TOLOFARI & ANOR v. TOLOFARI (2022)

TOLOFARI & ANOR v. TOLOFARI

(2022)LCN/16492(CA)

In the Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, May 12, 2022

CA/PH/412/2016

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

1. ELDER JOEL TOLOFARI 2. COMRADE DANIEL INOMAFI (For Themselves And As Representing Iganipuma Family Unit Of Tolofari Royal House, Bonny) APPELANT(S)

And

ATEDOGHU ELLIS TOLOFARI (Substituted Ellis Tolofari By Order Of Court Made On 13thMarch, 2019) RESPONDENT(S)

RATIO

THE CONDITION UPON WHICH THE COURT CAN GRANT A PARTY’S RELIEFFOR DECLARATION OF TITLE OVER LAND

Indeed, the law is well settled that before a Court would grant a party’s relief for declaration of title over land, such a party must properly establish and prove his entitlement to the declaration by cogent evidence. The Supreme Court in its decision in the case of ONOVO & ORS Vs. MBA & ORS (2014) LPELR-23035 (SC) at 27, paras. A – E, per OGUNBIYI, JSC reiterated thus:
“The law is also settled that, in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence, they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. ItaII NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further, he must on the strength of his case and not on the weakness of the defence.”
See Section 137(1) of the Evidence Act and the decisions in KOPEK CONSTRUCTION LTD Vs. EKISOLA (2010) LPELR – 1703 (SC), OLATOMIDE & ANOR Vs. IKUMUYILO & ORS (2019) LPELR – 48374(CA) and OLATUNJI & ORS Vs. AYENI(2019) LPELR – 48495(CA). PER KOLAWOLE, J.C.A.

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

I must mention that this Court is not in the habit of interfering with the findings and conclusions of a lower Court, which were reached, upon a dispassionate appraisal of the pleadings as well the evidence elicited by the parties before the Court. Ipso facto, the interference by this Court is only warranted and legitimate on extant judicial principles, where it is found that the findings are not only perverse, but also where the conclusions were reached because of an incorrect application of the applicable law and judicial principles. See the decisions in RABIU Vs. ADEBAJO(2012) LPELR – 9709 (SC), OKOYE & ANOR Vs. OBIASO & ORS [2010] 8 NWLR (Pt. 1195) 145 SC, IFETA Vs. SPDC NIG LTD[2006] 8 NWLR (Pt. 983) 585. PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): My Lords, curiously, by a Further ‘Further’ Amended Statement of Claim (it could have been better tagged and a tidier mode of description of Court’s processes as the 1st or 2nd Amended Statement of Claim) dated 20th December, 2011, the Appellants as Claimants sought the following reliefs:
(i) A Declaration that the land in dispute is the property of Iganipuma Family Unit of Tolofari House in Kalaibiama Bonny.
(ii) N10,000,000.00 (Ten Million Naira) representing damages for trespass committed on the Claimant’s said piece or parcel of land.
(iii) An order of Court that the Claimants should move into and take possession of the said piece or parcel of land with developments thereon; and
(iv) A Perpetual Injunction restraining the Defendant by himself, his agents, servants or privies from further committing acts of trespass on the Claimants’ said piece of land, or howsoever dealing with the said land in any manner contrary to the interest of the Claimants and the Iganipuma Family.

On the part of the Respondent as Defendant/Counter-Claimant, in his Amended Statement of Defence and Counter-Claim reproduced at pages 62 to 70 of the record of appeal, the following reliefs were sought:
(i) A Declaration that the Defendant is the person entitled to the right of occupancy over all that land measuring about 70 ft by 100ft lying and situate at the sand filled area of Kalaibama whereon the Defendant has full (sic) developed a house.
(ii) An Order of perpetual injunction restraining the Claimants, their agents, privies, and cohorts from further disturbing or affecting the Defendant and his successors in title from exercising their rights of ownership and control over the said property.

At the end of plenary trial and adoption of the Final Written Addresses filed by the parties, the High Court of Rivers State sitting at its Port Harcourt Judicial Division, Coram Honourable Justice Boma G. Diepiri in the Judgment delivered on 31st May, 2016 dismissed the Appellants’ claims and entered judgment as per the reliefs sought by the Respondent in his Counter-Claim.
Naturally dissatisfied with the said decision, the Appellants initiated an appeal in this Court in order to express their grievance vide an Amended Notice of Appeal dated 8th February, 2017 and filed on 10th February, 2017 but was deemed properly filed on 12th June, 2018 and it contained ten grounds.

In line with the rules of this Court, parties filed and exchanged their respective briefs of arguments. The Appellants’ brief of argument dated 30th May, 2019 and filed on 31st May, 2019 by C.C. Achunulo, Esq., had two issues formulated therein, and they read thus:
1. Whether on the pleadings and evidence led at the trial, the learned trial judge was right in entering judgment for the Respondent?
2. Whether the learned trial judge properly assessed and correctly evaluated the evidence led at the trial in this case?

On the part of the Respondent, Dickson O. Wekwulo, Esq., filed a brief of argument dated 22nd November, 2019 and filed 25th November, 2019 and he donated a lone issue for determination and it reads thus:
1. Whether the Appellants have disclosed any miscarriage of justice to warrant the setting aside of the judgment appealed against?

A Reply Brief of argument dated 2nd December, 2019 was also filed on behalf of the Appellants.

APPELLANTS’ SUBMISSIONS
Learned Counsel for the Appellants relied on the cases of DUDU ADDAH & 7 ORS Vs. HASSAN SAHI UBANDAWAKI (2015) ALL FWLR (Pt. 775) 200 at 215, paras B – C, NATIONAL JUDICIAL COUNCIL & 5 ORS Vs. HON. JUBRIL BABAJIDE ALADEJANA & 2 ORS. (2015) ALL FWLR (Pt. 772) 1798 at 1825, para D& 1826, para E, to submit that parties are bound by their pleadings and a Judge is not entitled to set up for the parties, a case different from the one established by facts supplied by the parties in their pleadings. The learned Appellants’ Counsel argued that, contrary to the conclusion of the learned trial Judge, there is no where in the Appellants’ pleadings where it was stated that their case is that the land in dispute is part of their reclaimed land which belonged to the Iganipuma Family Unit. He argued that if the learned trial Judge had considered the Appellants’ pleadings and evidence properly, he would not have come to this conclusion. He submitted land includes everything attached to the earth, citing the decision in UNILIFE DEVELOPMENT CO. LTD Vs. MR. KOLU ADESHIGBIN & 4 ORS (2001) FWLR (Pt. 42) 114 at 133, para F. He also submitted that the finding that the Asawo Tolofari, the founder of the Appellants and Respondent’s family did not envisage the reclamation of the disputed land, and therefore could not have settled any of the family units on the land, was made in error, in view of the evidence elicited from CW3 and CW4 that the land including the water-front or the now sand-filled area, belonged to the Late Chief Asawo Tolofari.

Whilst submitting further, the Appellants’ counsel relied on the decision in the case of MISS CHINYE A.M. EZENAH Vs. ALHAJI MAHMOUD I. ATTA (2004) 2 SCNJ 200 at 216 to argue that the learned trial judge erred when held that the failure of the 2nd Appellant to give evidence and his silence in this case is fatal to the Appellants’ case. It was contended that the trial judge ignored Exhibit H1 which is a document written by the 2nd Appellant to complain to the 1st Appellant when the latter noticed the Respondent’s presence on the disputed land.

It is also the argument of the Appellants’ counsel that the Respondent did not prove his title to the land that was sand-filled or that he had exclusive possession of same, citing the decision in the case of GODWIN C. ONOVO & 3 ORS. Vs. FERDINAND MBA & 3 ORS. (2015) ALL FWLR (Pt. 765) 298 at 314, para F. He also referred to the decision in ALHAJI GONI KYARI Vs. ALHAJI CIROMA ALKALI & 2 ORS. (2001) FWLR (Pt. 60) 1481 at 1506, paras C – E.

The Appellants’ learned Counsel submitted that while the Appellants led evidence to satisfy the four of the judicially recognized ways of proving title to land, the Respondent did not present any evidence to support his entitlement to the reliefs sought, citing the decision in ALHAJI S.A. KAZEEM & ANOR Vs. MADAM WEMIMO MOSAKU & 2 ORS (2007) 2 SCNJ 135 at 142.

Appellants’ counsel referred to the evidence of DW3 under cross-examination in that Madam Dinana Tolofari’s land on the Iginipuma area of the land was destroyed by the water from the sand filling. He then argued that this piece of evidence is consistent with the Appellants’ case as contained in their pleadings. Counsel finally urged the Court to resolve the first issue formulated in favour of the Appellants.

On the second issue, it is the submission of the Appellants’ counsel that the learned trial Judge did not properly evaluate the evidence of the parties in this case and contended that the decision of the trial Judge that Exhibit W is more convincing, plausible than Exhibit F produced by the Appellants is because of the Judge’s misconception of the case of the parties before him. The Appellants’ learned counsel contended that a reliable survey plan is one which shows the land in dispute vis-à-vis the agreed family units that make up the Tolofari Royal House as shown in Exhibit F and not just a survey plan (like Exhibit W) that shows the sand-filled area, individual houses and projects but do not show the family they are related to. Whilst relying on the decisions in AKUNNE BOSA MBANEFO Vs. MOFUNANYA AGBU & ANOR (2015) SC Vol. 6, page 65 at 83, para D, ESIEGBUYA SOLOMON & 4 ORS Vs. ESTEDE MONDAY & 4 ORS (2015) ALL FWLR (Pt. 762) 1695 at 1714, para D, the Appellants’ counsel submitted that since the learned trial Judge found the survey plans relevant in the case, his interpretation of the plans ought to be based solely on the understanding of their contents by the evidence led and not to contradict the oral evidence of parties.

It is the further submission of counsel that the learned trial Judge ought not to have relied on the evidence elicited from DW1 and DW3 in view of their contradictory testimonies on the family units they belong to, within the Tolofari Royal House. The decisions in the cases of GOYANG KAYILI Vs. ESLY YILBUK (supra) and N. ABAKPA & ANOR Vs. ISAAC AGBO ONOJA (2015) ALL FWLR (Pt. 792) 1729 at 1761, para G, were relied upon on the need for the Court to reject the entire evidence elicited from DW1 and DW3 in view of the contradictory testimonies. Counsel argued that the findings made by the learned trial judge have no basis in view of the evidence on record showing that the Tolofari Royal House of Kalaibiama is made up of 6 family units and that the bulk of Kalaibiama is made up of mangrove and swamp; and there is also evidence that Kalaibiama, Bonny was founded by the late Asawo Tolofari, who apportioned the entire land to the six family units. Appellants’ counsel also submitted that there are several conflicts in DW5’s evidence when contrasted with the evidence of DW1, DW2 and DW3 and the evidence elicited from the Respondent shows that the reclaimed areas of land cannot be new as portrayed by DW1. It is the submission of the Appellants’ counsel that when the evidence of the Respondent’s witness is placed alongside the evidence of CW1, CW2 and CW4 it invariably becomes doubtful how the learned trial judge came to his findings. Appellants’ counsel finally submitted that the onus rests on the Respondent to lead evidence to establish his claim and not to rely on the Appellants’ admission, citing the decisions in MOGAJI ATANDA & ORS Vs. SALAMI AJANI & ORS (1989) 3 NWLR (Pt. 111) 511 at 538, paras E – F, EZULUMERI OHIAERI & ANOR Vs. ADINNU AKABEZE & ORS (1992) 2 NWLR (Pt. 221) 1 at 17, paras B – C, ALHAJI OLADOJA SANUSI Vs. OREITAN ISHOLA AMEYOGUN (1992) 4 NWLR (Pt. 237) 527 at 547, para G.

RESPONDENT’S SUBMISSION
The Respondent’s learned Counsel on his part, submitted that before the Appellants can succeed on appeal, they must show that the judgment of the trial Court is perverse, citing the decisions in OLODO Vs. JOSIAH (2010) 18 NWLR (Pt. 1225) 653 at 670 – 671, paras G – A, ODUNUKWE Vs. OFOMATA (2010) 18 NWLR (Pt. 1225) 404 at 423, paras C – D, OKE Vs. MIMIKO (No. 2) (2014) 1 NWLR (Pt. 1388) 332 at 397, paras G – H and EMENIKE Vs. PDP (2012) NWLR (Pt. 1315) 556 at 595, paras H – B. It was further contended that the findings made by the learned trial Judge that the land in dispute is part of the reclaimed land was based on the averments contained in the pleadings and evidence led by the parties. He argued that the Appellants have not shown how the decision of the trial Court that the crux of the Appellants’ case before the lower Court borders on where the land in dispute is part of the reclaimed land belonging exclusively to the Iganipuma Family Unit, is part of the reclaimed land belonging to the larger Tolofar Royal House, is different from the case brought before the Court for adjudication or that the decision is not based on pleadings and evidence before the Court and cited the provisions in Sections 131, 132, 133 and 136 of the Evidence Act, 2011.

It is the further submission of the Respondent’s counsel that the trial Court evaluated the evidence led by both parties in support of their pleadings and found that there were irreconcilable discrepancies in the Appellants’ case, and more particularly in Exhibit F. The Respondent’s learned counsel further submitted that where the evidence of a party conflicts on an issue, the Court cannot choose which to believe and accept, but would rather resolve the issue in question against the party and cited the decision in ARIOLU Vs. ARIOLU (2011) 11 NWLR (Pt. 1258) 288 at 299.

In response to the Appellants’ argument on the decision that the absence of the 2nd Appellant, who authored Exhibit H1 from trial, Respondent’s Counsel submitted that the trial Court is at liberty to discountenance any exhibit it deemed worthless or that lacks evidential probative value and referred to decision in the case of AGBI Vs. OGBEH (2006) 11 NWLR (Pt. 990) 65 since admissibility of a document differs from the weight to be attached to the said document and cited the decision in LONG-JACK Vs. BLAKK (2007) 17 NWLR (Pt. 953). Respondent’s counsel noted that the averment in the Respondent’s pleadings that the 2nd Appellant was present when the land in dispute was allocated to the Respondent “and never protested in any form” can only be refuted by the 2nd Appellant and no one else. Thus, the 2nd Appellant was a vital witness, and his absence from trial speaks volume and cited the decision in FRAMO (NIG.) LIMITED Vs. DAODU (1983) 1 NWLR (Pt. 281) 372 at 374. The Respondent’s counsel further argued that Exhibit H1 was not pleaded by the Appellants and even if pleaded, it can only be used for the fact for which it was admitted, citing the case of ONWUMERE Vs. AGWUNEDE (1987) 3 NWLR (Pt. 62) 673 to buttress this proposition.

The Respondent’s counsel was quick to note that the judgment of the trial Court was not predicated on the observation made in relation to the absence of 2nd Appellant from trial and the Appellants have not disclosed the legal harm or injustice suffered as a result of the observation or omission to evaluate Exhibit H1. He reasoned that a comment or observation in a judgment is of no moment if the decision of the Court was not based on it.

In relation to the Appellants’ argument that the Respondent did not plead and prove his entitlement to the reliefs sought, the Respondent’s Counsel submitted that the Respondent led evidence on how he acquired the parcel of land in dispute from the community (Tolofari Royal House) in the presence of the 2nd Appellant after fulfilment of the necessary conditions. He further contended, whilst referring to a text book by J. F. FEKUMO on “Principles of Nigerian Customary Land Law” at page 107 he submitted that allocation is a means of acquiring title to community land, and the allottee enjoys absolute rights over the allotted land to the exclusion of the community and relied on the decision in ODOFIN Vs. AYOOLA (1984) 11 SC 72 at 94.

The Respondent’s counsel further submitted that proof of ownership by customary allocation is proof by traditional evidence and cited the decisions in ALIKOR Vs. OGWO (2010) 5 NWLR (Pt. 1187) 281 at 282 and ASHIRU Vs. OLUKOYA (2006) 11 NWLR (Pt. 900) 29. The Respondent’s counsel argued that he proved (a) how he acquired title to the land in dispute from the Tolofari Royal House, his grantor; (b) who founded the area the land in dispute is situate as communal land; (c) gave particulars of intervening owners; and thereby urged this Court to disregard the Appellants’ argument that the Respondent did not prove his case. It was further submitted, with respect to the Appellants’ complaint on the trial Court’s finding on Exhibit W, that the trial Court did not use oral evidence to contradict Exhibits F and W but merely juxtaposed the contents of the survey plans in order to ascertain that points of agreement or variance. Respondent’s Counsel argued that, with the comparisons, the learned Judge was able to determine that the Appellants’ pleadings and evidence differs from the contents of Exhibit F on the identity of the land in dispute.

The Respondent’s counsel submitted that the trial Court properly evaluated the exhibits tendered by the Appellants and found that the evidence elicited from the Appellants’ witnesses, contains material contradictions with the said exhibits, particularly in connection with the ownership of the reclaimed or sand-filled lands. The Respondent’s counsel further argued that oral and documentary evidence must be consistent with the pleadings and cited the decision in ALINTAH Vs. FRN (2010) 6 NWLR (Pt. 1191) 508 at 519.

Finally, the Respondent’s counsel submitted that while the Respondent proved his counter-claim, the Appellants failed to establish their entitlement to the reliefs sought and also failed to establish that the findings and decisions of the lower Court complained about in this appeal are perverse. The Court was urged to resolve this issue in favour of the Respondent.

In the Reply Brief, Appellants’ Counsel reiterated that the Appellants’ case is that the land in dispute belongs to the Iganipuma Family Unit by virtue of the partition of land by the founder of the Tolofari Royal House. The Appellants’ counsel further contended that the learned trial Judge deviated from the facts and evidence presented by the Appellants at the trial Court and completely shut his eyes to those facts when he focused his Judgment on the area of land reclaimed by the Rivers State Government, thereby entering a perverse decision. He cited the decisions in the cases of THE REGISTERED TRUSTEES OF THE HOLY APOSTOLIC CHURCH OF NIGERIA & 6 ORS Vs. REV. FOLORUNSO AYENI & ANOR (2002) FWLR (Pt. 115) 708 at 717, paras D – E, ENGINEER MICHAEL IHEMEKWALAMOZO IRONKWE & ANOR Vs. UNITED BANK OF AFRICA PLC & ANOR (2017) ALL FWLR (Pt. 879) 650 at 658, paras A – B and IKONO LOCAL GOVERNMENT Vs. DE BEACON FINANCE & SECURITIES LIMITED (2002) FWLR (Pt. 114) 415 at 426, paras A – B.

It is also the further submission of the Appellants’ Counsel that Exhibit H1 was pleaded at paragraph 5(L) of the Reply to Statement of Defence and Defence to Counter-Claim and it was frontloaded as part of the documents to be relied on at the trial. He argued that the use of the word “reclaimed” in relation to the land in dispute is enough to show that the land sand-filled by the Rivers State Government belonged to a community before it was sand-filled.

RESOLUTION
I adopt the two issues distilled and set down by the Appellants for the determination of this appeal, and shall take them together.

It is noteworthy that the predominant facts in this case are largely undisputed. As the learned trial Judge noted at pages 645 of the record of appeal, that there is no dispute between the parties on the genealogy of the community wherein the land in dispute is situate. Both parties agree they are natives of Kalaibiama, Bonny in Bonny Local Government and belong to the Tolofari Royal House, which consists of six family units, including: Sughu, Koronibo, Iganipuma, Waduwari, Ngerebo-Aminayefigha, Fila and Sughu family units. The said Tolofari Royal House was founded by the Late Chief Asawo Tolofari.

However, according to the Appellants, the Late Chief AsawoTolofari founded the entire land in Kalaibiama and during his lifetime, he partitioned the lands and shared same among the family units. The entire lands in Kalaibiama had thereafter been under the custody, management and control of the head of each family unit known as Warisenibo or Head of the Family on behalf of each family unit. The Appellants’ case is that their family unit – the Iganipuma Family Unit, they have since been inheriting their apportioned land, been enjoying undisturbed possession, exercising various acts of ownership including fishing and cultivating, and apportioning parts of the lands to deserving members of their family. The Appellants also contend that they have expanded their land by reclaiming swampy areas, before the sand-filling intervention of the area. It is the Appellants’ case that the land in dispute was reclaimed and apportioned to a member of the family unit – Madam Dinah Tolofari, who built on a portion of the land reclaimed from the swamp before the said sand-filling, which destroyed the house took place.

On the other hand, the case of the Respondent is that in the absence of a chief in the Tolofari Royal House, a chairman is appointed from amongst the elders in the House to oversee the affairs of the House pending the selection and installation of a house chief. It was on this basis that the Late Elder Simeon D. A. Tolofari was appointed as Chairman but upon his death in August, 2006, Warisenibo Kalada Dick Tolofari was appointed as Chairman of the House. According to the Respondent, who stated that he belongs to the Sughu family unit, the Chief of the House is the custodian of all the lands and tradition of the people and not the family unit head. He stated that the rightful person to allocate any land to a member of the House is the Chief of the House and in his absence by reason of death, the Chairman, principal members and the Warisenapu are empowered to give land to deserving members of the family. The Respondent argued that the disputed land originally belonged to the Tolofari Royal House and that entire land in the area was sand-filled by the Rivers State Government at the request of the Kalaibiama Community because it used to be a swampy mangrove forest. Several projects including the Cottage Hospital, Town Hall, Community School and Water Facility have been constructed on some portions of the sand-filled lands, whereas the remaining portion of the land was left for allocation to members of the community including the Tolofari and Pollyn Houses. The Appellant said that the land in dispute measuring about 70ft by 100ft was allotted to him by the elders under the chairmanship of Late Elder Simeon D.A. Tolofari in the presence of the family heads, for the development of his private residence, upon payment of requisite fees and the provision of customary drinks and goat.

Both parties have, based on the above summation of facts, sought declaratory and other reliefs, essentially for an order of Court declaring them as the owner of the land in dispute. Indeed, the law is well settled that before a Court would grant a party’s relief for declaration of title over land, such a party must properly establish and prove his entitlement to the declaration by cogent evidence. The Supreme Court in its decision in the case of ONOVO & ORS Vs. MBA & ORS (2014) LPELR-23035 (SC) at 27, paras. A – E, per OGUNBIYI, JSC reiterated thus:
“The law is also settled that, in a claim for declaration of title to land, the onus lies on the plaintiffs/appellants to establish their claim on the strength of their own case and not rely on the weakness of the defendants/respondents. Therefore, the plaintiffs must satisfy the Court that based on their pleadings and evidence, they are entitled to the declaration sought. See Odunukwe v. Ofomata (2010) 18 NWLR (Pt. 1225) 404 at 445. Also, the case of Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616 at 631 where it was held by this Court that: “In an action for declaration of title to land, it is trite law that the plaintiff must prove title or at least prove to have been in exclusive possession as approved in the case of Ekpo v. ItaII NLR 68 and held further in the case of Idundun v. Okumagba (1976) NMLR 200. Further, he must on the strength of his case and not on the weakness of the defence.”
See Section 137(1) of the Evidence Act and the decisions in KOPEK CONSTRUCTION LTD Vs. EKISOLA (2010) LPELR – 1703 (SC), OLATOMIDE & ANOR Vs. IKUMUYILO & ORS (2019) LPELR – 48374(CA) and OLATUNJI & ORS Vs. AYENI(2019) LPELR – 48495(CA).

It is therefore incumbent on both parties to lead credible evidence in support of their respective case and not seek to rely on the weakness on the defence on the other side. I have taken the time to carefully consider the averments contained in the respective pleadings of both parties, the evidence tendered and admitted; the arguments canvassed in the Final Written Addresses at the lower Court and in the brief of argument before this Court; the judgment of the trial Court as well as the grounds contained in the Amended Notice of Appeal, and I am of the considered view that a determination of this appeal revolves around these questions: (a) Where is the land in dispute located; does it form part of the land sand-filled by the Rivers State Government?

(b) is there any evidence on record to satisfy the Court that the entire land including the mangrove and swampy forest in Kalaibiama Community belong to the Tolofari Royal House, were all apportioned and shared among the six family units? (c) does the land in dispute form part of expanse of land allotted to the Iganipuma Family by Chief Asawo Tolofari, the founder of the Tolofari Royal House?

The first question to ascertain whether the land in dispute falls within the area sand-filled by the Rivers State Government is very vital to the dispute before the Court. This is because, from the case put forward by the Appellants, before the trial Court, the Appellants contended that the land in dispute forms part of the swampy lands allotted to their family unit – the Iganipuma family unit – by the founder of the Tolofari Royal House. According to the Appellants, the said swampy land was reclaimed by the Appellants family unit and subsequently given to one Roseline/Diana Tolofari, a member of the Appellants’ family unit. During cross-examination by Respondent’s Counsel, CW4, who is the Appellants’ family head, testified at page 549 of the record of appeal thus:
“The areas for which we are in Court is a swampy areas which the Iganipuma family sand filled. We reclaimed the land and allotted to members of the Iganipuma’s family before the sand fill. The sand fill was done by the Rivers State Government. It was done under the Governor Ukpo. The Government of Rivers State carried out this sand fill following a request made in a letter signed by Chiefs Benjamin Tolofari and Sylvanus Pollyn. I did not sign the letter but I was part of the arrangement. I did not make any request because our area the Iganipuma has already been reclaimed by us… The evidence is that one Roseline a member of Iganipuma family was allocated a plot of land when she was a life (sic) before this action….”

At pages 558 and 562 to 563 of the record of appeal, he continued:
“Before the sand fill the area was swampy. The custom in Kalaibiama, Bonny in respect of ownership of swamp is that you own the swamp adjourning your land. It is not right to say that swamps are generally owned the Community. They are owned by the family….
The land in dispute is not comprised in the sand-filled area. It is before the sand filling. We have area we reclaimed by ourselves before then. After reclaiming I apportioned the land to members before the sand filling. I apportioned part of the area we reclaimed to Shell build the Community Town Hall, Cottage Hospital and School, before the sand filling…”

Instructively, during the examination by the Appellants’ Counsel, DW3 had stated at pages 592 to 593 of the record of appeal that “It is true that Madam Diana Tolofari is on the Iganipuma area of land. It was the water from the sand-filling that destroyed Madam Diana Tolofari’s house. The house was there before the sand-filling so as they sand filled area the water from the sand filled destroyed it.” This piece of evidence plainly confirms that the Iganipuma Land which was allotted to Mrs. Roseline Tofolari, though near the area sand-filled by the Rivers State Government, it does not form part of the land reclaimed by the Rivers State Government by sand-filling. On the other hand, from the evidence elicited from the Respondent’s witnesses, and in particular, Exhibit W (a survey plan found at page 378 of the record of appeal), the Respondent’s case is that the land in dispute which was allotted to him by the Chairman of the Tolofari Royal House in the presence of the 2nd Appellant, falls within the expanse of land reclaimed and sand-filled by the Rivers State Government.

The learned trial Judge, while evaluating the evidence presented by the parties, including the survey plans tendered by the respective parties and admitted as Exhibits F and W found, and held at pages 649 to 652 of the record of appeal thus:
“… Let me come to Exhibit F, the survey plan tendered by the Claimants. Going by the evidence of CW4 under cross-examination, the Community Town Hall, cottage Hospital and school are all built on Iganipuma land. In Exhibit F, the Iganipuma land is verged green under the legend. In the said area verged green only the cottage hospital and Town hall are represented. Again, going by the evidence of CW4 (see paragraph 29 of his Statement on Oath) the area land used for construction of Community projects on the sand-filled areas were collectively agreed and freely donated by the Iganipuma family unit and the Fila family unit. Infact, CW2 specifically stated under cross-examination on 23rd July, 2007 that the water facility site is owed by Fila family unit. In Exhibit F, their dispute survey plan, Fila family unit is verged yellow and in the entire area there is no indication of any such facility or any other community project situate on Fila family land whatsoever. Rather, the Water Reservoir is indicated outside both the Iganipuma and Fila Family Units. The said Reservoir is located from Exhibit F near the Creek which flows from the North East to the entire North up to the said Water Reservoir. The Water Reservoir is not shown to be on land belonging to any family unit in Exhibit F. At paragraph 38 of the 144 paragraphs Statement on Oath of the 1st Claimant which he made on 20th April, 2006 and which he adopted as part of his evidence in this case when he gave evidence as CW4, he stated that the land in dispute is bounded as follows:
(a) In the East by the Fila family land,
(b) In the West by the Ngereboaminayefigha land,
(c) In the North by the Koronibo family land,
(d) In the South by Sughu and Aduwan family lands.
Ordinarily, these boundaries described by CW4 are supposed to be a mirror of their survey plan Exhibit F. Surprisingly, this is not the case here. I do not understand the use of the words East, West, North, and South. A Community situate in the North cannot have a boundary with one in the South. But in Exhibit F Koronibo family said to be the North of the land in dispute has boundary with Sughu said to be in the South of the land in dispute. Both of them almost joined together. In fact in Exhibit F, Fila Compound all have boundaries with each other. The boundaries of the land in dispute as stated by CW4 in paragraph 38 of his statement on oath makes nonsense of their dispute survey plan Exhibit F….”

In relation to Exhibit W, the learned trial judge held at page 658 of the record of appeal thus:
“… Let me even at this stage come to the Defendants’ survey plan – Exhibit W tendered by DW4 – the Surveyor. The Claimants’ counsel has submitted in his final written address that the said Exhibit W shows that the Community Hall, Old School Building and Water Plant are located within the centre of the Town. I do not agree in the least with this submission. With the greatest respect to learned Counsel for the Claimants, I do not think he understood the Defendant’s survey plan Exhibit W, the Defendant did not purport to show the entire survey plan of Kalaibiama Community or Tolofari Royal House. What he represented is only the reclaimed or sand filled area showing the land in dispute as well as all the Community projects said to be on the reclaimed area. The clear from the legend. In Exhibit W, the area sand filled is verged Green. He represented his house which is the subject matter of this suit and verged it Red. Unlike the Claimants survey plan with too many gaps and questionable inexplicable features that contradicts even the Claimants’ own evidence, the Defendant’s survey represented all the Community projects said to be on the reclaimed area and even more. This includes the Hospital even showing Nurses and Doctor’s quarters, the Community Town Hall, The School Building as well as the water treatment plant. It even shows other things such as the Tolofori shrine and the Nwantam House. Even the old village is shown outside the reclaimed area. This plan Exhibit W is more convincing, plausible and credible than that of the Claimants. It is consistent with the case of the Defendant….”

The learned trial Judge from the above excerpts found that the land in dispute is within the reclaimed area sand filled by the Rivers State Government. It is on this basis that the learned trial Judge held that the case put forward by the Respondent is more probable and consistent with the facts pleaded. I must mention that this Court is not in the habit of interfering with the findings and conclusions of a lower Court, which were reached, upon a dispassionate appraisal of the pleadings as well the evidence elicited by the parties before the Court. Ipso facto, the interference by this Court is only warranted and legitimate on extant judicial principles, where it is found that the findings are not only perverse, but also where the conclusions were reached because of an incorrect application of the applicable law and judicial principles. See the decisions in RABIU Vs. ADEBAJO(2012) LPELR – 9709 (SC), OKOYE & ANOR Vs. OBIASO & ORS [2010] 8 NWLR (Pt. 1195) 145 SC, IFETA Vs. SPDC NIG LTD[2006] 8 NWLR (Pt. 983) 585.

This Court cannot give in to the submission by the Appellants that the learned trial judge did not properly evaluate the evidence before it in reaching his decision. The case presented by the Appellants is that the land in dispute forms part of the land apportioned to the Appellants’ family unit by the founder of the Tofolari Royal House, and the said land was reclaimed and subsequently allocated to the Late Madam Roseline Tolofari who built her house thereon and same does not fall within the reclaimed area sand filled by the Rivers State Government. It is the case of the Appellants that the Chief/Chairman/Elders-in-Council of the Tofolari Royal House, are not the custodian of the lands in the Community and therefore has no power to re-allocate a land already allotted to a family unit by the founder. However, the evidence presented by the Appellants, particularly as to the location of the land is not consistent with their pleadings. In fact, the Appellants have failed to show that the land in dispute does not form part of the lands reclaimed and sand-filled by the Rivers State Government. In my respectful opinion, being the foundation of their case, the Appellants’ claim has no leg to stand upon. It is only when the Court has made a finding that the land in dispute does not form part of the lands sand-filled by the Rivers State Government, that the question as to whether or not the said land was allocated to the Appellants’ Iganipuma family unit, will arise. In addition, and by way of an aside, since it is the Appellants that have asserted that the entire lands in Kaliabiama Community including the mangrove and swampy forests were shared among the six family unit of the Tofolari Royal House, the onus is on the Appellants to establish this fact; however, as the evidence on record suggests, there is no credible evidence to establish that all the lands in the Kaliabiama Community including the mangrove and swampy forests was shared by the founder of the community.

Meanwhile, as the learned trial judge rightly found, the case of the Respondent is consistent with the evidence on record. The evidence on record supports the fact that the land in dispute falls within the area sand filled by the Rivers State Government. Also, it is not in dispute between the parties that the Tolofari Royal House is the major house in Kaliabiama Community and the land in dispute falls within its remit. The Appellant has also led evidence to show that the Tolofari Royal House is the custodian of the reclaimed lands in the community. See Exhibits U and X at pages 379 to 385 of the record of appeal. There is also evidence that other members of the Community have been allocated land in the reclaimed area by the Tolofari Royal House in the same way the Respondent was allocated the land in dispute. Above all, the Respondent tendered a survey plan, which was accepted by the learned trial Judge as more credible than the one produced by the Appellants, in proof of their respective claims. With Exhibit W, the Respondent has successfully identified the land he is claiming with ascertainable boundaries. See the decisions in TANKO Vs. ECHENDU (2010) LPELR – 3135(SC), AKPAN & ORS Vs. OTONG & ORS (1996) LPELR-374(SC).

I am unable, with due respect to the Appellants’ Counsel, to subscribe to the Appellants’ view that the learned trial Judge erred when he found in favour of the Respondent and entered judgment against the Appellants. I share the same views with the learned trial Judge that when the evidence adduced by both parties is placed on the judicial (imaginary) scale of justice, See the Supreme Court’s often cited decision in MOGAJI V. ODOFIN (1978) 4 S. C. 91 AT 93, the weight of the evidence led on the balance of probability, in my view, tilts more in favour of the Respondent than the Appellants. Therefore, the issues in this appeal are resolved in favor of the Respondent against the Appellants.

In the light of the above resolution of the issues in favour of the Respondent, I hold that this appeal lacks merit, and it is accordingly dismissed. The decision of the lower Court, per the Honourable Justice Boma G. Diepiri of the High Court of Rivers State contained in the Judgment delivered on 31st May, 2016 is affirmed. Costs of N150,000.00 is awarded in favour of the Respondent against the Appellants.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the exhaustive judgment prepared by my learned brother, Kolawole, J.C.A, with nothing extra to add.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA.