YELLOWE & ANOR v. AWODU & ORS
(2022)LCN/16640(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, February 16, 2022
CA/PH/167/2015
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. DAOBU N. G. YELLOWE 2. CHIEF-ELECT E. S. IYALLA (For Themselves And As Representing The Chief India John Yellowe House Of Bakana In Degema Local Government Area Of Rivers State) APPELANT(S)
And
1. CHIEF ENYINAH JACOB AWODU 2. CHIEF LEVI DAWARI 3. MR. ADOKIYE ALEX 4. CHIEF JOHN O. BEN OLOBA 5. CHIEF TUBMAN JAMES ALALIBO 6. MR. FESTUS R. D. S. OLU-IGBANIBO 7. ELDER CLINTON HOWARD (For Themselves And As Representing The Buguma Community In Degema Local Government Area Of Rivers State) RESPONDENT(S)
RATIO
THE REQUIREMENT OF LAW ON A PARTY WHO DESIRES TO RELY ON BOTH TRADITIONAL HISTORY AND ACTOS OF OWNERSHIP
Apart from the above, a party who desires to rely on both traditional history and acts of ownership and possession as twin means of proving title to land in dispute, is expected to prove the two options in the alternative. This is because, ordinarily, acts of ownership and possession is practical proof of the truth of evidence of traditional history. The former may, justifiably, be found in the latter. That is the reason for Oguntade, JSC., in the case of Balogun v. Akanji [2005] 10 NWLR (Pt. 933) 394 at 411, stated how a party who desires to rely on both traditional history and acts of ownership should present his pleadings, as follows:
“It is to be borne in mind that proofs of title by evidence of traditional history and acts of ownership are separate and parallel. One is also to be distinguished from the other. Whilst the evidence in proof of either in a claim for declaration of title may overlap, the recognition of each as different to the other helps to remove the error and confusion to which parties and counsel alike are prone. A plaintiff may by his statement of claim rely solely for the title he asserts in a claim for declaration of title on traditional history. On the other hand, since it is permissible to plead in the alternative, he may rely on both methods i.e. traditional history and acts of ownership. Where he fails on the former, he may well succeed on the later because in their nature both are different.” PER ADEGBEHINGBE, J.C.A.
THE POSITION OF LAW N WHERE TRADITIONAL HISTORIES ARE IN CONFLICT WHERE A PARTY SETS OUT TO ESTABLISH HIS TITLE BY TRADITIONAL HISTORY
Where a party set out to establish title by traditional history all he needs do is to prove his title by conclusive and cogent evidence of tradition. Where the traditional histories are in conflict the probability of the rival histories is tested by evidence of recent facts.
Where a party relies on evidence of traditional history, and, in the alternative, acts of ownership to prove the title he claims, the Court is entitled to proceed on an inquiry into the question whether a party has proved acts of ownership over a sufficient length of time, numerous and positive enough to lead to an inference that he is the owner of the land in line with the principle enunciated in Ekpo v. Ita [1932] 11 NLR 68. In Okhuarobo v. Aigbe [2002] 9 NWLR (Pt. 771) 29 at 57 Kutigi J.S.C. (as he then was) stated that:
“It is settled law that when a party pleads purchase or gift as his root of title as in this case, he either succeeds in proving the purchase or gift or he fails. Having failed to prove the title pleaded, it will be wrong to turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. See Balogun v. Akanji [1988] 1 NWLR (Pt. 70) 301.”
It is trite law that where the title of both parties is defective, the Court can still find for the plaintiff in the action for trespass if he establishes possession. See Kareem & Ors v. Ogunde & Ors (1972) 1 SC 182 (1972) 1 All NLR (Pt. l) 73 and Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215. Possession is good against all the world except the person who can show a good title. See Asher v. Whitlock (1865-66) 1 L.R Q.B. page 1 at 5. PER ADEGBEHINGBE, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The appellants (as claimants before the lower Court) brought their suit in a representative capacity, for themselves and as representing Chief India John Yellowe House of Bakana in Degema Local Government Area of Rivers State. In paragraph 1 of their amended statement of claim, they pleaded that “they live in Bakana in Degema Local Government Area of Rivers State of Nigeria.” They sued the respondents (as defendants before the lower Court), who they described in paragraph 2 of the amended statement of claim as representing the “Bukuma Community in Degema Local Government Area of Rivers State of Nigeria”.
The appellants laid claim of ownership to the land in dispute in this case, which they claim is within Buguma Island, through their progenitor known as Chief India John Yellowe. They also claimed that the respondents did not own the entire land in Bukuma Island. The respondents claimed ownership of the entire Buguma Island, by first settlement under the leadership of one Aagum. They claimed to have given the Chief India John Yellowe, King Amachree 1 (and his successors) and some other families and communities portions of land within the Buguma Island, which those people still occupy till date. They claimed that the appellants disturbed their peaceful enjoyment of a portion of the respondents’ land within Buguma Island, which caused the dispute in this case. On the part of the appellants, they pleaded that it was King Amachree 1, who owned the Bukuma Island, who settled the respondents on a portion of the Bukuma Island in his lifetime.
The suit, which translated into this appeal, was filed on 13/05/1994, by the appellants (as plaintiffs). In the writ of summons, filed in the Registry of the Degema Division of the Rivers State High Court, the appellants prayed for declaration of title to land, special and general damages for trespass and injunction, against the respondents (as defendants). The statement of claim was amended, with leave of Court. Ultimately, in paragraph 41 of the amended statement of claim filed by the appellants, on 08/01/2009, their prayers were set out, thus:
“j. A declaration of the Customary Right of Occupancy in and over all that piece or parcel of land known as and called Abalakiri, consisting respectively of Abalakiri, Ekeweme-kiri area, Atikiri area and Ekeke-kiri area, situate opposite Bakana on the West side of the New Calabar River within the Degema Local Government Area of Rivers State of Nigeria.
v. Sixty Million Naira (60,000,000.00) being special and general damages for trespass, looting and destruction of Claimants’ properties by the Defendants;
vi. In the alternative, the Claimants shall claim an Order of Court mandating the Defendants to rebuild the houses destroyed by the Defendants as well as restore the economic properties damaged by the Defendants;
vii. Perpetual injunction restraining the Defendants, their servants, agents, privies and all those claiming through them, from committing further acts of trespass and or invading the Claimants’ land and or destroying or looting properties belonging to the Claimants.”
(Pages 196-205 of the record of appeal).
The counter-claim of the respondents (then defendants), embedded in the amended statement of defence, filed on 08/01/2009, states as follows:
“30. Wherefore, the defendants claim against the plaintiffs as follows:-
i) A declaration that the defendants are entitled to the Customary Right of Occupancy in and over the land verged Green in plan No. CIWE/R001/2003 LD dated 6th January, 2003 and filed along with the Statement of Defence and Counterclaim.
ii) A declaration that the plaintiffs have forfeited to the defendants whatever rights were allowed their ancestors in and over Abalakiri verged YELLOW in the plan filed along with the Statement of Defence and Counterclaim.
iii) N10,000,000.00 (Ten million naira) being general damages for trespass to the defendants land.
iv) Perpetual injunction restraining the plaintiffs by themselves, their servants and agents from continuing or repeating the acts of trespass complained of.”
(See pages 182-190 of the record of appeal).
Thus, the lower Court tried the claim and counter-claim together. The judgment of the lower Court, which caused the appellants to approach this Court with this appeal is dated 30/07/2012. Justice Adolphus Enebeli delivered the judgment, in the Port Harcourt Judicial Division of the Rivers State High Court. His Lordship concluded the judgment, at page 338 of the record of appeal, thus:
“1. The Claimants’ claim is dismissed.
2. The Defendants/Counter-claimants are entitled to a declaration of title over the land in dispute (Abalakiri or Abalalau) verged red on their Survey Plan with Plan No. CIWE/R001/2003/LD dated 6/1/2003, being customary owners thereof.
3. The Defendants/Counter-claimants are entitled to recover possession of the land (Abalakiri or Abalalau).
4. The Defendants/Counter-claimants are entitled to N500, 000.00 damages against the Claimants for trespass.
5. An Order of perpetual injunction is hereby issued restraining the Claimants from continuing or repeating the acts of trespass onto Abalakiri/Abalalau.”
As a mark of discontent, arising from the unfavourable judgment, appellants filed a notice of appeal, on 14/04/2015, which arrived with four grounds of appeal. The four grounds of appeal are recorded as follows:
“GROUND ONE
The Learned trial Judge erred in law when he dismissed the claimants/Appellants case on grounds of contradictory evidence of traditional history while ignoring Claimants/ Appellants’ numerous and unchallenged evidence of acts of ownership and possession.
PARTICULARS OF ERROR
i. There are five alternative ways of proving title to land;
ii. A party claiming title to land may rely on one or more of the ways to establish his title;
iii. The law does not require a party relying on more than one of the ways of proving title to prove all to the satisfaction of the Court in other to succeed.
GROUND TWO
The Honourable Court erred in law when he granted the Defendants/Respondents’ Counter-Claim by awarding part of the land in dispute to the Defendants/Respondents despite finding of facts that the Respondents’ evidence of traditional history at the trial was not accurate.
PARTICULARS OF ERROR
i. The Defendants first denied being put on the larger island by Amachree 1, pleading ad nauseum in their Amended Statement of Defendant and Counter-Claim, that they were on the land before the era of Amachree 1, but under cross-examination DW 1 admitted that it was Amachree 1 that placed the Defendants on the larger island.
ii. That the admission that the Defendants were placed on the larger island by Amachree 1 ought reasonably to alert the Court that all the facts contained in the several paragraphs in their statement of Defendant and Counter-Claim denying Amachree 1’s overwhelming influence over the island were false and not reliable.
iii. The Court ought to have restricted itself to the pleadings and evidence presented by the Respondents in proof of their Counter-Claim in holding whether or not they have proved the said Counter-Claim.
iv. Apart from the Respondents’ discredited evidence of traditional history, there was no other means of proof of title to land adduced by the Respondents in their pleadings and evidence to justify the judgment in their favour.
v. The Defendants’ traditional history is riddled with inaccuracies and improbabilities which ought to render their history unbelievable and unreliable.
GROUND THREE
The Learned Trial Judge erred in law when he granted the Respondents a declaration of title to the area verged Red (Abalakiri or Abalalau) on their Survey Plan with plan No. CIWE/R001/2003/LD dated 6/1/2003, a relief which was not sought by the Respondents.
PARTICULARS OF ERROR
i. The Respondents’ relief in this respect as per their Statement of Defence was for “A declaration of the Customary Right of Occupancy in and over all that piece or parcel of land known as and called Abalakiri consisting respectively of Abalakiri; Ekweme-kiri area, Atikiri area and Ekeke-kiri area, situated opposite Bakana Local Government Area of Rivers State of Rivers State of Nigeria”.
ii. The Trial Judge acted as Father-Christmas which he lacked the jurisdiction to do.
iii. The relief is not supported by pleadings and evidence before the Court and therefore totally groundless.
GROUND FOUR
The judgment is against the weight of evidence.”
The only order sought from this Court, by the appellants, is that this Court should:
“… set aside the judgment of the lower Court and to enter judgment for the Claimants/Appellants.”
The issues identified by the appellants’ counsel, for the determination of this appeal, shown on page 4-5 of the appellants’ amended brief of argument, filed on 13/12/2017, deemed properly filed and served on 16/09/2019, are:
“a) Whether the trial Court was right when it jettisoned the numerous and unchallenged acts of ownership and possession as copiously pleaded and evidence led in support by the Claimants on the sole view that the traditional history was not sustainable?
(Distilled from Ground One).
b) Whether the trial Court was not in grave error when it awarded the area verged red which is undisputed and of which the Defendants did not specifically ask for as against the area verged green which is the subject matter of relief 2 of the Defendants Counter claim in Exhibit P?
(Distilled from Ground Three).
c) Whether on the preponderance of evidence the trial Court was right in granting the Defendants’ Counterclaim?
(Distilled from Grounds Two and Four)
d) Whether in totality of the decision of Hon. Justice A. Enebeli of the Rivers State High Court sitting in Degema Judicial Division, cannot be said to be perverse?
Distilled from all the Grounds).”
The two issues distilled by the respondents’ counsel will be found at page 5 of the respondents’ amended brief of argument, filed on 22/01/2018 and consequentially deemed proper on 16/09/2019. They read:
“1. Whether on the preponderance of evidence, the learned trial Judge is justified in dismissing the claim of the appellants and granting the Counterclaim of the respondents in part.
2. Whether Ground 3 and issues II and IV formulated by the appellants are not incompetent and liable to be struck out.”
I have observed that some of the grounds of appeal and issues for determination may not pass the litmus test for appropriateness. Despite that fact, I intend to rely on them in order to ensure that justice is done within the limits permitted by the law, except clearly unacceptable issues for determination. This is because the approach of the Courts (see Omisore v. Aregbesola [2015] 15 NWLR (Pt. 1482) 205 at 315) is now that it is not every failure to attend to a ground of appeal with the fastidious details prescribed by the rules of Court that would render such a ground incompetent. This is particularly so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Therefore, bad or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. In other words, since the essence of the particulars is to project the reason for the ground complained of, the inelegance of the particulars would not invalidate the ground from which they flow. This position has been shaped by the contemporary shift from technicalities to substantial justice. The scope of a ground of appeal is not one of mathematical exactitude and can arise in a number of situations. Although it is emphasised that a ground of appeal must stem from the text of the judgment ipsissima verba, it does not limit the scope of a ground of appeal. See Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421.
Despite the stance taken above, the second issue for determination presented by the respondents appear more like a point of objection, rather than an issue for determination, derived from grounds of appeal. This is pertinent because the respondent did not file any cross-appeal or respondents’ notice, by which they may thereby freely donate issues from their own process. The respondents did not formally present any formal objection to either the grounds of appeal or issues for determination. Rather, under the cloak of “second issue for determination” they inordinately unleashed a tirade of complaints, which should, ordinarily, have been presented formally. All issues for determination, as it is, in this appeal, must derive from the grounds of appeal filed by the appellants. The respondents’ second issue for determination is hereby struck out. Argument in respect of the second issue for determination submitted by the respondents is hereby discountenanced.
In addition to the above, the appellants deduced the 1st-3rd issues for determination from grounds 1-4 in the notice of appeal. Thus, the fourth issue for determination, which is presented as having been deduced from all four grounds of appeal is surplus. The fourth issue for determination presented by the appellants is hereby struck out.
It is also my determination that the issues for determination set by the appellants properly present the grouse or complaints of the appellants and will form the platform for the determination of this appeal, though the 2nd and 3rd issues will be resolved together.
APPELLANTS’ ARGUMENT OF THE APPEAL
Citing the decisions in Idundun v. Okumagba [1976] 9-10 SC 277; Kasumu v. Balogun [2013] 36 WRN 98; Fagunwa v. Adibi [2004] 17 NWLR (Pt. 903) 544 at 568; Anukam v. Anukam [2008] 1-2 SC 34; Madu v. Madu [2008] 2-3 SC (Pt. II) 109 and Abani v. Bosi [2006] 11 NWLR (Pt. 991) 400, learned counsel enumerated the five ways to prove title to land in an action for declaration of title. He advised that a party claiming may adopt one or more of those ways to prove title and that proof of a single root of title is sufficient. The cases of Kasumu v. Balogun (supra) and Mkpinang & 4 Ors. v. Ndem & 3 Ors. [2012] 12 SC (Pt. IV) were cited.
Learned counsel explained that the appellants relied, in proof of their case, on traditional history, coupled with acts of ownership and possession. Reference was made to what is said to be a quotation from the judgment of the lower Court, without exactitude regarding the page it may be found on the record of appeal. The quotation came about, allegedly, when the lower Court was dismissing the case of the appellants, on the basis of inconsistency and contradictory evidence of traditional history. Citing the case of Mkpinang & 4 Ors. v. Ndem & 3 Ors. (supra), per Aka’ahs, JSC. (without identifying the relevant page of the Law Report), learned counsel submitted the position of the lower Court is contrary to the prescription in the case cited.
It is the opinion of learned counsel that the evidence of ownership and possession adduced at the trial by the appellant was not successfully challenged, contradicted or controverted by the respondents. He insisted that the appellants discharged the onus of proof placed on them at the trial. If the lower Court considered the evidence before it, the natural result would have been that the claim of the appellants should have been granted, followed by dismissal of the respondents’ counter-claim. In aid of the submission, the Court was directed to the case of Fagbenro v. Arobadi [2006] 7 NWLR (Pt. 978) 172. He urged the Court to resolve the first issue in favour of the appellants.
On the second issue, learned counsel cited the cases of Ambrosini v. Tinko [1929] 9 NLR 8 at 12; Idika v. Erisi [1988] 2 NWLR (Pt. 78) 563; Olowosago v. Adebanjo [1988] 4 NWLR (Pt. 88) 275; Ogiamen v. Ogiamen [1967] NWLR 245; Oyekanmi v. NEPA [2000] 12 SC (Pt. I) 70; Union Beverages v. Owolabi [1988] 2 NWLR (Pt. 68) 128 at 133 and, Ekpenyong & Ors. v. Nyong & Ors. [2003] 51 WRN 44 to make the point that a Court is not at liberty to depart from pleadings filed by parties or to grant reliefs not sought by parties, which will tantamount to stepping into the arena of conflict.
The attention of the Court was directed to pages 19-20 of the record of appeal, where the counter-claim of the respondents is supposed to be found. Learned counsel then compared the prayers sought with the holding made by the lower Court in its judgment (without identifying the page where what was quoted could be found in the record of appeal). The bellyache of learned counsel is that the lower Court set out to establish a case different from the one set out by the respondents and “…advanced argument suo motu to justify his grant of a relief not specifically sought for.”
In the opinion of learned counsel, based on the “nebulous nature” of the relief claimed by the respondents, the order which should have been made is one of dismissal of the counter-claim, instead of excursion into “fence mending”, which occasioned miscarriage of justice.
On the third issue, it was argued that the respondents, who had a counter-claim, to be entitled to judgment, they ought to have by credible and admissible evidence proved their entitlement to reliefs. The Court was directed to decisions in Mogaji & Ors. v. Odofin & Ors. [1978] 4 SC 91; Adebayo v. Adusei [2004] 4 NWLR (Pt. 862) 44 and Section 131(1) of the Evidence Act, 2011, on the submission. Learned counsel accused the lower Court of ignoring obvious incongruities, contradictions and inconsistencies in the evidence led by the respondents at the trial, which should have caused the dismissal of the counter-claim of the respondents.
It was explained that respondents pleaded traditional history and led evidence in attempting to prove that they own the land in dispute. Contrary to what the respondents pleaded, DW 1 admitted that it was King Amachree I, who placed respondents on the land in dispute. That admitted evidence is corroborated by judgment tendered as exhibit B in Suit No. SC/97/1991 Chief Akio Abey v. Chief Ibrahim Fubara Alex. He described the stance of DW 1 in admitting a fact contrary to what he stated in his statement on oath, filed on 03/09/2008, to the effect that the respondents were on the land in dispute before King Amachree I, as a U-turn. It was submitted that the Court has the power to enter judgment on the basis of admission by a party. The cases of Our Line Ltd. v. SCC Nig. Ltd. [2009] 7 SCNJ 358 and Salawu v. Yusuf [2007] 5 SCNJ 354 and Section 123 Evidence Act, 2011 were cited. It was submitted that the lower Court was under a duty to reject the case of the respondents. The cases of Chief Okoko v. Mark Dakolo [2006] 7 SCNJ 284 and Onwuka v. Ediala [1989] 1 NSCC 65 at 86 were relied on.
Learned counsel complained, after quoting an alleged portion of the judgment (without identifying the relevant page where it may be found in the record of appeal), that the lower Court embarked on a voyage of discovery, while picking and choosing, setting up a different case for the respondent, apart from that which they pleaded and gave evidence in respect of.
The view of learned counsel is that the decision of the lower Court is perverse, with the aid of the decision in Baridam v. State [1994] 1 NWLR (Pt. 320) 250 at 260. A perverse decision invariably leads to miscarriage of justice. He urged the Court to uphold the appeal and upturn the decision of the lower Court.
RESPONDENTS’ ARGUMENT OF THE APPEAL
Upon referencing the statement made by the lower Court at pages 329-330 of the record of appeal, in its judgment, learned counsel submitted that the dismissal of the claim of the appellant was justified. He recalled that the appellants gave three contradictory versions of traditional history in proof of title, which evidence he described as incredible and incapable of sustaining the claim. He cited the cases of Mogaji v. Cadbury Nig. Ltd. [1985] 2 NWLR (Pt. 7) 39; Bamgbose v. Oshoko [1988] 2 NWLR (Pt. 78) 509; Nwokorobia v. Nwogu [2009] 10 NWLR (Pt. 1150) 553; Ukaegbu v. Nwokolo [2009] 3 NWLR (Pt. 1127) 194 and Olokunlade v. Samuel [2011] 17 NWLR (Pt. 1276) 290. He is of the view that the lower Court was on firm grounds when it came to its conclusion on the claim of the appellant.
It was further submitted that where title to a disputed land is in issue, evidence of possession will not avail the appellant. Such possession, amounts to trespass against the party with better title. He asserted that where a party fails to prove traditional history, as pleaded, he cannot resort to possession to prove title. He relied on the decision in Fasoro v. Beyioku [1988] 2 NWLR (Pt. 76) 263 at 265, 271; Balogun v. Akanji [1988] 11 NWLR (Pt. 70) 301 at 322; Dabo v. Abdullahi [2005] 7 NWLR (Pt. 923) 181 at 189; and, Balogun v. Akanji [2005] 10 NWLR (Pt. 933) 394 at 399. On the case of Mkpinang v. Ndem [2012] 12 SC (Pt. IV) 1 at 10 (or [2013] 4 NWLR (Pt. 1344) 302), learned counsel pointed out that the lower Court was alleged not to have evaluated evidence of acts of ownership and possession given by the appellants, which is not the case in this appeal. Learned counsel submitted in paragraph 1.7 of his presentation, thus:
“There is no ground of appeal dealing with failure of the trial Court in that regard and issue distilled from such ground. Even if there is, it is our humble view that the learned trial Judge thoroughly evaluated the evidence put forward by the appellants before dismissing their claim and the Court is humbly urged to so hold and discountenance the contention of the appellants on this issue. There was no declaration in favour of title in favour of the appellants in Mkpinang’s case.”
Learned counsel pointed out that the pleading in respect of acts of ownership and possession was challenged in paragraph 15 of the amended statement of defence and counter-claim, on pages 185-186 of the records of appeal. Respondents’ witnesses DW 1, DW 2, DW 4 – pages 184-186 of the record of appeal) also testified about the pleadings of the respondents, on respondents’ possession of the land in dispute. He insisted that there was no positive, direct and compelling evidence of acts of ownership and possession from the appellants, which can be placed on the same pedestal as that given by DW4.
Respondents’ counsel submitted that the traditional history given by the appellants is more credible, cogent and reliable than that offered by the appellants. He insisted that there was no evidence before the lower Court to the effect that Amachree I founded the land and took possession of it or acts of possession by his successors like Amachree II and Amachree III on the entire Bukuma Island, including the land in dispute. The attention of the Court was pointed to exhibits B, J (evidence of Jack Amchree), K (evidence of Jack Suku Amachree), exhibit L, evidence of DW 4, admission of CW 1 that Chief India John Yellowe, appellants’ ancestor cannot ascend the Amachree stool, unlike Amachree V and VII. He explained that the case of Abey v. Alex reported as [1999] 14 NWLR (Pt. 637) 148 (exhibit B), shows that the respondents occupied the entire Bukuma Island from the era of Amachree I.
In exhibit B, the Supreme Court referred to cases no. 321/46; 352/46 which is part of the record of appeal in No. D/42/1946 (exhibit N). In paragraph 1.12 of his presentation, learned counsel for the respondents stated thus:
“There is evidence before the Court that Chief India John Yellowe through whom the appellants make their claim is from Elem Tombia and that Chief Yellowe himself came into the present Kalabari territory in or about the year 1879 during the Kalabari Civil War which occurred during the reign of Amavhree IV. See page 14 of the Supplementary Records where CW 1 stated under cross-examination that “As at 1879 Chief India John Yellowe was still at Elem Tombia as the King of Elem Tombia”. It is also most probable that Chief India John Yellowe was a trader and not a farmer as alleged by the appellants as it is apparent from the judgment of the Supreme Court that the people of Elem Tombia according to CW 1 where Chief Yellowe was King were traders and not farmers. It is also clear from the judgment of the Court in Exhibits B and N that the respondents occupied the entire land including the ancestors of the appellants. It is further submitted that the faction of the Kalabaris which Chief Yellowe joined to fight the Kalabari Civil War between 1879 and 1881 and which later became Bakana were not farmers either. See page 2 of Case No. 116/51 – Ikiba and Oriobo v. Marion Braide admitted as Exhibit L at the trial Court”.
Reference was made to exhibit M, judgment in suit no. DHC/11/78. Reference was made to the survey plan – exhibit P – tendered by the respondents. He urged the Court to affirm the judgment of the lower Court granting the reliefs in the counter-claim of the respondents.
It was submitted that the lower Court was entitled to grant relief over a smaller parcel of land than that claimed in the suit before it, with specific reference to a portion of the judgment of the lower Court at page 377 of the record of appeal. He explained that the smaller portion edged red, which was in dispute, in respect of which a declaration was granted by the lower Court, is within the larger portion claimed edged green, as shown on the survey plan tendered in evidence by the respondents. He relied on the cases of Owon v. Ndon [1946] 12 WACA 71 at 73; Sogunle v. Akerele [1968) NWLR 58 at 60-61 etc. He explained, further, that the lower Court did not grant an order over an undisputed parcel of land.
HEARING OF THE APPEAL
At the hearing of this appeal, on 12/01/2022, T. G. E. Nwugha Esq. (with B. E. Humphrey Esq.) appeared for the appellants. He recalled that the appellants relies on the main record of appeal and the supplementary record of appeal, transmitted on 26/05/2015 and 26/06/2015, respectively. He adopted the appellants’ amended brief of argument, filed on 13/12/2017, as argument of the appeal. He urged the Court to allow the appeal, set aside the judgment of the lower Court and enter judgment for the appellants.
Piriye D. Peter Kio Esq. (with N. Okpile Esq.) appeared for the respondents. He noted that the respondents transmitted additional record of appeal, on 10/02/2017, which was deemed properly transmitted on 03/12/2018. He adopted the respondents’ brief of argument, filed on 22/01/2018, as argument of the appeal. He urged the Court to dismiss the appeal and uphold the judgment of the lower Court.
DETERMINATION OF THE APPEAL
The essence of an appeal is to have an opportunity to have one’s suit re-examined before a higher or independent panel with a view to convincing such a panel in one’s favour. See Ogunbiyi v. Ishola [1996] 6 NWLR (Pt. 452) 12 at 23. An appellant is expected to show on the occasion of his appeal being heard that based on settled principles, the trial Court failed to observe the principles of law as may be found in decided cases and statute. See University of Calabar v. Esiaga [1997] 4 NWLR (Pt. 502) 719 at 749.
There is a presumption that the findings of a trial Court are right.
This is because the trial Court has the advantage of seeing the witness, an advantage which the appellate Court does not have as it is limited to the printed evidence. Therefore the duty to displace the presumption falls on the party challenging them. See Onu v. Idu [2006] 12 NWLR (Pt. 995) 657 at 672-673.
In determining the appeal, the point must be loudly made that the appellants failed to raise ANY ground of appeal to challenge any of the findings of fact made by the lower Court. That abstinence implies that the appellant agreed with ALL those findings of fact made by the lower Court. It goes, without saying, that where an appellant fails to appeal on a finding of fact made by a Court, he would not be allowed to submit thereon. See the cases of Atanda v. Iliasu [2013] 6 NWLR (Pt. 1351) 529 at 558 and Ihim v. Maduagwu [2021] 5 NWLR (Pt. 1770) 584 at 615. In the case of Saleh v. Abah [2017] 12 NWLR (Pt. 1578) 100 at 133-134, the Court held:
“… These are not controverted and the 1st respondent did not deem it fit to appeal this finding of facts that he perceived were adverse to his electoral fortune or political future.
This position restates the settled position of the law that the legal consequence of failure to appeal against any finding, holding or decision of a Court is that the parties to the case have accepted it as correct and binding upon them. On this side of the judicial structure, the law is settled that a party is estopped by his failure to appeal against an adverse finding of a fact relevant to the issue.”
See Abubakar v. Bebeji Oil and Allied Products Ltd. & Ors. (2007) 18 NWLR (Pt. 1066) 319 (2007) 2 S.C 48 Per Ogbuagu, J.S.C (P.68, para. F).”
In the case of Dasuki v. FRN [2018] 10 NWLR (Pt. 1627) 320, the Court stated that specific finding of fact neither challenged nor rebutted is correct. That is, an appellant who does not appeal a specific finding of fact is deemed to have accepted and conceded it. This is because facts not disputed are always taken as established. His Lordship, Eko, JSC. stated at page 337 of the Law Report, that:
“The learned trial judge (H.B. Yusuf, J) had stated emphatically, as a fact at page 910 of the Record, that he “did not make any order against the re-arrest” of the appellant after the due execution of his order admitting the appellant to bail. The Court of Appeal affirmed this finding of fact. Either at the Court of Appeal or before us in this appeal, there is no specific ground of appeal challenging this finding of fact. There is a settled presumption that a specific finding of fact neither challenged nor rebutted is correct.”
In the case of UBA Plc v. B. T. L. Industrial Ltd. 2006) 19 NWLR (Pt. 1013) 61, the Supreme Court stated that where there is no appeal against a finding of fact, an appellate Court will not disturb the finding of fact.
In view of the firm and unyielding position of the law, highlighted above, there are, obviously, inherent limitations on the range of the argument permitted to the appellants in this appeal. It is in that light that the argument of the parties in this appeal will be examined and considered.
Resolving the first and third issues
The poser brought by the appellants, in the first and third issues are:
Whether the trial Court was right when it jettisoned the numerous and unchallenged acts of ownership and possession as copiously pleaded and evidence led in support by the claimants (appellants) on the sole view that the traditional history was not sustainable?
Whether on the preponderance of evidence the trial Court was right in granting the Defendants’ Counterclaim?
The appellants claimed that the first issue is derived or deduced from ground 1 of the ground of appeal. The complaint in ground 1 of the notice of appeal is that the lower Court erred in law when it dismissed the claimants/appellants’ case on grounds of contradictory history while ignoring claimants/appellants’ numerous and unchallenged evidence of acts of ownership and possession. Under this issue, appellants’ counsel argued that acts of ownership and possession is one of the five ways to prove title to land. The appellants claimed to have, apart from the traditional history relied upon by them, also relied on evidence led evidence of numerous acts of ownership and possession, which the lower Court abandoned.
The portion of the judgment of the lower Court, which appellants find unacceptable and wrong, is copied (inaccurately) in paragraph 5.4 of the appellants’ amended brief of argument, without identifying where it could be found in the record of appeal. The statement, in reality, actually goes thus:
“The Claimants also sought solace or recourse to acts of ownership and possession of the land in dispute form the six point acts of ownership and possession addressed by learned Counsel in his written address.
In paragraph 1.5 at page 13 of his written address, learned defence Counsel had submitted and quite rightly, in my view, that the Claimants having failed to establish their claim by evidence of traditional history cannot rely on acts of possession to entitle them to the relief of a declaration of title to the land in dispute.
A Claimant who has pleaded traditional history as his root of title cannot shift ground to rely on acts of possession as his root of title. The Claimant must be held to the root of title he has pleaded and any inference of title created by acts of ownership does not arise.”
The portion quoted above is found at pages 328-329 of the record of appeal.
It is apparent, from the tenor of appellants’ argument of the issue, that their complaint is not that their evidence on traditional history was rejected by the lower Court. At page 328 of the record of appeal, the lower Court found, as fact, thus:
“In one breadth, the Claimants pleaded first settlement by their ancestor. In another breadth, they appear to plead inheritance by their ancestor, he being the great great grandson of Amchree 1, the putative owner of the entire land. In yet another breadth, they suggestively pleaded acquisition by conquest of the defendants’ ancestors by the Claimants’ ancestor, Chief India John Yellowe.
The Claimants gave three different versions of their traditional history. The Claimants’ traditional history or evidence on how their ancestor came to own and possess the land in dispute is replete with material contradictions and such evidence cannot sustain their claim of title to the land in dispute. The Claimants adduced three competing histories of their ownership of the land in dispute (Abalakiri) in support of their claim; they have failed to make out a case they set out in their pleadings. The legal consequence that attend their (claimants’) failure to give cogent, credible and consistent traditional history in support of their claim is a dismissal of their claim.”
As noted above, the appellants did not raise any ground of appeal to challenge the deep and ruinous findings of facts by the lower Court regarding their failure to prove title as claimed in their claim, based on traditional history. This Court cannot reverse the findings and they are deemed to be correct and inviolate. This is because, as stated in the case of Mogaji v. Cadbury Nigeria Limited [1985] 2 NWLR (Pt. 7) 393 at 430.
“Surely, it is elementary rule of law that where a party adduces two competing histories of their ownership in support of his claim, he has failed to make out the case he set out to make and his claim must be dismissed.”
Appellants’ complaint is that the lower Court “jettisoned” evidence of acts of ownership and possession presented before that Court. I have run through ground 1 of the notice of appeal, first issue raised by the appellants and argument of appellants’ counsel of the first issue, I could not find anywhere the attention of this Court was directed to “acts of ownership and possession” which the lower Court “jettisoned” or ignored.
Apart from the above, the lower Court did not jettison acts of ownership and possession given in evidence by the appellants. Rather, the lower Court considered same, but preferred the evidence of ownership and possession given by the respondents. For example, the lower Court, at page 334 of the record of appeal recorded the following:
“In paragraphs 14, 15, 17 of the statement of defence and counter claim, they vehemently and specifically denied the claimants’ acts of ownership and possession outlined in paragraphs 17 and 18-20 of the statement of claim.
In paragraph 15 of the statement of defence and counter-claim, the defendants pleaded thus:
…”
At page 336, the lower Court continued its consideration of the issue, when it stated thus:
“All factors considered including the admission of the fact that it was late King Amachree 1 that placed the Defendants’ ancestors on the land, it is my view that the Claimants’ case having collapsed and having been dismissed, there is no cogent and credible evidence traditional history on the side of the claimants to contend or compete with that of the defendants.
The Defendants’ case or the impression created from their pleadings and evidence is that they were on the land before the era of King Amachree 1 and they struck a relationship with him and came under his protection and suzerainty.
In assessing the evidence of traditional history of the defendants/counterclaimants for which there is no cogent and credible version from the claimants to contend with, this Court is wary in concluding that the defendants’ version is improbable simply because facts emerged showing that it was late King Amachree 1 that placed the defendants on the land vis-à-vis with the stance of the defendants, unless the totality of the evidence of the defendants are not cogent, credible, and weightier than that of the claimants in the issue of who owns the land in dispute.
In this case, having considered the case of the Defendants/Counter-claimant on one side and that of the Claimants/Defendants on the other side and placed them on either side of the scale to weigh, I find the Defendants/Counter claimants’ version credible, cogent and weightier to merit a declaration of title in their favour in respect of the land in dispute.”
From the portions of the judgment highlighted above, it is apparent that the lower Court had settled the issue of ownership of the land in dispute, while taking into consideration, the contentions of the parties before it. The appellants did not file any ground of appeal to challenge the findings of fact made by the lower Court. This Court is not enabled by law to interfere with the conclusions stated above. The conclusion of the lower Court cannot be faulted in the circumstances of this appeal.
Apart from the above, a party who desires to rely on both traditional history and acts of ownership and possession as twin means of proving title to land in dispute, is expected to prove the two options in the alternative. This is because, ordinarily, acts of ownership and possession is practical proof of the truth of evidence of traditional history. The former may, justifiably, be found in the latter. That is the reason for Oguntade, JSC., in the case of Balogun v. Akanji [2005] 10 NWLR (Pt. 933) 394 at 411, stated how a party who desires to rely on both traditional history and acts of ownership should present his pleadings, as follows:
“It is to be borne in mind that proofs of title by evidence of traditional history and acts of ownership are separate and parallel. One is also to be distinguished from the other. Whilst the evidence in proof of either in a claim for declaration of title may overlap, the recognition of each as different to the other helps to remove the error and confusion to which parties and counsel alike are prone. A plaintiff may by his statement of claim rely solely for the title he asserts in a claim for declaration of title on traditional history. On the other hand, since it is permissible to plead in the alternative, he may rely on both methods i.e. traditional history and acts of ownership. Where he fails on the former, he may well succeed on the later because in their nature both are different.”
In the case ofBalogun v. Akanji (1988) 1 NWLR (Pt. 70) 301 at 322-323, Oputa, JSC. observed:
“One final word on Ekpo v. Ita (supra). Anyone who pleads acts of possession as his root of title is really relying on the presumption that possession is 9/10 of the law and that he who is in possession is presumed by Section 145 of the Evidence Act, Cap. 62 of 1958 to be the owner and that the onus of proving that he is not the owner is on the person who affirms that he is not the owner. Looked at logically and critically a person pleading acts of possession as his root of title is simply saying –
“I do not know how I got the land. All I know is that I have been in possession and have exercise various positive acts of possession. Now you prove that I am not the owner.”
Put in this way it is easier to appreciate that acts of possession will not arise where the root of title is known, and pleaded, and proved. In such a case title will be awarded on the strength of the title pleaded and proved. It is only where and when traditional evidence is inconclusive that the Court will be obliged to look at the acts of possession of the parties and therefrom determine on whose side the presumption in Section 145 Evidence Act will operate.
Onus of Proof
A careful consideration of the authorities and decided cases amply show that there is no onus on a plaintiff who claims title by Traditional Evidence and who successfully establishes his title by such evidence to prove further acts of ownership numerous and positive enough to lead to the inference that he is exclusive owner. When a plaintiff has proved his title directly by Traditional Evidence there will be no need again for an inference to establish that which had been already directly proved. Acts of ownership become material only where the traditional evidence is inconclusive. In the case on appeal where the trial Court held that the traditional evidence led was conclusive, there was no need whatsoever to require further proof. That will be increasing unnecessarily the burden of proof on the plaintiffs. That will be wrong. Cases like Ekpo v. Ita supra or Kojo v. Bonsie (1957) 1 W.L.R 1223; W.A.L. 257 deal with cases where there is a conflict of traditional history. In such cases the best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable. Such a situation did not arise in this case since the trial Court was satisfied with the plaintiffs’ traditional evidence but not with that of the defendants’.”
As the lower Court was satisfied with the case of the respondents, the judgment of the lower Court did not require consideration of acts of ownership and possession, to establish title. One means of proving title is sufficient. The first issue in this appeal is therefore an academic exercise, which serve no valuable purpose. Where a party set out to establish title by traditional history all he needs do is to prove his title by conclusive and cogent evidence of tradition. Where the traditional histories are in conflict the probability of the rival histories is tested by evidence of recent facts.
Where a party relies on evidence of traditional history, and, in the alternative, acts of ownership to prove the title he claims, the Court is entitled to proceed on an inquiry into the question whether a party has proved acts of ownership over a sufficient length of time, numerous and positive enough to lead to an inference that he is the owner of the land in line with the principle enunciated in Ekpo v. Ita [1932] 11 NLR 68. In Okhuarobo v. Aigbe [2002] 9 NWLR (Pt. 771) 29 at 57 Kutigi J.S.C. (as he then was) stated that:
“It is settled law that when a party pleads purchase or gift as his root of title as in this case, he either succeeds in proving the purchase or gift or he fails. Having failed to prove the title pleaded, it will be wrong to turn round to rely on acts of possession or acts of ownership which are acts in the nature of things derivable from and rooted in the radical title pleaded. See Balogun v. Akanji [1988] 1 NWLR (Pt. 70) 301.”
It is trite law that where the title of both parties is defective, the Court can still find for the plaintiff in the action for trespass if he establishes possession. See Kareem & Ors v. Ogunde & Ors (1972) 1 SC 182 (1972) 1 All NLR (Pt. l) 73 and Ogunbiyi v. Adewunmi (1988) 5 NWLR (Pt. 93) 215. Possession is good against all the world except the person who can show a good title. See Asher v. Whitlock (1865-66) 1 L.R Q.B. page 1 at 5. The respondents, obviously showed better title at the trial and the lower Court so found. It is trite that where there are two claimants to a parcel of land, declaration of title is made in favour of the party that proves title. See Adole v. Gwar [2008] 11 NWLR (Pt. 1099) 562 at 592.
Regarding the third issue, it is my view that the lower Court relied on the pleading and evidence before it to arrive at the decision to grant the prayers of the respondents in their counter-claim. There is no reason to interfere with the conclusions and orders made by the lower Court. The third issue is resolved in favour of the respondents.
Resolving the second issue
The second issue complains as follows:
Whether the trial Court was not in grave error when it awarded the area verged red which is undisputed and of which the Defendants did not specifically ask for as against the area verged green which is the subject matter of relief 2 of the Defendants Counter claim in Exhibit P?
In paragraph 4 of the amended statement of defence and counter-claim filed by the respondents (page 183 of the record of appeal), the respondents pleaded the identity of the land in dispute, as follows:
“4. The defendants deny paragraph 4 of the Statement of Claim and put the plaintiffs to the strictest proof. In answer to the said paragraph, the defendants say that the land in dispute is part of a larger portion of defendant’s land, shown and delineated in plan No. CIWE/R001/2003-LD dated 6th January, 2003. The Land of the defendants is verged GREEN while the area claimed by the Plaintiffs is verged BROWN on the said plan filed along with the statement of defence and counterclaim.”
(Bold font for emphasis).
Respondents tendered the dispute plan, particulars of which they pleaded in the paragraph quoted above, as exhibit P and also called the surveyor who prepared the dispute plan as DW 5. In the proceedings of 22/03/2011, when DW 5 – High Chief C. Oghali-Ukpor, Surveyor – was cross-examined, shown in the supplementary record, he testified as follows:
“I prepared Exhibit “P” now shown to me. Exhibit “P” was not prepared solely by information from defendants but also field work.”
On 24/05/2011, when DW 5 continued his cross-examination, he testified:
“I am the maker of Exhibit “P”. The area in dispute is verged red i. e. cause of action.”
An examination of exhibit P confirms that there is an area edged red within the larger area marked green. There is also the area marked yellow within the larger area marked green. The explanatory Legend inserted in exhibit P defines:
a. The area edged green as the land of Bukuma People.
b. The area edged yellow as the portion of the Bukuma land allowed to Chief John Yellowe of Bakana (appellants’ ancestor).
c. The area edged Brown as the land claimed by the appellants.
d. The area verged red as the portion of Bukuma land in dispute and cause of action.
It is interesting to observe that the same area, edged red in exhibit P, is also edged red in exhibit A, the dispute plan tendered by the appellants, who are unjustly bellyaching in this appeal. In the Legend inserted in the appellants’ dispute plan (exhibit A), the area edged red is described as “AREA IN DISPUTE AND CAUSE OF ACTION”, which implies that parties were not in doubt about the area of land in dispute.
Thus, while the respondents claimed the entire area verged green as their land, which is the Bukuma Island, they clearly identified the area verged red, within the area verged green, as the area in dispute, following their pleading. It is unmissable that original ownership of the entire land verged green, coupled with the fact that the respondents presented a prayer for order of Court for the forfeiture of rights to the portion they occupy, verged yellow.
In order to signpost the seriousness with which the existence of previous decisions of the Supreme Court is viewed, when they are in respect of matters being considered in another proceeding, in the case of Jubrin v. FRN [2020] 4 NWLR (Pt. 1714) 315 at 345-346, Eko. JSC. warned as follows:
“I consider it most unethical for the counsel in this appeal not to have, out of Courtesy, drawn the attention of this Court to its previous decisions arising from the same set of facts on which this appeal has been premised. …
This Court, on the principle of stare decisis, will hold itself bound by its previous decision on the same facts and issues except where it is satisfied that its previous decision was erroneous and/or was reached per incuriam: …
Since every counsel appearing in this Court, being an officer in the temple of justice, owes the duty to this Court of ensuring that it does not deliver conflicting decisions; whenever an issue on the very fact his present appeal predicates had been decided or determined previously, it behoves the counsel, in discharge of his professional duty to the Court to draw the attention of the Court to its said previous decision(s). I take serious exception to the conspiracy of taciturn, in view of the three previous decisions of this Court arising from the same facts as the instant appeal, that counsel on both sides engaged in this appeal. I say no more”.
The record of appeal shows that lower Court found as fact that the entire land verged green in the dispute plan is owned by the respondents, as a result of their being settled on the land by King Amachree 1. The conclusion of the lower Court, was actually and in particular, predicated on exhibit B, which is a judgment of the Supreme Court, which the complaining appellants brought to Court and tendered. That judgment confirmed respondents’ ownership of the entire land in Bukuma Island, edged green on exhibit P. The judgment of the Supreme Court was tendered based on the pleading by these same complaining appellants, in paragraph 37 of their amended statement of claim, where they pleaded as follows:
“37. The Defendants were Ogonokom people who were driven from their kindred due to acts of atrocities they committed in their land of origin and took refuge with the Kalabaris. It was King Amachree 1 that settled the Defendants’ ancestors where they are today. Because of the peculiar nature of their language which had a preponderance of the alliteration ‘bukum, bukum’, they came to be known as ‘Bukuma people’ by the Kalabaris. It was King Amachree 1 that settled the Defendants in a hidden part of his bush, where the enemy could not easily locate them being slave trade, riverine warfare days. And there they have resided to this day. Claimants would found on Supreme Court judgment SC/97/91 of 10/12/99: AKIO ABBEY & ORS. vs. CHIEF ALHAJI IBRAHIM FUBARA & ORS. to establish that the bush is King Amachree’s Island.” (Page 275-276 of the record of appeal).
At page 332-333 of the record of appeal, the lower Court found as follows:
“Learned counsel made a capital over DW 1’s admission in his written address and submitted strenuously therefore that the Defendants have no traditional history worth relying upon to found title to the land in dispute.
I find that DW 1 made the said admission. There is no evidence stronger than a man’s own admission against his own interest.
This admission means in fact that it was King Amachree 1 that placed the Defendants’ ancestors on the Bukuma Island including the land in dispute verged Red in the Survey Plan of both parties (Exhibits ‘A and P’), the entire area verged Yellow in Exhibit ‘A’ claimed by the Claimants and the area verged Brown on Defendants’ Exhibit ‘P’ or the vast area verged Green claimed by the Defendants in their Exhibit ‘P’. Exhibit ‘B’, ‘M’ and ‘N’ tendered by the parties corroborate the fact not only that Amachree 1 placed the Defendants on a portion of the entire Island or the entire Island, they also undisputably show that the Defendants occupied the entire land including the land in dispute exclusively for their use.
At pages 15-16 of Exhibit ‘B’ the Supreme Court judgment in Abbey Vs. Alex supra the Supreme Court reproduced and adopted the findings of Kalabari Native Court judgment of 1946:
“Both the Kalabari people as well as the people of Tombia were at the Old Shipping when Bukuma people were located on the land in dispute by late King Amachiree 1 for habitation. The people of Bukuma people (sic) were then the only people making use of the ente (sic entire) area of land in dispute without any interference from any sort of people. … The Bukuma people to the understanding that they were first located on the land in dispute gained such access in using the land to any dimension by farming and by any other means charitable to their livelihood.”
The defendants in this case are claiming the entire area verged Green in their Survey Plan (Exhibit ‘P’), that is the entire area of land including the land in dispute verged red which they call Abalalau consisting of area called Adeokuma, Ade Atakum and Ade Akemi.”
Later, at page 337 of the record of appeal, the lower Court held, thus:
“The Defendants/Counter-claimants are claiming a declaration of title to the area verged green on their Survey Plan Exhibit P and forfeiture against the Claimants in the area verged Yellow being the area allegedly allowed their ancestors in and over Abalakiri.
A look at the area verged Green in Defendants Survey Plan (Exhibit ‘P’) shows that the Defendants/Counter-claimants are claiming title over undisputed portions of land in the Island and the land in dispute verged red in the Survey Plan of both parties (Exhibits ‘A’ and ‘P’). The pleadings and evidence of both parties show that there are other settlements or habitations on the vast area of the Island verged Green in counter-claimants’ survey Plan and to grant a declaration of title over the entire area verged Green rather than over the land in dispute verged Red may present discord and difficulty and may be over-reaching. Therefore the defendants/counter-claimants are entitled to a declaration of title to the area verged Red (Abalakiri or Abalalau) on their Survey Plan with plan No. CIWE/R001/2003/LD dated 6/1/2003.”
It is intellectual wickedness to allege that the lower Court granted a prayer not laid before it, when what the lower Court did was to grant declaration of title to the area verged red in the survey plan tendered by the respondents, which described the area verged red as the land in dispute. The area verged red is within the area of land verged green, and is smaller in size that the area verged green.
The holding of the lower Court, cited above, was affirmation of the position of the pleaded case of the appellants that the respondents were settled on Bukuma Island by King Amachree 1. However, the lower Court further found from the judgment (exhibit B) that the King Amachree 1 actually settled the respondents on and respondents made use of the entire Bukuma Island without challenge at the time.
What the appellants are trying to fight against, through the back door, is the fact that they brought a judgment of the Supreme Court to challenge the respondents at the trial. The judgment, however, proved the fact that the respondents actually owned the land, though not in the manner they claimed to have acquired title to the Bukuma Island, but through the means which the appellants pleaded, which is through King Amachree 1. Either way, especially as found by the lower Court, which is binding on the parties, there was evidence before the lower Court that, at the time of King Amachree 1, Bukuma Island was owned by the respondents, having been settled thereon by the King. That is indisputable proof of how title to the land in dispute was acquired, which is one of the acceptable ways of proving that title. See Balogun v. Akanji (supra) and Ajiboye v. Ishola [2006] 13 NWLR (Pt. 998) 628 at 651-652, per Onnoghen, JSC. (as he then was).
There is no merit in the appeal of the appellants regarding the judgment of the lower Court in making a declaration of title over the area verged red, within the area verged green, in the dispute plan tendered in evidence as exhibit P, at the trial. The lower Court merely entered a declaratory order over a smaller parcel of land, which was in dispute, within a larger parcel of land verged green, for infallible reasons. The third issue is resolved against the appellants.
Conclusion
We are warned by the case of Olagbegi v. Ogunoye II [1996] 5 NWLR (Pt. 448) 332 at 354, that it is not the business of the Court of Appeal in circumstances where the trial Court has properly performed its duty to evaluate the evidence and appraise the facts to substitute its own views for those of the trial Court. In this case the evidence adduced by the appellant is utterly worthless as against the overwhelming evidence of the respondents. The learned trial Judge performed well his primary duty of evaluating the evidence of the respondents and that of the appellant, and made necessary findings. There is therefore no cause for the Court of Appeal to interfere and intervene. See M. I. S. R. (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55 and Board of Customs & Excise v. Barau (1982) 10 SC 48.
In sum, having resolved all three issues against the appellants, it is the view of this Court that there is no merit in the appeal of the appellants, which is hereby dismissed. The judgment of the lower Court, dated 30/07/2012, under the very able and discerning hands of Justice Adolphus Enebeli, is hereby affirmed.
Appellants shall pay cost in the sum of N250, 000.00 (Two hundred and fifty thousand naira) to the respondents.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the elaborate judgment prepared by my learned brother, His lordship, Adegbehingbe, J.C.A., and add these words by way of emphasis.
Exhibit B, the previous Supreme Court judgment, has enormous evidential value as an act of possession in favour of the respondents which strengthened the respondents’ case against the appellants vide the cases of James Uluba & Ors. v Chief Sillo (1973) 1 S.C. 37 at 55-56, Dibie Ajuwa & Ors. v Sebastian Benjamin Odili (1985) 9-12 S.C. 17 at 26, Kobina Ababio ll v Priest-in-charge Catholic Mission (1935) W.A.C.A. 380 at 382.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read the draft of the judgment just delivered by my learned brother, Olabode Abimbola Adegbehingbe, JCA.
I agree with the reasoning and order stated in the lead judgment which I hereby adopt as mine.
The appeal is dismissed.
Appearances:
Appellant counsel served hearing notice through phone but absent. For Appellant(s)
P. D. Peter-Kio Esq., with him, N. Okpile Esq. For Respondent(s)
