UZOR v. UZOR & ORS
(2022)LCN/16601(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, April 07, 2022
CA/OW/138/2013
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
EMEKA UZOR (For Himself And As Representing Atuegbu/Uzoagbado/Obigwe Family Unit Of Umuonuma Kindred Of Umuchima Ubaha, EXCEPT The Defendants) APPELANT(S)
And
1. SAMUEL UZOR 2. UDOKA UZOR 3. CHIKA UZOR 4. PHILOMENA UZOR (For Themselves And As Representing Onwumere Uzor’s Family Of Umuonuma, Umuchima, Ubaha, Okigwe) RESPONDENT(S)
RATIO
WAYS OF PROVING TITLE OF OWNERSHIP TO LAND
As submitted by the Respondents’ Counsel, ownership of land is proved in any of the five ways stipulated by the Supreme Court in Idundun v Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC, namely:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land;
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land. See Ibude v Saidi (2021) 10 NWLR Part 1785 Page 567 at 583 Para B-F per Okoro JSC; Garba v Tsoida (2020) 5 NWLR Part 1716 Page 1 at 20-21 Para E-H per Kekere-Ekun, JSC. PER ADEFOPE-OKOJIE, J.C.A.
THE POSITION OF LAW ON CONTRADICTIONS IN THE EVIDENCE OF WITNESSES
Contradictions which do not affect the substance of the issue to be adduced, have been held to be irrelevant and will not vitiate the case of a party. The relevant contradiction has been held to be that which amounts to a disparagement of other evidence adduced, thereby making it unsafe for the Court to rely on either. See Wachukwu v. Owunwanne (2011) 14 NWLR Part 1266 Page 1 at 27 Para E-H per I.T. Muhammad JSC (as he then was); Osadim v. Taiwo (2010) 6 NWLR Part 1189 Page 155 at 180, Para C-E per Orji-Abadua JCA; Makinde v. Akinwale (2000) 2 NWLR Part 645 Page 435 at 450, Para E per Uwaifo JSC.
It was held in Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 77 Para E–F Per Ogunbiyi, JSC that the Court does not reject the evidence of a party simply on minor contradictions. There are bound to be slips in the evidence of witnesses, the absence of which would give reason for casting doubt on the credibility and truth of the witness. Traditional history of witnesses cannot be with mathematical exactitude. PER ADEFOPE-OKOJIE, J.C.A.
THE POSITION OF LAW ON THE NUMBER OF WITNESSES A PARTY NEEDS TO CALL TO SUCCEED IN HIS CASE
It is true, as submitted by the Appellants’ Counsel that a party does not need to call any witness or number of witnesses to succeed – Onowhosa v. Odiuzou (1999) 1 NWLR Part 586 Page 173 at 183, Para A-B, per Ogwuegbu, JSC. Evaluation of witnesses is based on their credibility and the acceptability of their evidence. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 324 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1773 Para B-C per Ogunbiyi JSC; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR Part 1182 Page 618 at 655 Para F-G per I.T. Muhammad JSC (as he then was). PER ADEFOPE-OKOJIE, J.C.A.
THE POSITION OF LAW ON A TAINTED WITNESS
Where the witness is alleged to have his own purpose to serve, different considerations will however apply. This is who is referred to as a “tainted witness”
In the case of Okebata v State (2013) LPELR-22474 (CA) at Page 41 Para F-G this Court, per Uwanu Musa Abba Aji JCA (as he then was) defined this term thus:
“A tainted witness is a witness who might have his own purpose to serve by giving evidence. These also include persons with accepted enmity over a land dispute between them. Underlining Mine
In Ehikwe v State (2018) LPELR-44753(CA) per Samuel Chukwudumebi Oseji, JCA (as he then was, of blessed memory) at Page 20 Para. D-E, the description given to a tainted witness is:
“a witness who has a grudge against an accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence.”
This Court, advocating the treatment to be given to such evidence, held expansively, per Bolna’an Dongban-Mensem JCA (as he then was) in Adewunmi v Nigerian Eagle Flour Mills (2014) LPELR-22557 (CA). PER ADEFOPE-OKOJIE, J.C.A.
THE PRIMARY RESPONSIBILITY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES BEFORE IT
It is the primary responsibility of the trial Court, I hold, to evaluate evidence proffered in a case and make the appropriate findings therefrom. This is based on the fact that only the trial Court has the advantage of seeing the witnesses, assessing their demeanor while testifying. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC; Obi v Uzoewulu (2021) 8 NWLR Part 1778 Page 352 at 373 Para G-H per Aboki JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, Owerri judicial division delivered on the 18th of November 2010 Coram Ijeoma Agugua J. in Consolidated Suits Nos HO/5/2002 and HO/10/2002, dismissing the Appellant’s claim in HO/5/2002 for communal title to the land in dispute and entering judgment in favour of the Respondents, as Plaintiffs in HO/10/2002 for title. Also awarded were damages for trespass and a perpetual injunction. Aggrieved, the Appellant filed a Notice of Appeal on 23/11/2010, subsequently amended with leave of this Court. The Amended Notice of Appeal was filed on 02/02/2015.
ISSUES FOR DETERMINATION:
The Appellant’s Brief of Arguments filed on 30/07/2021 but deemed as properly filed on 23/03/2022 was settled by Rev. F. U Ekavhiare, Esq in which the Appellant distilled four (4) issues for the Court’s determination, to wit:
1. Whether the lower Court was right in holding that the Respondents and not the Appellant established their entitlement to the land in dispute by traditional evidence and acts of possession.
2. Whether the lower Court was right in holding that Appellant’s star witness’s (PW1’s) evidence requires corroboration to acquire probative value.
3. Whether the award of N1 Million Naira general damages as claimed by the Respondents was not arbitrary and excessive.
4. Whether in view of the weight of evidence adduced by the appellant the judgment of the Court below was not perverse and unreasonable.
The Respondents’ Brief of Arguments as settled by Chukwuemeka Nwigwe Esq was filed on 14/01/2021 but deemed properly filed on 23/3/2022, Counsel formulating therein the following issues for determination;
1. Whether the Court was right in holding that the Respondents established their entitlement to the land in dispute by traditional history and acts of possession.
2. Whether the lower Court was right in holding that PW1’s evidence requires corroboration to acquire probative value.
3. Whether the Court was right in awarding N1 Million Naira general damages as claimed by the Respondents.
4. Whether or not the Appellants have discharged the burden of showing how the judgment of the lower Court is against the weight of evidence.
Two issues shall be sufficient in the resolution of this appeal and under which the other issues raised will be subsumed, namely:
1. Whether or not the lower Court was right to enter judgment in favour of the Respondent?
2. Whether or not the Court was right in awarding N1 Million Naira general damages as claimed by the Respondents.
The 1st issue for determination is:
Whether or not the lower Court was right to enter judgment in favour of the Respondent?
Facts of the case
The subject matter of the dispute between the parties is the ownership of the land known as Ohia Ezelu situate at Umuonuma, Ubaha, Okigwe LGA, Imo State. The Respondents in this matter are the widow and children of the kinsmen of the Appellant.
The Appellants’ case at the trial Court is that the land in dispute is a communal land owned in common by the Appellants & Respondents and the entire Umuonuma Kindred in Umuchima Community. That the entire land was a virgin forest before it was cleared by their great ancestor Onuma who set it aside for the worship of Ezeulu juju until the advent of Christianity when the land in dispute became a refuse dump in which state any member of the kindred was at liberty to plant food crops and to enjoy same without any let or hindrance, until the 4th Respondent sent her children to set fire to the land and began to assert her claim to the land in dispute as an inheritance from her late husband’s father Irechukwu.
The Respondents’ case, however is that their father and husband, the Late Onwumere Uzoagbado inherited the land from his father Irechukwu Uzoagbado who used the land for the worship of his juju called ‘umeonyiwara’. Irechukwu Uzoagbado had inherited the land as his share of the estate of his own father Uzoagbado who was a descendant of Onuma. They claimed that the Respondents had been in possession of the land and had exerted several acts of ownership including the sale of an economic tree on the land by Onwumere Uzoagbado but that when a delegation of Umuonuma men came to request the 4th Respondent to allow them to use the Ohia Ezelu land for juju worship, she and her children declined their request, as Onwumere was a committed Christian, consequent upon which they conspired and started dumping refuse on the land, prompting her to report the issue to the Ministry of Health. DW4 was assigned to investigate the matter and proffer solutions, which he did. They denied that the disputed land had ever been owned by the entire members of Umuonuma kindred in common.
In proving their case, the Appellant called two (2) witnesses, while the Respondents called four (4) witnesses. At the conclusion of the trial, the lower Court found in favour of the Respondents and awarded damages of One Million Naira to the Respondents against the Appellant.
The lower Court preferred the case of the Respondents, holding that the Appellants had not proved to the satisfaction of the Court that the land in dispute is a communal land but that the case was merely a land dispute between the Appellant and the 4th Respondent and her family. Comparing the Survey Plans tendered by both sides, it held the plans of the Appellant (Exhibits A and C) lacking in details and contrary to the evidence adduced, preferring that of the Respondents (Exhibit B2). It found the genealogy of the devolution of the land properly proved in the Respondents’ favour and also properly proved are the acts of possession and ownership pleaded by the Respondents. Holding the 2nd witness of the Appellant a “busybody”, not from the community but a neigbouring one in Arochukwu, it held that the Respondents had established a better title over Ohia Ezelu Land, the subject matter of this suit.
In consequence, the Court dismissed the claim of the Appellants in Suit No. HO/5/2002 in its entirety and entered judgment for the Respondents as claimed in HO/10/2002, as follows:
a. The defendants are entitled to the grant of the statutory right of occupancy over the piece or parcel of land known as and called “Ohia Ezelu” Irechukwu Uzoagbado situate at Umuonuma Umuchima Ubaha Okigwe Urban in the Okigwe Local Government Area within the jurisdiction of this Court and with annual value of N100.00.
b. The Claimants to pay to the defendants N1,000.000,00 (One Million Naira) being general damages for trespass into the Ohia Ezelu land by the defendants.
c. The Claimants are perpetually restrained, by themselves, their servants, agents privies or workmen from entry into the said Ohia Ezelu Irechukwu Uzoagbado land for any purpose whatsoever and from interfering with the defendant’s possession, enjoyment or user of the said land.
The Claimant to pay to the defendant N10,000.00 being the cost of this action.
APPELLANT’S SUBMISSIONS:
The Appellants’ Counsel has submitted that the evidence led by DW1 and DW2, under cross-examination, is at variance with their pleadings, as in their pleadings it was averred that Onuma deforested the land, whereas under cross-examination they responded that it was Oruma’s descendant, Irechukwu. Their evidence will therefore have no probative value but should be discountenanced, as the law is that where a party fails to prove his root of title to a land in dispute, all acts of ownership pleaded and proved have no support and must also be rejected. He cited Eze V. Atasie (2000) 9 WRN 73 at page 83 ratio 7. He submitted that from the totality of the evidence before the lower Court, it is clear that the Respondents were projecting two roots of title: one from Onuma and the other from Irechukwu. The law is trite that where both parties to a dispute over land base their case on traditional history the side that presents credible evidence wins. On the contrary, he argued, the Appellant, through PW1 gave credible, cogent and convincing evidence of his root of title which was not shaken by cross-examination, thus making his evidence more believable.
He accused the trial Judge of erring when he rejected the evidence of PW1 on the ground that it was not corroborated by the evidence of any member of the community, contending that one witness’s evidence is enough to prove a fact and that it is the quality and not quantity of evidence that matters in a case. From an evaluation of the evidence proffered by the parties, the imaginary scale of justice tilts in favour of the Appellant whose evidence was more credible and not contradictory, he submitted.
RESPONDENTS’ SUBMISSIONS
The Respondents’ Counsel submitted that it is trite that in order to succeed in a claim for declaration of title to land, a Plaintiff must plead and prove any one of the five ways of obtaining ownership of land as propounded by the Supreme Court in Idundun v. Okumagba (1976) 9-10 S.C. p.227. The traditional evidence led by the Respondents through the evidence of DW1-DW4 which relied on inheritance through Uzoagbado, a descendant of Onuma, to Irechukwu Uzoagbado his son, to the present ownership and possession by Irechukwu’s son Onwumere Uzoagbado (4th Respondent’s husband) is sufficient proof of the Respondents’ ownership of Ohia Ezelu, coupled with the fact that the Respondents also led evidence in proof of their numerous acts of possession and enjoyment of the land in dispute.
On whether the evidence of PW1 required corroboration, as held by the lower Court, he agreed, submitting that PW1 was a tainted witness, having engaged the Respondents in previous litigations over the land and acts of harassment in an attempt to “acquire” her after the death of her husband, who was his older brother.
RESOLUTION
As submitted by the Respondents’ Counsel, ownership of land is proved in any of the five ways stipulated by the Supreme Court in Idundun v Okumagba (1976) 10 NSCC Page 445 at 453 Line 42; Page 457 Line 45 per Fatayi-Williams JSC, namely:
1. By traditional evidence;
2. By production of documents of title which must be duly authenticated in the sense that their due execution must be proved;
3. By acts of ownership extending over a sufficient length of time and numerous and positive enough to warrant the inference that the person is the true owner;
4. Acts of long possession and enjoyment of land;
5. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition be the owner of the land in dispute.
Each of the five ways stated above suffices to establish title to a disputed piece of land. See Ibude v Saidi (2021) 10 NWLR Part 1785 Page 567 at 583 Para B-F per Okoro JSC; Garba v Tsoida (2020) 5 NWLR Part 1716 Page 1 at 20-21 Para E-H per Kekere-Ekun, JSC.
Both parties, by their pleadings, traced their ownership to the same progenitor, Onuma, and gave the line of succession. Counsel to the Appellant has however contended that the evidence led by DW1 and DW2, under cross-examination, is at variance with their pleadings, while the Respondents contend that the fact as to who deforested the land in dispute needed no further proof by the Respondents, as both parties have admitted in their pleadings that it was Onuma who deforested the land.
As submitted by the Appellant’s Counsel, the Respondents in their Statement of Claim, at page 81 of the Record, averred that it was Onuma who deforested the land and that his descendant Uzoagbado inherited the land, which land in turn was inherited by one of his sons, Irechukwu, and subsequently after partition, was inherited by Felix Onwumere Uzoagbado, the 4th Respondent’s husband. This genealogy was repeated in paragraphs 11-13 of the Sworn Deposition of the 4th Respondent at pages 112-113 of the Record. Under cross-examination, however, when questioned on the use to which the land was put following its deforestation by Onuma, she responded that “Onuma did not deforest the land. It was plantain that was farmed there by Irechukwu”
Similarly, DW3, Chibuike Nwadike when asked who deforested Ohia Ezelu, responded, “Irechukwu deforested the land. Onwumere was 1st son of Irechukwu”.
The lower Court, when faced with this variance, held there to be sufficient evidence of the genealogy from the witnesses and disagreed that the witnesses lied.
The question is thus whether the response given by these witnesses is sufficient to hold the genealogy relied on by the Respondents is unproved.
As pointed out above, both the Appellant and the Respondents in their pleadings are in concert that their Progenitor is Onuoma. It is the correct statement of the law, as submitted by the Respondents’ Counsel, that no issue having been joined on this fact, there was no requirement for further proof of this fact by either of the parties.
On whether this is a material contradiction sufficient to hold the traditional history relied upon by the Respondents as unproved, the Courts have held that while material contradictions will result in the rejection of the entire evidence of the witness, it is not all contradictions that will result in the rejection. It is only those that are material and result in a miscarriage of justice that will warrant such a rejection of evidence.
Contradictions which do not affect the substance of the issue to be adduced, have been held to be irrelevant and will not vitiate the case of a party. The relevant contradiction has been held to be that which amounts to a disparagement of other evidence adduced, thereby making it unsafe for the Court to rely on either. See Wachukwu v. Owunwanne (2011) 14 NWLR Part 1266 Page 1 at 27 Para E-H per I.T. Muhammad JSC (as he then was); Osadim v. Taiwo (2010) 6 NWLR Part 1189 Page 155 at 180, Para C-E per Orji-Abadua JCA; Makinde v. Akinwale (2000) 2 NWLR Part 645 Page 435 at 450, Para E per Uwaifo JSC.
It was held in Kayili v Yilbuk (2015) 7 NWLR Part 1457 Page 26 at 77 Para E–F Per Ogunbiyi, JSC that the Court does not reject the evidence of a party simply on minor contradictions. There are bound to be slips in the evidence of witnesses, the absence of which would give reason for casting doubt on the credibility and truth of the witness. Traditional history of witnesses cannot be with mathematical exactitude.
As the contradictions of who deforested the land was not in issue in the pleadings of the parties, the discrepancy above does not affect the substance of the issue in question, which is who, as between the parties proved a better title. Thus, whether it was Onuoma that deforested the land or Irechukwu, the fact remains that both sides agree that the original founder of the land was Onuoma. I thus have no reason to disagree with the lower Court.
The learned Counsel to the Appellants has also submitted that the trial Judge erred when he rejected the evidence of PW1 on the ground that it was not corroborated by the evidence of any member of the community.
Counsel to the Respondents contended however that the lower Court was right, as PW1, who is the younger brother of the 4th Respondent’s husband, is a tainted witness having contested and lost other land and estate matters against the Respondents in CA/OW/112/2013 and CA/OW/109M/2013 and whose testimony would require corroboration and be treated with caution.
He pointed out that, as alleged by the 4th Respondent, PW1 was the only member of the Uzuoagbado family that testified for the Appellants and had sought to take over and inherit the 4th Respondent after her husband’s death as well as inherit his estate and that it was following her resistance that he started contesting the properties of her deceased husband. He thus drove them out of the home and occupied the same, as held by the Court in the unreported judgment in CA/OW/109M/2013 Kingsley Afuribe Uzor v Mrs. Philomena Uzor & Anor. As also alleged by the 4th Respondent PW1 was only using the name of the Appellant as a smoke screen.
He quoted the decision of the Court, which held that the “Respondents suffered great deprivation from the Appellants” and that even after the intervention of the traditional ruler of the community “stubbornly persisted for several years” commenting that “The conduct of the Appellants is oppressive and to say the least wicked”. Counsel further submitted that the Appellant suing in a representative capacity in respect of communal land, another member of the family, including the traditional ruler should have been a witness, their absence being detrimental to the Appellant’s case.
The lower Court, in its judgment, in disparaging the claim of the Appellants that the action was a communal one, held as follows:
“…only PW1, a junior brother of the Defendant’s (sic) husband and this Johnson Obieme gave evidence for the Plaintiffs. PW2 …is from Arochukwu living in Ubaha. He is neither from the community nor the family. He is therefore a busy body and meddlesome interloper. I say this because in the whole of Umuchima and Umuonuma none of their indigenes came to give evidence. I then ask where is Donatus Atuegbu, Emeka Uzor and Nwakanma Obigwe who are said to bring Suit No. HO/5/2002 for themselves and as representing Atuegbu Uzoagbado/Obigwe family unit of Umuonuma Kindred of Umuchima Ubaha Okigwe Urban except the Defendants? It is this assertion that gave this suit and land in dispute of Claimants a communal flavour. Remember that he who asserts must prove. There must be collaboration (sic) of PW1’s assertion by a member of the community, be it Atuegbu family or Obigwe family. Without this and as it stands the case is a family dispute between PW1 and the Defendants simpliciter. The only evidence this Court has is the ipse dixit of PW1 Afuruibe Uzor a junior brother of the husband of the 5th Defendant…It is also not clear whether Umuachima or Umuonuma is the community that is laying claim to the land as claimed by the Claimant. I say this because the Claimant has not clarified whether Umuachima is a community or Umuonuma is a community”.
It is true, as submitted by the Appellants’ Counsel that a party does not need to call any witness or number of witnesses to succeed – Onowhosa v. Odiuzou (1999) 1 NWLR Part 586 Page 173 at 183, Para A-B, per Ogwuegbu, JSC. Evaluation of witnesses is based on their credibility and the acceptability of their evidence. See Omisore v. Aregbesola (2015) 15 NWLR Part 1482 Page 1 at 324 Para F-G; (2015) All FWLR Part 813 Page 1673 at 1773 Para B-C per Ogunbiyi JSC; Kopek Construction Ltd v. Ekisola (2010) 3 NWLR Part 1182 Page 618 at 655 Para F-G per I.T. Muhammad JSC (as he then was).
Where the witness is alleged to have his own purpose to serve, different considerations will however apply. This is who is referred to as a “tainted witness”
In the case of Okebata v State (2013) LPELR-22474 (CA) at Page 41 Para F-G this Court, per Uwanu Musa Abba Aji JCA (as he then was) defined this term thus:
“A tainted witness is a witness who might have his own purpose to serve by giving evidence. These also include persons with accepted enmity over a land dispute between them. Underlining Mine
In Ehikwe v State (2018) LPELR-44753(CA) per Samuel Chukwudumebi Oseji, JCA (as he then was, of blessed memory) at Page 20 Para. D-E, the description given to a tainted witness is:
“a witness who has a grudge against an accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence.”
This Court, advocating the treatment to be given to such evidence, held expansively, per Bolna’an Dongban-Mensem JCA (as he then was) in Adewunmi v Nigerian Eagle Flour Mills (2014) LPELR-22557 (CA)
“In the case of Oluwole Akindipe v. The State (2012) LPELR-9345 (SC) – the Supreme Court defined a tainted witness as one whose evidence must be corroborated is one who either has an interest to serve or is an accomplice. A tainted witness can be defined as that person who, as a witness is not spontaneous, but is calculating. He has clearly set out a scheme to mislead the Court by his answers which are targeted at a desired outcome. Such a witness most certainly must be watched closely and everything he says must be put to test. In a situation such as this, a tainted witness often speaks out of malice and he pours out venom as lethal as that of a serpent. Such is a witness whose testimony in Court must be treated with extra judicial caution and the instrument of corroboration of such a statement should be unimpeachable”. Underlining Mine
I agree with the learned Counsel to the Respondents that PW1 certainly had an interest to serve. Not only has he and the 4th Respondent been involved in litigation, from the evidence of the 4th Respondent, believed by the lower Court, following the death of her husband, the witness had attempted to “inherit” her and when she refused, ganged up against her and her young children to dispossess them of the land and inheritance. Indeed, it is suspect that it is the younger brother of the deceased and who, by his admission, lived with his older brother whom he served, upon completion of his primary school, is the one, apparently using the name of the Appellant to dispossess the Respondents of their husband/father’s property.
By the evidence of DW2, the act of dumping of refuse on the property of the 4th Respondent is an act of malice. He (DW2) refused to support the Appellants in their bid to acquire this property which he said rightfully belonged to Onwumere, the 4th Respondent’s husband, and who was never challenged on the land. All this, he said, was in a bid to acquire the property from his widow who is training seven sons and daughters.
I am in agreement with the lower Court that the evidence of PW1 required corroboration to be believed or at best required the utmost caution. Unfortunately, this corroboration was not forthcoming, as PW2, by his admission, is not from the area in dispute but from Arochukwu. I agree with the lower Court, that the Appellant, being a Plaintiff, was required to prove his case and that he failed to prove it. He also failed to prove that he was suing on behalf of the community.
On the contrary, the Respondents’ witness DW2, a 79 year old man from Umuchima Community, confirmed the evidence of DW1, with regard to her ownership of the property, through her deceased husband, who had never been challenged over the property in his lifetime, also confirming traditional ownership, devolving to Onwumere. He gave evidence of his challenge to the community, following dumping of refuse on 4th Respondent’s land, telling them of the Respondent’s ownership of the land through her husband’s inheritance and also confirmed her ownership of the property to the Environmental Officer (DW4), following which signs were placed on the property warning people to desist from dumping refuse on the property.
The finding of the lower Court that the Respondent proved her case is indeed born out from the case presented, which was credible and rightly accepted by the lower Court. It is the primary responsibility of the trial Court, I hold, to evaluate evidence proffered in a case and make the appropriate findings therefrom. This is based on the fact that only the trial Court has the advantage of seeing the witnesses, assessing their demeanor while testifying. In the absence of strong reasons, an appeal Court will be slow to interfere with such findings. See Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 55-56 Para H-A per M.D. Muhammad JSC; Obi v Uzoewulu (2021) 8 NWLR Part 1778 Page 352 at 373 Para G-H per Aboki JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F.
I agree with the lower Court that not only did the Respondents prove traditional ownership of the land, acts of possession such as letting out to tenants, acts of selling crops on the land show acts of possession, thus satisfying, in addition, the 3rd mode of proof of ownership. I accordingly resolve the 1st issue for determination against the Appellant.
The 2nd issue for determination is-
Whether or not the Court was right in awarding N1 Million Naira general damages as claimed by the Respondents.
Appellant’s Submissions
It is submitted by the Appellant’s Counsel that the learned trial Judge exercised his discretion perversely in making an award of general damages as claimed by the Respondents because the Respondents did not plead or give evidence of any damage they suffered at the hands of the Appellant for the lower Court to have awarded the excessive general damages it did.
Respondents’ Submissions
Respondents’ Counsel contended however that the law is trite that general damages are losses which flow naturally from the Defendant’s act and that its quantum need not be pleaded or proved as it is generally assumed by law, citing, Al-Rissalah Printing & Publishing Co. Ltd & Ors V. El-Housseini & Ors (2007) LPELR-8543(CA).
Counsel further submitted that the award of general damages is at the discretion of the trial Court, and where such discretion has been exercised both judicially and judiciously, an appellate Court will be unwilling to interfere therewith.
RESOLUTION
The attitude of appellate Courts to the exercise of discretion by lower Courts is that unless the exercise is manifestly wrong, arbitrary, reckless or injudicious, an appellate Court will not interfere merely because faced with similar circumstances it would have reacted differently – Akparabong Community Bank (Nig.) Ltd v United Bank for Africa Plc (2020) 8 NWLR Part 1726 Page 201 at 219 Para C-E per Nweze JSC; Braithwaite v Dalhatu (2016) 13 NWLR Part 1528 Page 32 at 56-57 Para G-A per Kekere-Ekun, JSC.
In the instant case is the statement made by the lower Court, where it observed, at page 230 of the judgment:
“I note that it is becoming rampant, and a tragedy, that widows are being harassed over the estate of their husbands as soon as the man is no more. Most of these land disputes particularly this instant one always spring up after the death of the man. Igbo nation must, as a tribe who believes in ‘Chukwu’ or a ‘Supreme Deity who is just and protective of the disadvantaged, condemn this rising trend and stem its tide. To this end disputes over land suddenly springs up after death, must never be encouraged.
Also before the lower Court was evidence of the various cases instituted against the Respondents, clearly out of malice and intimidation.
I do not find the sum awarded by the lower Court excessive as damages for trespass in favour of the 4th Respondent, a widow with seven (7) children, who rather than receive succour from her husband’s family, is constantly hounded from Court to Court, and her/and desecrated by refuse, a bid to dispossess her of her husband’s property.
I have no reason to disturb the award and quantum of general damages against the Appellant. I also resolve the 2nd issue for determination against the Appellants.
Having resolved both issues for determination against the Appellant, this appeal by the Appellant in Suit No. HO/5/2002 fails and is hereby dismissed. The judgment of the lower Court in favour of the Respondents, as Plaintiffs in HO/10/2002, is affirmed. The Appellants shall pay costs of N100,000 to the Respondents.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.
I agree with his reasoning and conclusions.
It is trite that the evidence of a tainted witness requires corroboration and must be treated by the Court with caution.
It is also trite that this Court is wary of upturning a decision of a lower Court. This is because the lower Court, had the opportunity of seeing the witnesses and observing their demeanour. It had the added opportunity of evaluating the evidence before it in order to arrive at a just decision.
In the absence of perversity, this Court is wary of and slow to interfere with such findings – ALL PROGRESSIVE GRAND ALLIANCE (APGA) V. AL-MAKURA (2016) 5 NWLR (Part 1505) 316 at 348.
I dismiss the appeal.
The judgment of the High Court of Imo State, Owerri Judicial Division delivered on the 18th of November 2010 in consolidated Suits Nos: HO/5/2002 and HO/10/2002 is hereby affirmed.
I abide by the consequential order made as to costs.
IBRAHIM WAKILI JAURO, J.C.A.: I had before now, read the draft judgment just delivered by my learned brother Adefope-Okojie, JCA. I am in agreement with his Lordship that this appeal is lacking in merit and must be and is hereby dismissed. I abide by the order of costs made therein.
Appearances:
Rev. F.U. Ekavhiare For Appellant(s)
C.N. Nwigwe, with him, K.C. Okpalaifeako For Respondent(s)
