submitted further that a counter-claim being a separate action in law, the onus of proof of identity of land is same as is placed on the appellant, it is that of strict proof relying on the authority in the case of BANKOLE V. ADEYEYE (2014) ALL FWLR (prt.721) 1570.

On issue No.3, it was the appellant’s contention that the respondents had submitted to the jurisdiction of the Council of Chiefs as there is nothing in Exhibit C4 to suggest otherwise. Likewise, the respondents failed and/or refused to cross-examine CW2 and neither did they call in any witness to corroborate their claim on the issue. Counsel therefore submitted that where a party fails to cross-examine a witness on an issue, such an issue is taken as admitted. In aid, he cited and relied on OKEGBE V. AKPOME (2014) ALL FWLR (Prt.731) 1585.

He submitted further that Exhibit C4 having met the applicable rules of justice and fair hearing, parties should not be allowed to resile from it on the basis of subsequent complaint of imperfection relying on UZOEWULU V. EZEAKA (2001) FWLR (Prt.46) 1299.

Responding to issues 1 and 2, respondents contend that the trial Court adequately and properly thrashed out and evaluated all issues and evidence duly raised and canvassed by the parties as required by law. The issue before the trial Court according to the respondents’ counsel was not ownership of the entire farm of the appellant but the issue centred on the boundary marks of the appellant’s land and that of the respondents’ late father (Mr. Mgbe Tangban Obi). He submitted that this fact and admission of the appellant and their witnesses are at variance with the appellant’s claim. Thus, the appellant asserted but failed to prove the assertion even on the balance of probabilities.

Counsel submitted further that the case before the trial Court being an allegation of encroachment into the appellant’s cocoa farm by the respondents and that the appellant’s boundary marks must be ascertained with definitive certainty otherwise the Court will not make a declaration or an injunction where the area in dispute is not certain or clearly delineated. He referred to ISMAILA V. SANNI (2014) ALL FWLR (Prt.756) 527, ISMAILA V. MATHEW (2017) ALL FWLR (Prt.891) 827 and SHITTU V. OLAWUMI (2014) ALL FWLR (Prt.722) 1683).

On the efficacy of Exhibits C1, C2 and C3, counsel contend that same were made for the purpose of the appellant’s case at the trial Court and that the lessee to the said agreement did not sign as the thumb impression does not show who owns the same. Thus, Exhibits C1–C3 are not admissible and are liable to be expunged. He relied on Section 83 of the Evidence Act and the case of M. W. J (NIG) LTD V. P. S. T. F (2008) ALL FWLR (prt. 439) 518.

On issue No.3, counsel submitted that a party who did not sign a document cannot be held to be bound by its contents. He referred to ABAJIE V. AKPEKE (2014) ALL FWLR (Prt.715) 377.

He contends that none of the parties can be bound by the conditions set down in the case of NZEOMA V. UGOCHA (2001) FWLR (Prt. 48) 1299.

Resolution:
On issues Nos 1 and 2, the appellant is questioning the evaluation of evidence adduced by the parties by the lower Court. The law is settled that in civil cases, the burden of proof lies on the person who desires the Court to give judgment as to any legal right or liability, which depends on facts, which he asserts to prove that those facts exist. Also, the burden of proof in a particular proceeding lies on the person who would fail if no further evidence is given on either side. Thus, the burden of first proving the existence or non-existence of a particular fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. See Sections 131, 132, 133 of the Evidence Act.

The appellant as claimant before the lower Court averred in paragraphs 5, 6, 7, 8, 9, of the amended statement of claim on pages 74 and 75 of the record thus:
5. About the year 1972, the claimant’s mother was offered admission into the Teachers College, but her said husband was against her going to further her education. In the alternative, her said husband compensated her by giving her a portion of his land to disvirgin and farm for her personal use.
6. The said parcel of land and situate along Etomi Farm Road is bounded to North by Ndoma Achu, South by a Stream, East by Amba Tangban and West by Etta Etta Egbe.
7. The claimant’s mother cultivated cocoa and other economic trees from the farming session of 1973 with the assistance of her cousin, Madam Ayigbo Ofuka Obi.
8. The claimant’s mother had been working the said farm since then and leased to Mr. Akan Sunday Udoh in 2004, Sunday Cletus in 2006 and Mr. Egbaji of Bekwarra in 2008. The agreements are pleaded.
9. In 2010, the defendants and his siblings took advance of the absence of Chief Mgbe Tanghan (claimant’s father) who took ill and was receiving treatment at Ikom and forcibly entered the farm. The matter was however settled by the family head, Engo Ata Obi Tangban and Mr. Nkeng Obi Tanghan. The claimant’s late father, Mgbe Tangban made statement on 28th January, 2010 admitting the fact that Engr. Ata Obi Tangban is the head of family of Tangban Obi Eji Family. The said statement pleaded in HE/3/2014 is pleaded.

It is clear from the above that the burden of first proving the ownership of the said farmland and settlement of the dispute by the family head lies squarely on the appellant who was the claimant before the lower Court. The law is also settled that where a party adduces sufficient evidence to satisfy the Court that the fact sought to be proved is established, the burden shifts to the person against whom judgment would be given if no further evidence were adduced. The burden of proof would then continue to shift until all the issues in the pleadings have been dealt with.

It is worthy to also note that the standard of proof in civil cases is on the balance of probabilities. See Section 134 of the Evidence Act, 2011 and A.G. BAYELSA STATE V. A.G. RIVERS STATE (2006) 18 NWLR (prt.1012) 596.

The key issue is, did the appellant as claimant at lower Court discharge the onus of first proving ownership of the farmland as well as the settlement of his dispute with the respondents by the family head? The appellant paraded four witnesses at the trial in support of her claim. CW1 was the original claimant who by the order of this Court granted on 1/3/2022 substituted by his daughter, the appellant herein. The cumulative substance of the evidence of CW1 is that he had dispute with the children of Mgbe Tanghan Obi alleging that he encroached on their farmland as a result of which the Traditional Rulers waded and resolved the dispute as shown in Exhibit C4. CW1 also tendered lease agreements dated 1st January 2014, 1st January, 2015 and first January, 2016 respectively marked Exhibit C1-C3. Exhibit C4 is the resolution made by the Traditional Council and was tendered by CW4 who signed the document. While cross-examined CW2 said:
“The children of late Tangban Mgbe Obi and the claimant are not contesting title of their respective cocoa farms. Their problem was just boundary mark. I did not go to the farm to inspect. I do not know the boundary mark between their farms because I did not go to the farm. But people work at the farm and there tenants working at their farm. One Okoro, an Ibo man also works in the farm. He has been working in late Mgbe Tangban farm for over forty years.”
Furthermore, Exhibit D1 was tendered and admitted through CW2 and Exhibit D2 was tendered through CW3 during cross-examination. Finally, CW4 was shown Exhibit C4 but admitted that he is an illiterate who can neither read or write.
Lastly, the 3rd respondent testified as DW1 and confirmed that their late father shares boundary with claimant and that Exhibit D2 was an agreement entered by his late father and Okoro Nwali. And that Exhibit D2 belonged to his father and same is bounded in the North by Ndoma Achu, original claimant and to the south by Mgbe Agbor. Exhibit DW1 and D2 are the same.

As stated earlier, the fulcrum of the appellant’s complaint is on the evaluation of the above evidence by the lower Court. Evaluation of evidence entails the trial judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other. This in my view was what the learned trial Judge did on page 106 of the record as follows:
“I have gone through the evidence before the Court, it is important to note that the fundamental issues in this case can only be resolved by the evidence of CW3 who is involved in both sides. It should be observed that from the evidence of CW3 the boundaries in questions are known by both parties because it is the land in possession of CW3 that the boundaries are in dispute and the CW3 admitted same when he identified Exhibits DW1 and DW2.
It is on record and in evidence that Exhibits D1 and D2 were made in 2002 and 2008 whereas Exhibit C1, C2 and C3 were made in 2014 and 2016 after the death of the defendant’s father. The defendant gave reason why the CW3 turned against them after the death of their father because the land was shared among the children of their father.”

He continued:
“Looking at Exhibits C1 to C3, it was between the claimant and Josephine Okoro Nwali who was not called to testify whereas in Exhibits D1 and D2, it was between the father of the defendants and Nwali Okoro who testified as CW3. Therefore, it is my view that C1 to C3 have no evidential value no matter the fact CW3 signed as a witness. Therefore, the only agreement before the Court are hereby expunged.”

Learned trial Judge concluded thus:
“CW3 admitted that he was a tenant to the father of the defendants in respect of the said land which evidence is against the claimant and it is taken as an admission.
Considering the value of Exhibit D1 and D2, CW3 cannot serve two masters at the same time.”

In plethora of judicial decisions including the cases of LAFIA LOCAL GOVERNMENT V. THE GOVERNOR OF NASARAWA STATE (2012) 17 NWLR (prt.1328) 94 and AJAGBE V. IDOWU (2011) 9 NWLR (Prt.1276) 422, it was held that evaluation involves reviewing and criticizing as well as estimating the evidence in order to arrive at the proper decision of who to believe and who to disbelieve.

In the instant case, the learned trial had properly and meticulously evaluated and ascribed value to all evidence adduced by the respective parties to both the main claim and the counter claim. Lest I forget, issue No.3 also deals with proper evaluation of the report of the resolution of the parties’ disagreement over the said farmland by the Traditional Rulers, Exhibit C4.

Where parties consensually submitted themselves to customary arbitration for the resolution of their dispute and the verdict of the arbitration was acceptable to the parties, it would no longer be open to either of the parties to subsequently back out or resile from the decision or verdict reached and pronounced upon in the arbitration. See BENJAMIN V. KALIO (2018) 15 NWLR (prt.1641) 38 at 54 and OPARAJI V. OHANU (1999)9 NWLR (prt.618) 290.

In the instant case, there was no consensus by the parties as the respondents withdrew from the arbitration before final decision was reached by the Traditional Rulers and CW4 who signed the report did not go to the land for inspection. It is also the duty on every law Court in every proceeding to admit and act only on evidence that is admissible in law under the Evidence Act or any other relevant law validly enacted. See SHITTU V FASHAWE (2005) 14 NWLR (prt.846) 67. I therefore resolve all the issues against the appellant.

The lower Court having unquestionably evaluated the evidence and appraised the facts, its impeccable judgment must persist. I affirmed the judgment of the lower Court in suit No. HE/3/2016. The appeal is accordingly dismissed with cost which I assessed at N50,000.00 against the appellant.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read in advance, the judgment delivered by my brother Shuaibu, JCA and I agree with the reasoning and that appeal be dismissed. I abide by the consequential orders contained in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: My learned brother, M. L. Shuaibu, JCA. has kindly availed me with the draft of the judgment just delivered. I agree with the reasoning and conclusion reached therein.

It is the law settled by uncountable decisions of this Court and the apex Court that evaluation of evidence and ascribing probative value to it is the exclusive and primary duty of the trial Judge who has the privilege of seeing and hearing the witnesses testify before him. This is particularly so when the finding of facts of the trial Court is based On credibility of oral evidence.
Unless it is established that the trial Judge fails in this duty, we, as appellate Court have no business re-evaluating evidence. This is not the case in this appeal because the learned trial Judge correctly evaluated the evidence led before him. Our job is only to affirm a stamp of approval to a job well done. It is for this reason and for the fuller reasons in the lead judgment that I join my lord to dismiss this appeal,

I abide by order of cost made therein.