AMBAYE & ORS v. OMONIGHA & ORS
(2022)LCN/16208(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Tuesday, May 31, 2022
CA/PH/359/2015
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
1. MR. NEWMAN AMBAYE 2. MR OKILO AMBAYE 3. MR ERNEST AMBAYE 4. MADAM ASELEMAERE AMBAYE (For Themselves And As Representing The Other Members Of Ambaye Family Of Ogobiri Town) APPELANT(S)
And
1. MR. NIGERIA THOMAS OMONIGHA 2. MR. FIDELIS THOMAS OMONIGHA 3. MADAM MAGGI THOMAS OMONIGHA (For Themselves And As Representing The Other Member Of Omonigha Family Of Ogobiri Town) RESPONDENT(S)
RATIO
TRADITIONAL EVIDENCE OR TRADITIONAL HISTORY AS A MEANS OF PROVING OWNERSHIP OF LAND
In resolving the substance of this issue, it is important to properly examine traditional history as a means of proving ownership of land. A genre of the accepted mode of establishing title to land is known as traditional evidence or traditional history.
The sort of evidence which is a bit of ancient history is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land.
The age old principles of law in its wisdom, allows such evidence, most probably in view of the fact that much of the past is practically unrecorded, consequently by the provision of Section 66 of the Evidence Act 2011, has delisted this category of evidence from being hearsay evidence into admissible evidence. The apex Court has held that once traditional evidence is formed to be conclusive and cogent, there would be no need whatsoever to require further proof. In consequence, where a Court finds evidence of traditional history to be cogent, and it’s neither contradictory nor in conflict or in competition with that of the defendant, and accepts it, it would be sufficient to support a claim of declaration of title to land. However, traditional evidence must be such as to be consistent and properly linked the plaintiff with the traditional history relied upon. See SOGUNRO V YEKU (2017) 9 NWLR (PT 1570) 290. PER KOLAWOLE, J.C.A.
CONDITIONS TO BE ESTABLISHED BY A PARTY SEEKING TO RELY ON TRADITIONAL HISTORY TO ESTABLISH HIS ENTITLEMNET TO A DECLARATION OF TITLE TO LAND
The law is fairly well settled that where a party relies on traditional history to establish his entitlement to a declaration to title to land in his favor, he needs to establish the following:
(a) The root of his title by pleading and leading evidence of the names and history of his ancestors
(b) Trace his genealogical tree down from his ancestors up to the present time
(c) Must succeed on the strength of his own case and not on the weakness of the defence, if any. See ONWUGBUFOR V OKOYE (1996) 1NWLR (P.E 946) 671. PER KOLAWOLE, J.C.A.
THE PRIMARY DUTY OF THE TRIAL COURT
The law is trite that the trial Court is saddled with the primary responsibility to evaluate evidence led and produced at the trial. Evaluation of evidence and ascription of the credibility of the witnesses are the primary duty of the trial Court because it had the unique opportunity and advantage of seeing and watching the demeanour of the witnesses called and fielded by both parties. The appellate Court that does not enjoy this advantage and only deals most often with the cold facts as can be gleaned on the pages of the records compiled for its use and cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse.
Furthermore, it must be noted that a Court’s findings are perverse where they are openly speculative, because, they are not based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious facts as can be seen on the face of the records. PER KOLAWOLE, J.C.A.
WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE EVALUATION OF EVIDENCE DONE BY THE TRIAL COURT
The law is long settled that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale of justice before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, this Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is patently perverse. See OBISANYA VS NWOKO (1974) 6 SC 69 AT 80, WOLUCHEM VS GUDI (1981) 5 SC 291 AT 326, NWANKPU VS EWULU (1995) 7 NWLR (PT. 407) 269, AJIBULU VS AJAYI (2014) 2 NWLR (PT. 1392) 483, IKUMONIHAN VS STATE (2014) 2 NWLR (PT. 1392) 564. PER KOLAWOLE, J.C.A.
FACTOR TO BE CONSIDERED FOR A COMPLAINT ON IMPROPER EVALUTION TO HAVE A MEANING IN ORDER TO ATTRACT A JUDICIAL REVIEW ON APPEAL
It is the proposition of the law that for a complaint on improper evaluation to have a meaning in order to attract a judicial review on appeal, the Appellant must clearly identify the evaluation and specify same on which the complaint was made to enable the Appellate Court to consider whether or not there was proper evaluation in support of the findings, conclusion and eventual decision of the Court of trial with respect to the area in dispute. He must also demonstrate to the Court on appeal, that but for the failure to evaluate or properly evaluate the pieces of evidence both documentary and oral, the decision of the Court would have been in his favour. Where a party fails to do this, the decision of the lower Court on appeal will stand. See AGBI VS. OGBEH (2006) ALL FWLR (PT. 329) 941, OPU-ADO VS. ABERE (2017) ALL FWLR (PT. 910) 195. An Appellant who therefore relies on wrongful evaluation of evidence to set aside a judgment, has the duty to identify the evidence improperly or not evaluated and to show convincingly that if the error complained of had been corrected or had not occurred, the conclusion reached would have been different and in his favor. See NKEBISI VS. THE STATE (2010) 5 NCC 84 at 104, SIRAJO VS. THE STATE (2014) LPELR-23608 (CA). PER KOLAWOLE, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Bayelsa State of Nigeria, Sagbama Judicial Division delivered on 29th March, 2012 in Suit No. SHC/9/2009, per Coram: Honourable Justice E.T Okara.
Before the lower Court, the Appellants and the Respondents were the Defendants and the Claimants respectively. By a writ of summons dated 23/06/2009 and filed on 26/06/2009, the Respondents/Claimants claimed against the defendants jointly and severally the following reliefs in an amended statement of claim dated 26/06/2009. The reliefs sought read as follows:
1. A declaration that the plaintiffs are the lawful owners of all the parcels of land known and referred to as Boutibe-Ogbo, AMAKUNU-OGBO, AMABULU-OGBO, BEINMO-OGBO-ETURU, AGUBUYE-POU-ETUBU, INDIBISI – ETUBU, ALAI- ETUBU DIOUPENA-ETUBU, OGBOKOROMO-ETUBU and INDIBISI – ASA all situate at and within the environs of Ogobiri Town in the Sagbama Local Government Area of Bayelsa State and are thus entitled to the statutory right of ownership over the said parcels of lands.
2. An order of perpetual injunction restraining the defendants either by themselves or through their agents or privies from the trespassing or continuing to trespass on the plaintiffs aforesaid parcels of lands.
3. The sum of N5 (Five) Million Naira being general damages for trespass on the plaintiffs aforesaid parcels of lands.
In response to these reliefs, the appellants joined issues with the respondents and filed their Statement of Defence on the 18th February, 2010 (its reproduced in pages 11-14 of the record).
After plenary hearing of the evidence, both parties filed written addresses alongside their respective processes. In a considered judgment delivered on the 29th March, 2009 found at pages 140-153 of the record, the trial Court gave judgment for the Claimants/Respondents, and the Appellants being dissatisfied with the decision of the lower Court, appealed to this Court. The Appellants/Defendants consequently filed a Notice of Appeal on 23/06/2016 containing three (3) main grounds of appeal with detailed particulars. (See pages 154-158 of the record of appeal). The said notice of appeal was later amended by order of this Court to include an additional ground as sought by the Appellants/Defendants. The amended notice of appeal is dated 6th October, 2016.
In compliance with the Rules of this Court, both parties filed and exchanged their respective briefs of arguments.
The Appellants’ brief of argument was settled by E.E. Derie, Esq. and it was filed on the 6th July, 2015 but deemed to be properly filed and served on the 27th September, 2017.
In opposition to the appeal, the Respondents’ Counsel filed a Respondents’ Brief of Argument settled by D.S. Yokoro, Esq. The Respondents’ Brief of Argument is dated 21/11/2016.
The Appellants’ learned Counsel, E. E. Derie, Esq., in arguing the appeal formulated three (3) issues for determination in the Appellants’ Brief of argument.
The issues formulated by the Appellants read thus:
1. Whether having regard to the state of pleadings and evidence the respondents put forward cogent and conclusive traditional history which was the basis of their claim to the land in dispute. (Distilled from grounds 1 and 3)
2. Whether the learned trial Judge properly evaluated the evidence of PW2 in arriving at a decision in favour of the Respondents. (Distilled from ground 2.)
3. Whether the respondents met the required standard of proof of the identities of the parcels of land they claimed title to.
The Respondents’ counsel on his part, adopted the issues formulated by the Appellants’ Counsel for the consideration and determination of the instant appeal.
At the hearing of the appeal, respective learned Counsel adopted and relied on their filed and exchanged briefs of argument. While the Appellants’ learned counsel, E.E. Derie, Esq., urged on the Court to allow the appeal and set aside the judgment of the lower Court, the Respondents’ learned counsel, D.S. Yokoro, Esq., urged on us to dismiss the appeal and affirm the Judgment/decision of the lower Court.
SUBMISSIONS OF COUNSEL
The Appellants’ counsel, E.E Derie, Esq., who settled the appellants’ brief of argument raised three issues for the determination of the appeal and they read thus:
1. Whether having regard to the state of pleadings and evidence the respondents put forward cogent and conclusive traditional history which was the basis of their claim to the land in dispute. (Distilled from grounds 1 and 3)
2. Whether the learned trial judge properly evaluated the evidence of PW2 in arriving at a decision in favour of the Respondents. (Distilled from ground 2.)
3. Whether the respondents met the required standard of proof of the identities of the parcels of land they claimed title to.
Learned counsel to the Appellants submitted that the learned trial judge’s Judgment in favour of the Plaintiffs was based on their traditional evidence and argued that a party who relies on traditional history would need to plead the names of his ancestors to narrate a continuous claim of devolution of the land in dispute without allowing any gap or gaps that defy explanations or leading to a prima facie collapse of the traditional history. The history must show how the land by a system of devolution eventually came to be owned by the Plaintiffs. In support of this proposition, he relied on the decisions in LEBILE V. REG. TRUSTEES OF CHERUBIM AND SERAPHIM CHURCH (2003) 13 NSC QR 19, EZE V. ATASIE (2000) 10 NWLR PT. 676 P. 470.
In arguing issue two, Appellants’ learned Counsel submitted that the learned trial Judge did not properly evaluate the evidence of PW2 in arriving at a decision in favour of the respondents. He submitted that evaluation and ascription of probative value to the evidence led or produced at trial is primarily the function of the lower Court. He urged this Court to intervene and re-evaluate the evidence based on the record of appeal. He cited and relied on the decision in OKONKWO V. OKONKWO (2010) 14 NWLR (PT. 1213) 228; ABISI V. EKWEALOR (1993) 6 NWLR PT. 302 P. 643.
The Appellants’ learned counsel further submitted that it is trite law that a claimant must prove with certainty the boundary of the land in dispute in a claim for a declaration of title to land. The onus to do this lay squarely on the claimant to satisfy the Court of his entitlement to the declaratory orders sought. He cited the decision in OTANMA V. YOUDUBAGHA (2006) ALL FWLR Pt. 300, 1579 and contended that in the circumstances of the case, a visit to the locus in quo ought to have been done to properly ascertain the identity of the parcels of land in issue or an order for a surveyor’s plan ought to have been filed to settle the issue of uncertainties, this according to the Appellants’ counsel, was not done and the air of uncertainty with regards to the identity of the lands was fatal to the case of the claimant.
On the whole, counsel to the Appellants urged the Court to resolve all the three issues argued in favour of the Appellants and consequently allow the appeal and set aside the judgment of the lower Court delivered on the 29th March, 2012.
Learned counsel for the respondents in opposition to the appeal, adopted the three issues earlier raised by the appellants’ Counsel. In arguing issue one, learned Counsel for the respondents submitted that the respondents pleaded their generation history in paragraph 3 of their statement of claim, where they traced it to their immediate father, Thomas a son of Omonigha as their grandfather. The Respondents’ Counsel further submitted that the respondents pleaded how the parcels of land devolved from the descendants of Omonigha after his death to their generation and further referred the Court to pages 5 to 8 of the records and paragraph 6 of the 1st Respondent’s Statement on oath at page 16 of the records. The Respondents’ learned counsel pointed out that the onus is on the plaintiff to establish his title to the land and opined that it is only where the evidence of traditional history is inconclusive to establish the plaintiffs’ title that traditional history must be tested by reference to the facts in recent years as established by evidence. The Respondents’ counsel relied on the decision in AYORINDE V. SOGUNRO (2012) ALL FWLR (PT. 636) 403 AT P. 417. He further submitted that there was no gap in the facts pleaded and the traditional history of the Respondents’ case at the lower Court and urged this Court to discountenance the submissions of the Appellants’ counsel, and resolve this issue in favour of the Respondents.
In arguing issue two, learned counsel for the Respondents after pointing out that evaluation of issues comes in two forms, he submitted that the findings of fact by the lower Court were not perverse and urged this Court not to interfere with the findings of the lower Court. In support of this proposition, he cited the decision in the case of AYORINDE V. SOGUNRO (SUPRA). The Respondents’ counsel submitted that the Appellants’ counsel has failed to establish that the lower Court’s decision was perverse and urge this Court not interfere therewith. He cited the decision in the case of GBEMISOLA V. BOLARINWA (2014) ALL FWLR PT. 731 P. 1477 to buttress his position.
Learned Counsel for the respondents submitted in his response to issue three that the various parcels of land in dispute are known to both parties going by their pleadings in the statement of claim and statement of defence, the names given are the same and boundary neighbors also the same except one of the parcel of land where different boundary neighbors were mentioned. He referred this Court to pages 5 to 7 and pages 12 to 13 of the records of appeal. He further submitted that in ascertainment of the boundaries of a piece of land in dispute, the acid test is whether a surveyor taking record could produce a plan showing accurately the land to which title had been given but in the instant case, both parties knew the various parcels of lands in dispute and the identity of the parcels of land was not in dispute. He urged this Court to discountenance the submissions of the learned counsel for the appellant and resolve the issue in favour of the respondent. The Respondents’ counsel argued that the lower Court was right to hold that the identities of the parcels of land are not in issue since it is the defendant by his statement of defence agreed with respect to identity of the land. He cited the cases of ABEGBE V. KOBIOWU (2012) ALL FWLR PT. 628 P. 887, FATUADE V. ONWOAMANAN (1990) 2 NWLR PT. 132, P. 322.
He urged this Court to dismiss the appeal and affirm the judgment of the lower Court with cost.
RESOLUTION OF ISSUES
Whether having regard to the state of pleadings and evidence the Respondents put forward cogent and conclusive traditional history which was the basis of their claim to the land in dispute.
In resolving the substance of this issue, it is important to properly examine traditional history as a means of proving ownership of land. A genre of the accepted mode of establishing title to land is known as traditional evidence or traditional history.
The sort of evidence which is a bit of ancient history is evidence as to rights alleged to have existed beyond the time of living memory proved by members of the community or village who claim the land as theirs or who defend a claim to such land.
The age old principles of law in its wisdom, allows such evidence, most probably in view of the fact that much of the past is practically unrecorded, consequently by the provision of Section 66 of the Evidence Act 2011, has delisted this category of evidence from being hearsay evidence into admissible evidence. The apex Court has held that once traditional evidence is formed to be conclusive and cogent, there would be no need whatsoever to require further proof. In consequence, where a Court finds evidence of traditional history to be cogent, and it’s neither contradictory nor in conflict or in competition with that of the defendant, and accepts it, it would be sufficient to support a claim of declaration of title to land. However, traditional evidence must be such as to be consistent and properly linked the plaintiff with the traditional history relied upon. See SOGUNRO V YEKU (2017) 9 NWLR (PT 1570) 290.
The law is fairly well settled that where a party relies on traditional history to establish his entitlement to a declaration to title to land in his favor, he needs to establish the following:
(a) The root of his title by pleading and leading evidence of the names and history of his ancestors
(b) Trace his genealogical tree down from his ancestors up to the present time
(c) Must succeed on the strength of his own case and not on the weakness of the defence, if any. See ONWUGBUFOR V OKOYE (1996) 1NWLR (P.E 946) 671.
The Appellants’ learned Counsel strongly argued that there is an obvious gap in the traditional history of the respondents and that the respondents did not link themselves to Omonigha, the alleged founder of the parcels of land in dispute, hence the obvious gap is fatal to the respondents’ case.
Let me at this juncture say this, that the law is settled that once evidence of traditional history is cogent, and produces or reveals a settled ancestral devolution of land in dispute, a trial Court will accept it and give judgment therein. See EZEKWESILI vs ONWUAGBU (1998) 3 NWLR (Pt. 541) 217.
I have taken a critical study of the statement of claim filed by the claimants in the records of appeal especially paragraphs 3, 5 and 7 thereof, and it is my humble opinion that the claimants have established their title to the parcels of land in dispute. It is trite law that such a person relying on traditional history as the evidence of his title as in the instant case must give a consistent evidence as to the devolution of such title over the years. There must also be evidence as to how the persons claiming to be the present owners of the land derived their interest and root from those who first settled on the land. This, the Respondents as claimants in my view, have done and I see no gap in the evidence of the Respondents. I hereby resolve this issue in favour of the Respondents.
Issue two
Whether the learned trial judge properly evaluated the evidence of PW2 in arriving at a decision in favour of the Respondents.
The law is trite that the trial Court is saddled with the primary responsibility to evaluate evidence led and produced at the trial. Evaluation of evidence and ascription of the credibility of the witnesses are the primary duty of the trial Court because it had the unique opportunity and advantage of seeing and watching the demeanour of the witnesses called and fielded by both parties. The appellate Court that does not enjoy this advantage and only deals most often with the cold facts as can be gleaned on the pages of the records compiled for its use and cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse.
Furthermore, it must be noted that a Court’s findings are perverse where they are openly speculative, because, they are not based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious facts as can be seen on the face of the records.
The law is long settled that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale of justice before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, this Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is patently perverse. See OBISANYA VS NWOKO (1974) 6 SC 69 AT 80, WOLUCHEM VS GUDI (1981) 5 SC 291 AT 326, NWANKPU VS EWULU (1995) 7 NWLR (PT. 407) 269, AJIBULU VS AJAYI (2014) 2 NWLR (PT. 1392) 483, IKUMONIHAN VS STATE (2014) 2 NWLR (PT. 1392) 564.
From the foregoing, the learned Appellants’ Counsel pointed that the lower Court did not properly evaluate the entire evidence of PW2 in arriving at a decision in favour of the Respondents. Counsel to the Appellants did not make available to the Court how the learned trial Judge’s decision was improperly evaluated against the pleaded facts and evidence led at the trial.
It is the proposition of the law that for a complaint on improper evaluation to have a meaning in order to attract a judicial review on appeal, the Appellant must clearly identify the evaluation and specify same on which the complaint was made to enable the Appellate Court to consider whether or not there was proper evaluation in support of the findings, conclusion and eventual decision of the Court of trial with respect to the area in dispute. He must also demonstrate to the Court on appeal, that but for the failure to evaluate or properly evaluate the pieces of evidence both documentary and oral, the decision of the Court would have been in his favour. Where a party fails to do this, the decision of the lower Court on appeal will stand. See AGBI VS. OGBEH (2006) ALL FWLR (PT. 329) 941, OPU-ADO VS. ABERE (2017) ALL FWLR (PT. 910) 195. An Appellant who therefore relies on wrongful evaluation of evidence to set aside a judgment, has the duty to identify the evidence improperly or not evaluated and to show convincingly that if the error complained of had been corrected or had not occurred, the conclusion reached would have been different and in his favor. See NKEBISI VS. THE STATE (2010) 5 NCC 84 at 104, SIRAJO VS. THE STATE (2014) LPELR-23608 (CA). My noble Lords, I have perused the brief of arguments filed by the Appellants’ Counsel, and I was unable to see where the appellants have shown convincingly the error of the decision of the trial Court to warrant this Court to interfere with the judgment of the lower Court. I hereby resolve this issue against the Appellants and in favour of the Respondents.
Issue three
The Appellants’ learned Counsel raised the issue of whether the respondents met the required standard of proof of the identities of the parcels of land they have claimed title to.
In resolving this issue, I totally agree with the submissions of the learned Counsel for the Appellants, that a claimant must prove with certainty the boundary of the land in dispute in an action for declaration of title to land and also, the claimant’s burden to prove the defined area in dispute must be done with certainty. The learned Counsel further submitted that either a visit to the locus in quo or an order for surveyor’s plan to be filed would have solved the problem of identifying the parcels of land that were in dispute which the respondents failed to identify. He urged this Court to so hold. It’s my view, that despite the sound arguments posited by the learned Counsel for the Appellants, it is evident from the pleadings and evidence tendered at the lower Court that snowballed into this appeal, that the area of parcels of land in dispute are well known by the parties in the instant case. The circumstances surrounding this case reminds me of the well settled position of the law and it has always been accepted in our case law in disputed land matters that where the area of land in dispute is well known by both parties, the question of proof of the identity of the said land not being really in dispute does not arise. In such a situation just as in the instant case, it cannot be contended that the area of land in dispute can against the facts pleaded be described as uncertain. See AKINTERINWA & ANOR V. OLADUNJOYE (2000) LPELR-358, OSHO V APE (1998) 8 NWLR (PT. 562) 492. The substratum of issue three as raised by the counsel of the Appellants is on “Respondents’ proof of the identities of the land in dispute”. From a careful perusal of the statement of defence of the Appellants in the lower Court, the Appellants never joined issues as to the identity of the parcels of land in dispute. The law is trite that the need to prove the identity of the land in dispute will arise where a Defendant joins issue with the Plaintiff on the identity of land in dispute. See OKOYE V NSHI (2017) LPELR-4268, GBADAMOSI V DAIRO (2007) LPELR-1315.
I have had a preview of the records of proceedings and the judgment of the trial learned Judge and I must say that the law is clear that parties and Courts are bound by the pleadings and the issues joined thereon, a party cannot therefore be allowed to raise an issue not pleaded at the trial, and even on appeal. See NKANU V. ONUN (1977) 5 SC 13, EGBUE V. ARAKA (1988) 3 NWLR (Pt. 84) 598, ADESANYA V. ADERONMU & ORS (2000) LPELR-145, HANETU V. AMADI (2020) 9 NWLR (PT 1728) 115, ADEYORI V. ADENIRAN (2001) 10 NWLR (PT. 720) 151 and UDEZE V. ORAZULUKE TRADING CO. LTD (2000) 3 NWLR (PT. 684) 203. In the instant case, the parties are very familiar with the identity of the land in dispute and it was not necessary for the Respondents to adduce evidence in that regard even though they did. I do not see how the Respondents failed in proving the identity of the parcels of land in dispute which on the pleadings was not in dispute. On the whole, my noble Lords, I do not find any justification to disturb the sound reasoning of the Court below as the Judgment of the lower ought not to be faulted. I hereby resolve this issue against the appellants and in favour of the Respondents and I hold that there is no merit in this appeal and the same is dismissed accordingly.
I award the costs of N150,000.00 in favour of the Respondents against the Appellants. The appeal is dismissed.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: There is the Supreme Court case of Coker v Oguntola & Ors (1985) 3 NWLR (Pt. 5) 87 at 96 where the claimant had pleaded the genealogy tree of the disputed parcel of land as traditional history of the land to include seven (7) children contrary to the evidence adduced at the trial which showed the founder of the land had only three (3) children and that the remaining four children named in the pleadings, were the children of his brother, one Sofaluwe, but the Supreme Court found no substance in the complaint on the issue.
It was also held by the Supreme Court in similar vein that traditional evidence does not require mathematical precision vide Kayili v Yilbuk and Ors (2015) 7 NWLR (Pt. 1457) 26 at 77 to the effect that the Court does not reject the evidence of traditional history where there are slips in the evidence of witnesses, as the absence of such slips would certainly give reasons for casting doubts on the credibility and truth of the witnesses and that traditional history of witnesses cannot come out in mathematical exactness or exactitude placing reliance on the case of Ezekwesili v Onwuagbu (1998) 3 NWLR (Pt. 541) 217.
The appellants as defendants at the lower Court did not join issues on the identity of the disputed parcel of land in their pleadings by specifically traversing the area or the size or the location or the features of the disputed land claimed by the respondents; consequently, the complaint on the identity of the disputed parcel of land on appeal is untenable vide the Supreme Court case of Ezeudu and Ors v Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 220.
A visit to locus in quo to inspect a disputed parcel of land is not done as a matter of course. The foundation for it is for the defendant to raise specifically the issue of identity of the disputed parcel of land in the statement of defence where the case is fought on pleadings as in this case which was not met by the appellants.
A. visit to locus in quo ought to be made only where there is need to resolve the conflict in evidence and clear a doubt as to the accuracy of any piece of evidence on the identity of the disputed parcel of land; and that it is clearly within the discretion of the trial Court to determine whether in the light of the evidence before it, there is a need to resolve by a visit to the locus in quo which did not appear to be the situation in the present case; consequently, the appellants are not on strong wicket (to use an expression in the game of cricket) in the contention that a visit to the locus in quo was necessary in the case vide Ukaegbu and Ors v Nwololo (2009) 3 NWLR (Pt. 1127) 194 at 239-240.
It is for these reasons and on account of the reasons contained in the lucid judgment prepared by my learned brother, Kolawole, J.C.A., which I agree, that I too find the appeal unmeritorious and hereby dismiss it and abide by the consequential order(s) contained in lead judgment.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA.
I agree with the reasoning and order(s) stated in the judgment and which I hereby adopt as mine.
Appearances:
M. C. IHEKORONYE, ESQ. For Appellant(s)
…For Respondent(s)
