TYONDO v. IORLIAM & ANOR
(2021)LCN/15683(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, September 01, 2021
CA/J/280/2009
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
POLYCARP TYONDO APPELANT(S)
And
1. JOSEPH IORLIAM 2. GBOKO LOCAL GOVERNMENT RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURTS CAN RAISE ISSUES SUO MOTU AND DECIDE UPON IT
Courts are not allowed to raise fresh issues and resolve them without giving parties an opportunity to address the Court before it is resolved, see EFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) wherein the apex Court held thus:
“…it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANNI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40 ATANDA vs LAKANMI (1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL NLR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537. While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE(1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. As I indicated above, this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.” Per TABAI, J.S.C. PER NIMPAR, J.C.A.
EXCEPTIONS TO THE RULE ON WHETHER A COURT CAN RAISE ISSUES SUO MOTU
There are some exceptions to the general rule and that is where the issue is already before the Court as part of the trial, see the case of AKEREDOLU V. ABRAHIM & ORS (2018) LPELR-44067(SC) where the apex Court held thus:
“The learned trial Judge reasoned that since the letter of 10th November, 2016 by the appellant’s counsel to the Deputy Chief Registrar of the Court was already in the file of the Court, the learned trial Court cannot be accused of raising the issue of the contents of the letter suo motu. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that “A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” A Court of law is eminently qualified and entitled to look at the content of its file or records and/or refer to it in consideration of any matter or issue before it. See Agbareh v Mimira (2008) All FWLR (pt 409) 559 at 589 paragraphs D-F. ” Per OKORO, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT A PARTY IS OBLIGATED TO CALL A HOST OF WITNESSES TO PROVE ITS CASE
On the finding that the Appellant ought to have called one Mrs. Veronica Amende as witness, the trite position of law is that a party cannot be compelled to call a host of witnesses or a particular witness as long as it can present adequate evidence to establish his claim, see the case of A.G KWARA STATE VS. ALAO (2000) 9 NWLR (PART 671) P. 84 and AGIH V EJINKEONYE & BROTHERS LTD and ANOR (1992) 3 NWLR (PART 228) P.200 wherein the apex Court held thus:
“…a party does not need to call a host of witnesses to prove its case. It is enough if learned counsel chooses to call even a sole witness if the evidence adduced would establish the party’s case. It is at the discretion of a party or his counsel. A party can pick and choose which witness to call and is not bound to call a particular witness. It is not the number of witnesses called by a party that determines the success or failure of a case but the quality of the evidence of the witnesses that have testified. “
The exception is where the said witness is a vital witness, a witness that is vital was described in the case of OCHIBA V. STATE (2011) LPELR-8245(SC) thusly:
“A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the party’s case. In other words, a witness who knows something significant about a matter is a vital witness.” Per ADEKEYE, J.S.C.
It is the evidence of a witness that is evaluated and not the relationship between witnesses and parties, what the Court looks for is credibility, see the case of OCHANI V. STATE (2017) LPELR-42352(SC) where the apex Court held thusly:
“..It is clear from OGUONZEE v. THE STATE (1998) 5 NWLR (pt.551) 521 at 558, that the mere fact of blood relationship between the PW1 and the deceased is not what makes him a tainted witness. The only thing is that the Court should be wary about readily extending or ascribing credibility to his evidence.” Per EKO, J.S.C. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Benue State sitting in Gboko, in its appellate jurisdiction and delivered by HON. JUSTICE E. N. KPOJIME and HON. JUSTICE S. J. OWIJI on the 21st November, 2008 wherein the decision of Upper Area Court which was given in favour of the Appellant was set aside and judgment entered in favour of the 1st Respondent. The Appellant dissatisfied with the decision and with the leave of the Court below, filed a Notice of Appeal dated 30th January, 2009 setting out 6 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The Appellant was the 1st Defendant before the Upper Area Court, Gboko, in a claim by the 1st Respondent for a declaration that he did not sell Plot No. 677 Gboko East to Apir Tyondo (who was initially the 1st Defendant before his death) but that the transaction was a pledge, that the sales agreement between the late Akuha Mukpa (who was initial Plaintiff before he died) and Apir Tyondo is null and void and an order revoking the instrument transferring title in plot No.: 677 Gboko East to Apir Tyondo. The 1st Respondent (initial claimant averred that she was illiterate and only pledged the plot of land to Apir Tyondo for N30,000.00 but did not sell the plot to him. The Appellant on the other hand maintained that Apir Tyondo, his late brother bought the land known as Plot 677 Gboko East from Akuha Mukpa at the rate of Three Hundred Thousand Naira (N300,000.00) only and the transaction was reduced into writing in Exhibit D which was admitted without objection.
The Appellant also counter-claimed for the said plot. The matter went to full trial wherein the Appellant testified for himself and tendered 5 Exhibits marked as Exhibit A, B1-B6, H, and J. On the other hand, the Respondents testified for themselves and tendered 1 Exhibit which was marked as Exhibit R in support of their case. At the end of the trial and after due consideration, the learned trial Judge delivered judgment in favour of the Appellant and the appellate Court below set aside the judgment of Upper Area Court and entered judgment in favour of the Respondent. Dissatisfied with the judgment of the appellate Court below, the Appellant filed this appeal.
Pursuant to the Rules of the Court, the parties filed and exchanged their briefs, the Appellant’s Brief was deemed adopted pursuant to Rules of Court due to absence of Counsel. The 1st Respondent’s Amended Brief was adopted at the hearing of the appeal. The Appellant’s brief settled by J.K. AGEH, ESQ., is dated 11th day of January, 2019, filed on the 7th February, 2019 and it distilled 2 issues for determination as follows:
1. Whether the Court below was right in setting up a case for Akuha Mukpa different from the case she put up and for holding that the Appellant failed to call an independent witness as well as Mrs. Veronica Amende and that the transaction between the Akuha Mukpa and the Appellant was a pledge and not an outright sale. (Distilled from grounds 1, 2 and 3 the grounds of appeal).
2. Whether the Court below was right in reversing the trial Upper Area Court’s decision by dismissing the Appellant’s counter-claim but finding in favour of Akuha Mukpa on the basis that the Appellant failed to enforce his right after one month notice having regards to the weight of evidence. (Distilled from grounds 4, 5 and 6 grounds).
The 1st Respondent’s Amended Brief settled by J. T. AKAAZUA, ESQ. dated 29th day of October, 2015 and filed on the same day. The Respondents distilled 2 issues for determination as follows:
a. Whether the Court below has set up a case for the 1st Respondent different from the case the 1st Respondent put up.
b. Having regard to the evidence on record whether the Court below was right in reversing the decision of the trial Upper Area Court by dismissing the Appellant’s counterclaim and entering judgment in favour of the Respondent.
APPELLANT’S SUBMISSION
ISSUE ONE
Arguing issue one, the Appellant contended the 1st Respondent claimed that the transaction between Akuha Mukpa and Apir Tyondo was a pledge of N30,000.00 which was reduced in writing and no other person witnessed the transaction, however, the Appellant asserts that it was not a pledge rather, it was a sale agreement with a consideration of Three Hundred Thousand Naira and Exhibit D was made to evidence it. The Appellant was a witness of Apir Tyondo and Mrs. Veronica Amende was witness for Akuha Mukpa. The Appellant submits that the appellate Court below was wrong to hold that the transaction between the parties was a pledge and not a sale transaction because the 1st Respondent did not prove the pledge, that the signature on Exhibit D, R and G were not the same when compared and that the Appellant did not call an independent witness to support his case and that he ought to have called Mrs. Veronica Amende as his witness.
Firstly, the Appellant contends that Akuha Mukpa claimed that she was illiterate and did not sign Exhibit D, however, the production of Exhibit R (an application for renewal of Certificate of Occupancy) shows it was duly signed by her, therefore her claim was effectively demolished and the trial Court was right to disbelieve her. He submitted that the law is trite that the question whether a person is illiterate is to be proved by evidence, it cannot be presumed by the Court and that proof cannot be by the mere ipsi dixit of the party asserting illiteracy as held in ANAEZE V. ANYASO (1993) 5 S.C.N.J. 151. Continuing, Appellant argued that Akuha Mukpa merely relied on her own ipsi dixit without convincing proof and moreover, the law is trite that a party alleging a pledge has onus to prove elements of a pledge by cogent evidence. To also prove that it was made in the presence of witnesses, the Appellant relied on OBIAKU V. EKESIOBI (2003) FWLR (PT. 166).
Secondly, the Appellant submitted that the case of Akuha Mukpa at the Upper Area Court was that of pledge and that she was an illiterate, that she did not sign any document in respect of the transaction but the appellate trial Court set up a different case from that of the 1st Respondent and held that the signatures on Exhibits D, R and G are not the same and the law is settled that a Court of law is not entitled to set up a case different from the one set up by parties and that an Appeal Court should not set up a case different from the case set up by parties at the trial Court and proceed to give judgment on the case set up by the Court without the parties being allowed to address the Court on the point as held in COMPTROLLER, NIGERIA PRISONS SERVICE, IKOYI, LAGOS & ORS V. DR. FEMI ADEKANYE (2003) 33 WRN 65 and CHINDO WORLDWIDE LTD V. TOTAL NIG. PLC (2002) FWLR (PT. 115) 760.
Continuing, the Appellant argued that the Court below was in error to hold that no specific finding was made by the trial Upper Area Court as to whether Akuha Mukpa signed Exhibit D, therefore, there was no responsibility on the trial Court to compare signatures of Akuha Mukpa on the documents tendered by the Appellant and the 2nd Respondent as dissimilarity of signatures was not her case. The Appellant further submitted that the Court below was in grave error to suo motu raise the issue of dissimilarity in the signatures on Exhibits D, R and G when Akuha Mukpa did not set up such case.
Thirdly, the Appellant contends that the Court below held that the Appellant was a relation to Apir Tyondo who could benefit from the land and failure to call Mrs. Veronica Amende as a witness was fatal to the Appellant’s case, however, the law is settled that a case is not proved by the number or quantity of witnesses but by quality of evidence presented by a witness, the Appellant relied on BAHAR V. YAURI N.A. POLICE (1970) N.N.L.R 107 and the relationship of a witness to a party is not material but only their credibility is important as held in CHUKWU V. STATE (1992) 1 S.C.N.J 57. Continuing, the Appellant asserts that he was the witness of Apir Tyonde at the Upper Area Court and his testimony stood unchallenged and uncontradicted under cross-examination and the law did not place an obligation on the Appellant to call Veronica Amende as a witness, therefore the Court below was in grave error to hold that the Appellant ought to call Mrs. Veronica Amende as a witness to prove his case. The Appellant submits that the fact that the Appellant is a relation of late Apir Tyondo alone was not enough to cast doubt on his evidence because the quality of his evidence clearly proved that Akuha Mukpa sold her plot to late Apir Tyondo and it was not a pledge. Furthermore, the Appellant submits that Akuha Mukpa did not allege that Exhibit D, G and R were forged because if she had alleged so the onus was still on her to establish it beyond reasonable doubt as held in ADELAJA V. FANOIKI & ANOR (1990) 3 S.C.N.J. 131. The Appellant urge the Court to allow the appeal on this issue.
ISSUE TWO
In arguing this issue, the Appellant submits that the Court below held that it took Apir Tyondo one year to initiate the process to recover the plot from Akuha Mukpa, however, Apir Tyondo after he bought the plot, took steps and effected change of ownership in respect of plot and a Certificate of Occupancy was issued in his name and payments made to 2nd Respondent after which Exhibits E and F were issued to him. The Appellant avers that the length of time that took Apir Tyondo to initiate processes to recover the plot from Akuha Mukpa was not a point to be held against him and the delay did not diminish his right to seek to recover the plot as no limitation law operated against Apir Tyondo after he fulfilled his side of the bargain by paying N300,000.00 to Akuha Mukpa. After that, it was left for Akuha Mukpa to handover the plot but she declined. Relying on SANUSI V. DANIYAN (1973) 5 S.C. 177.
The Appellant contends that having regards to the oral and documentary evidence presented before the trial Court by the Appellant, the Court below was in error to reverse the judgment, dismiss the Appellant’s counter-claim and allow the 1st Respondent’s claim. The Appellant urge the Court to set aside the judgment of the Court below and affirm the decision of the trial Court.
RESPONDENTS’ SUBMISSION
ISSUE ONE
The 1st Respondent submits that the Court below did not set up a new case for the 1st Respondent because the 1st Respondent averred that she did not sell her property to Apir Tyondo or anybody and the holding of the Court below did not occasion miscarriage of justice.
The Respondents argued that when the Appellant alleged that the 1st Respondent signed an agreement for sale of land which was admitted as Exhibit D, the logical thing to have been done by the Court below while evaluating the evidence is to compare the signature on the said agreement with other documents to draw a conclusion whether it was the 1st Respondent that actually signed same. The Respondents cited Section 101(1) of the Evidence Act, 2011.
Continuing, the 1st Respondent submitted that it is the duty of the appellate Court to intervene where the lower Court failed to properly evaluate the evidence before it as held in FIRST OF NIG PLC V. OZOKWERE (2013) 12 KLR (PT. 337) 4203. According to the Respondents, the authorities relied on by the Appellant are inapplicable to this case, hence the Court below did not set up a new case for the 1st Respondent but merely evaluated the evidence tendered before the trial Court. Relied on OGBU V. STATE (2007) 2 KLR 805. The Respondents urge the Court to resolve this issue in their favour.
ISSUE TWO
In arguing issue two, the 1st Respondent submitted that the Court below did not merely rely on the delay in bringing an action against the 1st Respondent by Apir Tyondo but that the delay could not be explained by the Appellant. Continuing, the 1st Respondent argued that the judgment of the Court below was not based on the delay but on the fact that there are dissimilarities between Exhibit D, R and G which are clear indications that D and G were not executed by the 1st Respondent. The 1st Respondent urged the Court to resolve this issue also in favour of the 1st Respondent.
RESOLUTION
The Court deemed the Appellant’s brief as adopted in the absence of the Appellant’s Counsel who failed to appear to adopt the brief, this was done pursuant to Order 19 Rule 9(4) of the Rules of the Court, 2016.
I have carefully considered the Notice of Appeal, the Record of Appeal and the Briefs of the Appellant and the 1st Respondent only and the Court is inclined to adopt the issues donated by the Appellant being the initiator of the appeal. That way, all the areas of his complaint shall be resolved. However, the 2nd Respondent neglected to respond to the appeal inspite of all processes being served on it alongside hearing notices.
On issue one distilled by the Appellant, the Court is to determine firstly, whether the Court below made a case on behalf of the 1st Respondent, a new case which was not made at the trial Court. The Appellant contended that the Court below was wrong to introduce new issues not considered by the trial Area Court.
Going by the Record of the appeal, the case of the 1st Respondent at the trial Court was that she couldn’t have signed any document for sale of property (land) but she merely pledged the property without any document to support its because she was illiterate. The trial Court upon evaluation of evidence found otherwise but the appellate Court below raised the new issue of irregularity in the signatures on Exhibits D, R and G which they contended are not the same when compared and that the Appellant failed to call an independent witness to confirm the sale of the property even though a witness who signed the sale of land agreement testified. It is on record that the 1st Respondent denied signing any document and therefore the question of which of the signatures on the three documents actually belonged to her cannot arise. Courts are not allowed to raise fresh issues and resolve them without giving parties an opportunity to address the Court before it is resolved, see EFFIOM & ORS V. CROSIEC & ANOR (2010) LPELR-1027(SC) wherein the apex Court held thus:
“…it has long been settled that no Court is entitled to do so. The elementary principle is that it is wrong for a Court to raise any issue of fact suo motu and decide upon it, without giving the parties an opportunity to be heard on it. This is so because the Court is bound by and therefore confined to the issues raised by the parties. Where however the Court raises all issue suo motu which it considers material for the proper determination of the case, it must give parties, particularly the party likely to be adversely affected by the issue, to be heard. See AJUWON vs AKANNI (1993) 9 NWLR (Part 316) 182 at 190; AJAO vs ASHIRU (1973) 11 S.C. 23 at 39-40 ATANDA vs LAKANMI (1974) 3 S.C. 109; KUTI vs JIBOWU (1972) 1 ALL NLR (Part 11) 180; R.T.E.A.N vs N.U.R.T.W (1992) 2 NWLR (Part 224) 381; FINNIH vs IMADE (1992) 1 NWLR (Part 219) 511 at 537. While the Court has a duty to give the parties the opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessarily lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the Appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. See IMAH vs OKOGBE(1993) 9 N.W.L.R (Part 316) 159 at 178; OLUBODE vs SALAMI (1985) 2 N.W.L.R (Part 7) 282. As I indicated above, this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies and so the Court’s deliberation on it was an exercise in futility. It is not mainly to issues of fact. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. TUKUR vs GOVERNMENT of GONGOLA STATE (1989) 4 N.W.L.R (Part 117) 517 is instructive on this point. In that case although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction was taken by the Court.” Per TABAI, J.S.C.
There are some exceptions to the general rule and that is where the issue is already before the Court as part of the trial, see the case of AKEREDOLU V. ABRAHIM & ORS (2018) LPELR-44067(SC) where the apex Court held thus:
“The learned trial Judge reasoned that since the letter of 10th November, 2016 by the appellant’s counsel to the Deputy Chief Registrar of the Court was already in the file of the Court, the learned trial Court cannot be accused of raising the issue of the contents of the letter suo motu. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. In Ikenta Best (Nigeria) Ltd v Attorney General Rivers State (2008) 6 NWLR (pt 1084) 642 Paragraphs A-C, this Court, per Tobi, JSC (of blessed memory) held that “A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” A Court of law is eminently qualified and entitled to look at the content of its file or records and/or refer to it in consideration of any matter or issue before it. See Agbareh v Mimira (2008) All FWLR (pt 409) 559 at 589 paragraphs D-F. ” Per OKORO, J.S.C.
Where none of the situations listed above is expressly evident before the Court, the Court lacks the vires to raise a fresh issue, rely on it to resolve the dispute between the parties.
In that regard, the Court below erred by raising the fresh issue of inconsistent signatures on the document that were admitted without any objection. By doing so, the Court below reflected a different case from the one put up by the 1st Respondent at the trial Court. A Court of law is not allowed to change the direction of the case of a party even when it is obvious that a party could have argued differently, see OWNERS OF M/V GONGOLA HOPE & ANOR V. SMURFIT CASES (NIG) LTD & ANOR (2007) LPELR-2849(SC).
Furthermore, the trial Court had disbelieved the 1st Respondent because of the obvious facts established before the trial Court, particularly, Exhibit R, the Respondent’s passport photograph on change of ownership documents and her earlier letter wherein she applied for renewal of the Certificate of occupancy which is reflected at the back of Exhibit R and these was written long before the facts in issue came to light and she signed it. Also, the 1st Respondent in answer to cross-examination agreed that the original Respondent was at St. Ann Odikpo, the same address she reflected on Exhibit D, see page 33 of the Record of Appeal and these were all the facts evaluated by the trial Judge to arrive at the decision set aside by the Court below. The Court below set aside the decision upon its reasoning that there is dissimilarity in signatures arising from the new issues raised suo motu without calling on parties to first address it before relying on it to determine the appeal.
Illiteracy is a fact that must be established by evidence, the apex Court has determined how it should be established in the case of ADAEZE V ANYASO (1993) LPELR-480 (SC) thus:
“As I have said earlier, the issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the Court. In the present case, the only evidence by the respondent is his own ipse dixit that he is illiterate. The Court cannot decide the issue of the respondent’s illiteracy on the scanty evidence given by him and his demeanor.” Per WALI, J.S.C.
From the Supreme Court’s holding above, the Court below erred by relying solely on the ipsi dixit of the Respondent that she is an illiterate without more. The trial Judge was right in rejecting the mere words of the 1st Respondent on the issue that she is an illiterate. That fact was not established by evidence and the Court below erred in relying on the mere ipsi dixit of the Respondent. It then becomes obvious that there was nothing to contrast or contradict documentary evidence, Exhibits in Exhibits D, R and G.
Furthermore, the 1st Respondent relied on the fact that she merely pledged her documents and did not sell the property. The position of the law is that the party who asserts the existence of a pledge it must be proved by cogent evidence, see EZIKE & ANOR V EGBUABA (2019) LPELR-465269 (SC) which held thusly:
“To establish the existence of pledge under Customary Law as in this case, the party asserting same is expected to prove the following: –
1. That there was a pledge;
2. The parties to the pledge;
3. That the pledge took place in the presence of witnesses;
4. That there was a pledge sum;
5. That the pledgee was put in possession; and
6. The mode of redemption of the pledged property.
As I said earlier, it is the party who asserts that the land in dispute is under pledge arrangement who must adduce sufficient evidence to establish his claim. See Adjei v Dabantea (1930) 1 WACA 63, Akuchie v Nwarnadi (1992) 8 NWLR (pt. 257) 214 at 226. Allegation of pledge is an issue of fact to be proved by evidence and the evidence needed in the circumstance must be a credible one.” Per OKORO, J.S.C.
The facts presented at the trial Court alleged customary pledge by the 1st Respondent who also failed woefully to establish the said pledge by proving the ingredients listed above. Having failed to establish the ingredients, the allegation that the land was under pledge and not outright sale was not established and that should have been so clear to the Court below. The trial Judge found rightly that the 1st Respondent failed to explain how her passport photograph got to the 2nd Respondent before the transfer of ownership was processed. Furthermore, from the record before the Court, the Appellant drew the attention of the Court to the Notice of Appeal at pages 8 of the record of appeal where the 1st Respondent signed the Notice of Appeal contrary to the assertion that she is an illiterate who couldn’t have signed any document. This also put a lie to the assertion that she was an illiterate which was not established by evidence. Judges are neutral arbiters who decide matters on what is presented to them by the parties and according to law. They should desist from raising issues suo motu or introducing new issues which were not considered by the trial Court.
On the finding that the Appellant ought to have called one Mrs. Veronica Amende as witness, the trite position of law is that a party cannot be compelled to call a host of witnesses or a particular witness as long as it can present adequate evidence to establish his claim, see the case of A.G KWARA STATE VS. ALAO (2000) 9 NWLR (PART 671) P. 84 and AGIH V EJINKEONYE & BROTHERS LTD and ANOR (1992) 3 NWLR (PART 228) P.200 wherein the apex Court held thus:
“…a party does not need to call a host of witnesses to prove its case. It is enough if learned counsel chooses to call even a sole witness if the evidence adduced would establish the party’s case. It is at the discretion of a party or his counsel. A party can pick and choose which witness to call and is not bound to call a particular witness. It is not the number of witnesses called by a party that determines the success or failure of a case but the quality of the evidence of the witnesses that have testified. “
The exception is where the said witness is a vital witness, a witness that is vital was described in the case of OCHIBA V. STATE (2011) LPELR-8245(SC) thusly:
“A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the party’s case. In other words, a witness who knows something significant about a matter is a vital witness.” Per ADEKEYE, J.S.C.
It is the evidence of a witness that is evaluated and not the relationship between witnesses and parties, what the Court looks for is credibility, see the case of OCHANI V. STATE (2017) LPELR-42352(SC) where the apex Court held thusly:
“..It is clear from OGUONZEE v. THE STATE (1998) 5 NWLR (pt.551) 521 at 558, that the mere fact of blood relationship between the PW1 and the deceased is not what makes him a tainted witness. The only thing is that the Court should be wary about readily extending or ascribing credibility to his evidence.” Per EKO, J.S.C.
The evidence of late Apir Tyondo and his witness to the transaction was not contradicted that the agreement was signed in his house and Veronica Amende signed as a witness to Akuha Mukpa. The said witness not called was the witness to the 1st Respondent and therefore, the Appellant cannot be vilified for failing to call the witness of his opponent. With nothing to the contrary, the need to call the said Veronica did not arise, there was no denial. The trial Court properly evaluated the documents admitted without objection to arrive at the judgment which the Court below set aside was without basis. The evidence before the Court clearly points to a sale and not a pledge, Exhibit D is clear and direct to the fact of sale.
I therefore resolve issue one in favour of the Appellant.
Issue two challenged the appropriateness of the Court below in reversing the decision of the trial Court and thus dismissing the counter-claim of the Appellant. The Court below entered judgment for the claimant as per her claim, the other reason given was that the Appellant did not file his claim until after a year and not within the one month he wanted and on that basis alone, the Court below in its wisdom found that it is an indication that the land does not belong to the Appellant. The Appellant after he bought the land, took steps to effect change of ownership at the Local Government office. By the time the 1st Respondent filed her claim, the title to the land had been transferred, so legally, the law was on the side of the Appellant, and the claim was subject to proof, so there was a presumption of regularity in favour of the Appellant, see Exhibits E and F which are the change of ownership and certificate of occupancy in Appellant’s name. The issue of filing a counter-claim within one month by the Appellant was not irregular, the title being in his name. The notice of intention to take steps to recover the plot after one month is not law that must be enforced. Furthermore, limitation law did not apply as one year period is not within the contemplation of limitation law in respect of a claim to land. It was merely a notice of intention to take steps to recover the land and being in the class of pre-action notice, the law demands that the claim be filed any time thereafter and not before.
Having found earlier under issue one that the Court below erred in setting aside the judgment of the trial Court, the only duty left to be carried out under issue two is to restore the judgment of the trial Area Court and find for the Appellant.
The appeal therefore has merit and is hereby allowed, the judgment of the Court below sitting in its appellate jurisdiction and delivered by HON. JUSTICE E. N. KPOJIME and HON. JUSTICE S. J. OWIJI on the 21st November, 2008 is hereby set aside and the judgment of the trial Upper Area Court delivered on the 31st May, 2000 by F. M. IKYEGH Ag. Sole Judge which held thus:
“The claim against the 2nd Defendant is dismissed. The claim of the 1st Defendant succeed to the extent that the Plaintiff being ordered to vacate Plot No.677 Gboko East for him.”
It is hereby restored and affirmed. The counter-claim of the Appellant at the trial Court succeeds. The land covered by Gboko Local Government Certificate of Occupancy No: 677 Gboko East belongs to the Appellant and the 1st Respondent is to deliver possession to the Appellant forthwith.
No order as to cost.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in draft, the lead judgment just delivered by my learned brother, Hon. Justice Y.B. Nimpar, JCA; and I am in complete agreement with his reasoning and conclusion that the appeal is meritorious and same is hereby allowed. That the judgment of the Court below delivered on the 21st day of November, 2008 is hereby set aside while the judgment of the Trial Upper Area Court delivered on the 31st May, 2000 is hereby restored.
I also abide by the consequential order and the order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead judgment just delivered by my learned brother, Yargata B. NIMPAR, JCA., and I agree with the reasoning and conclusions reached therein.
The appeal is imbued with merit and is accordingly allowed by me.
The judgment of the High Court of Benue State, sitting in Gboko, by Hon. Justice E. N. Kpojime, J., and Hon. Justice S. J. Owiji delivered 21st November, 2008 is also set aside by me, the judgment of the trial Upper Court delivered on 31st May, 2000 by F. M. Ikyegh Ag. Sole Judge is hereby restored and affirmed.
I abide by the consequential order made in the leading judgment.
Appearances:
J.K. Ageh Esq., For Appellant(s)
J.O. Iorliam Esq., holding the brief of J.T. Akaazua Esq., For Respondent(s)