Ezeanya Duru V. Peter Onwumelu (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C. 

This case originated in the High Court of Awka Judicial Division of Anambra State. It was filed on 22 May, 1974. For reasons I need not go into hearing of the case did not commence until 13 January, 1987 before Obiesie J., who on 13 April, 1992 gave judgment dismissing the plaintiffs’ claim in which they had sought:

“(i) A declaration of title (ownership) under native law or custom to the plaintiffs’ piece or parcel of land known as and called ‘AGU UDUDONKA’ or ‘AGU AKWALA’ which situates at Ula village Ekwulobia, within jurisdiction and shown verged red in the plaintiffs’ plan No. NLS/AN.572/83 filed with this statement of claim. The annual rental value of this land is about N10.00 (ten naira).

(ii) Special and General damages for trespass committed on this land on or about the 20th day of March, 1974, limited to N1,000.00 (one thousand naira).

(iii) An injunction restraining the defendants, their servants, agents and or workmen from committing further trespass on the said land.

Particulars of Special Damage

(a) The value of the first building including door and window frames destroyed by the defendants

on this land on 20/3/74 is about…N500.00

(b) The value of the second building destroyed by the defendants

on this land on 7/5/74 is about N300.00

(c) General damages for trespass limited to N200.00

Total N1,000.00”

The learned trial Judge considered the two main planks upon which the plaintiffs based their claim to title. These are: (1) long possession, usually stated as numerous acts of ownership and possession from time immemorial, and (2) inference of ownership that may be drawn under section 45 (now section 46) of the Evidence Act. He found that both did not avail the plaintiffs. Furthermore, the learned trial Judge held that two earlier decisions of the Native Courts pleaded and relied on by the defendants made the plaintiffs, claim unmaintainable, one is a decision of the Isuofia Native Court given in 1935 and admitted as Exhibit K. The other is the decision of Mbamisi Native Court given in 1952, admitted as exhibit L.

The plaintiffs then appealed to the Court of Appeal, Enugu Division. In the leading judgment given by Achike JCA, Exhibit K which was accompanied with a sketch to support the boundary agreed upon and drawn by the Native Court was severely criticised. It was said that the sketch did not conform to section 3(1) (b)(i) of the Survey Law (Cap. 124), Laws of Eastern Nigeria, and accordingly, Achike JCA observed that “the sketch attached to Exhibit K was a worthless document” and ought not to have been admitted in evidence. It was also held that the learned trial Judge accorded an erroneous interpretation to section 45 of the Evidence Act when he concluded that the plaintiffs could not rely on the provisions of the section in view of the way the relevant lands were situated and located. On 8 July, 1997, the lower court allowed the appeal and ordered a retrial. The judgment is reported as Onwwnelu v. Duru (1997) 10 NWLR (Pt.525) 377.

On a further appeal to this court by the defendants, they have raised in the brief of arguments four issues for determination, namely:

“1. Whether the court below was right in holding that Exhibit ‘K’ relied on by the trial court to dismiss the respondents case is violative of sections 108 (now 109), 110 (now 111) and 111 (now 112) of the Evidence Act, and whether the sketch attached to the said Exhibit ‘K’ is also violative of s.3(1)(b)(i) of the Survey Law Cap. 124 Laws of Eastern Nigeria.

2. Whether on the evidence which gave rise to Exhibit ‘M’ which was held properly admitted by the lower court the respondents can ever succeed in an action rooted in exclusive possession and ownership.
3. Whether the court below was right in holding per Achike JCA that in the absence of a plan Exhibit ‘L’ was worthless.
4. If the answers to the above issues or some of them are in the negative, whether a retrial is the right order to make where the respondents failed in toto in an action for declaration of title, damages for trespass. And injunction and where the respondents’ principal witnesses were disbelieved on the evidence before the court.”

The respondents also raised four issues for determination in their brief of arguments but I am of the view that they are in essence the same as the appellants’ issues except that they are differently worded. By way of illustration, the first issue in each brief of arguments is concerned with the admissibility of Exhibit K together with the sketch. The second and third issues are about the evidential value of each of Exhibits M and L while the fourth issue is about the appropriateness of the retrial order made by the lower court.

In considering issue 1, it is well to recall that the lower court regarded the sketch attached to Exhibit K as a worthless document. Exhibit K is the 1935 proceedings and judgment by Isuofia Native Court in suit No. 81/35. The suit was between two neighbouring communities of Aku (now Ezinifite) as plaintiffs and Nkpologwu (appellants’ community) as defendants. What was determined as an issue was the boundary between the said two communities. The court in fixing the boundary, made out a sketch which it considered would reflect its description of the said boundary in its judgment. It was certainly in my view, intended to be part of the judgment. On the said sketch the following inscription appears:

“Boundary: Fixed by the court from Aja-ofia to junction of P.W.D. road and Old Provincial Road (mile 18, 1300x). Thence to point on old provincial road mid-way between pan walled compound and defendants house. Thence towards east comer of Nwajagu bush until it enters Ekwulobia land.”

There can be no argument that the sketch was produced by the native court itself to indicate and illustrate what it had found as the boundary between the parties. There also can be no contention of the fact that it was to support and be part of the judgment which it gave as follows:

“Judgment: The boundary between Aku and Nkpologwu will be from Aja Ofia (which is 340 yards on a bearing of 2380 from Mile stone 19) to a junction of the old Provincial Road and the P.W.D Road (at the comer of the latter 460′ from Mile stone 19) thence in a straight line to a point midway between the pan house compound wall and the defendant’s compound wall on a bearing of 100 and thence in a straight line towards Nwajagu bush, 3540 (where the Old Provincial Road passes to the cast of it) till the boundary enters Ekwuluobia land at some point not determined. Costs to neither party.

From the point of junction of the roads northwards the boundary follows roughly the Old Provincial Road but as this old road is now only a bush path and as such liable to change its course slightly, the boundary will be straight lines as indicated.

(Note the compass bearings may not be entirely accurate but the information given should be sufficient to indicate the boundary. The distances are measured by pacing a pace being as a yard).”

It is true that some members of the Native Court in their own judgment adjusted the boundary decided by the divided court on the issue as represented by the President of the court, Mr. Grey, Asst. District Officer. But the overall effect is still that whichever boundary it was, it was in settlement between Ezinifite and Nkpologwu communities. As a fact, as will be shown later, the present plaintiffs would appear to have conceded what constitutes the boundary which put Ezinifite on the west of it. That concession is relevant here as to what area the defendants allege they are in possession of. It must be remembered that Ezinifite community are not involved in the present case so as to give any cause for inquiry whether they ever disputed the boundary laid out in the sketch attached to Exhibit K. The plaintiffs here having impliedly recognised that boundary. the issue is. having regard to Exhibit K, and the circumstances it was made of which the plaintiffs were aware, can they lay claim to the eastern portion of that boundary in disregard of exhibit K

The court below was under a misconception to have thought that the sketch was a separate document from the record of proceedings. Exhibit K. It was also a result of a misunderstanding on its part that led it to assume that the said sketch was a document tendered. or supposed to be tendered, to be received in evidence. It was because of these misleading views that it made the following observation inter alia per Achike JCA (1997) 10NWLR (pt.525) at p. 396]:

“There is nothing in the said Exhibit K to show that the said sketch was ever received in evidence at the trial in the Native Court. The usual endorsement in an exhibit is conspicuously absent. It is for all these that, I think, there was compelling need for a proper foundation to be laid for its reception in evidence, rather than insist on this the learned trial judge dismissed such a pivotal issue, and erroneously in my view, busied himself in establishing that the sketch was ‘a page of a judgment and proceeding’ in the suit. Afterall, the sketch was not a separate piece of documentary evidence tendered by any party at the trial of the suit. In my view, the learned trial Judge was clearly in deep error to have admitted the sketch along with the proceedings and judgment in the Native Court suit as exhibit K without ensuring that a proper foundation was laid for its admissibility … It was also the further complaint of the appellants that the reception of Exhibit K with the attached sketch was not even admissible evidence viewed from the provisions of section 3(1)(b)(i) of the Survey Law, Cap. 124, Laws of Eastern Nigeria, applicable in Anambra State of Nigeria which stipulates that

‘No map, plan or diagram of land, if prepared after the 20th day of October 1897 shall, save for good cause shown to the court, be admitted in evidence in any court, unless the map, plan or diagram has been prepared and signed by a surveyor or is a copy of a map, plan or diagram so prepared and signed and is certified by a surveyor as being a true copy.’

It is clear that Exhibit K was not a legally admissible evidence by the express provisions of section 3(1)(b)(i) of the said Survey Law; the provision of the Survey Law is an absolute bar to its reception in evidence in any court unless the map, plan or diagram was prepared and signed and is so certified by a surveyor as being a true copy.” (Emphasis in italics mine)

The italicised portion of the passage quoted above is right. The sketch was not a document tendered by any of the parties at the trial in the Native Court. It is my view that the lower court should have been reminded by that fact that the issue of admissibility of the said sketch did not arise at any time and that it should not have busied itself with going into considering and finding on the effect of section 3(1)(b)(i) of the said Survey Law in relation to the sketch. By doing so, it was led to misapply the decision of this court in Lydia Erinosho v Owokoniran (1965) NMLR 479 where the Survey Law (Cap. 121) of Western Region came up for consideration and at page 484 it was said:

” When a plan is tendered in evidence as a plan, issues as to its admissibility will be governed by section 3 of Cap.121 aforesaid, if the plan was prepared after 1897.” [Idigbe JSC’s italics]

It is evident that before the said provision of the Survey Law can be applied, a party in the case would have tendered a document in evidence in which land is delineated and it is tendered as a plan. I think the learned trial judge was right for treating the sketch as part of the judgment of the Native Court in suit No.81/35. I am entirely in agreement with appellants’ counsel, Mr. G.E. Ezeuko, SAN, when he submitted in the appellants’ brief of arguments, and I quote him:

“The sketch is obviously a practical illustration of the judgment by the court and forming part of the judgment and was neither a map nor a plan tendered by any of the parties. The judgment is exactly as indicated in the sketch. It was not an act of the parties and was not within the contemplation of s.3(1)(b)(i) of the Survey Law Cap.24 Laws of Eastern Nigeria.

The case of Lydia Erinosho v Owokoniran & Anor (1965) NMLR 479 relied on by the lower court relates to a plan tendered in evidence by a party, the admissibility of which is governed by the Survey Law, and not a practical illustration by a Native Court of its judgment when the said court dealt with boundary dispute. The lower court was in error when it excluded the sketch attached to Exhibit ‘K’ on the ground that it was not prepared and signed by a surveyor.”

What the Native Court did in suit No.81/35 in regard to the sketch it prepared was to illustrate in visual form the terms of the boundary it decided between the parties so that as much as possible there would be no misunderstanding as to the said boundary. A Native Court or Customary Court or an Area Court must be permitted to illustrate such or similar decisions with a sketch where appropriate, and I think in a number of the old cases this was usually the practice: see Ojemen v. Momodu (1983) 1 SCNLR 188. I think that must be regarded as an aspect of procedure which such courts may adopt where it does not occasion any miscarriage of justice. It seems to me that an appeal court as well as a trial court called upon to make use of decisions of those courts should allow some latitude in regard to matters of procedure adopted by them in reaching those decisions so long as they are seen to have done substantial justice: see Dinsey v. Ossey (1939) 5 WACA 177 at 178-179; Ikpang v Edoho (1978) NSCC (vol. 11) 423 at 431. I think it can simply be added here that the argument that Exhibit K violated sections 109, 111 and 112 of the Evidence Act has no basis since Exhibit K is a public document duly certified.

In the present case, the respondents as plaintiffs and the appellants as defendants produced survey plans. The plaintiffs’ plan is Exhibit A and the defendants’ plan, Exhibit J. The two plans show the old provincial road and the road leading to Ekwulobia village of the plaintiffs. The two plans also show ekpe wall running alongside the Old Provincial Road. These feature were clearly shown in the sketch attached to Exhibit K and the two survey plans (Exhibits A and J) substantially conform to the boundary indicated in the sketch. It is the Old Provincial Road that was the predominant boundary decided between Agu (now Ezinifite) and the defendants’ Nkpologwu village. The land to the west of that boundary was declared for the Ezinifite people while the land to the east was declared for Nkpologwu people.

At the Native Court proceedings in which the said boundary was decided, three representatives of the present plaintiffs’ village (Ekwulobia) testified. As recorded, they are Ezeigbekwe, Hedekiah Eze and Peter. The first two were not able to give any positive description of the boundary, but seemed to have indicated that if the court moved to the locus in quo they would be able to assist. However, the third one said the boundary ran “between Ajagu bush and Ajofia in which people used to bury bodies.’ In other words, the plaintiffs’ Ekwulobia people knew of that litigation, testified as witnesses in the dispute of boundary between Agu (Ezinifite) and the defendants’ Nkpologwu community, and accordingly stood by while the parties thereto fought the battle as to which party owned what land.

As I said, the decision was that the land to the west of that boundary (The Old Provincial Road) was declared for Ezinifite while the defendants’ Nkpologwu community were given the land to the east of the boundary. Now, the plaintiffs’ surveyor in the present case, Cyprian Pulumachie Chukwujindu Nwosa, testified as p.w.1.

In cross-examination, he said:

“I showed the Old Colonial Road in my plan. It was shown to me by the plaintiffs. On the western side of the Old Colonial Road, there was an ekpe wall. I was told that the land west of the road belongs to Ezinifite by plaintiffs. I showed an ekpe wall running from the south to the north. All land east or right of the colonial road looking north is the land in dispute except a small portion of land on the southern part of the plan. ” [Emphasis in italics mine]

What the above-quoted passage signifies is that the plaintiffs concede that

(1) the land to the west of the boundary belongs to Ezinifite, and that is in consonance with the boundary decided by the Native Court per Exhibit K;

(2) it is the boundary of which they helped to establish by their contribution to the evidence before the court;

(3) the vast area of the land to the east of the boundary awarded to the defendants is now being claimed by the plaintiffs who were aware of the proceedings in which that decision was reached.

The purpose of tendering Exhibit K by the defendants was to establish that the plaintiffs could not now be heard to lay claim to the land in dispute. This was pleaded in paragraph 11 of the statement of defence as follows:

“In 1935, in Isuofia Native Court Civil Suit No.81/35, one Umeakuka on behalf of Aku people now renamed Ezinifite, sued Ezeokoli of Obinabo, Nkpologwu claiming declaration of title to Ikpankita now the land in dispute. In its judgment the court held that the boundary between the Aku people and the defendants is the Old Provincial Road shown on the defendants’ Plan. All lands West of the said old Provincial Road belong to Ezinifite people while the lands East of the said road belong to the defendants. The plaintiffs’ people as well as other people from the surrounding towns gave evidence in the said suit. The Judgment in this action as well as the proceedings therein and the sketch showing the boundary fixed by the court would be founded upon. The plaintiffs were fully aware of the proceedings and in fact gave evidence for the parties in the case and stood by while the battle raged.”

The learned trial Judge thought that what was involved in the said pleading was the defence of estoppel per rem judicatam when he proceeded to say that to sustain a plea of res judicata the parties, subject-matter and issues must be the same as in the previous suit adjudicated upon to finality by a court of competent jurisdiction. That led him, in error, to overlook the defence of standing by raised in para. 11 of the statement of claim. He however accepted Exhibit K as evidence of act of possession by the defendants. That would clearly, of course, properly understand, be regarded as deriving from the consequences of the boundary so decided as per Exhibit K. But even in this palpably obvious result, the lower court played down this finding. In truth, the averment clearly supports estoppel by conduct known as the standing-by doctrine. In Atta II v. Bonsra 11 (1958) A.C. 95, Lord Denning delivering the judgment of the Privy Council, cited at page 102 with approval, the principle stated by Lord Penzance in Wytcherley v.Andrews (1871) L.R.Z.P & M. 327 at 328 in these words inter alia:

” … if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result, and not be allowed to re-open the case.”

See also Uwalaka v.Agba (1955) 15 WACA 63 at 65; Etiti v.Ezeobibi (1976) 12 S.C. 123 at 131.

The above was explained further by Lord Denning when he added that the doctrine of standing by applies either when a person stood by and watched the legal battle affecting his interest being fought out by others or when he gave evidence in support of one side or the other in the litigation. So, a person may consider he has a right to protect in a subject-matter over which two other persons are litigating to his knowledge. It would not be in his interest not to join in the litigation but to watch while it raged on, or to show his awareness by positively getting involved to testify on behalf of either side. If he did that, he would be bound by the result of the litigation. It seems to me that the plaintiffs in the present case cannot re-open what was virtually decided by the judgment of 1935 as per Exhibit K because the land now in dispute is essentially what that judgment gave to the present defendants. Issue 1 should be regarded as having been resolved in the negative.

I do not think there is much in issues 2 and 3 canvassed. Issue 2 raises the point that the lower court having found that Exhibit M was properly admitted, it was bound to apply the effect of it as against the plaintiffs’ claim. That exhibit dated 12th November, 1965 shows that both parties here jointly conveyed a parcel of land of some 23.56 acres to Aguata County Council. The appellants’ counsel’s argument is that that land is part of the land in dispute and therefore the transaction as per Exhibit M shows that the respondents could not claim to be in exclusive possession of the land in dispute. In fact the learned trial judge said:

“Exhibit M does not in any way support plaintiffs’ case that they alone own portion of the land involved.”

This is obvious if what is meant by the “land involved” is the very portion of land stated in Exhibit M. That is the sense in which I understand it.

It is therefore necessary to show if that portion of land is within the land the plaintiffs put in dispute in their survey plan, Exhibit A. The defendants did not counterclaim and so it is the plaintiffs’ plan which determines which area of land is in dispute. The lower court per Achike JCA observed as follows:

“I will deal with Exhibit M very briefly. It was an agreement for the acquisition of site for the Aguata community hospital. Exhibits A, Band J show that the said site is traversed by the Ezinifite/Nkpologwu Road: the land in dispute in this suit lies north of this road while the respondents’ land not in dispute lies on the south. This site not being within the land in dispute the question as it relates to admissibility of Exhibit M is really unimportant.”

I think that is a fair conclusion. In my view, Exhibit M is not relevant to the question whether the plaintiffs have exclusive possession of the land in dispute in this case.

As to issue 3, Exhibit L which contains the proceedings: of Mbamisi District Court in case No.87/51-52 where judgment was given on 7th January, 1952 for the present defendants (as plaintiffs) against the present plaintiffs (as defendants) for damages for trespass, there is nothing in the proceedings by which the land, the subject-matter of the trespass, can be ascertained. Exhibit L, in my view, serves no purpose as far as the present case is concerned and I think the lower court was right to hold that it was worthless.

Issue 4 raises the question whether a retrial was an appropriate order in this case. The respondents set out to prove that they are the owners of the land in dispute and in possession thereof., that the appellants trespassed thereon and therefore that they are entitled to damages for the trespass they committed, and to an order of injunction against them. The learned trial judge rightly held inter alia that:

“From the pleadings and evidence adduced, plaintiffs’ case is predicated on acts of long possession and enjoyment of land …

Secondly, plaintiffs are also relying on proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such adjacent land would in addition be the true owner of the land in dispute.”

The learned trial judge then came to the conclusion, after considering the evidence as a whole, that the plaintiffs did not succeed in their assertion of long possession and enjoyment of land and therefore failed to discharge the onus placed on them.

Now, by relying on acts of possession in proof of title to the land in question, the plaintiffs as a community inevitably put in issue the totality of the numerous acts of possession and ownership they claim to have been enjoyed by them, the positive nature of those acts and the long period over which the said acts have spanned so that the circumstance as a whole will be seen to have come within the principle long laid down in Ekpo v. Ita (1932) 11 N.L.R. 68.

Simply put in relation to this case where, as already said, the plaintiffs base their right to a declaration of title to the land on the fact of long possession, the principle is that they must prove acts of ownership and possession of the land in dispute over a sufficient length of time, numerous and positive enough to warrant the inference that they are exclusive owners. In my view, it will not do if merely there are numerous acts, since these might qualify, on the part of an intrusive party, as acts of trespass. There is the requirement that the acts ought to extend over a sufficient or appreciable period of time and must be positive. To be positive, the acts ought to be such that can be verified upon strong evidence, such as, old structures and settlements, well-beaten roads or paths, economic crops or trees tending visibly to be long-lived, old farms and huts, community shrines which have long been in existence, and to which the plaintiffs as a community can satisfactorily lay claim etc. In the present case, evidence of such acts of ownership and possession is starkly lacking.

As to the claim based on section 46 (formerly section 45) of the Evidence Act, there is nothing in the litigation survey plan (Exhibit A) tendered by the plaintiffs to show any connection of the land in dispute with the plaintiffs’ other contiguous land by way of similarity in acts of possession or user, or of locality, which may lead to the inference that the plaintiffs own the land in dispute. That said section provides:

“Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece of quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity, that what is true as to the one piece of land is likely to be true of the other piece of land.”

It is important to recognise that this provision which is stated as a compendium has its ramifications such that different conditions for its application are accommodated. The authorities to which I shall refer in relation thereto clearly illustrate this tendency as will be shown.

The learned trial Judge felt unable to apply this provision in favour of the plaintiffs, giving as his reason that they “do not own the land on the western portion of the land in dispute and the one on the south is conceded by plaintiffs to belong to the defendants.” He relied on the principle stated by this court in Idundun v. Okumagba (1976) NSCC (vol. 10) 445 at 454-455 per Fatayi-Williams JSC inter alia:

” proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute; ”

as learned counsel for the respondents has rightly submitted, for the provisions of section 45 of the Evidence Act to apply, there must be an admission by the respondents, or a finding by the trial Judge, that the land in dispute was surrounded by other lands belonging to the appellants.”

This is, of course, the most obvious circumstance for the application of the said section in regard to locality, that is to say, when the plaintiffs other lands, if any, surround the land in dispute as said in Idundun v Okumagba (supra), or that the land in dispute is reasonably hedged or hemmed in to the advantage of the plaintiff: see Archibong v. Ita (1954) 14 WACA 520 at 522 where Coussey J.A. delivering the judgment of the court said inter alia:

“there is a general proposition in the law of evidence that repeated acts of ownership done with respect to other places connected with the locus in quo by such a common character of locality as to give rise to the inference that the owner of one is likely to be the owner of the other is receivable. Thus, in Jones v. Williams, 2 M, and W 326 at 331, Parke, B, said that ‘evidence of acts in another part of one continuous hedge adjoining the plaintiffs land was admissible in evidence on the ground that they are such acts as might reasonably lead to the inference that the entire hedge belonged to the plaintiff.’ ”

I think it will be of immense benefit, in order to make this aspect of the general principle embedded in section 46 a bit clearer, first to state the summary of facts in Jones v. Williams (supra) reported as 150 ER 781 as reviewed by Abinger, C.B. at p.783 inter alia, and then refer to the further observation per Parke, B. Said Abinger, C.B:

The object of the plaintiff was to prove that he was the owner of the whole stream, and for that purpose it was important to shew that the usual proposition of law, that each party was entitled ad medium filum aquae, was not applicable in the present case; and in order to shew that, he was endeavouring to prove that upon both sides of the river – on the same side with the land of the defendant – he had exercised acts of ownership, such as repairing the hedge; and therefore he claimed a right up to the hedge; and then going further, he shews that the hedge continued a visible line of demarcation without any thing occurring to break its continuity, – except that a cross hedge ran down to it, dividing the defendant’s farm from his neighbour’s land on the same side of the river, – down to a considerable distance, till it came opposite to the extremity of the plaintiff’s land on the other side. From these facts the plaintiff purposes to shew that it is all his; and it appears to me that the evidence ought to have been received, in order to rebut the proposition that the middle of the river was to be considered as the boundary between two distinct closes. [Emphasis mine]

This is largely in respect of inclosures or boundaries wholly or partially defining land which may lead to inference of ownership of it being in one person as a result of acts of ownership done in part of it.

Upon these facts, Parke, B at pages 783-784 stated how the principle applies in the following observation inter alia:

“Ownership may be proved by proof of possession, and that can be shewn only by acts of enjoyment of the land itself, but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged trespass may have been committed: evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference in the minds of the jury, that the place in dispute belonged to the plaintiff if the other parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same inclosure; for the ownership of one part causes reasonable inference that the other belongs to the same person: though it by no means follows as a necessary consequence, for different persons may have balks of land in the same inclosure; So I apprehend the same rule is applicable to a wood which is not inclosed by any fence: if you prove the cutting of timber in one part, I take that to be evidence to go to a jury to prove a right in the whole wood, although there be no fence, or distinct boundary, surrounding the whole; and the case of Stanley v. White [14 East, 332], I conceive, is to be explained on this principle: there was a continuous belt of trees, and acts of ownership on one part were held to be admissible to prove that the plaintiff was the owner of another part, on which the trespass was committed. So I should apply the same reasoning to a continuous hedge; though no doubt the defendant might rebut the inference that the whole belonged to the same person by shewing acts of ownership on his part along the same fence.” [Emphasis mine]

But, as can be seen from the observation of Parke, B, the plaintiff need not have lands or distinct boundary demarcations which surround or almost completely surround the land in dispute. He may just, in the alternative, have or occupy land connected, by virtue of its similarity, (in user), with the land in dispute with respect to which acts are done, that it may be possible to infer that what is true of the ownership of that land is likely to be true of the land in dispute: see Sunday Piaro v. Tenalo (1976) 12 SC 31 at 43-44. It seems clear that the entire implication of section 46 is better understood if it is recognised that it provides for alternative situations. This is what the court below failed to do. It is usually easier to draw the necessary inference from some of the alternatives because it is rather obvious to do so when the facts clearly do show, such as distinct boundary created. Other situations could be more problematic. It should always be remembered that it is a matter of evidence which may reasonably lead to the inference. The learned trial Judge probably chose the wrong alternative of the provisions of section 46 but, in my view, he rightly declined nevertheless to apply the effect of the said section in favour of the plaintiffs since the evidence did not justify that course, and in the end dismissed their claim.

The court below disturbed the order of dismissal on appeal and made an order for a retrial. The question is, on what basis was this done It did this after taking the view that section 46 of the Evidence Act was not properly applied, that Exhibit K together with the sketch did not help the defendants’ case and that there was inadequate evaluation of the evidence.A retrial order is not made without sufficient grounds. It is fundamental that an appellate court should bear in mind that in exercising its discretion to make an order for the retrial of a case, the paramount and only consideration is to ensure that justice is done to both parties and that the discretion should not be exercised in a manner that will make it appear that the court is only concerned with one party being given an unjustifiable opportunity to relitigate a case which has either truly failed or truly succeeded: see Onyemna v. Amah (1988) 1 NWLR (Pt.73) 772. Where it is clear, therefore, from the evidence that the trial court rightly concluded that a plaintiff had failed to establish the claim he presented to court and there was no irregularity affecting the proceedings which would warrant a retrial of the case, an order of retrial will be erroneous: see Elias v. Disu (1962) 1 All NLR 214; Ayoola v. Adebayo (1969) 1 All NLR 159. Such irregularity which will compel an order of retrial could be where, if the trial Judge failed in his primary duty in the evaluation of evidence to make findings of fact on the issue or issues joined on the pleadings, material for reaching a just decision and it is not such evidence upon which an appellate court can itself make such findings of fact, the Court of Appeal will be perfectly justified for that reason to order a retrial: see Okeowo v. Migliore (1979) 11 SC 138; Abibu v. Binutu (1988) 1 NWLR (Pt.68) 57; Ezeoke v. Nwagbo (1988) 1 NWLR (pt.72) 616. Or, there has been a mistrial, a substantial misdirection by the trial court, or some other vice by the court but for which the plaintiffs case might have succeeded, or at any rate might not have been regarded as having failed in toto, and so the defendant is not entitled to have judgment in his favour: see Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130.

In the present case, the plaintiffs failed completely to prove the claim. There is no evidence upon which they might have succeeded and therefore they do not deserve to have an opportunity for a retrial. It has been shown that the court below misunderstood Exhibit K, and misconceived section 16 of the Evidence Act. It has also been shown that there is no evidence of such possession or acts of ownership that can support the plaintiffs’ claim. I hold in the circumstances that the lower court was in error to have ordered a retrial. I accordingly allow this appeal, set aside the order of retrial together with the order for costs, and affirm the order of dismissal made by the trial court. I award N5,000.00 as costs in the court below and N10,000.00 costs in this court in favour of the appellants.

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SC.142/1998

Abayomi Olalekan V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This appeal carne before us for hearing on Thursday 20th September 2001 and after hearing learned counsel for the appellant arguing in favour of the appeal, I summarily dismissed it as lacking in merit and indicated then that I would give my reasons for so doing today. Here below are my reasons.

This is an appeal against the judgment of the Court of Appeal (Ibadan Division) affirming the conviction of the appellant for the murder of Rabiu Kassim and the sentence of death passed on him by the High Court of Ogun State silting at Ijebu-Igbo.

At the trial of the appellant the prosecution called 9 witnesses and tendered a number of exhibits including the appellant’s statements to the police. The appellant gave evidence in his own defence and rested his case. After addresses by learned counsel for the defence and the prosecution, the learned trial Judge, in a reserved judgment, found the charge of murder laid against the appellant proved and convicted him accordingly. He was sentenced to death.

The case for the prosecution was that on or about 1.00 a.m. on 31st August 1988 at ATIKORI Village, via ljebu-lgbo the appellant came to the residence of the deceased and knocked at the entrance door rather violently. The deceased Rabiu Kassim and his wife, Adebisi Rabiu (PW1) were in the house and asleep at the time. The knock aroused Adebisi Rabiu from sleep but the husband Rabiu Kassim was still sleeping. The appellant broke the entrance door and shot at Rabiu Kassim who was still sleeping at the time. Rabiu Kassim died instantaneously. The appellant following the shooting came into the house, held on to Adebisi, dragged her to the couple’s bed and raped her. He later inflicted some matchet cuts on her; she became unconscious. On regaining consciousness she discovered that the appellant had left taking along with him the deceased’s dane gun and hunter’s lamp, radio and other items belonging to the couple including the sum of N1,000.00. Adebisi went to a neighbouring village – Fowosere Village – and reported what happened to the villagers who took her to the police station at Ijebu-Igbo where a report was made. From the police station, she was taken to the Ijebu Ode General Hospital for treatment. The corpse of the deceased Rabiu Kassim was also taken to hospital morgue at Ijebu-Ode where Dr. Osiyemi performed an autopsy on the body.

Adebisi (PW1), while on admission in the hospital, made a statement to police Corporal Kester Ossai (PW5), then stationed at Ijebu-Igbo police station. In the statement Adebisi mentioned the appellant as her assailant and the murderer of her husband. The appellant who was arrested by the Fowosere villagers in the morning of the incident was again re-arrested by Cpl. Ossai and charged with the offence of murder. He volunteered a statement to Sgt. Ossai in Yoruba language which the latter recorded and read over to the appellant who affirmed that the statement was correctly recorded and thumb-printed it. Cpl. Ossai later translated the statement into English Language. The statement and its English version were tendered and admitted in evidence at the trial. In consequence of the contents of appellant’s statement, five others were arrested but later released as there was no evidence, apart from the appellant’s statement, against them.

The case was later transferred to the State Directorate of Investigation and Intelligence, Abeokuta for further investigation. Here the appellant made another statement to Sgt. Linus Patricks (PW6) through an interpreter, Inspector Alamu Adeosun (PW3). Being a confessional statement, the appellant was taken to DSP Samson Taverto before whom he affirmed the correctness of the statement. The statement was tendered and admitted in evidence at the trial. Sgt. Patricks executed a search warrant in the house of the appellant where a number of items including dane guns, were recovered. Some of the items were identified by Adebisi (PW1) as belonging to her and her husband and stolen from their house on the fateful night.

In his evidence at the trial, the appellant denied committing the offence. He admitted knowing the deceased and his wife Adebisi but denied killing the deceased.

It is on these facts that the learned trial Judge found the appellant guilty. His appeal to the Court of Appeal failed. He has further appealed to this court. Although in his brief of argument filed on his behalf by his learned counsel, only one issue is formulated as arising for determination in this appeal, to wit:

“Whether the learned Justices of Court of Appeal were right in affirming the conviction of the appellant by the learned trial Judge.”

Arguments are, however, proffered on four issues, that is to say, (1) identification of the appellant and (2) the confessional statement; (3) non-consideration of appellant’s defence and (4) 1st PW as a tainted witness. The first two issues come within the ambit of the grounds of appeal raised in the amended notice of appeal.

In resolving this appeal therefore, I shall first consider the two issues.

Issue (1) – Identification of the Appellant:

Both in his briefs and oral submissions, Mr. Fashanu learned counsel for the appellant laid emphasis on the time the incident leading to the death of the, deceased took place. He referred to the evidence of PW1 who put the time at 1.00 a.m. He argued that there was no evidence that there was any lighting in the room at the time, it would be difficult, if not impossible to come to the conclusion that PWI had opportunity to identify the appellant as the assailant that night. He urged the court to apply the test laid down by the Court of Appeal (England) in Raymond Turnbull v. The Queen (1976) 63 Cr. App. R132 at 137 and to hold that the appellant was not properly identified as the assailant.

With respect to learned counsel, I think he lost sight of the evidence adduced at the trial. PW 1 testified thus:

“I know the accused and Rabiu Kassim now deceased, he was my husband.

On 31.8.88 at about 3 years ago the accused knocked at the door of the house where I live forcibly, I woke up at the time, he finally broke the door, and shot my late husband who was fast asleep. The deceased died on the spot after shooting. The accused dragged me to the bed and raped me. He later took a matchet which he used to wound me on the left face and right shoulder (Witness demonstrates) and right palm which I raised in defence. I became conscious (sic), when I later recovered, the accused was not around and my wares and belongings were missing.”

She was not cross-examined on how she came to know it was the appellant who did those horrible things that night.

The appellant in his evidence, under cross-examination, said:

“I know the deceased as my father’s friend. I know deceased’s wife. I did not attend any school. PW1 and the deceased used to visit my (sic) day and (night). I know both of them sell pellets and I used to buy from her.”

Further cross-examined, he added:

‘I know PW1 who know (sic) me I told the police that the deceased was my father’s friend.”

And in his first statement (Exh. F – English version), he had said: “Rabiu was my father’s friend before he died and I have been going to their house since a long time ago. I have my personal dane gun which I use for hunting and the gun is in my house up till (now) the time I came to Ijebu Igbo. There is no time when the wife of Rabiu will see me that she will not recognise me whether during the day or night.

If the woman recovers and she happens to say that I was the person who did the havoc, they should kill me immediately because the woman knows me both day and night.”

The trial court had this to say on identification of the appellant:

“I hold from the evidence before me after careful consideration that there is no need for identification parade as PW1 and the accused person are well known to each other.”

The court below, in reacting to the appellant’s complaint that the trial Judge did not adequately consider the issue of his identification by PW1 as the person who shot and killed the deceased Rabiu, observed, per Adekeye, JCA:

”The 1st PW find ample opportunity to see and identify the accused who is well-known to her, as he shot the deceased, attempted to rape her and inflict matchet cuts on her,”

In the light of the evidence at the trial and which I have highlighted above, I think the observations of the two courts below are unassailable. The appellant, at the trial, did not contest that PW1 knew him very well and could identify him any time of the day. The question of identification is an issue of fact for the trial court to make a finding on. The learned trial Judge who saw and heard PW1 give evidence, did not hesitate to accept her evidence. I have no reason to interfere with his finding (which finding the court below affirmed) that it was the appellant who invaded the deceased’s house on the fateful night, shot and killed him. I think the evidence available in this case met the standard laid down in such cases as Turnbull v. The Queen (1976) 63 Criminal Appeal Reports 132 at p. 137 (cited by learned counsel for the appellant), State v. Aibangbee & Anor. (1988) 3 NWLR (pt.84) 548 (cited in the lead judgment of the court below) and Igbi v. The State (2000) FWLR 358, (2000) 3 NWLR (Pt.648)169. PW1 not only claimed she knew the appellant, the latter admitted this and went on to say that their relationship had been a close one over a period.

I find no substance in the complaint on identification.

Issue 2

Appellant’s confessional statement.

It is the argument of learned counsel for the appellant that as the appellant’s confessional statement Exhibit A was obtained by PW6 through an interpreter, PW3 who did not testify of the interview he conducted culminating into Exhibit A, the statement was inadmissible and should be expunged from the record even though objection was not taken to it at the trial.

PW6, Sgt. Linus Patricks testified thus:-

“On 6th day of November, 1988 I was on duty at the State Directorate of Investigation Bureau Abeokuta when a case of murder transferred from Ijebu-Igbo Police Station was referred to me along with the accused person for further investigation. On 7th September 1988 the accused person was re-arrested, cautioned and charged with the offence of murder through the medium of an interpreter. He volunteered his statement in Yoruba language. I recorded the statement in English through an interpreter, same was read over to him through the interpreter, he accepted it to be true and correct before affixing his thumb print. The interpreter and myself signed the statement.”

Inspector Aremu Adeosun who was referred to in the evidence of PW6 testified as PW3. He said:

“On 7.9.88 a case of murder was referred to Sgt. Patrick Linus for investigation. I acted as an interpreter between the said Sgt. and the accused. The Sgt. obtained the accused’s statement, read same to him and he admitted that it was true and correct. I read the accused confessional statement to him and he admitted that it was true. He thumb printed the said statement. I signed the statement as the interpreter along with the I.P.O.

On 8.9.88 the accused person was brought before my superior police officer named Stephen Tavero D.S.P. who read the accused’s statement to him (accused) and I interpreted same to the accused in Yoruba language. The accused agreed that the statement was true and correct; he agreed that it was made voluntarily. The superior officer filled admission confession form in the presence of the accused, I.P.O. and myself, the form was explained to the accused and he agreed that the contents were true. He affixed his thumb to the form which I signed along with the I.P.O. and Mr. Stephen Tavero.”

It is learned counsel’s submission that the statement, Exhibit A is hearsay evidence. And as no evidence was forthcoming from PW3 as to the nature and detail of the confession appellant made to him which he interpreted to PW6, Exhibit A was wrongly admitted in evidence.

In reply to the submissions of learned counsel for the appellant, the learned Attorney-General of Ogun State, Chief Oluseyi Oyebolu argued thus:

“It is submitted with respect that Ex. A was never taken in Yoruba Language which Yoruba version should have been tendered through P.W.3 together with Exh. A as espoused in judicial authorities. See Shivero v. The State(1976) All NLR 230; Ajidahun v. The State (1991) 9 NWLR (pt.213) 33 at 40-41. The procedure adopted in obtaining Exh. A. was sufficient in law to ensure that the appellant understood what he thumb-printed. See Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 467 paragraphs D-E. PW.3 gave evidence on the role he played in obtained (sic) Exh. ‘A’ and that he did not record any statement but merely acted as an interpreter. The appellant through his counsel at the trial court did not object to the appellant’s statement (Exh.A) being tendered.

It is submitted with respect that Exhibit A did not fall into the category of hearsay evidence rule as enunciated in Shivero v. The State (supra). Also, the appellant’s counsel did not cross-examine PW3 as to the truth, voluntariness or otherwise of Exhibit’ A’; hence this honorable court cannot entertain the complaint on appeal, It is further submitted that P.W.3 testified during trial when Exhibit “A” was tendered, unlike in decided cases where the interpreter was never called as a witness at the trial, which will make such evidence hearsay see R v. Zakwakwa (1960) 5 FSC 12. This honorable court is therefore, urged not to expunge Exhibit “A” and to hold that the trial court and the court below were right in considering Exhibit “A” as pan of the prosecution’s case.”

It would appear that the objection taken to Exhibit A in this court is different to the objection raised on it in the court below. In that court it was the question of its voluntariness that was contested as borne out by issue 3 raised in the appellant’s brief in that court. And this led to the observation of the court to the effect that

“When the voluntariness of a confession is being denied, a trial within trial will be held, but if the statement is voluntarily made then it is admissible by virtue of Section 27 of the Evidence Act Laws of the Federation of Nigeria 1990.

It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have (sic) been admitted in evidence.”

Of course, this observation represents the law and to that extent, their lordships of the court below arrived at a correct decision,

In this court, however, a new ground of attack was opened. And this is that Exhibit A is hearsay evidence and, therefore, inadmissible. If Exhibit A is inadmissible in law, then the question of its inadmissibility can be raised even at this stage. This is so because a court is enjoined to decide a case on legal evidence only. The question I now have to determine is whether Exhibit A is inadmissible.

Exhibit A was taken down by PW6 in English language. The Appellant did not speak to him in that language but in Yoruba. PW6 does not understand Yoruba language. So he needed someone to interpret to him. PW3 was the interpreter. The appellant spoke to PW3 in Yoruba language and the latter interpreted this to PW6 in English language which the latter wrote down in that language as Exhibit A. Surely, what PW6 wrote down can only be hearsay evidence and therefore

inadmissible unless the interpreter is also called to testify – see: R v. Ogbuewu 12 WACA 483; where the West African Court of Appeal stated:

“It often happens that statements have to be made to the Police through an illiterate interpreter and so cannot be written down in the language in which made. What this court has said, as have other courts also on innumerable occasions, is that, where an interpreter has had to be used in the taking down of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. This necessity is frequently over-looked and it may be that rejections of statements for this reason have given rise to a belief that statements are inadmissible unless written in the language in which made. But this is not so; it is a matter of proof and not of admissibility. This is one of the reasons which make it better (as we have already said) that statements should be written down in the language used whenever it is practicable to do so.”

See also Zemba Shivera v. The State (1976) All NLR 230; (1976) 10 NSCC 197; The Queen v. Zakwakwa 5 FSC 12. The evidence of the interpreter must relate to the question or questions he put to the accused person on behalf of the interviewing police officer and the answers given to him by the accused person in the latter’s own language – R. v. Attard (1959) 43 Crim. App. Report 90. See also R v. Gidada 6 WACA 60 at 62 where the West African Court of Appeal observed:

“It seemed to us that this failure on the part of the trial Judge to appreciate the inadmissibility as evidence of alleged statements by the appellant, when such statements were not confirmed and established by the persons acting as interpreters, was fatal to the conviction herein in that the learned trial Judge misdirected himself in accepting such statements as having been proved.”

In R. v. Attard, the prosecution proposed to call evidence by a police officer of an interview which he had conducted with the prisoner through an interpreter. The defence submitted that, since neither the police officer nor the prisoner could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as being hearsay, and that only the interpreter could give evidence of the questions which he put to the prisoner on behalf of the police officer and of the answers given to him by the prisoner in the prisoner’s own language. It was held by Gorman, J sitting on the Central Criminal Court (England) that the submission was correct and that the evidence of the police officer in relation to the interview was inadmissible. The learned Judge summarised the submission of Mr. Edward Clarke, defence counsel, which he accepted, thus:

“It is said by Mr. Edward Clarke that, when there is an interview of that kind, the best person, or the nearest person to the prisoner, is the interpreter, and the interpreter, he does not dispute, can be called to say: ‘I heard the detective-superintendent put the question. I then translated that question. I said this to the prisoner and the prisoner said this to me’; the interpreter being asked as a sort of intermediary between the non-English-speaking prisoner and the English speaking detective superintendent.”

This point which was novel in English law in 1959 had been part of our law in Nigeria since 1940 when R v. Gidodo was decided by the old West African Court of Appeal. It is not enough, in my respectful view, that the interpreter is called to testify that he acted as interpreter between the accused and the police interviewer; he must testify as to the question or questions he put to the acussed on behalf of the interviewer and the answers given to him by the accused person in the latter’s own language and which he interpreted to the interviewer in English language. Without this evidence the prosecution would not have proved that the statement sought to be tendered by the interviewing Police officer was more than just hearsay. It is not for the defence to establish what went on between the accused and the interpreter. The burden of proving that fact is on the prosecution and not on the defence. It is for this reason that, in my respectful view, the interpreter must be called to testify and to elicit from him, in evidence, what the accused told him that he interpreted to the interviewing Police officer. In the wake of R v. Attard, the Home Office in England, at the suggestion of the Director of Public Prosecutions issued a circular to Chief Officers of Police stating that:

“it will be necessary in similar cases in the future to ensure that the interpreter is available to give evidence as to oral statements made by the accused, as is already done in the case of written statements.

It will be desirable that, whenever practicable, the interpreter should make his own notes of the interview for use in the event of his being called to give evidence. Failing this, the interpreter should be asked to initial the record of the interview made in the notebook of the police officer conducting the interview, so that it can be used by the interpreter to refresh his memory when giving evidence.”

I think the contents of this circular meet the requirements of R v. Gidado and other similar cases.

In the case on hand, PW3 the interpreter testified. But other than to say he acted as the interpreter between the appellant and PW6, he was silent on the questions he put to the appellant and in what language, and the latter’s answers. To make matters worse he was also the interpreter between the appellant and DSP. Tavero before whom the appellant confirmed Exhibit A. In my respectful view more details are required of PW3’s evidence to make Exhibit A admissible in law. The conclusion I reach is that the statement ought not to have been admitted in evidence. I reject it in evidence and expunge it from the record.

This, however, is not the end of the matter. Section 227(1) of the Evidence Act provides:

“227. (1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case, where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”

The question arises: Is there any evidence apart from Exhibit A to sustain the verdict of guilt of the appellant There is the evidence of PW1 which the learned trial Judge accepted. There is also evidence that items stolen from the house of the deceased on that fateful night were subsequently found in the appellant’s house during a search conducted by the Police in his presence. These two taken together are adequate to sustain the verdict of guilt entered against the appellant. The conclusion I reach on the admissibility of Exh. A is, therefore, of little comfort to the appellant. The wrongful admission of the statement has not occasioned any miscarriage of justice.

Learned counsel for the appellant has also made submissions on two other issues, namely non-consideration of appellant’s defence and PW1 was a tainted witness. I have examined his submissions on these issues and I find no merit in them. The learned trial Judge disbelieved the evidence of the appellant. I have no reason to disagree with the court below when it affirmed the trial court. Both courts also found, and quite rightly, in my respectful view, that PW1 was not a tainted witness. In Ishola v. The State (1978) 9-10 SC 81 at p.100, this court, per Idigbe JSC, admonished –

“We think it is proper to confine this category of witness (i.e. ‘tainted’) to one who is either an ‘accomplice’ or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve”.

See also Mailayi v. The State(1968) All NLR 116at 123 where this court, per Coker JSC observed:

“Recently there has been a tendency among criminal lawyers to create a category of ‘tainted’ witnesses but as counsel for the appellants did not dilate on this, we do not think that a close consideration of that issue arises in the present case. We however observe that the expression ‘tainted’ is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties.”

We have not been told what purpose of her own PW1 had to serve in the evidence she gave. It was eye witness account of an incident that took place in her presence and of which she was a victim. Would the facts that her husband was killed and she too sustained serious injuries make her a tainted witness when she gave an account of what happened I rather think not.

From all I have been saying above, I find no merit in this appeal which is accordingly dismissed. I affirm the conviction for murder and the sentence of death imposed on the appellant.

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SC.204/1999