TION & ANOR v. MBAPUUN
(2022)LCN/16488(CA)
In The Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, June 03, 2022
CA/MK/171/2013
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. TERHILE TION 2. AONDOAKURA TION APPELANT(S)
And
JOHN TERSEER MBAPUUN RESPONDENT(S)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL MUST BE SERVED PERSONALLY ON PARTIES DIRECTLY AFFECTED BY THE APPEAL BEFORE AN APPELLATE COURT
It is not in dispute that by virtue of Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 that Notice of Appeal shall contained the names and addresses of all parties directly affected by the appeal and shall be accompanied by sufficient number of copies for service on such parties.
The Notice of Appeal being an originating process must be served personally on parties directly affected by the appeal before an appellate Court can have jurisdiction to entertain a matter before it, the notice of appeal must as of necessity be served on the Respondent. It is the foundation upon which every other process or proceeding in the appeal rest. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36 (1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the Court. In an appeal, service of the notice of appeal on the Respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. See Anwakobe & Ors v. Esumei & Ors (2018) LPELR-47255 (CA). PER HASSAN, J.C.A.
THE POSITION OF LAW WHERE AN APPELLANT COMPLAINS THAT THE DECISION OF A TRIAL COURT IS WRONG OR PERVERSE
The law is well settled that an Appellant who complains that the decision of a trial Court is wrong or perverse for lack of adequate or proper evaluation of oral and documentary evidence placed before the trial Court, must prove or establish that the trial Court made improper use of the opportunity of seeing the witnesses testified before him. The Appellant must demonstrably show that there was misapplication of the oral and the documentary evidence tendered and proffered before the trial Court. He must show that relevant laws or decisions on the subject matter before the trial Court were misapplied or misconstrued. He must show above all that the wrong inferences or wrong evaluation of the pieces of evidence before the trial Court have led to miscarriage of justice making it imperative for the Appellant Court to intervene and re-evaluate the oral and documentary evidence.
In Lafia Local Government v. The Executive Government Nasarawa State (2012) LPELR-20602 (SC) Page 23, paragraphs E-F. Per RHODES-VIVOUR, JSC stated:
‘’Evaluation of evidence entails the trial judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side appears outweighs the other. See Mogaji v. Odofin 1978 4 SC p. 91.”
In Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471, this Court held that ‘’An appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour.’’ PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Benue State High Court sitting at Sankera delivered by Hon. Justice P. T. Kwahar in Suit No. SHC/23/2010, on the 1st day of November, 2012, wherein the Trial Court granted the claims of the Respondent.
The Appellants were the 2nd and 3rd Defendants/Counter-Claimant, while the Respondent was the 2nd Plaintiff at the trial Court. The Appellants being aggrieved with the decision of the trial Court had appealed against same to this Court vide the Notice of Appeal dated 30th day of January, 2013 and filed on the same date. The Notice of Appeal is found at pages 92 to 99 of the Record.
The Record of Appeal was compiled and transmitted to this Court on the 19th of June, 2013, but deemed properly transmitted to this Court on the 20th of October, 2014. The Appellants’ brief was amended, and the amended brief filed on the 3rd of April, 2018, was deemed proper by this Court on the 30th of March, 2021. The Respondent’s brief of argument was equally amended, and same was filed on the 28th of July, 2021. The Appellants upon being served with the Respondent’s amended brief of argument, filed an amended reply brief of argument on the 19th of January, 2022.
At the hearing of the appeal, counsel to both Appellants and Respondent adopted their respective briefs. Upon which this Court reserved the appeal for judgment.
The Respondent who was 2nd Plaintiff at the trial Court commenced the suit subject of this appeal by a writ of summons dated 19th of November, 2010, and filed on the same date, which was issued to the Appellants who was tagged as 2nd and 3rd defendants at the trial Court. The reliefs sought by the Respondent against the Appellants by Paragraph 15 of the Respondent’s statement of claim accompanying the writ are as follows:
a. A declaration that the Plaintiffs are the owners of the land covered by the certificate of occupancy no. BN 1226.
b. An order awarding title to the said land to the Plaintiffs.
c. An order of perpetual injunction restraining the defendants by themselves or through their agents, servants and privies from further acts of trespass on the plaintiffs’ land.
d. N10,000,000.00 (Ten Million Naira) general damages. See pages 6 to 7 of the Record.
The Appellants as 2nd and 3rd Defendants upon being served with the writ and accompanying documents, filed their defence and counter-claim against the Respondent as 2nd Defendant to counter-claim claimed in paragraph 2 of their counter-claim as follows:
a. A Declaration that the land in issue is the family land of Tion Ala Aku gar.
b. A declaration that Plaintiff’s family were customary tenants on ground of challenge of landlord’s title.
c. An order of forfeiture of the customary tenancy on ground of challenge of landlord’s title.
d. An order ejecting the plaintiff’s family from the land in issue.
e. An order of perpetual injunction restraining the plaintiffs’ family from any further act on the land.
f. An order nullifying the certificate of occupancy purported to have been issued to Plaintiff’s family over the land in issue.
g. N10,000,000.00 (Ten Million Naira) general damages. See page 30 of the Record.
BRIEF STATEMENT OF FACTS
The case of the Respondent against the Appellants was that his ancestor, Pa Mbapuun Gbor of blessed memory settled on the land in dispute since 1952, and they had since then remained in possession of the said land till 2008 when the Appellant without any just cause trespassed upon the land and stated disputing the Respondent’s ownership of the land.
The Respondent’s case is that his parents obtained local government certificate of occupancy over the land and sometimes in 2008, same went missing prompting the making of police report and affidavit of loss to that effect.
That the Appellants were farming on the disputed land upon request and permission granted to them by the Respondent’s family, until the Appellants trespassed on same in 2008, a situation which the Respondent reported to the elders of the community and same was resolved in Respondent’s favor. But the respondent out of good neighborliness obliged the Appellant a portion of the land to be farming on, but the Appellant still encroached on the land and are destroying the economic tress of the Respondent. See pages 5 – 6 of the Record.
The Appellants’ case is the land was found in the mid 1800s by their great grandfather Mbagar which was inherited by their fathers. That it was in 1911 when the Tiv NKST mission came and was introduced in Zaki Biam, and when Tion Ala became the head of the family that he showed Pastor Yakubu Amachigh a portion of the land to reside with his staff, and that was how Pa Mbapuun came to be on the land as a mission staff in 1953.
That during the life time of Pa Mbapuun Gbor, he never contested title of the land with the Appellants. His sons who lived and died were buried in their land at Mbagir. That when the Appellant cleared a portion of the land in dispute in 2008 and the matter was reported to the elders, the elders resolved ownership of the land in dispute to the Appellants.
The Appellants denied the claims of the Respondent completely and described the boundaries of the land from east to west, north and south. The Appellants claim that the disputed land is presently inhabited by over 27 families of the Appellants. See pages 26 to 30 of the Record.
The trial Court in her considered judgment delivered on the 1/11/2012 found at pages 83 – 91 of the Records of Appeal entered judgment in favor of the Plaintiffs, and dismissed the Defendant’s counter-claim, giving rise to the instant appeal wherein the 2nd Plaintiff is the only respondent on record before this Court.
ISSUES FOR DETERMINATION
The Appellants’ amended brief of argument distilled three issues for determination by this Court as follows:
1. Whether the lower Court properly evaluated the evidence adduced by both parties and drew the correct inference from facts which it found to have been proved before it?
2. Whether the parties proved their respective claims and counter-claim on the requisite standard to be entitled to judgment.
3. Whether the respondent’s claim was caught up by the Benue State statute of limitation, 1988.
The Respondent in his brief of argument adopted the three issues formulated by the Appellants and rendered argument on same in his respondent brief of argument. The Respondent at page 4 of his brief raised a preliminary objection to the competence of the Notice of Appeal and rendered argument on same from page 4 to 5 of his brief.
I have gone through the record of appeal including the judgment of the Benue State High Court, and the submissions of Counsel in their respective briefs, and since both parties are at idem on the issues arising for determination, I shall adopt the three issues distilled in the Appellants’ brief, and as the proper issues arising for the just determination of this Appeal. On that note, I shall proceed to consider and resolve these issues serially commencing with issue one.
PRELIMINARY OBJECTION
SUBMISSION OF RESPONDENT’S COUNSEL ON HIS PRELIMINARY OBJECTION
The Respondent objected to the competence of the Appellants’ appeal on the grounds that same does not contain the address for service on the Respondent as mandatorily required under Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011. This Counsel contended is predicated on the ground that the Notice of Appeal is the initiating process of the Appeal and once it is vitiated in any way. The appeal process becomes incompetent and liable to be struck out.
That where the Notice of Appeal is defective in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but strike it out. Counsel referred to the authority of Michael Odunze & Ors v. Nwosu & Ors (2007) All FWLR (Pt. 379) 1295 AT 1315, Paras C & D, and urged this Court to strike out the appeal on the ground that the Notice of Appeal is defective and incompetent.
APPELLANT’S COUNSEL SUBMISSION
The Appellants’ Counsel in his response to the preliminary objection submitted that the Notice of Appeal contains an address for service on the Respondent at page 99 of the Record of Appeal which reads “Tse Mbapuun Gbor, Mbagir, Ukum Local Govt.” That the address is the land in dispute and service of the Notice of Appeal was effected on the Respondent on the said address with the proof found at page 100 of the record of appeal.
That the Respondent also did not file an address for service as enjoined by Order 6 Rule 10 (1) of the Court of Appeal Rules 2007, therefore, Counsel urged this Court to discountenance Respondent’s objection.
RESOLUTION OF PRELIMINARY OBJECTION
The objection of the Respondent is the ground that the Notice of Appeal has no address for service contrary to Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011.
It is not in dispute that by virtue of Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 that Notice of Appeal shall contained the names and addresses of all parties directly affected by the appeal and shall be accompanied by sufficient number of copies for service on such parties.
The Notice of Appeal being an originating process must be served personally on parties directly affected by the appeal before an appellate Court can have jurisdiction to entertain a matter before it, the notice of appeal must as of necessity be served on the Respondent. It is the foundation upon which every other process or proceeding in the appeal rest. Being an originating process, it is a fundamental requirement not only of the Rules of this Court but also of the constitutional right of fair hearing guaranteed under Section 36 (1) of the 1999 Constitution that all parties to the appeal be duly served therewith. It is only when a party has notice of proceedings that he is in a position to read thereto and place his own side of the case before the Court. In an appeal, service of the notice of appeal on the Respondent provides him with an opportunity to participate in the compilation of records and to file a cross-appeal, if necessary. See Anwakobe & Ors v. Esumei & Ors (2018) LPELR-47255 (CA).
In the instant case, the Respondent is not disputing service, his contention is that the Notice of Appeal does not contain address for service but a careful perusal of the records clearly shows that the Notice of Appeal contains address for service on the Respondent. See page 99 of the record and the proof of service is contained at page 100 of the record. This objection is lacking both in merit and substance, it ought to be dismissed by this Court, it is hereby dismissed. Having dismissed the Respondent’s objection, I shall now proceed to the substantive issues.
ISSUE ONE
1. Whether the lower Court properly evaluated the evidence adduced by both parties and drew the correct inference from facts which it found to have been proved before it? (Grounds 11 and 12).
SUBMISSION OF APPELLANTS’ COUNSEL
The Appellants’ complaint under this issue which arose from grounds 11 and 12 of the grounds of appeal is whether on a proper evaluation of the evidence on record, the Respondents or the Appellants had either proved their claim and counter-claim respectively. Counsel contended that both Appellants and Respondent based their root of title to the disputed property on traditional history, and the case of the appellants is that the Respondent’s people who are settlers were granted settlement and farming rights only, and not outright grants.
Counsel contended that despite the evidence of DW2 and DW4 which is to the effect that it was the Tion family that released the land to the Mbapuun family to settle on, the Court below rather made a finding that since the Plaintiffs had house on the land, they are probably founders of the land. Counsel submitted that the findings of the trial judge are a product of non-evaluation of evidence before him because evaluation of evidence in civil cases must proceed from belief and findings. Counsel relied on the authority of Mogaji v. Odofin (1978) 4 SC at 93 – 95. Counsel while relying further on the authority of Sagay v. Sajere (2000) FWLR (Pt. 7) 1111 at 1122 submitted that the decision of the trial Court was not based on reason but on the intuition of the judge, as the trial judge wrongly observed that both parties relied on traditional evidence, and he proceeded wrongly to make findings of facts in favor of the Respondents in respect of the houses, economic trees, farms, uninterrupted possession from 1952 to 2008 by the Appellant.
That throughout the salient findings of fact highlighted above, no consideration was given to the traditional history of the defendants/appellants who were also counter-claimants. No scant regard was given to their acts of possession or occupation of the land. No consideration was given to their evidence that the purported burials on the land by the plaintiffs/respondents were by stealth or force.
Counsel contended that it is trite law that evaluation of evidence involves reviewing and criticizing the evidence preferred by the parties and, estimating the probative value of the evidence. Evaluation involves both assessing the credibility of the witness and a consideration of the totality of the evidence on the issues of fact, with a view to determining whether the totality of the evidence supports a finding of fact proffered by the parties. See Bassil v. Fajebe 2001 4 SCNJ 257 at 268.
Counsel while relying on the authorities of Jekpe V Alokwe (2001) 4 SCNJ 55 at 67 and Mogaji v. Odofin 1978 1 LRN 212 at 213 Per Fatayi Williams JSC submitted further that a trial Court is enjoined in its judgment, to first of all put the whole evidence led by the parties on an imaginary scale, and in doing so, the trial judge will put the evidence led by the plaintiff on one side of the scale, and that of the defendant on the other side of the scale and thereafter, weigh them together with the objective of seeing which set of evidence weighs heavier by the probative value of the testimony as against the gratuity and number of the witnesses. It is only then that the judge can apply the law and come to a final conclusion based on the accepted evidence.
That the trial Court rather than follow the principle of law enunciated above in Mogaji’s case, appeared wholly to have accepted the Respondent’s case without first placing it side by side with the evidence of the Appellants when it restated that the Respondents proof their title to the land.
Counsel contended that the findings of the trial judge as it were clearly over sighted the appellants’ traditional history dating back to 1880 before the coming of the missionaries, and the origin of the Respondent’s progenitor being a missionary worker vide a grant by Appellants ancestor. According to Counsel, the consequence of the above error by the trial judge is that the Court accepted the evidence of the Respondent without using the evidence of the Appellants to balance same. Thereby denying appellants their right to be heard and occasioning them miscarriage of justice. Counsel referred to the authority of UBA v. Achoru (1990) 6 NWLR (Pt. 156) 254.
Counsel submitted further that the trial judge rejected the evidence of customary tenancy preferred by the Appellants with his findings of occupation and possession by the Respondents as the Court failed to appreciate and evaluate the body of traditional evidence led by the Appellants.
Counsel while relying on the decision of Nnorodim v. Ezeani (2001) FWLR (Pt. 40) 1696 at 1700 – 1701 submitted that even though evaluation of evidence is the primary duty of the trial Court, the Court of Appeal has powers to evaluate the evidence adduced before the trial Court where the trial Court fails to properly do so. Counsel urged on this Court to re-evaluate the evidence adduced before the trial Court and resolve this issue in the Appellants favor.
RESPONDENT’S COUNSEL SUBMISSION
Counsel to the Respondent on the other hand submitted that the trial Court properly evaluated the evidence led by both parties as same was based on traditional history tracing their root of title. Therefore according to counsel that the finding of the lower Court that both Plaintiffs and Defendants placed reliance on traditional history cannot be faulted and Counsel urged this Court to so hold.
Counsel submitted that is not correct for the Appellants to submit that their evidence before the trial Court was completely over sighted as the Court held that the evidence of the plaintiffs is stronger, persuasive and cogent. That the trial Court did not prejudge the issue of customary tenancy as alluded to by the Appellants as there no cogent evidence of customary tenancy before the trial Court.
Counsel submitted that in the first place, the Appellants did not mention Boagon Tion who allegedly granted the land to the Respondents progenitor as their forefather, and secondly the said Iordoo Yakubu Amachigh who allegedly told DW2 about the customary tenancy was not called as a witness to testify, therefore, DW2’s evidence is inadmissible for being hearsay evidence. Hence the authority of Victor Woluchem & Ors v. Chief Simon Gudi & Ors cited by Appellant does not avail them.
Counsel concluded that the Appellants cannot invite this Court to re-evaluate the evidence adduced as the facts relating to customary tenancy between the Appellants and the respondent is far from being established as the Appellants’ forefathers are not the respondent’s landlords.
RESOLUTION OF ISSUE ONE:
The law is well settled that an Appellant who complains that the decision of a trial Court is wrong or perverse for lack of adequate or proper evaluation of oral and documentary evidence placed before the trial Court, must prove or establish that the trial Court made improper use of the opportunity of seeing the witnesses testified before him. The Appellant must demonstrably show that there was misapplication of the oral and the documentary evidence tendered and proffered before the trial Court. He must show that relevant laws or decisions on the subject matter before the trial Court were misapplied or misconstrued. He must show above all that the wrong inferences or wrong evaluation of the pieces of evidence before the trial Court have led to miscarriage of justice making it imperative for the Appellant Court to intervene and re-evaluate the oral and documentary evidence.
In Lafia Local Government v. The Executive Government Nasarawa State (2012) LPELR-20602 (SC) Page 23, paragraphs E-F. Per RHODES-VIVOUR, JSC stated:
‘’Evaluation of evidence entails the trial judge examining all evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side appears outweighs the other. See Mogaji v. Odofin 1978 4 SC p. 91.”
In Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471, this Court held that ‘’An appellant who appeals on the basis of the lower Court’s improper evaluation of evidence has the duty of identifying the evidence not evaluated or improperly evaluated and showing convincingly that if the error complained of is corrected, the conclusion reached would have been different and in his favour.’’
In Agura Hotel & Anor v. Honourable Moussa Diambaya (2015) LPELR-41696 (CA) Page 13, paragraphs C-E Per Mustapha, JCA has this to say “With regard to evaluation of evidence, it is important to bear in mind that it entails the assessment of evidence so as to give value or quality to it. Evaluation should involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record an indication of how the Court arrived at its conclusion of preferring one piece of evidence to the other.’’
In the instant appeal, I have examined carefully the judgment of the lower Court and I am of the humble view that he considered the case presented by both Appellant and the Respondent when he held at page 89 of the record that: “The plaintiffs have relied on traditional history and acts of long possession and title documents. The traditional history of the plaintiffs to me looks strong, persuasive and cogent. There is no break in the history of time of founding the land. Acts of ownership like settlement, building of houses, farms, burying of deceased family members are continuous. The plaintiffs alleged that they got this land from their fathers. The 2nd Defendant acknowledged that his father was aware that 1st plaintiffs’ father had surveyed and beaconed this land and that when his father was alive he was comfortable with the survey that was done and the beacons that were fixed. In the case of this nature, the defendants are prevented from denying the ownership over this land by the plaintiff to the extent of the area covered by the two certificates of occupancy.’’ (Underlined mine). The findings of the learned trial Judge was borne out of evidence presented by the parties and it cannot be faulted, I see no reason why I should disturb it. This issue is resolved against the Appellant.
ISSUE TWO
2. Whether the parties proved their respective claims and counter-claim on the requisite standard to be entitled to judgment.
APPELLANTS’ COUNSEL SUBMISSION
The Appellants’ contention under this issue is that the Appellants proved their counter-claim and judgment ought to be entered in their favor, while the Respondent did not prove his claim and same ought to be dismissed by the trial Court. Counsel so submits because the finding of the trial Court that the traditional history of the Respondents is stronger and he believes their title to the land is in error.
Counsel submits that the findings of the trial Court is wrong because first, the averred root of title of the Respondents was not based on traditional history as founded by the trial Court as the traditional history is hearsay. Counsel referred to Section 66 of the Evidence Act, 2011 and submitted that by holding that the respondents relied on traditional history, it affected the evaluation of evidence by the trial Court and ascription of probative value to same.
Counsel contends that since the Respondent’s case was that Pa Gbor Mbapuun found the land in 1952, the facts of that traditional history are within living memories, therefore, the facts needed to be proved by a person who is alive during the year. But none of the witnesses of the Respondents testified that he was present when Pa Gbor Mbapuun founded the land except PW1.
That no evidence was led by the 1st and 2nd Respondents to establish the mode of finding the land, therefore, the evidence of PW1 will not justify the Respondents and he does not speak from his personal knowledge. Therefore the depositions of the Respondents are inadmissible, weightless and irrelevant. Counsel relied on the authority of Maja v. Samouris (2003) SCNQR 546 at 567, and submitted that the trial Court erroneously misconstrued the Respondent’s case to be based on traditional history. Counsel relied on the case of Adisa v. Oyinwola (2000) 2 SCNQR 1264 where the apex Court held that facts within living memory are properly proved by living witnesses.
Counsel submitted further that the learned trial judge erred when he treated the case as one of traditional evidence/history and did not consider the demeanor of the witness even on matters they were disparaged in cross-examination. That since the evidence of the 1st and 2nd Plaintiffs did not relate to the events in relation to founding the land by Pa Gbor Mbapuun, their evidence is hearsay and inadmissible. Counsel relied on the authority of Umeojiako v. Ezenamuo (1990) 1 SCNJ 181 at 192.
Counsel submitted again that Respondent did not proof his root of title by events within living memory, therefore the trial Court erred when it acted on the acts of possession of the respondent, because respondent did not base that root of title to possession. Therefore, having failed to prove the founding of the land within living memory, the acts of possession (i.e living in the compound) resulting from such failure need no longer have been considered by the learned trial judge because such acts of possession were no longer issues at trial. After all, long possession was merely a weapon of defence on equitable grounds to defeat the claim of the Appellants to title, it was not weapon to claim for declaration of title. Thus unless the origin of the title is valid, the fact of possession would not ripen invalid title of a trespasser to a valid ownership, as was found in Mogagi v. Cadbury Nigeria Ltd (1985) 7 SC 59 at 159.
Counsel submitted also that the trial Court ignored the evidence on record that the Respondent admitted that Pa Gbor Mbapuun and his children were not buried on the disputed land over years. Counsel urged this Court to reject the inadmissible evidence of the Respondent regarding the founding of the land by Pa Gbor Mbapuun as hearsay, expunge same from the Court’s record and dismiss the claim of the Respondent.
Counsel contended also that even EXHS A1, A2, A3 that the Respondent relied on as titled documents to establish their ownership had expired as at the time of commencing this suit in 2010, and therefore could not had conferred any title on the Respondent. Counsel submitted that the mere production of the title documents in EXHS A1, A2 and A3 does not automatically entitle the Respondent to his claim and referred the Court to the authority of Agboola v. UBA PLC(2011) All FWLR (514) 74 at P. 102, where the Apex Court per Adekeye JSC, put the law succinctly thus:
“Before the production of document of title is admitted as sufficient of ownership, the Court must satisfy itself that:
(a) The documents is genuine or valid
(b) It has been executed, stamped and registered,
(c) The grantor has the authority and capacity to make the grant,
(d) That the grantor has in fact what he proposes to grant, and
(e) That the grant has the instrument.” See also Ngene v. Igbo (2000) 4 NWLR (Pt. 651) 131 at 146-147 and Romaine v. Romaine (1992) 4 NWLR (Pt. ‘238) 650 at 662.
Counsel on that note contended that the issue of validity of EXH A1 having expired and due execution of EXHS A2 and A3 was challenged by the Appellants pleadings but the Court did not consider same. Counsel submitted that the purport of not renewing the Certificate presented by the Respondent is that Respondent has lost the title and interest on the land. See Nzelu v. African Continental Bank Ltd & Ors (1974) 4 – 6 SC 79.
Counsel submitted that a certificate of occupancy validly issued confers title to land. However, for a certificate of occupancy to be validly issued, there must be no pre-existing statutory or customary ownership in favour of another person. See Olohunde v. Adeyoju (2000) 2 SCNQR II 1472 at 1496 – 1497. Accordingly, the title of the defendants/respondents was not proved and the mere production of a certificate of occupancy is not enough to divest a customary owner of his land to respondent. See Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, 774 and Registered Trustees Apostolic Church V. Oluwaleni (1990) 6 NWLR (Pt. 56) 514.
That on the question of whether the respondents had settlements in Mbagir and Mbagar, Counsel submitted that the Respondents did not also plead that their progenitor in title has land in Mbagir and Mbagar, therefore, Counsel urge this Court to discountenance the evidence of 2nd plaintiff under cross-examination at page 52 lines 21 – 27 on mixed settlements because it was not pleaded and evidence extracted under cross-examination goes to no issue and is inadmissible.
Counsel on the case of the Appellants submitted that the Appellants had proved their case and same was not disparaged and thus urged this to make a finding from the evidence on record which are established facts. Counsel further contend that the Respondents did not in their evidence show the portion of land they claimed was granted to the Appellants, hence the Respondent did not prove the portion it claimed was demarcated and granted the Appellants.
SUBMISSION OF RESPONDENT COUNSEL
Counsel contended that the Respondents duly proved their case and the Appellants having submitted before the lower Court that the Respondents’ root of title was based on traditional history cannot at appeal stage ascribe a different root of title to the respondent. That the Appellant cannot set up a case at the trial and go on appeal and set up a different case from the one before the trial Court. Counsel referred to the case of Prince N. Olufemi & Ors v. Prince Iyiola Babalola (2003) SCNJ 287 at 302 to submit that the Appellant must be consistent in the case they are putting up.
That the issue of facts within the living memory and the case cited on same by Appellants are of no moment as besides the traditional history relied upon by the respondent but the title documents in EXHS A1 and A2, which alone on their own entitled the respondents to the land in dispute.
According to counsel, the conditions laid in the case of Agboola v. UBA Plc cited by Appellants counsel has been satisfied, and the submission that EXHS A1, A2, and A3 has expired and cannot be used as granting respondent title or acts of possession has no legal backing and should be discountenance as all the exhibits were tendered without objection and no address touching on same was made before the trial Court.
That the Appellants had not equally proof that there exists any pre-statutory of customary rights over the plot of land. That the Appellants’ contention that respondent did not plead that they are Uyam people is misconceived.
Counsel submitted that the Appellants failed woefully to lead evidence to prove their counter claim as they could not trace their root of title down to Tion Ala as their family head, therefore, their mention of Boagan Tion who is not in their line of succession without more is very confusing.
Counsel concluded by submitting that the Appellants did not prove that the Respondent are their customary tenants in any form or shape by evidence, therefore this Court should resolve this issue against the Appellants.
RESOLUTION OF ISSUE TWO:
This issue is closely related to issue one, by the provisions of Sections 131-134 of the Evidence Act 2011, the initial onus of proof in a case rest on the Plaintiff to lead or introduce credible, cogent or believable evidence in line with his Statement of Claim to enable him sustain the case he laid against the Defendant. The onus of proof which is on the balance of probability oscillates between the Plaintiff and the Defendant and it will not shift until the Plaintiff has established prima facie case against the Defendant which if the Defendant does not rebut will give the Plaintiff an edge over the Defendant. The burden or onus of proof can be discharged on either side on balance of probability.
In the case of Alhaji Adebayo Akande v. Jimoh Adisa & Anor (2012) 15 NWLR (Pt. 1324) 538 at 558 paragraphs A-G Per Muhammad, JSC (as he then was) Stated:
‘’I think my spring board in starting the consideration of this appeal is to have recourse to the provisions of Sections 135-137 of the Evidence Act, Cap 112 LFN, 1990 (Now Cap. E14 LFN, 2004). ‘’135. (1) whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
136. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
137 (1) In civil cases the burden of first proving the existence or non-existence of a 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.’’
By the above provisions therefore, it is the requirement of the law that he who asserts, must prove. In all civil matters, the proof rests squarely on the person who approaches the Court (plaintiff) praying that his legal right, which he claims from somebody (defendant) should be restored to him. In our adversarial system of adjudication, it is the practice and the law that the plaintiff should first lay his complaints before the Court by filing his pleadings. Next is that, where issues have been joined with him by the defendant, then he shall go ahead to call evidence to establish each and every one of the averments and the evidence must tally. They go together. They are inseparable twins. They either survive together or perish together. Where there is an averment which has no corresponding evidence, it is deemed abandoned. Where there is evidence but there is no supporting averments, it is a worthless evidence. See Bamgbegbin v. Oriare (2009) 13 NWLR (Pt. 1158) 370, Ojukwu v. Yar’adua (2009) 12 NWLR (Pt. 1154) 50, Oseni v. Bagulu (2009) 18 NWLR (Pt. 1172) 164.’’
The primary duty of a trial Court as was held in long line of cases is to evaluate evidence and ascribe probative value to it, this arises out of the fact of the advantage it has of seeing and, from observation of the witnesses making impressions as they testified. Thus where a trial Court has done that, the Court has no business to re-appraise the evidence or substitute its views for that of the trial Court.
To ascribe any probative value to any piece of evidence, that evidence must not only be relevant and credible, it must also be valuable to the fact which is seeks to establish and of such quality to have any essence on the probative scale. See Hantsi Mamman Shingi v. Abubakar Bandado (2018) LPELR-46549 (CA) Pages 30-32.
The Appellant had attacked the finding of the lower Court at pages 89-90 of the record of appeal to vehemently contend inter alia that the learned trial judge erred when he treated the case as one of traditional evidence/history and did not consider the demeanor of the witness even on matters they disparaged in cross-examination.
In this instance, I have gone through records the argument of learned counsel for the Appellant is porous, I cannot but agree with the submission of learned counsel for the Respondent that the Appellants having submitted before the lower Court that the Respondent’s root of title was based on traditional history (page 70 lines 13-15 of the record), cannot ascribe a different root of title to the Respondent on appeal. For ease of reference I herein reproduce the submission of Appellant Counsel at page 70 of the record: “Evidence addressed by both parties shows that they rely on traditional evidence to prove title to the land subject matter of this case. The plaintiff contended that Mbapuun Gbor first settled on the land in 1952. While the defendants who are descendants of Gar now Mbagar as kindred first settled on the land in 1800 and traced their line of inherence down to Tion Ala. Thus, the land becomes family or communal land.’’ See also pages 26-30 of the records, his joint statement of defence and counter-claim.
It is trite law that a party should be consistent in making his case both at the trial Court and on appeal.
Beside evidence of traditional history, the learned trial Judge also relied on Exhibits A1 (Benue State Government Certificate of Occupancy and A2 Local Government Certificate of Occupancy) which were tendered without objection and proof of ownership by acts of long possession in respect of the land, at page 90 of the record the learned trial Judge clearly stated: “The Plaintiff remained consistent that they got this land from the late father Teryima Mbapuun who had derived his title from late Pa Mbapuun Gbor, even under cross-examination the plaintiffs remained unshaken that they were never customary tenants of the defendants. The Court on its part could not isolate any shred of evidence linking the plaintiffs as customary tenants of the defendants. What seems coherent is that the plaintiffs’ father and the defendants both founded this land perhaps at different times and settled on different portions. The 1st plaintiff’s father obtained a certificate of occupancy over his own parcel of land in 1973 from Katsina-Ala Local Government. Evidence shows that the 1st plaintiff’s father subsequently obtained the State certificate of occupancy in 1980. This land was surveyed and beaconed. The 2nd defendant’s father was aware. It is presumed that all the defendants’ fathers were aware since the 2nd defendant’s father was in the know and he is a member of the Tion family. They never applied that these certificates of occupancy be revoked neither did they any day challenge the ownership of the land where the plaintiffs are settled. These certificates of occupancy were from every indication obtained without any fraudulent acts. The authorities in the various land Registry all authenticated these C of O’s as correct and the authorities were never challenged for issuing these certificates of occupancy right from 1973. The argument by counsel to the defendants that these certificates of occupancies be revoked cannot stand. It is rejected as same lacks any substance.’’ The learned trial judge rightly applied the principles of law land down by the Supreme Court on methods of prove in a claim for declaration of title to land in the case of IDUNDUN V. OKUMAGBA (Supra) at page 227.
On the issue of expiration of the certificates of occupancy that is Exhibits A1, A2 and A3 these documents were tendered at the lower Court without objection to their admissibility by the Appellant, see page 49 of the records, the Appellant cannot be heard at this stage objecting to their admissibility. In EKPE v. FAGBEMI (1978) LPELR-1087) (SC) Page 5 paragraphs C-E Per Bello, JSC Stated ‘’…..It is complained that Exhibit ‘A’ was improperly admitted in evidence in that it was not produced by its author and ought therefore to be disregarded. We observe that the document was not objected to when it was tendered in evidence and its admissibility was not put in question. As the point was not taken at the trial, we would not allow the Appellant to raise it on appeal.’’ More so I have carefully examined Exhibit A1 Benue State Certificate of Occupancy, it does not contained a tenor of 20 years, contrary to the submission of the Appellant. This objection is without merit and substance, I discountenance it.
On the issue of demeanor of the witness raised by the Appellant at page 12 of his brief of argument, it is the duty of a trial Court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate Court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. In this instance the learned trial Judge while preferring the evidence of the plaintiff stated at page 87 of the record that: “It seems to this Court that the evidence by the plaintiffs that their fathers and themselves lived on this land peacefully until 2008 without dispute is authentic. The defendants who are disputing this land with the plaintiffs did not dispute this assertion. Furthermore, no evidence by way of a customary arbitration or record of proceedings from any Court indicating that any of these parties litigated over title to this land is before this Court.’’ The findings of the learned trial Judge accord with reason as it was supported by law and evidence. Thus issue two is resolved against the Appellant.
ISSUE THREE
3. Whether the respondent’s claim was caught up by the Benue State statute of limitation, 1988.
Counsel contention here is that the action of the Respondent is statute barred as whereas the respondent and witnesses aver that they obtained Exhibits A1 & A3 in 1973 and A2 in 1980 respectively, their evidence shows that the defendants have been farming on the land covered by the said exhibits. And since the only way limitation of action is determined is by looking at the writ and statement of claim, the action of the Respondents has been caught up by the Benue State Limitation Law, which is applicable since the time the cause of action arose.
Counsel submitted that the effect is that the limitation does not merely deny the right of action of the plaintiff/respondent, but completely extinguishes any existing right available to the plaintiffs/respondents at the expiration of the statutory period from the accrual of the right. See Kolawole v. Ajibona (1993). The legal effect of the action being statute-barred is that it affects the competence or jurisdiction of the Court. See Onadeko v UBN Plc (2006) ALL FWLR (Pt. 301) 1872 at 1875. Counsel urged the Court to resolve this issue against the respondents and in favour of the appellants.
SUBMISSION OF RESPONDENT COUNSEL
Counsel to respondent on this issue commenced by stating categorically that limitation as a special defence must be specifically pleaded before reliance can be placed on it in the course of the proceedings. The Appellants having failed to do so cannot submit on it. Counsel referred to Order 15 Rule 7 (2) of the Benue State High Court Civil Procedure Rules, 2007 and also the authority of Oyebamiji v. Lawanson (2008) 15 NWLR (Pt. 1109) 122 to submit that issue three is incompetent and should be struck out.
More so, according to counsel, the statement of claim is very clear as to when the cause of action arose. Counsel therefore submitted that the respondent action is not caught up by statute of limitation.
RESOLUTION OF ISSUE THREE
The Appellant argument is anchor on Statute of Limitation, the provisions of Order 15 Rule 7 (2) of the Benue State High Court (Civil Procedure) Rules 2007 is apt on this issue it provides:
‘’Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.’’ This provision is very clear that a party wishing to rely on a Statute of Limitation must specifically plead same. On this, see OYEBAMIJI & ORS v. LAWANSON & ORS (2008) LPELR-2864 (SC) Page 8. The Appellant having failed to plead statute of limitation as a special defence renders this issue in competent and liable to be struck out, it is hereby struck out.
Having resolved issues 1-3 Against the Appellant, it means that this appeal is totally lacking in merit. It is hereby dismissed. The judgment of the lower Court Coram P.T. KWAHAR, J. delivered on the 1st day of November, 2012 is HEREBY AFFIRMED.
Cost of N50,000.00 (Fifty Thousand Naira) is awarded against the Appellant in favour of the Respondent.
IGNATIUS IGWE AGUBE, J.C.A.: I was privileged to have read in advance the draft of the lead judgment of my learned brother, HON. JUSTICE MUSLIM SULE HASSAN, JCA and there is no doubt that my Lord has comprehensively dealt with the salient issues raised by the parties in this appeal.
I adopt all the reasoning and conclusions arrived at on issues 1-3 for determination by my Noble Lord and brother in the lead judgment and also dismiss the Appellants’ appeal and abide by the consequential order as to cost.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN, JCA. I agree entirely with the reasoning and conclusion reached therein.
My learned brother has properly dealt with all the issues relevant for the determination of the appeal. The appeal is lacking in merit and should be dismissed and is hereby dismissed by me. The judgment of the trial Court, delivered by HON. JUSTICE P. T. KWAGHAR J. on 1st day of November, 2012 is hereby affirmed. I abide by the costs awarded against the Appellant in favour of the Respondent.
Appearances:
G.A. IBU ESQ. For Appellant(s)
J.A. TAGHER ESQ. For Respondent(s)
