David Ebose Akpasubi V. Madam Iyagbaye Umweni (1982) LLJR-SC

David Ebose Akpasubi V. Madam Iyagbaye Umweni (1982)

LawGlobal-Hub Lead Judgment Report

KAYODE ESO, J.S.C.

The claim of the plaintiff who is the respondent in the appeal in this Court, and who, to avoid confusion, would be referred to as the plaintiff/respondent hereinafter in this judgment, in the High Court of the Mid-Western State, as the present Bendel State was known at the time of the issuance of the writ of summons, was for

“(A) A DECLARATION OF POSSESSORY TITLE to that piece or parcel of land lying and being situate in Ward 18/H Benin City measuring 100 feet by 100 feet, which piece of land shall be more properly described and delineated in “Pink” on a survey plan to be filed later in these proceedings.

(B) N500 (Five Hundred Naira) damages for trespass.

(C) Perpetual Injunction to restrain the defendant, his servants or agents from further acts of trespass thereon” .

The learned Chief Judge of the State, Ovie- Whiskey C.J. (as he then was), who tried the case, ordered pleadings which were duly delivered. He took evidence led in the case and then came to the conclusion that the plaintiff/respondent failed to discharge the onus on her in the case. He accordingly dismissed the claim.

The plaintiff/respondent appealed to the Federal Court of Appeal against that judgment. The court in an elaborate assessment of the facts allowed the appeal and set aside the judgment of the High Court. The Federal Court of Appeal then made an order in favour of the plaintiff/ respondent in terms of her claim which has already been set out supra in this judgment.

The defendant has appealed against that judgment relying on four grounds of appeal. However as it is just one ground of appeal that was argued before us, I will only set out that ground. Indeed learned counsel for the appellant indicated to us that the ground was his strongest ground of appeal. He abandoned the other grounds of appeal and they were struck out. The only ground of appeal which was argued before us reads:

GROUNDS OF APPEAL

“(1) The learned Justices on appeal misdirected themselves in law in that they failed to give proper consideration to the conflict of the evidence in the plaintiff’s case.

PARTICULARS OF MISDIRECTION

The material conflict in the evidence of the plaintiff with respect to the location and identity of the land in dispute and that of her 4th witness and the Exhibits tendered especially as Exhibits C and D were not given the proper Legal effect.”

In his brief, filed under Order 9 of the Supreme Court Rules 1977, learned counsel, Mr. Eghobamien, argued that the plaintiff/respondent failed to prove the identity of the land in dispute with the certainty which is required by law. Learned counsel referred to what he termed conflict in the evidence of the plaintiff/Respondent and drew our attention to the evidence of the 1st, 2nd and 4th plaintiff’s witnesses. Learned counsel, also referred us to exhibits C and D that is the survey plan of the property of the predecessor in title of the plaintiff/ respondent Osayande Irabor made on 23rd December, 1960 and the Deed of conveyance transferring the land “in dispute” from Osayande Irabor to the plaintiff/respondent respectively.

I would like to say here before anything further that reference by the appellant’s counsel both in his brief and his oral submission to 4th p. w. is inept. The learned trial Chief Judge had, in his judgment described him as a suborned witness who knew little or nothing about the land. After the learned trial Chief Judge had discredited the witness he gave judgment for the Defendant/Appellant. In other words the Defendant/ Appellant was the beneficiary of the judgment in the court of trial. The finding of that Court against the 4th p. w. has never been challenged. It was neither challenged in the Federal Court of Appeal nor in this Court.

It is extraordinary then that the learned counsel for the Defendant/ Appellant should have recourse to the evidence of that witness in this Court. It is elementary I think that once a trial court rejected the evidence of a witness and the judge’s decision in regard thereto has not been challenged on appeal that is the end of that evidence for ever.

I will now return to Appellant’s brief. Learned counsel stated further in that brief that Exhibit C, which as I have said, is the plan of the land of the plaintiff/Respondent predecessor in title, is in conflict with the evidence of p. w .1.30. The brief also dealt with the issue of beacons on the land saying that the beacon numbers on Exhibit C (referred to supra) is at variance with Exhibit G which is the deed of conveyance to the Defendant/Appellant.

In his oral submission in this Court, learned counsel laid emphasis on the question of alleged lack of proof of the identity of the land by the Plaintiff/Respondent. We did not call on the Plaintiff/Respondent’s counsel to reply to the submissions of learned counsel for the Appellant.

Now, it seems to me that the ground of appeal argued by the Appellant’s counsel is one of fact. No leave was given to the Appellant either by the Federal Court of Appeal or this Court to file a ground of fact. The appellate jurisdiction of this Court on question of fact only exists where there has been leave of the Federal Court of Appeal or of this Court. No appeal on question of fact lies to this court without such leave. In other words, where as it would appear to me in this case, question of fact has been brought before this court without leave, the court has no jurisdiction. See s. 213(3) of the Constitution of the Federal Republic of Nigeria 1979 which provides

“213 (3) Subject to the provisions of sub section (2) of this section an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with the leave of the Federal Court of Appeal or the Supreme Court”

Subsection (2) which has been referred to by subsection (3) of S.213 deals with the Court’s appellate jurisdiction on question of law wherein appeals are as of right. The appellant never filed an application in the Federal Court of Appeal or in this Court for leave to appeal on question of fact. Throughout the hearing of the appeal, notwithstanding the fact that we directed the attention of learned counsel to the fact that he neither sought nor got leave to appeal on question of fact and that the ground of appeal he had before us only raised issues of fact, learned counsel did not make application seeking such leave. As this is an issue of jurisdiction it is my firm view that the ground of appeal is without jurisdiction and it being the only ground of appeal, on that alone, the appeal should be dismissed.

But we did hear the submissions of learned counsel on the ground and to my mind, assuming we have jurisdiction, in this matter the ground of appeal is completely misconceived. There is ample evidence on record of the identity of the land in dispute. The Appellant himself was in no doubt as to the identity of the land in dispute, indeed not only was he aware of the identity of the land he was able to distinguish it from his own land which he said was not the same land as the one claimed by the Plaintiff/Respondent. The Federal Court of Appeal examined all these issues thoroughly before dismissing, rightly in my view, the present Plaintiff/Respondent’s appeal.

Osayande Irabor had by Exhibit B applied for a plot in Ward 18/H. Osayande Irabor was a half brother of the Plaintiff/Respondent. The area was inspected by two members that have been designated by the Allotment Committe itself, one David Iyamu. He gave evidence as the 6th p. w. Osayande Irabor himself was a member of the Plots Allotment Committee. The report to the Committee was that the plot was free and had not been previously allocated. It was only after that that the allocation was made to Irabor. The plot allocated to Irabor measured 200 feet by 200 feet which in fact would be four building plots of 100 feet by 100 feet. But when it was later surveyed, it came to about 213 feet by 200 feet on the survey plan. (See Exhibit C). This is understandable as the area purporting to be 200 feet by 200 feet allocated by the Plots Allotment Committee could not be exact without proper survey measurements.

According to David Iyamu (6th p.w.) the recommendation of the Plots Allotment Committee was sent to the Oba of Benin who approved the allotment (See Exhibit B and the approval of the Oba of Benin thereon on 16th June 1957). So the land exists, identified by David Iyamu who was one of the two people that acted as pointer. David Iyamu knew more than that. He knew the land of Chief Izeobizua Iyamu the predecessor of the Defendant/Appellant in title. He signed the Chief Izeobizua-Iyamu’s application (Ex.F) in his capacity allocated to Izeobizua Iyamu was different from that allocated to Irabor. It was not the same land. Chief Izeobizua Iyamu himself gave evidence and confirmed that the land in Exhibit B which covers the land in dispute, or in other words, out of which the land in dispute was excised and granted to the Plaintiff/Respondent was not the same as the land that was allocated to him as per exhibit F.

What could be the quarrel of the Defendant/Appellant therefore with the Plaintiff/Respondent if the land the Defendant/Appellant got from Chief Izeobizua Iyamu is not the same in respect of which the Plaintiff/Respondent has brought an action in court This evidence, particularly the admission of his own witness, shows he could have no defence to the action of the Plaintiff/Respondent.

The learned trial judge accepted the evidence of the Plaintiff/Respondent that the land in dispute originally belonged to Osayande Irabor and later allocated to Plaintiff/Respondent. The learned trial judge was in no doubt of the identity of the land in dispute. The learned trial judge said

“It appears on the evidence before me that the members of the Plots Allotment Committee allocated the whole piece of land shown in Exhibit A, the Plaintiffs plan and on the Defendants plan Exhibit

…..measuring 100 feet by 100 feet to the late Osayande Irabor who sold it to the plaintiff. I believe the evidence of the plaintiff when she said that the members of the Plots Allotment Committee of the Ward approved of the sale and substituted his name for that of the late Osayande Irabor as the owner of the land and that this arrangement was later approved by His Highness the Oba of Benin as shown in Exhibit E”.

It is plan that Exhibit E on which the learned trial Chief Judge based this finding made reference to Beacons No. 39H and 40H and that these beacons are included in the original approval, Exhibit B, made to Osayande Irabor.

It is extremely strange after this finding that the learned trial Chief Judge could in the same vein, and in contrary to all evidence before him, especially the evidence of the evidence of the defence witness Chief Izeobizua Iyamu which he accepted, find on the evidence before him that the same piece of land was allocated by the Plots Allotment Committee of Ward 18th Benin City to Chief Izeobizua Iyamu as shown on Exhibit F.

Neither Izeobizua Iyamu’s evidence nor exhibit F supported this. Izeobizua Iyamu was clear in his evidence that the land allocated to him was different from the one allocated to the Plaintiff/Respondent which Exhibit F refers to as Block H 19-109 and not H 39-H57, H 40- H50 as stated in exhibit B.

Indeed, I cannot do better than adopt the language of Ete, J.C.A., who delivered the lead judgment in the Federal Court of Appeal when he said

“It is difficult to appreciate the reasoning of the learned Chief Judge in arriving at the finding that it was the same piece of land that was allocated to Osayande Irabor that was also allocated to Chief Iyamu…..With respect, I must say that the learned Chief Judge’s conclusion that the land belonged to Chief Iyamu is not supported by the evidence and is therefore wrong” .

Perhaps I should not conclude this judgement without making reference to the learned trial Judge’s finding on the evidence of one of the defence witnesses, Prince Edna Akenzua. Edna Akenzua said the Plaintiff/Respondent complained to Edna’s mother about the trespass to her land. The mother sent Edna and another person with the Plaintiff/Respondent to Chief Iyamu. Chief Iyamu, who according to Edna, claimed the plot as his property which he had sold to Defendant/ Appellant suggested that the land be shared into two and each side to the dispute should take a share. Both parties, according to Edna, accepted this.

The learned Chief Judge said of this incident of sharing of the land between the two parties

“The plans put in evidence by each of the parties to the case supported the evidence of the 1st defence witness that the land was shared equally between the two parties, The plaintiff accepted the portion which was given to her and put only the portion which was shared to the defendant in dispute in this case. Certainly on the evidence before me, the defendant cannot by any stretch of imagination be said to be a trespasser on the land in dispute”.

The learned trial Judge however failed to consider the evidence given at trial that barely a week after this incident the Defendant/Appellant was given notice that the settlement was unacceptable to the Plaintiff/Respondent which indeed was followed by the summons in this case. Of course the Federal Court of Appeal has put a right construction on the incident.

The Court held as per Ete, J.C.A.

“It will be seen that from the very start of the respondent’s intervention on the land, the appellant reacted by making a complaint to the Oba. The evidence of Princes Edna Akenzua merely brings into focus the desparation of the appellant when she found someone else claiming her land. To my mind the fact that the appellant, according to prince Edna Akenzua agreed to accept half the land as suggested by Chief Izeobizua Iyamu cannot be interpreted to mean that she had accepted the fact that the land might after all not belong to her. All sorts of reasons might be given for her accepting such a solution at that time, such as that half a loaf is better than no bread. And the same reasoning goes for her agreeing to the Oba’s advice to accept the solution. After all she could hardly have refused the Oba’s advice in his regal presence. But her determination to claim what is her own was manifested barely a week after the purported settlement at the Oba’s palace, when, through the agency of her son Solomon Isede, she told the defendant that she would sue him to court to claim land.That was not an empty threat for shortly after the warning that appellant took the present action against the respondent. The warning was a clear indication that the appellant did not really accept Chief Izeobizua Iyamu’s solution. ”

I respectfully agree with the Court. For all the foregoing reasons the appeal is absolutely misconceived. it lacks total merit and it is hereby dismissed with N300.00 Costs to the Respondent.

A. G. IRIKEFE, J.S.C.: I had the advantage of a preview of the leading judgment just read by my learned brother, ESO, J.S.C. I agree with the reasoning and conclusions therein both on questions of law and fact. I also would dismiss the appeal and do so with N300 costs in favour of the respondent.

M. BELLO, J.S.C.: I have read in advance the judgment of my learned brother, ESO, J.S.C., I entirely agree, The appeal lacks merit and I also dismiss it with N300 costs to the Respondent.

A. NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, KAYODE ESO, J.S.C. I agree with the reasoning and conclusions therein.

With regards to the competence of the appellant’s appeal to this Court having regard to the only ground of appeal canvassed before us, the clear words of Section 213 (3) of the Constitution of the Federal Republic of Nigeria 1979, and the state of the Records, I also agree with my learned brother that this Court had no jurisdiction to entertain the appeal.

On the only ground argued I can only add to my learned brother’s words my amazement that the defendant/appellant even raised the issue of identity of the land in dispute since it was clearly the portion of land on which he was building. It seems to me too that the case of the appellant was virtually demolished by the admission of his predecessor in title, Izeobizua Iyamu that the land allocated to him (from which he conveyed to the appellant) was not the same land as that conveyed to the plaintiff/respondent. I agree that this appeal lacks substance and ought to be dismissed. It is hereby dismissed. The order for costs is as contained in the said judgment of ESO, J.S.C.

M. L. UWAIS, J.S.C.: Having had the opportunity of reading in draft the judgment read by my learned brother, Kayode ESO, J.S.C., I too will dismiss this appeal for the reasons he has given. The respondent is awarded costs assessed at N300.00.

Other Citation: (1982) LCN/2155(SC)