UCHEGBULE AMADI & ORS. v. ONONIWU NNADI NWANYINKWO & ORS.
(2012)LCN/5435(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of June, 2012
CA/E/120/86
RATIO
“It is the law that in an action for declaration of title to land, the first duty of a claimant is to show the exact and precise identity of the land on which he hinges his claim. It has thus been established by the Supreme Court in a plethora of cases that, in a claim for declaration of title to land and injunction, the plaintiff or claimant must produce sufficient credible evidence which ascertains the definite and precise area of land the claims. This is because a declaration can only be granted over a piece or parcel of land which can be precisely defined and therefore identifiable. Accordingly, where the evidence led as to the identity if the land claimed is scanty or contradictory or inconclusive, the declaration sought may be refused. see ARABE v. ASANLU (1980) 5-7 S.C Pg.78; MABAIKU ONOTAIRE & ORS. v. BANITE ONOKPOSA (1984) 12 S. C. pg.19; HENSHAW v. EFFANGA (2009) 11 NWLR (Pt.1151) pg. 65; EKPEMUPOLO v. EDREMODA (2009) 8 NWLR (pt.1142) pg. 166; UKAEGBU v. NWOLOLO (2009) 3 NWLR (Pt.1162) pg.194 and UDECHUKWU v. EZEMUO (2009) 14 NWLR (pt.1162) pg.525.”PER HARUNA M. TSAMMANI, J.C.A.
“I have reminded myself that the purport of a ground of appeal and its particulars is to explain to a respondent the issues contended in the appeal. Once that purpose is served, a ground of appeal cannot be said to be defective. Such ground of appeal can only be struck out where it is couched in a manner that does not give room for its being understood, or it is so uncertain or ambiguous that it does not present itself to any form of intelligibility. See OLORUNTOBA-OJU & ORS v. ABDUL-RAHEEM & ORS (2009) 13 NWLR (Pt.1157) Pg. 83 per Adekeye; J.S.C. “Per HARUNA M. TSAMMANI, J.C.A.
“It is trite law that, however meritorious a ground of appeal is, it must be connected with the controversy between the parties. In other words, the ground of appeal and the issue arising therefrom must be against a decision relating to the ratio of that decision. It is true that ground 2 relates to the validity of Exhibit “B” which is not an issue canvassed before the trial court. However, this court granted the Appellant leave to raise and argue this issue as a fresh issue, vide motion on Notice dated and filed the 28/5/91 and granted the 27/3/92. That issue is therefore closed and cannot be raised again.”Per HARUNA M. TSAMMANI, J.C.A.
“It is clear from the provision of order 6 rule 2(3) of the Rules of this court (supra) that, a ground of appeal and its particulars should not contain any argument or narrative, but should be clear and concise. See ADAH v. ADAH (2001) 5 NWLR (pt.705) Pg.1 and ABDULLAHI v. OBA (1998) 6 NWLR (Pt.554) Pg. 420 and KALU v. UZOR (1998) 7 NWLR (Pt.558) pg.523.”Per HARUNA M. TSAMMANI, J.C.A.
“The necessity of the claimant to lead evidence on the identity of the land will arise or become an issue at the trial, if and only if, the defendant has made it so in his statement of defence. In other words, the identity of the land in dispute will be in issue if; and only if, the defendant in his statement of Defence makes it one, by disputing either the area or the size or the location or other feature indicated by the plaintiff in his statement of claim. See NWOGO v. NJOKU (1990) 3 NWLR (Pt.140) Pg.570. Accordingly, where the identity of the land is not disputed by the defendant’s pleadings’ and the land is known to all the parties to the dispute, it will not be necessary to have either a survey plan of the land or read evidence as to the identity of the land in dispute. See NWANKWO v. OFOMATA (2009) 11 NWLR (Pt.1153) Pg. 496; EKPEMUPOLO v. EDREMODA (supra) at pg.195 and ANYANWU v. UZOWUAKA (2009) 3 NWLR (Pt.1159) PG.445.”Per HARUNA M. TSAMMANI, J.C.A.
“Where a trial judge has judicially and judiciously carried out his duty of evaluating the totality of the evidence adduced by the parties, this court is always reluctant to interfere. This is so as the primary duty of evaluation of the evidence led at the trial and ascription of probative value thereto lies with the trial judge who saw and heard the witnesses. For this court to interfere, it must be demonstrated by the Appellant, from the evidence on the printed record that, either the trial judge did not base his decision on the totality of the evidence adduced before him or that he took into consideration extraneous matters in making his findings, thus arriving at a perverse decision. See ALI v. SALIHU (2011) 1 NWLR (Pt.1228,) Pg.227; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt.1213) pg.50; OGHIRI v. N.A.O.C. LTD (2010) 14 NWLR (Pt.1213) pg.208 and OKONKWO v. OKONKWO (2010) 14 NWLR (Pt.1213) pg.228.” Per HARUNA M. TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. UCHEGBULE AMADI
2. BENEDICT ANUKWUMANU
3. CELESTIN IWUAMADI
4. DEMIAN ONYENEHIDE
(For themselves and as representing Umuadim/Umuroka families) Appellant(s)
AND
1. ONONIWU NNADI NWANYINKWO
2. DAVID OKWU OPARAIHEOMA
3. MICHAEL OHIAGBAJI
4. NDUKUBA CHUKWU -dead
(For themselves and as representing Umuduru/Umuohua families) Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of S. W. Chianakwalam; J of the Imo State High Court, sitting at Owerri in Suit No: HOW/146/76 delivered on the 24th day of January, 1986.
The Appellants as representatives of Umuadim and Umuroka communities took out a writ of summons against the Respondents also as representatives of Umuduru and Umuohua communities, over a piece of land situate at Uzoagba within the Owerri Judicial Division. By the Suit which was instituted on the 22/11/1976, the Appellants as Plaintiffs claimed the following reliefs:
1. Declaration of title to that piece or parcel of land known as and called “Uhu Anwutama” otherwise known as and called “Uhu Umuagwu.”
2. N50,000.00 (fifty thousand naira) being general damages for trespass.
3. Possession of the said land.
4. Perpetual injunction restraining the defendants, their servants and agents from entering the said land again.
Both parties filed and tendered plans in evidence at the hearing. The Appellants’ survey plan No. IM/GA 1493177 was admitted in evidence as Exhibit A, while the Respondents’ plan No. PO/IMO226/77, was admitted as Exhibit C.
The Appellant’ claim was that, the land originally belonged to their ancestors, a long time ago. That the Appellants’ ancestors then transferred possession of the land to the ancestors of the Respondents, for them to farm thereon only. They contended that the transfer was neither a pledge nor a sale, but a grant from their ancestor to the ancestors of the Respondents for farming only. Previous Court judgment was pleaded and tendered by them, and which judgment was admitted as Exhibit B.
The Respondents did not deny, but admitted that the land in dispute originally belonged to the Appellants’ ancestors. They however contended that, the Appellants’ ancestors had sold and transferred land in dispute to their ancestors, not as a grant for farming, but by way of a sale. That the transaction took place before the advent of western civilization in their area. The Respondents also relied on same Native Court judgment pleaded by the Appellants.
At the hearing the 2nd Appellant testified for the other Appellants and called three other witnesses who testified as P.W.1, P.W.2 and P.W.3 respectively. The 2nd Respondent testified for the Respondents, and no other witness was called by them. After the addresses of counsel, the learned trial judge evaluated the evidence led by the parties, and in a considered judgment delivered on the 14/01/1986, dismissed the Plaintiffs/Appellants claims entirely.
It is against that decision that the Appellants filed their original Notice and Grounds of Appeal, dated the 12/3/86 and filed the same day. Ultimately, this appeal was heard on the Appellants Further Amended Grounds of Appeal, dated 04/2/1991 and deemed filed the 27/3/92. The Grounds of Appeal without their particulars are reproduced hereunder:
“1. The learned trial Judge misdirected himself on point of law and on the facts when he held as follows:
“The plaintiffs are not relieved of the duty to prove the identity of the land by mere production of the record of proceedings, Exhibit B, without the plan used in the case and relating the area in that plan to the identity of the area claimed in this suit.
Plaintiff did not produce the plan. Neither they nor their witnesses gave evidence relevant to the plan. This created a vacuum in their case.”
2. The learned trial judge erred in law when he failed to direct his mind properly or at all to Exhibit “B” in these proceedings and consequently failed to observe that the judgment of the Native court at page 15 of Exhibit “B” is valid and subsisting and that the subsequent judgment of Mr. Cook, A. D. O. at page 16 of Exhibit “B” and that of the Native Court at page 19 of Exhibit B are both ultra vires and void of no effect, for want of jurisdiction.
3. The learned trial judge erred in law and on the facts when he relied on the void review of Mr. Cook as valid and subsisting.
4. The learned trial judge misdirected himself in law and on the facts when he held as follows:
“Plaintiff acceded the defendants were at all times material to this case in possession of the land in dispute. The unproven allegation that their ancestors allowed the defendants’ ancestors to farm the land (an allegation which I do not believe or accept as satisfactory or conclusive) did not absolve them of the responsibility of proving that the defendants are not the owners of the land in dispute…if there is a dispute as to which of the two persons is in possession, the presumption is that the person having title to the land is in lawful possession… The plaintiffs failed to prove better title to the land than the defendants.”
5. The Judgment is unreasonable and unwarranted and cannot be supported having regard to the weight of evidence.
As required by the Rules of this court, the parties filed and exchanged briefs of argument. The original Appellants’ brief of argument is dated the 04/2/1991 and filed the 05/2/1991. An Amended Appellants’ Brief of Argument which is undated was filed on the 06/10/2008. Similarly, the Respondents filed an original Brief of Argument on the 23/12/87. However, an Amended Respondents’ Brief of Argument dated the 13/10/08, was filed on the 15/10/2008.
The Appellants nominated five (5) issues for determination from the five (5) Grounds of Appeal. These are:
(i) Whether the learned trial judge rightly directed himself when he held that the plaintiffs did not adduce oral evidence and produce a plan to show that the land in dispute in this case is the same land in dispute between the parties in the Native Court Suit Exh. B when the issue had been settled by the pleadings.
(ii) Whether the learned trial judge was right when he failed to direct his mind to the review order of Mr. Cook on 14/2/30 at page 16 of Exh. B which was ultra vires as well as the subsequent judgment of the Native Court at page 19 of Exh. B delivered on 22/2/30 as ordered by the A.D.O
(iii) Whether the learned trial judge did not err in law when he failed to treat the judgment of the Native Court of 22/7/29 at page 15 of Exh. B as valid and subsisting and to give effect to it in arriving at his decision.
(iv) Whether, in view of the foregoing misconception of the judgment, the learned trial judge correctly advised himself in invoking Section 145 of the Evidence Act and thereby presuming title against the plaintiff and in favour of the Defendants.
(v) Whether the learned trial judge correctly appraised and corrected all the facts of the case in arriving at his decision in the case.
The Respondents on the other hand posed the following questions to be answered in the determination of this appeal:
1. Had the trial judge any jurisdiction to adjudicate on the validity of the final judgment of the Native Court delivered on 20/3/30 in case No.4/1929 when the Appellant never put the validity of the judgment in issue, nor did they appeal against the judgment delivered 46 years before this suit, and respected by both parties until 1976 when this suit on appeal was filed? (GROUNDS 2 and 3).
2. Can a claim for possession and one for trespass subsist in the same suit? (GROUND 5).
3. Was the trial judge wrong in applying Section 145 of the Evidence Act considering that the Appellants conceded possession both in their statement of claim and evidence in court? (GROUND 4)
4. Is it right to say that the identity of the land in dispute was not in issue when both parties filed plans that deferred in material particulars, considering the description of the land in the Native Court records Exh. B? Can the plaintiffs’ plan Exh. A be said to fully represent the land in dispute in Exh. B?
(GROUND 1).
Before I proceed to the determination of the issues raised in this appeal, I wish to point out that the Respondents raised some preliminary points of law pertaining to the competency of Ground 1, 2 and 3 and their particulars as contained in the Further Amended Grounds of Appeal dated the 4/2/91 and filed the 5/2/91, but deemed filed on the 27/3/92. That was raised and argued at pages 2-4 Paragraphs 2.01-2.02 of the Amended Respondents’ Brief of Argument. I propose to consider the arguments therein together.
It is therefore the contention of Chief M. I. Ahamba, SAN of learned counsel for the Respondents that, Ground 1 of the Appellants’ Notice of Appeal contains only one particular of misdirection, but that the particular is prolix, argumentative and did not set out clearly the aspect of the substantive procedural law that has been infracted upon. He relied on the case of A.G. FEDERATION v. A.N.P.P (2003) FWLR (Pt.107) pg. 839 at 876.
On Ground 2, it is submitted that the complaint therein, which is on the failure of the learned trial judge to observe that the judgment contained in Exh. B at page 15 thereof was valid and subsisting, is not in anyway supported or elucidated by the particulars. That it is rather an extension of the argument contained in the grounds of appeal, and therefore offends Order 6 Rule 2(3) and Rule 3 of the Court of Appeal Rules. He relied also on the case of YELWA v. UMAR (2005) ALL FWLR (Pt.291) Pg. 1670 at 1683 to further submit that, failure of a trial court to make an observation does not constitute an infraction or an error in a judgment particularly when an issue is not made out in the trial for the judge to observe or take cognizance of. That, a trial judge is not expected to make an observation on an issue not raised by any of the parties, and which did not arise from the pleaded facts. The leave granted the Appellant, submitted learned counsel, to raise fresh issues must be properly tied to the case before the court before a legitimate complaint of an infraction can be granted. That this ground is therefore defective and ought to be struck out.
With respect to Ground 3, it is the contention of learned Respondent’s senior counsel that, the particulars thereof offend Order 6 rule 2(3) and 3 of the Court of Appeal Rules. That the particulars in support of this ground did not state clearly and succinctly how the judgment of Mr. Cook was delivered without jurisdiction, neither did it state the circumstances in which it was delivered. Relying on the cases of YELWA v. UMAR (supra) and NWADIKE v. IBEKWE (1987) 4 NWLR (Pt.67) 718, learned senior counsel urged us to strike out this ground for being bad.
I have observed that learned counsel for the Appellant did not file any Reply Brief, so he did not respond to the objections raised by learned senior counsel for the Respondents. I have also observed that the briefs of argument in this appeal were filed under the 2007 Rules of this court. Those Rules therefore should apply in the determination of this appeal.
Now, I shall consider the objection on Grounds 1 and 3 together, as the objections thereon are premised on the same grounds. Learned senior counsel submits that those Grounds and the particulars in support offend order 6 rule 2(3) and 3 of the Court of Appeal Rules. Those provisions stipulated that, a ground of appeal which complains of misdirection or error in law, must supply particulars and nature of the misdirection or error. Such shall be set out concisely under distinct heads without any argument or narrative, etc’ Rule 3 of order 6 of the court of Appeal Rules, 2007 gives this court power to strike out any ground of appeal which is vague or general in terms or which discloses no reasonable ground of appeal, except where it is the general ground that the judgment is against the weight of the evidence. The contention of Respondents learned counsel is that, the particulars are argumentative, prolix and vague. It is clear from the provision of order 6 rule 2(3) of the Rules of this court (supra) that, a ground of appeal and its particulars should not contain any argument or narrative, but should be clear and concise. See ADAH v. ADAH (2001) 5 NWLR (pt.705) Pg.1 and ABDULLAHI v. OBA (1998) 6 NWLR (Pt.554) Pg. 420 and KALU v. UZOR (1998) 7 NWLR (Pt.558) pg.523.
I have carefully studied those grounds of appeal and their particulars. I have also reflected on the nature of the preliminary objection raised. In that respect, I have reminded myself that the purport of a ground of appeal and its particulars is to explain to a respondent the issues contended in the appeal. Once that purpose is served, a ground of appeal cannot be said to be defective. Such ground of appeal can only be struck out where it is couched in a manner that does not give room for its being understood, or it is so uncertain or ambiguous that it does not present itself to any form of intelligibility. See OLORUNTOBA-OJU & ORS v. ABDUL-RAHEEM & ORS (2009) 13 NWLR (Pt.1157) Pg. 83 per Adekeye; J.S.C.
Accordingly, I have perused the grounds 1 and 3 of the Appellants” Notice of appeal, I do not consider them to be defective. Though the particulars appear to be verbose, but they are related to the grounds of appeal.
The 2nd ground of the objection, is that, the issue raised thereon is a fresh issue, as such issue was not raised before the trial court. It is trite law that, however meritorious a ground of appeal is, it must be connected with the controversy between the parties. In other words, the ground of appeal and the issue arising therefrom must be against a decision relating to the ratio of that decision. It is true that ground 2 relates to the validity of Exhibit “B” which is not an issue canvassed before the trial court. However, this court granted the Appellant leave to raise and argue this issue as a fresh issue, vide motion on Notice dated and filed the 28/5/91 and granted the 27/3/92. That issue is therefore closed and cannot be raised again.
On the whole therefore, the preliminary objection raised by the Respondent cannot be sustained. It is accordingly overruled.
Having determined the preliminary objection, I now proceed to consider the substantive appeal. In doing that, I shall adopt the issues nominated by the Appellant.
On issue one, the Appellants contend that the learned trial judge was wrong in holding that they are under obligation to adduce oral and documentary evidence to prove an issue which had been settled by the pleadings. That the Appellants had pleaded that the land in dispute is the same land disputed in the Native Court in Suit No. 4/1929. That in so holding, the learned trial judge ignored the rules of pleadings and therefore confused that issue with the issue of onus on the Appellants to prove the identity of the land that he claims. That in that circumstance, the learned trial judge held that the Appellants failed to discharge the onus on them prove the identity of the land they claim, which has been affirmatively established by their plan (Exh. A)
Learned Appellants’ counsel then submitted that, by Section 74 of the Evidence Act (now Section 123 of the Evidence Act, 2011), it will be unnecessary to prove in any civil proceedings facts which the parties have by their pleadings agreed as established. The cases of NDIAKAEME & ORS v. EGBUONU & ORS (1941) W.A.C.A Pg.53 and UDOFIA & ANOR v. AFIA (1940) 6 W.A.C.A Pg. 216 were cited in support.
Learned counsel for the Respondents argued this issue as his issue IV. The argument therein is at Paragraph 3.12 of his unpaginated brief of argument. Therein, learned senior counsel answered the poser raised by him, by contending that, the Appellants filed their plan (Exh. A), while the Respondents also filed a plan (Exhibit C) both of which are in evidence. That the two plans did not agree on the features, and thus it became necessary to establish the identity of the land the Appellants claim. He referred to the testimony of the 2nd Appellant who testified on behalf of the Appellants, and the findings of the learned trial judge on the issue, to submit that the conclusion recorded by the trial court on the issue cannot be disturbed, as it was arrived at after a thorough evaluation of the evidence before him. That this court can only interfere where the finding of the trial court had not been based on a consideration of the totality of the evidence before the court. He relied on the cases of WOLUCHEM v. GUDI (1980) 5 S.C Pg.291; KATE ENTERPRISRS LTD v. DAEWOO (NIG) LTD (1986) 2 NWLR pg.116 and AWOYALE v. OGUNBIYI (1986) 2 NWLR pg.626.
Learned counsel for the Respondents also contended that, it is not the case of the Appellants that the trial judge did not consider all the evidence or that his conclusion was perverse. That, rather the complaint of the Appellant is that the learned trial judge considered evidence necessary, in a circumstance which the Appellants felt had been taken care of by the pleadings. He then submitted that, the parties differed in their pleadings on the identity of the land in dispute, and thus issues were joined thereon. That the trial judge was therefore right to consider as necessary, evidence on the issue of identity of the land in dispute.
It is the law that in an action for declaration of title to land, the first duty of a claimant is to show the exact and precise identity of the land on which he hinges his claim. It has thus been established by the Supreme Court in a plethora of cases that, in a claim for declaration of title to land and injunction, the plaintiff or claimant must produce sufficient credible evidence which ascertains the definite and precise area of land the claims. This is because a declaration can only be granted over a piece or parcel of land which can be precisely defined and therefore identifiable. Accordingly, where the evidence led as to the identity if the land claimed is scanty or contradictory or inconclusive, the declaration sought may be refused. see ARABE v. ASANLU (1980) 5-7 S.C Pg.78; MABAIKU ONOTAIRE & ORS. v. BANITE ONOKPOSA (1984) 12 S. C. pg.19; HENSHAW v. EFFANGA (2009) 11 NWLR (Pt.1151) pg. 65; EKPEMUPOLO v. EDREMODA (2009) 8 NWLR (pt.1142) pg. 166; UKAEGBU v. NWOLOLO (2009) 3 NWLR (Pt.1162) pg.194 and UDECHUKWU v. EZEMUO (2009) 14 NWLR (pt.1162) pg.525.
The necessity of the claimant to lead evidence on the identity of the land will arise or become an issue at the trial, if and only if, the defendant has made it so in his statement of defence. In other words, the identity of the land in dispute will be in issue if; and only if, the defendant in his statement of Defence makes it one, by disputing either the area or the size or the location or other feature indicated by the plaintiff in his statement of claim. See NWOGO v. NJOKU (1990) 3 NWLR (Pt.140) Pg.570. Accordingly, where the identity of the land is not disputed by the defendant’s pleadings’ and the land is known to all the parties to the dispute, it will not be necessary to have either a survey plan of the land or read evidence as to the identity of the land in dispute. See NWANKWO v. OFOMATA (2009) 11 NWLR (Pt.1153) Pg. 496; EKPEMUPOLO v. EDREMODA (supra) at pg.195 and ANYANWU v. UZOWUAKA (2009) 3 NWLR (Pt.1159) PG.445.
To resolve this issue, I find it pertinent to have recourse to the pleadings of the parties as related to the identity of the land in dispute. The Appellants had pleaded at Paragraphs 3, 4, 5 and 6 of their Statement of Claim dated 12/4/1977 and filed same day, as follows:
“3. The land which is the subject matter of the above suit hereinafter called the land in dispute known as and called UHU ANWUTAMA UMUROKA” otherwise known as and called “UHU UMUAGMI” situate at Uzoagba within the Owerri Judicial Division.
4. The extent and dimension of the land in dispute are clearly shown in the plaintiffs’ plan No. IM/GA/1493/77 filed with this Statement of Claim and thereon verged pink.
5. The land in dispute is traversed from North to South by the road leading to EKEUZOAGBA market down to the junction Egbu Uzoano to Umueme and Umuagbu to the South’ and by road from west by Afor Uzoagba to Amamba Uzoagba.
6. The land in dispute is a very big area of land and was communal land of Umuadim/Umuroka family from time immemorial, and before them, their ancestors who exercised maximum acts of ownership on the land in dispute without any let or hindrance either from the defendants or from anyone else.”
In answer to those pleadings of the plaintiffs/appellants, the Respondents pleaded in paragraph 2, 3, 4, 5 and 6 of their Statement of Defence as follows:
“2. Defendants deny that the land in dispute is called “UHU ANWUTAMA UMUROKA” or “UHU UMUAGWU but admit the rest of Paragraph 3 of the Statement of Claim. In further answer the defendants aver that the land in dispute is known as and called UMUAMA UMUUOMII and is more particularly delineated and verged pink in defendants’ plan No. PO/IMO 226/77 filed with this Statement of Defence. The portion verged green in the said plan is not part of “the land in dispute” for the purposes of this Statement of Defence.
3. Defendants admit receiving Plaintiffs’ Plan No. IM/GA 1493/77 mentioned in paragraph 4 of the Statement of Claim but deny that the extent and dimensions of the land in dispute are as delineated in the said plan. The said plan includes the area verged green in Defendants’ plan referred to in Paragraph 2 thereof. The land in dispute is the area verged pink in Defendants’ said plan.
4. The land in dispute is bounded as follows: North By Defendants (Umuomi) land not in dispute. SOUTH: By
(a) Road from Uzoabga central school to Umuagwu.
(b) Plaintiffs’ (Umuagwu) land not in dispute.
EAST: By land of Umueme and Amamba not in dispute.
WEST: By land of Umuofa not in dispute’
NORTH-WEST: By Ochasi land of Umuomi (Defendants) claimed by plaintiffs in their plan No. IM/GA 1493/77.
5. Defendants admit paragraph 5 of the statement of Claim.
6. Defendants admit Paragraph 6 of the Statement of Claim.”
By the above reproduced pleadings of the parties pertaining to the identity of the land in dispute, the Defendants/Respondents while admitting certain parts of the description of the land given by the plaintiff/Appellants, denied that the extent and dimensions of the land in dispute are as delineated by the Appellants in their plan (Exhibit A). This is particularly so in Paragraph 3 of the Statement of defence.
Furthermore, in view of the pleadings in Paragraphs 11(i)-(vii) of the Statement of Defence, the learned trial judge felt that there was the need, and indeed the necessity for the Appellants to prove with certainty the identity of the area of the land they claimed. That the Appellants could not prove the identity of the land which they claimed by mere production of Exhibit B; without a plan of the area claimed in Exh. B (record of proceeding in Suit No. 4/1929. In the evaluation of the evidence on the identity of the land in dispute, vis-a-vis the Appellants’ plan (Exhibit A), the learned trial judge held that:
“The plaintiffs produced Exhibit A plan No.IM/GA/1493/77 wherein the area in dispute was verged pink. There is no evidence either from the features of Exhibit A or otherwise to prove the land alleged awarded to the plaintiffs under and by virtue of Exhibit B. The defendants tendered Exhibit C, plan No. PO/IMO 226/77 where they depicted the positions of the pillars demarcating the boundaries of the land when the proceedings in Exhibit B were undertaken. The representative of the defendants who testified stated that he witnessed the planting of the pillars which were removed by the plaintiffs and the positions of the pillars shown on Exhibit C were the same as the positions of the pillars on the plan used in the case, Exhibit B.”
Upon such evaluation of the evidence adduced by each of the parties as relates to the identity of the land in dispute, the learned trial judge, preferred the evidence of the Respondents to that proffered by the Appellants. He therefore found that the Appellants failed to prove identity of the land which they claim to his satisfaction.
Where a trial judge has judicially and judiciously carried out his duty of evaluating the totality of the evidence adduced by the parties, this court is always reluctant to interfere. This is so as the primary duty of evaluation of the evidence led at the trial and ascription of probative value thereto lies with the trial judge who saw and heard the witnesses. For this court to interfere, it must be demonstrated by the Appellant, from the evidence on the printed record that, either the trial judge -did not base his decision on the totality of the evidence adduced before him or that he took into consideration extraneous matters in making his findings, thus arriving at a perverse decision. See ALI v. SALIHU (2011) 1 NWLR (Pt.1228,) Pg.227; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt.1213) pg.50; OGHIRI v. N.A.O.C. LTD (2010) 14 NWLR (Pt.1213) pg.208 and OKONKWO v. OKONKWO (2010) 14 NWLR (Pt.1213) pg.228.
The burden is on the party who complains about the findings of facts and evaluation of the evidence to show from the printed record how those findings were wrong.
In the instant case, it is not the case of the Appellants that the learned trial judge made perverse findings or that he erred in the evaluation of the evidence led by them on the identity of the land which they claim. Rather, their complaint is that the issue of the identity of the land in dispute had been settled by the pleadings’ and therefore they needed not to profer any evidence thereon. As it has been found, the Respondents by their pleadings certainly questioned the identity of the land which the Appellants claimed. I am therefore of the view, and do hold that, the learned trial judge was right when he found that the identity of the land the Appellants claimed was in issue. His evaluation of the evidence led by both parties thereon is unassailable. I cannot therefore interfere with his findings and conclusions thereon. This issue is accordingly resolved in favour of the Respondents.
On the 2nd issue raised in this appeal for determination by the Appellants, the Appellants contend that, the Native Court judgment which was delivered on 22/7/1929 was reviewed by the A. D. O., Mr. Cook on 14/2/1930 as can be seen at page 16 of Exhibit B; which is a period of over six months after it was delivered. That this act contravened the provisions of the Native Courts Ordinance’ which stipulated that, the time therefore was ultra vires and of no effect, and so was the rehearing by the Native court which the A.D.O had ordered in his review judgment. The cases of TIMI TIMI v. AMABELE 14 W.A.C.A PG.374, IN RE WILLIAM UDE & ORS V. JOSIAH AGU & ORS (1961) ALL N.L.R. pg.65; OHEME MOORE v. ADESSEH TAYEE 2 W.A.C.A. PG.43 at 45 and ORANYE V. JIBOWU 13 W.A.C.A. Pg.59 were cited in support. That it is irrelevant that objection to the nullity of the A.D.O’s order and the subsequent Native Court judgment was not raised at the trial, since the issue is one of jurisdictions which can be taken at this stage, as the court cannot compromise with an illegal judgment. That if his argument is upheld, the parties will be left with the original judgment of the Native court at page 15 of Exh. B, as the only valid and subsisting judgment in Exh. B.
As a corollary to the above submission, learned Appellants’ counsel contended as his issue 3 that, the learned trial judge did not advert his mind to the nullity of the judgments of the A.D.O of 14/2/30 at Pg. 16 of Exh. B and that of the Native court of 22/2/30 at Pg.19 of Exh. B. That the Respondents relied on those judgment at Paragraphs 11(i), 11(ii), 11(iv), 11(v), 11l(vi) and (vii) of the statement of claim. Learned counsel then submitted that those judgments of A.D.O and Native court were erroneously construed by the trial court in favour of the Respondents, and which led the trial court to arrive at a wrong decision. He then submitted that, had the learned trial judge taken a correct view of the first Native court judgment, he would have construed same in favour of the Appellants’ case, and would no longer have requirecl from the Appellant any evidence of traditional history and numerous and positive acts of long possession in order to establish their title to the land in dispute, as that would have been put to rest by the said first Native court Judgment.
The Respondents argue this issue as issue one(1) in their Respondents Brief of Argument. Therein Chief Ahamba of learned senior counsel who settled the Respondents’ brief submitted that, it is the general state of the law that, a judgment subsists until set aside on appeal. He cited the dictum of the Privy Council in the case of BADAR BEE v. MABIB MERICAN NOORDIN & ORS (1908) A.C. pg.615, which was quoted with approval by the Supreme Court in the case of AJAO v. ALAO (1986) 5 NWLR (Pt.45) pg. 802 at 820 per Karibi – Whyte; JSC, in support. The principle set out in those two cases is that, the validity of a judgment cannot be considered unless there is an appeal against the decision.
Learned senior counsel went on to submit that the exception to the general rule stated above is where the validity of the said judgment was raised as an issue at the trial.
It is also the submission of the learned senior counsel for the Respondents that, in deciding the validity or otherwise of a judgment, distinction must be made between an irregularity and total lack of jurisdiction. The case of TIMI TIMI v. AMABELE (supra) at Pg.377 and CHAMPMAN & ANOR v. C.F.A.O v. W.A.C.A. Pg.181 were cited in support. He then contended that in the instant case, the validity of the final judgment in suit No. 4/1929 was never put in issue at the trial as no paragraph of the statement of claim attacked that judgment. That the Appellants rather relied on it. He submitted therefore, that the present case does not fall within the exception under which a trial court could adjudicate on the validity of the previous judgment. That the judgment in Suit No.4/1929 subsists as it was neither set aside on appeal, nor by other judicial proceeding.
Learned senior counsel for the Respondents argued, ex abundintia cautella that, from the grounds of appeal and the Appellants’ Brief of Argument, the Appellants’ complaint is that the Respondent’s Review of the judgment of the Native court before remitting same for re-trial in the Native court was done out of time, which means that the complaint is that the resident exercised his jurisdiction irregularly. That it is not the Appellants’ case that the Resident had no jurisdiction to remit the case. He cited the decision of the West African court of Appeal in the case of CHAMPMAN & ANOR v. C.F.A.O (supra) at Pg.185, to submit that if the remission was out of time’ it was only an irregularity which could have been a good ground for appeal. That even if the question of validity was put before the trial court, the declaration could still not have been validly made as the complaint was an irregularity in the exercise of an existing jurisdiction. We were then urged to resolve this issue in favour of the Respondents.
It is the law that there is a presumption of correctness in favour of a judgment of a court. That being so, until that presumption is rebutted and the judgment duly set aside either by way of appeal or other judicial process, it subsists and must be obeyed. See TUKURWA v. KWA-KWA (1992) 2 NWLR (Pt.224) pg.449; AKINFOLARIN v. AKINNOLA (1994) 4 NWLR (Pt.335) Pg. 659 and OSHIOMHOLE v. F.G.N (2005) 1 NWLR (Pt.907) Pg.414.
In that respect, such judgment, whether a null judgment or not can only be impeached either by way of appeal or other judicial process; such as judicial review. In other words, this court does not have the power to set aside the judgment of a lower court not on appeal before it, even where such judgment is a nullity. It will still be necessary to have it set aside.
In the instant case, the judgment the Appellants complain of i.e. the Native Court judgment delivered on the 20/2/30 in case No:4/1929 based on the order of the A.D.O for the review, is said to have been a nullity in the sense that the A.D.O gave the order of review outside the time permitted by him to do so. In other words, that the order of review was made by the A.D.O. in excess of his jurisdiction to do so. In any case, that was done and the Native Court gave its decision which the learned trial judge and indeed both parties at the lower court relied on at the trial in the lower court. The Respondents however contended that, the judgment consequent on the order of the A.D.O was not given without jurisdiction, as the A.D.O had the power to make such order. That even if the A.D.O exercised his powers not within the time allowed him to do so, his exercise of such power was only irregular, and therefore appealable, but the Appellants had not appealed such decision since 1930.
To resolve this issue, I am of the view that, it will be necessary to determine whether the exercise of this power to order for a review was a nullity and therefore the judgment given consequent upon it, is also void. The issue of whether a judgment is a nullity or a mere irregularity can be resolved by considering whether in the course of the proceedings, there has been a fundamental defect, which goes to the root of the jurisdiction and competence of the court. In such a situation, the proceedings will be regarded as a nullity. However, where the court is competent or has the jurisdiction to exercise such power or make such order, but the court exercises such power wrongly, the decision will not be a nullity but irregular, and can ground an appeal. In other words, any defect in competence is fatal’ as the proceedings consequent thereon is a nullity’ but where the court has the jurisdiction or competence, the proceedings will not be a nullity, but it may be attacked on the ground that it is irregular. In that respect, where there is jurisdiction or competence, a wrong or erroneous decision or order made by a court will be a matter for appeal. In the absence of an appeal, the decision subsists, whether rightly or wrongly. See ROSSEK v. A.C.B. LTD (1993) 1 NWLR (Pt.312) Pg. 382 at 437 per Ogundare; JSC (of blessed memory); and AGBOGA v. AGBOGA (1995) 1 NWLR (Pt.372) Pg.411.
In the instant case, the contention of the Appellants is that when the A.D.O gave the order to the Native Court to review its decision in case No: 4/1929, the time allowed him to do so had elapsed. It is therefore not their case that, the A.D.O had no jurisdiction to order for the review, but that he exercised such jurisdiction or power ultra vires. In that case, the only remedy available to the Appellants was to either appeal or ask for judicial, review. Alas, they neither appealed nor applied for such judicial review since 1930, when the judgment (Exh B) was delivered. They did not attack or challenge the said judgment in the lower court either. In fact, the Appellants pleaded it, and tendered it in evidence through the 2nd Respondent as part of their evidence before the lower court. On my part, and based on the law earlier stated in this judgment, I hold that the judgment (Exhibit B)’ going by the complaint of the Appellants was only an irregularity. In any case, learned Appellants’ counsel did not direct me to the particular Ordinance or Law, which the A.D.O is said to have contravened. Since the Appellants who also pleaded and tendered the said judgment (Exh B) in court, did not challenge it’s competence before the lower court, it is now uncharitable for them to turn around and blame the learned trial judge for not adverting to the nullity of that judgment. That issue not being before him, I hold that the learned trial judge was not wrong in not considering the validity of Exh. B. Having thus held, I hereby answer issue 2 and 3 in favour of the Respondents and against the Appellants.
Learned counsel for the Appellants would appear to have argued issues 4 and 5 formulated by him together. Therein, learned Appellants’ counsel submitted that, the presumption of ownership declared by the learned trial judge in favour of the Respondents by virtue of section 145 of the Evidence Act, has been rebutted by the Native court judgments which declared the Appellants as the owners of the land in dispute.
Learned counsel for the Appellants further submitted that the judgment of the lower court is unreasonable and cannot be supported having regard to the weight of evidence. The reasons offered by learned counsel for so submitting can be summarized as follows.
(i) The learned trial judge did not give adequate consideration to the Appellants’ case at all. That the learned trial judge took no notice of the plan tendered by them showing clearly the land claimed.
(ii) That the learned trial judge had pre-determined the case and any other finding he made was to meet that pre-determined position taken by the learned trial judge.
(iii) The learned trial judge overlooked the acts of possession pleaded at Paragraphs 9 and 10 of the statement of claim.
(iv) That the learned trial judge failed to consider that the evidence of sale pleaded by the Respondents was very watery and did not satisfy the requirements laid down by law to establish traditional sale of land. That to establish sale of land under customary law, there must be (a) evidence of performance of the customary ceremonies that accompany traditional sales; (b) evidence of handing over of possession as a result of such sale. The case of COLE V. FOLAMI (1956) 1 F.S.C. PG. 66 AT 68; ERIMOSHO V. OWOKONIRAN & ANOR (1965) A.N.C.L. PG.483 AND N.B.P.C. LTD. V. CHRISTIAN EDWARDS (1978) 3 N.L.R. PG.230 were cited in support.
Learned Appellants’ counsel then submitted that, if the learned trial judge had correctly assessed and appraised the facts before him, with free and natural mind, he would have found in favour of the Appellants. We were then urged to allow the appeal and enter judgment in favour of the Appellants or order a rehearing by another judge.
The argument of the Respondents on this issue is at Paragraphs 3.10-3.11 of the Respondents’ Brief of Argument. Therein, learned senior counsel for the Respondents contended that, by their testimonies, the 2nd Appellant who testified for the other Appellants, and the P.w.3 admitted that the Respondents are in possession of the land. That the Respondents pleaded and led evidence that they had established a palm oil plantation on the land since 1966, which is a period of ten years before the Appellants instituted this action in 1976. That the 2nd Appellant stated under cross-examination that it was Opera-Okirikpo who gave the Respondents’ ancestors the land in dispute for “farming only” and also admitted that it is the same land in dispute.
It is also the contention of learned senior counsel for the Respondents that, it is not in dispute that the Appellants’ ancestors originally owned the land. That it is also not in dispute that the Appellants’ ancestors transferred possession of the land to the ancestors of the Respondents. That the only point where the parties differ is that, while the Appellants contend that their ancestors transferred the land to the ancestors of the Respondents for farming purposes only, the Respondents insist that it was an ought right sale for value. That the Respondents led evidence in support of their claim which was not countered by the Appellants. Learned counsel (silk) then submitted that the learned trial judge found at page 75 line 9-14 of the record that:
“I find as a fact that they inherited the land from their ancestors after the ancestors of the plaintiff parted ownership of it by sale. The sale was valid and there is no claim before me to declare it null and void.”
It was then submitted that as there is no appeal against that very crucial finding of the trial court, the said finding still stands unquestioned. The case of DABO v. ABDULLAHI (2005) ALL F.W.L,R (Pt.255) Pg.1039 was cited in support.
Relying finally on the cases of KATE ENTERPRISES LTD v. DAEWOO (supra) at pg.116 and NWAJIOFOR v. UKONU (1985) NWLR Pg. 686, to submit that there is no basis for this court to disturb the findings of the trial court on long possession and other specific facts.
Now, going by the record of appeal, especially at pages 72-74, the learned trial judge applied Section 145 of the Evidence Act (now Section 143 of the Evidence Act, 2011) to hold that the Plaintiffs/Appellants failed to prove a better title to the land than the Defendants/Respondents. Specifically, the learned trial judge held that:
“Acts of a person claiming land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are evidence of ownership (right of occupancy), provided the acts extend over a sufficient and positive enough as to warrant the inference that the person is the true owner. See EKPO v. ITA 11 NWLR 68. Looking at the pleadings of the plaintiff they did not aver any acts of possession they exercised themselves over the land. But at paragraph 6 of the Statement of Claim, without giving details of acts, they vaguely averred their ancestors exercised maximum acts of ownership on the land. It was also their case that their ancestors parted with the possession of the land at a time now beyond living memory.”
Evaluating the evidence led by the Respondents on the acts of ownership which they claimed to have exercised over the land, the learned trial judge held that:
“There is evidence the defendants by themselves and through their ancestors farmed the land in dispute from the time the possession passed to their Ancestors. There is evidence the defendants established a palm plantation on the land in or about the year 1966, ten years before this suit was commenced and been reaping the fruits since 1971, again before this suit was commenced in 1976. In the circumstances, I am of the view that Section 45 (sic: 145) of the Evidence Act can be properly invoked infavour of the defendants……
Plaintiff acceded the defendants were at all times materials to this case, in possession of the land in dispute. The unproven allegation that their ancestors allowed the defendants’ ancestors to farm the land (an allegation which I do not believe or accept as satisfactory or conclusive) did not absolve them the responsibility of proving that the defendants are not the owners of the land in dispute.”
After carefully evaluating the totality of the evidence quoted above in respect of claim of the parties, the learned trial judge concluded that:
“If there is a dispute as to which of the two persons is in possession, the presumption is that the person having title to the land is in lawful possession. (see RANSO v. MARGARETT (1894) 2 K.B. 18, 27; MAKANJUOLA v. HAZAN KHALIL (1962) W.N.L.R 149; ABOTCHE KPONUGIO v. ADJO KODEDJO 2 WACA 24. The Plaintiffs failed to prove better title to the land than the defendants.”
It is clear from the passage of the judgment of the trial court quoted above, that the learned trial judge found possession of the land in dispute in favour of the Respondents. Indeed, the Appellants did not aver to or call in evidence any single act showing that they have been in possession of the land since their ancestors parted with the possession thereof in favour the Respondents. The acts of possession like the erection of shrines for juju worship and the digging of pits for defence during warfare, as pleaded in Paragraph 10 of the statement of claim, were acts done by the Appellants’ ancestors before they transferred possession to the Respondents’ ancestors. That cannot qualify as acts of ownership exercised in recent times. Indeed, as rightly pointed out by the learned trial judge, the Appellants did not plead nor give evidence of a single act of possession exercised by them in recent times. In any case, the Appellants on their own pleaded and gave evidence to the effect that the land has been in possession of the Respondents. “Their admission corroborates the evidence led by the Respondents that they have been exercising acts of ownership over the land.
Now, considering the evidence led by the parties on the issue of possession, I am of the view that the finding of the learned trial judge thereon cannot be faulted. Having found possession in favour of the Respondents, the learned trial judge did not err in law when he presumed ownership of the land in dispute in favour of the Respondents. Those acts relied on by the learned trial judge to find possession in favour of the Respondents were further strengthened by the judgment of the Native court (Exhibit B) tendered in evidence by the Appellants, and which judgment confirmed title to the land in dispute on the Respondents. The Appellants who allege and indeed claim that the Respondents are not the owners had a duty to rebut that presumption. Alas they failed to do so. This court cannot therefore disturb the findings and conclusion of the trial judge thereon, as they are based on a proper evaluation of the totality of the evidence adduced before him.
Most importantly, the trial court found that the transfer of possession from the Appellants’ ancestors to the ancestors of the Respondents was an outright sale. The learned trial judge made a finding of fact and held at page 75 lines 3 – 14 as follows:-
“The defendants, at all times material to this case, are in lawful possession (sic) of the land. Having regard to their acts over the land in recent times, the traditional history they gave on the manner in which they acquired the land is more probable. I find as a fact that they inherited the land from their ancestors after the ancestors of the plaintiffs parted ownership of it by sale. The sale was valid and there is no claim before me to declare it null and void.”
As rightly pointed out by learned senior counsel for the Respondents, this is a crucial finding of the trial court which has not been challenged. That finding therefore stands as there is no appeal against it. It therefore remains that the transaction between the Appellants, ancestors and that of the Respondents was a sale.
The Appellants also complained that the trial court did not correctly assess and appraise the facts of the case of the Appellant. In other words that the evaluation of the evidence adduced by the Appellant was inadequate. It should be noted that it is the duty of the trial court who had the advantage of seeing and hearing the witnesses, to evaluate and ascribe probative value to the evidence adduced at the trial. An appellate court does not enjoy that opportunity of seeing and hearing the witnesses, and is therefore always reluctant to interfere with the findings of facts made by the trial court, especially when such findings have to do with the credibility of the witnesses. This court will therefore only interfere where the trial court has failed to satisfactorily perform its duty of evaluating and ascribing probative value to the evidence. Thus, where the appellate court finds from the record that the trial court failed to properly evaluate the evidence before it and which finding led to miscarriage of justice, it will interfere. However, if from the record of appeal, the trial court has performed its function, this court will not interfere. See ALI v. SALIHU (2011) 1 NWLR (Pt.1228) pg.227; NIKAGBATSE v. OPUYE (2010) 14 NWLR (Pt.1213) PG.50; OKONKWO V. OKONKWO (2010) 14 NWLR (Pt.1213) pg.228 and OGHIRI V. N.A.O.C. LTD (2010) 14 NWLR (Pt.1213) pg.208.
The burden is on the party who complains about the findings of facts and evaluation of evidence to show from the evidence on the printed record, how the findings were wrong. In other words he has to demonstrate that from the facts on the record, if the trial judge had correctly assessed and appraised the facts before him, the result would have been different. In the instant case, the Appellants did not demonstrate how the evaluation of the totality of the evidence adduced at the trial and ascription of probative value thereon was wrong. They did not show how, if the evidence adduced were evaluated differently, the imaginary sale will tilt or preponderate in the Appellants, favour. The only serious challenge on the evaluation of evidence would have been on the issue of sale alleged by the Respondents. However, as the learned trial judge found, the issue of validity of the sale between the ancestors of the Appellants’ and that of the Respondents did not arise for determination before him. That aside, the Appellants have not shown, and I have not seen any reason for disturbing the findings of facts by the learned trial judge, as they have not been shown to be either perverse or that they have occasioned a miscarriage of justice. Issues 4 and 5 are therefore resolved in favour of the Respondents.
I have noticed that the Respondents have raised an issue, which they argued as issue No. 2 in their brief of argument. That issue questions whether a claim for possession can subsist with a claim for trespass to the same subject matter. This issue has not been raised by the Appellants either in their Further Amended Notice of Appeal or brief of argument. In any case issues are nominated from the grounds of Appeal. In other words issues formulated for determination must emanate from the ground of appeal filed by the appellant. Consequently, any issue which is not related to any of the grounds of appeal is irrelevant and is labile to be struck out and any argument predicated thereon will be discontinuanced. See ADELAJA v. FAMAIKI (1990) 2 NWLR (Pt.131) Pg. 137; IBATOR V. BARAKURO (2007) 9 NWLR (PT.1040) PG.475 and ONIFADE V. OLAYINWOLA (1990) 7 NWLR (PT.161) PG.130. The same principle applies to any issue formulated by the respondent. A respondent may however, raise and argue an issue not related to the grounds of appeal by filing a Respondent’s Notice. In the instant case, issue no. 2 formulated by the Respondents does not relate to any of the grounds of appeal filed by the Appellants, and the Respondents have not filed any respondent’s notice. Issue no. 2 formulated by the Respondents and the arguments in support thereof are irrelevant to this appeal. The issue and the argument in support are accordingly struck out.
On the whole, all the issues as formulated by the Appellants have been resolved in favour of the Respondents. This appeal therefore is devoid of any merit. It is accordingly dismissed. The judgment of S. W. Chianakwalam; J in Suit No: HOW/148/76 delivered on the 24/07/1986 is hereby affirmed.
I make an order of thirty thousand naira (N30.000.00) as cost against the Appellants in favour of the Respondents.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment just delivered by my Learned H. M. Tsammani, J.C.A. and I agree with the reasoning and conclusion that the appeal is devoid of any merit.
I adopt this reasoning and conclusion as mine and have nothing more to add. I also endorse the consequential order to costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
Ben Osaka; Esq.For Appellant
AND
C. C. Okoroafor; Esq (with A. E. Anuforom (Miss); K. O. Ahambra; Esq. and O. U. Okafor; Esq.)For Respondent
