UKOH v. UKOH (2022)

UKOH v. UKOH

(2022)LCN/16573(CA)

In the Court of Appeal

(AWKA JUDICIAL DIVISION)

On Wednesday, April 27, 2022

CA/AW/544/2017

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

DOMINNIC MADUABUCHI UKOH APPELANT(S)

And

PAUL UKOH (FOR HIMSELF AND ON BEHALF OF THE FAMILY OF LATE LAWRENCE UKOH) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT OF APPEAL CAN INTERFERE WITH THE FINDINGS OF THE LOWER COURT

I therefore refuse to interfere with the findings of fact by the trial Court. In a long line of decisions of the Apex Court and this Court, clear findings of fact by the trial Court supported by evidence, not perverse, and do not amount to miscarriage of justice are to be given clear approval by the appellate Court”. See AWOYOOLU V ANOR V ARO & ANOR (2006) 4 NWLR, PT. 971, 481 and STATE V SHONTO (2019) LPELR – 47431 (SC). What is more both parties claim possession. The law is that there is no such thing as concurrent possession by two persons claiming adversely to each other. Where two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to the one with the better title: AWOYOOLU V ARO (2006) (SUPRA). It was in this context that the trial judge found that the respondent having proved a better title was entitled to damages for trespass. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The plaintiff/respondent in the Court below sued the defendant/appellant and claimed as follows:
a. A declaration that the plaintiff is the person entitled to the statutory right of occupancy of the piece and parcel of land known as and called “Agu Ezi Olula” situated at Nkutaku Village, Agulu in Anaocha Local Government Area within jurisdiction. Annual rent is N50.00 (Fifty Naira).
b. N10,000.00 (Ten Thousand Naira) damages for trespass.
c. Perpetual injunction restraining the defendant, his servants and agents from interfering with the plaintiff’s use and occupation or possession of the said land except with the consent of the plaintiff first obtained.

The plaintiff Raphael Ukoh died in the course of the trial and was substituted by his brother Paul Ukoh. In proof of his case the plaintiff testified in his own behalf, called two other witnesses and tendered three exhibits marked as Exhibits A, B and C.

The defendant on his part also testified in his own behalf, called two witnesses and tendered three exhibits marked as Exhibits D, E and F.

At the close of evidence both parties adopted their written addresses. In his judgment delivered on the 15th November, 2010, Justice J. C Iguh of the Anambra State High Court sitting at Awka gave judgment in favour of the plaintiff/Respondent per his claim.

It is against this judgment that the appellant appealed to this Court on eight grounds. From these eight grounds of appeal the appellant distilled the following five issues for determination as contained in his brief settled by MR. Emenike Nnajide of counsel on the 15th April, 2019 and deemed properly filed and served on the 18th March, 2020:
i. Whether the trial Court was right to have taken a mere opinion of a customary Court that was disbanded before it could deliver judgment as a decision of the customary Court and as such gave judgment for the respondent?
ii. Whether the trial Court was right to have held that the appellant cannot rely on acts of possession or long possession to prove title but went on to hold that the acts of possession on respondent enables him to an action for trespass against the appellant?
iii. Whether the Court below was right to have held that the plaintiff/respondent proved his case to be entitled to judgment?
iv. Whether the trial Court was right to have held that the defendant/appellant did not prove his claim of ownership?
v. Whether the trial Court was right to have held that the suit was not caught up by Estoppel and Larches and Acquiesance?

In arguing on issue (1) MR. Emenike Nnajide, of counsel for the appellant submitted that the lower Court acted in error in basing part of its judgment on the opinion expressed by the customary Court during the course of trial which Court was disbanded before it could give decision in the matter before it. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (2), counsel submitted that the judgment of the trial Court was perverse as he failed to properly evaluate the evidence. That the failure of the trial Judge to consider and evaluate the evidence of act of long possession by the appellant was fatal. Counsel urged the Court to interfere and evaluate the evidence properly and also resolve this issue in favour of the appellant.

On the third issue, counsel submitted that both parties relied on traditional history which was found inconclusive. That the Court failed to consider acts of long possession in favour of the appellant but favourably and wrongly considered same in favour of the Respondent. Counsel urged the Court to again resolve this issue in favour of the appellant.

Counsel’s contention on issue (4) is that since the defendant/appellant had no counter-claim there was no burden on him. That since the weakness if the defence does not entitle the plaintiff/respondent to his claim the trial Court was wrong to have shifted the burden of proof to the defendant/appellant when it held that the defendant/appellant did not prove his claim of ownership. Counsel also urged the Court to resolve this issue in favour of the appellant.

The fifth and last issue as raised by the appellant is whether the suit was not caught up by estoppel, laches and acquiescence. The submission of counsel on this issue is that parties submitted themselves voluntarily to arbitration in 1959 and the Respondent accepted the decision of the arbitration by conduct and acted on it. Counsel contended that the Respondent is estopped in the circumstances from resiling from the said arbitration as it binds him. Counsel urged the Court to resolve this issue in favour of the Appellant, allow the appeal and set aside the judgment of the trial Court.

The Respondent’s brief was settled by MR. G. I. Ezeuko on the 13th January, 2020 but deemed properly filed and served on the 18th March, 2020. In it the Respondent distilled three issues for the determination of the Court thus:
1. Whether the trial Court duly evaluated the evidence led particularly exhibit c which contains the findings/opinion of the Customary Court on the same subject matter in this suit and made definite findings of facts therefrom which are supported by evidence led and were neither perverse nor occasioned any miscarriage of justice? (distilled from grounds 1 and 2).
2. Whether the Respondent proved his case on the balance of probabilities to be entitled to the reliefs sought as held by the trial Court which include damages for trespass? (distilled from grounds 3, 4, 5 and 6)
3. Whether the Respondent’s claim is caught up by Estoppel per rem judicatem and/or lashes (sic) and acquaintance? (sic) (distilled from grounds 7 and 8). In opposing the appeal, MR. G. I Ezeuko of counsel for the Respondent on issue (1) submitted that Exhibit C which is referred to as the decision of the Customary Court is actually the record of proceedings of the said Court. That the lower Court was right in evaluating Exhibit C along with other pieces of evidence and ascribing due probative value to same as it is relevant and credible in the determination of the core issues.

Counsel contended on behalf of the Respondent that the reference to Exhibit C as a decision is a mere slip, which should not affect the validity of the judgment of the Court. That this is more so as the appellants have failed to show how the said slip has occasioned a miscarriage of justice to them. Counsel further submitted that since the slip/error is neither material nor substantial and has not led to a miscarriage of justice, it is of no moment and this Court should not disturb or interfere with the decision of the lower Court correctly reached. Counsel urged the Court to resolve this issue in favour of the respondent.

On the second issue as raised, the contention of counsel is that the Respondent pleaded and proved the traditional root of title on the balance of evidence and that the trial Court rightly found in his favour. Counsel argued that the Appellant having failed to prove title through traditional history cannot rely on acts of long possession to defeat a better title proved by the respondent. Counsel also argued that the trial Court was right to find for the respondent in trespass based on the law that where both parties claim possession, the person with a better title is deemed to be in possession and can maintain an action in trespass against the other party. That the slightest show of exclusive possession can ground an action in trespass. Counsel again urged the Court to resolve this issue in favour of the Respondent.

The third issue raised by the Respondent deals with whether the Respondent’s claim is caught up by the doctrine of estoppel per rem judicatem, laches and acquiescence. In answering this issue in the negative counsel submitted that there is a difference between customary arbitration and an attempt of settlement of the dispute between the parties. That there was no evidence led by the defendant/appellant is support of the conditions for the establishment of customary arbitration in order to use same as estoppel per rem judicatem. Counsel also contended that evidence abound to show that at every stage, the plaintiff/respondent, put up resistance to the defendant/appellant’s trespass on the land. That the trial Court was right in its findings that the pleadings and evidence did not meet all the ingredients of customary arbitration. Counsel urged the Court to also resolve this issue in favour of the respondent, dismiss the appeal for lacking in merit and affirm the judgment of the trial Court.

I intend to determine this appeal on the three issues formulated by the plaintiff/respondent. The reason which is obvious is that the issues distilled for resolution by the appellant are not only unwieldy but repetitious. Those of the Respondent on the other hand are clear, concise and therefore preferred. Before embarking on a resolution of these issues, it is important that, I speak to the appellant’s reply brief. This is an unpaginated twelve page document which answers all the respondent’s three issues as if the reply brief was the respondent’s brief in answer to the appellant’s brief. By ORDER 19 (5) (1) of the Rules of Court, 2021, a reply brief is only to answer to new issues raised in the Respondent’s brief. It is not an opportunity as it were for a second bite at the cherry by the appellant which is what this reply brief is. In the circumstances, I find it necessary to repeat my admonition on this practice in the case of CA/E/641/2018 delivered on the 16th March, 2021 thus:
“it appears that Appellants have blocked their ears to all the admonitions of the apex Court that a reply brief is not an opportunity to re-emphasize the arguments in the appellant’s brief but rather it should reply to new issues raised in the respondent’s brief. See MOZIE & ORS V MBAMALU & ORS (2006) 15 NWLR, PT 1003, 466, OGUANUHU & 7 ORS V CHIEGBOKA (2013) 6 NWLR, PT 135, 588, KOMOLAFE V FRN (2018) LPELR – 44496 (SC) and ORIYOMI V THE STATE (2020) LPELR – 51009 (CA).”
On the basis of these authorities, I hold that the appellant’s reply brief filed on the 16th March, 2020 and deemed on the 18th March, 2020 is incompetent for failure to comply with Order 19 (5) (1) of the Rules of Court, 2021.

The first issue as raised and adopted questions whether the trial lower Court properly evaluated the evidence led, especially Exhibit C.

Both parties are in agreement on the settled position of the law that an appellate Court will not disturb or interfere with the findings of fact made by the trial Court except same is found to be perverse, unsupported by evidence led and/or occasioned a miscarriage of justice: OLEKSANDR & ORS V LONESTAR DRILLING CO. LTD & ANOR (2015) PT 1464, 337 and MUSA V STATE (2019) LPELR – 46350 (SC).

The objection of the Appellant from my understanding is simply that the Respondent pleaded Exhibit C as record of proceedings but the trial lower Court treated and acted upon it as a judgment of the Customary Court which occasioned a miscarriage of justice. The Respondent’s stance is that the finding of the trial lower Court on the point in issue was not based only on Exhibit C but on other piece of evidence led by the Respondent. The Respondent also contended that the fact that the trial Court referred to a finding in Exhibit C as a decision is a mere slip and the appellant failed to show how this slip occasioned a miscarriage of justice to them. Exhibit C is the certified true copy of the proceedings in suit No. CCAGU/37/80. The case was in respect of the same subject matter between the same parties. The real question is whether Exhibit C was an admissible evidence and if the trial Court properly admitted and acted upon it. Exhibit C, the record of proceedings at the Customary Court between the respondent’s late brother as the plaintiff and the Appellant’s father as the defendant. The subject matter in Exhibit C, “Agu Ezi Olula” is the same land in dispute in the instant suit. In Exhibit C, the appellant’s father gave evidence that the Respondent’s father gifted the land in dispute to him to build his homestead contrary to the Appellant’s own evidence that his father gave the Respondent’s father 50 (fifty) pounds to enclose the said and for him Exhibit C is therefore not only a relevant piece of evidence but shows the contradiction between the testimonies of both the appellant and his father.

By Section 34 (1) of the Evidence Act, 2011, evidence given by a witness in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found or is in capable of giving evidence or kept out of the way by the adverse party etc. The undisputed evidence is that the appellant’s father who testified in Exhibit C is now deceased, making his testimony relevant. Furthermore, it is settled law that such evidence may be used for the purpose of cross-examining as to credit. See SHONEKAN V SMITH (1964) 1 ANLR, 33, AMINU V HASSAN (2014) 5 NWLR, PT. 1400, 287 and AJIDE V KELANI (1985) 3 NWLR, PT 12 248. The appellant is the representative in interest of his father. Exhibit C was used in cross-examination to test his credibility when he answered thus:
“Any evidence I adduced which is contrary to what my father said is false.”

I find therefore that Exhibit C was relevant, properly admitted in evidence and evaluated. It is also clear from the finding of the trial Court that he believed the testimonies of the plaintiff and his witnesses and Exhibit C was only used to corroborate the said evidence. I find nothing wrong with the decision of the trial Court in respect of Exhibit C. I do not agree with the submission of the appellant that reference to Exhibit C as a decision of the Court is of any moment. It does not in any way detract from the fact that Exhibit C is the record of proceedings and not the decision or judgment of the Court. I agree with the Respondent that a mistake or error in a judgment is immaterial as it has not been shown by the appellant in the instant case to have occasioned a miscarriage of justice. In the case of FAKOYA V IJELU (2014) LPELR – 23196 (CA) cited by the Respondent, this Court held thus:
“The Court will not interfere with a decision correctly reached by a trial Court even if the reason for the decision is faulty.”

For these reasons I hold that this issue ought to and is hereby resolved in favour of the Respondent.

The issue interrogates whether the Respondent proved his case on the balance of probability to justify the grant of the relief being sought to him. The Plaintiff/Respondent in proof of his title to the land in dispute relied on traditional history and acts of possession. The case of the Plaintiff/Respondent was that his father founded the land in dispute. That his father acquired the land during the scrambling for land by members of Nkutaku Village, Agulu. According to the evidence led by the plaintiff/respondent, the land in dispute was part of a large portion of land known as “Agu Ezi Olula”. That the customary and recognized method of acquiring title to land at the ‘Agu Ezi Olula’ was by building Ekpe wall round the land. This was the method used by his father in acquiring the land in dispute. The trial judge found this piece of evidence credible and he believed it.

The Appellant has not been able to show that this finding is perverse to justify an interference with same by this Court. I therefore refuse to interfere with the findings of fact by the trial Court. In a long line of decisions of the Apex Court and this Court, clear findings of fact by the trial Court supported by evidence, not perverse, and do not amount to miscarriage of justice are to be given clear approval by the appellate Court”. See AWOYOOLU V ANOR V ARO & ANOR (2006) 4 NWLR, PT. 971, 481 and STATE V SHONTO (2019) LPELR – 47431 (SC). What is more both parties claim possession. The law is that there is no such thing as concurrent possession by two persons claiming adversely to each other. Where two persons claim to be in possession of a piece of land at the same time, the law ascribes possession to the one with the better title: AWOYOOLU V ARO (2006) (SUPRA). It was in this context that the trial judge found that the respondent having proved a better title was entitled to damages for trespass.

It is noteworthy that the appellant claimed title to the subject properly but never counter-claimed in the Court below. The settled position of law is that there can be no declaration of title to land in favour of a defendant who did not counter-claim. PADA V GALADIMA & ANOR (2017) LPELR -42761 (SC). It follows therefore that if the trial Court had dismissed the plaintiff’s claim title would not have been given to the defendant as he had not counter-claimed. Consequently, I resolve this issue in favour of the Respondent.

The third and final issue is whether there was estoppel per rem judicatum. The appellant’s basis for this contention was an allusion to the existence of a customary arbitration. There is no doubt that customary arbitration can act as estoppel subject to given conditions set out by the apex Court and this Court. I have considered soberly the evidence of the defendant/appellant on this issue. The defendant/appellant failed woefully to prove the existence of a customary arbitration capable of constituting an estoppel. The intervention which the appellant made heavy weather of at best and in the words of Nnaemeka Agu, JSC in the case of AWOSILE V SOTUNBO (1992) 5 NWLR PT 243, 514, was “Merely an attempt of settlement of the dispute between parties’ with no consequences of an arbitration. I again resolve this issue in favour of the Respondent.

Having resolved all the issues for determination against the Appellant, this appeal is rendered unmeritorious. Same fails and it is accordingly dismissed.

I make no order as to costs as the parties are of the same family.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read before now the leading judgment of my learned brother, P. A. MAHMOUD, JCA just delivered.

I agree that the appeal is bereft of any merit and should be dismissed.

My learned brother dealt extensively with all the issues raised and I endorse his judgment as mine.
I also make no order as to costs.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the appeal as unmeritorious. I abide by the consequential orders made thereto.