Felix Anyakora & Ors. V. Nwafor Obiakor & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
This is an appeal against the judgment of the High Court of Justice Anambra State in the Onitsha Judicial Division in suit No. 0/114/78 delivered on the 24th of January, 1997. The appellants who were the plaintiffs before the trial court sued in a representative capacity for themselves and on behalf of the people of Uru-Oji Ogidi village, the respondents who were then defendants, asked for the under-mentioned reliefs as indicated in their further amended statement of claim filed on 23/3/90 –
(1) N100,000.00 being general damages for trespass.
(2) Perpetual injunction to restrain the defendants, their agents and assigns from further trespass into the land.
They gave the name of the land in dispute as Agu Isiogwugwu situate at Ogidi and more particularly delineated and verged green less the area verged yellow in the plan No. ECAS/214/78 filed along with the further amended statement of claim.
The respondents, joined issues, and in their further amended statement of defence filed on 28th May 1990 denied the plaintiffs/appellants assertion that they are from Uru-Oji Ogidi and equally denied the claim. They averred that the land in dispute consists of two portions of land known as and called Agu Akpu and Agu Eneheli.
Agu akpu land verged blue in the accompanying plan No.PO/E/108/78 was granted by the people of Mgbuke, Umunachi to the people of Uru-Oji, Ogidi about 1908 as customary tenants.
The plaintiffs/appellants called two witnesses in support of their claim while the defence called seven witnesses. Plans and other relevant documents were tendered. In his reserved judgment delivered on the 24th of January, 1997 – the learned trial Judge dismissed the plaintiffs case. Dissatisfied with the said judgment, the plaintiffs/appellants filed this appeal. Briefs were filed and exchanged in accordance with the rules of the Court of Appeal, 2002. When the appeal was argued on the 22nd of September, 2004, the appellants adopted and relied on the appellants’ brief filed on the 21st of May, 2004.
The appellants distilled three issues for determination as follows:
(1) Whether upon a correct legal appraisal of their case vide the documentary and other evidence tendered, the plaintiffs/appellants made out a case of title to Agu Isiogwugwu land in dispute?
(2) Whether the learned trial Judge properly considered/evaluated the plaintiffs/appellants case on acts of possession?
(3) Whether the plaintiffs/appellants made out their case with regards to the area trespassed upon by the defendants/respondents?
The issues for determination flowed from the fifteen grounds of appeal filed. The defendants/respondents adopted and relied upon the respondents brief filed on the 25th of February, 2002.
The respondents formulated only one single issue for determination as follows:
“Whether on the pleadings and the evidence, oral and documentary, tendered in this case, the plaintiffs proved their case as required by law”
Though I see the respondents issue as all embracing, this court will still prefer to adopt the issues formulated by the appellants for the purpose of’ this appeal. It will be ludicrous procedurally to formulate a single issue out of the fifteen grounds of appeal filed by the appellants.
In their argument and submission in favour of issue one the appellants emphasized that the standard of proof in a civil case has been settled to be on the balance of probabilities.
On the state of pleadings, the following were not disputed:-
(i) That both parties sued in a representative capacity for their respective community.
(ii) The fact of/or existence of provisions of judicial proceedings, Ogidi Native Court suit No. 60/42, Anekwe & Anor v. Abosi & Ors. survey plan No. EC/3/50; Appeal No. 44/48; appeal No. 18/49; Ogidi District Court Grade A suit No. 33/60; Onitsha Magistrate’s Court suit No. MO/26A/61.
(iii) Entry unto the land in dispute be it Agu Isiogwugwu as per the plaintiffs or Agu Eneheli as per the defendants.
The under mentioned arise as issues duly joined:
(i) Whether the defendants were parties or could be inferred to be parties to suit No. 60/42?
(ii) Whether the court in suit No. 60/42 had jurisdiction?
(iii) Whether survey plan No. EC/3/50 was tendered or used in suit No. 60/42?
(iv) Whether the proceedings and judgment in suit No. 60/42 were null and void ab initio?
(v) Whether the defendants appealed against the alleged Ogidi Native Court suit No. 60/42 and whether the alleged Ogidi Appeal Court had no jurisdiction to entertain such appeal?
(vi) Whether the defendants were parties to appeal No. 18/49 or petitioners in respect of the appeal?
(vii) Whether the judgment in appeal No. 18/49 was null and void ab initio?
(viii) Whether Peter Nzeakor represented or was authorized by the defendants etc.?
(ix) Nullity or otherwise of the proceedings in suit No. 60/42 Appeal 44/48 and 18/48 based on jurisdiction.
(x) Legal effect of the decisions of (a) Ogidi District Court Grade A, suit No 33/60, (b) Onitsha Magistrates Court suit No.MO/26A/61.
If there was a proper and correct legal appraisal, the learned trial Judge ought to have faulted the defence on their pleading as having failed to join issues properly with appellants on their statement of claim. Paragraphs 8, 9, 10, 11 and 13 of the statement of defence, failed to give a fair and substantial answer to the appellants pleadings on previous litigation and colonial records/documents. Since the pleading of the respondents before the trial court was evasive, the appellants ought to have judgment entered for them on that aspect of their case. Further, the appellants argued that exhibits B, C, D, F, G, G1, L, L1, O and O1, P and PI and S tendered and relied upon by the appellants are Native Court proceedings and documents emanating therefrom. The law has been settled as to the manner in which the court ought to treat the said proceedings. Reference was made to the cases of Ikpang v. Edoho (1978) 6-7 SC 221 at 238; Kwani Boadu v. Kobina Fosu 8 WACA. 89; Udofia v. Afia 6 WACA 216 at 218; Dinsey v. Ossei & Anor. (1939) 5 WACA 177; Ajayi v. Aina 16 NLR 67. The proceedings tendered through DW3 exhibits L – L1, portrayed that parties in suit No. 60/42 and 33/60 and the instant case are same.
The respondents are not contesting the jurisdiction of the Native Court to hear the case. Their attack is that the proceedings in the court was conducted contrary to natural justice, and consequently did not confer title on the plaintiffs. On the strength of the above ruling, the appellants submitted that the issue of jurisdiction regarding suit No. 60/42 is no longer a live issue. The plan No. EC/3/50 was deposited at the National Archives and was duly certified with the seal of the Director of the Archives; the official seal of the Director of the Archives shall be judicially noticed. Any such documents bearing the official seal of the Director of Archives shall be admitted in evidence as proof of the contents of the original documents by virtue of section 1 of Public Archives Act, Cap. 376, Laws of the Federation, 1990. The proceedings and judgment in suit No. 60/42 are legally binding and subsisting judgments of a court known to the Laws of Nigeria. They remain so valid and subsisting unless set aside either on appeal or by appropriate judicial procedure. Vide Section 54, 55 and 150 of the Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990. The appellants further submitted that the learned trial court cannot set aside suit No. 60/42 on grounds of nullity. Even documents or judgments, which are nullified, remain binding until set aside. The nullity of appeal No. 18/49 is not a matter for adjudication before the court below.
As regards exhibits L, Sand J, the Native Court could not find for the plaintiffs/appellants for a trespass committed in 1960. This in itself cannot nullify nor derogate from a 1948. Native Court judgment for title over Agu-Isiogwugwu land. Exhibits B, C, D, G, G1, F, O1, P and P1 could not be a bar to an action for fresh trespass committed on or about 1978. The appellants submitted that the proper legal effect of the Native Court cases and subsequent documents would be that as a plea it would be a bar and as evidence it would be conclusive of the issues earlier decided – Yoye v. Olubode (1974) 10 SC 209.
The respondents are therefore estopped from denying or pleading to the contrary the Native Court proceedings – Mbamali v. Osiaka (1975) ECSLR (Pt.236) 240. Issue one to be resolved in favour of the appellants.
As regards issue two the appellants pleaded several Acts of possession in support of their case, vide paragraphs 7, 8, 22, 23, 24 and 25 of the further amended statement of claim. The respondents also pleaded acts of possession. Principal issues on acts of possession were joined on the following –
(1) Living and farming on the land
(2) Reaping of economic trees
(3) Ownership of Juju shrine
(4) Grant of land to Mgbuke or Ogidi.
Both parties gave evidence of acts of possession on the land in dispute. The learned trial Judge however gave sporadic considerations to the case of the parties on acts of possession at page 286 lines 7-14, page 290 lines 4-17 page 292 lines 21 and page 293 lines 1-23.
The learned trial Judge failed to make findings on the very material, and important issues set out in the case. The court is urged to resolve issue No.2 in favour of the appellants.
In issue three, the appellants made reference to their pleadings in respect of the survey No. ECAS/214178 produced by a Licensed Surveyor – Ejike Chiduoke now deceased. The boundaries of the land were clearly shown and delineated on the plan. The Surveyor showed in exhibit A – a superimposition of the survey plan No. EC3/50 in exhibit E. PW.2 a licensed Chartered Land Surveyor – Odumodu gave evidence for the appellants as the original maker of their plans was dead. He saw exhibits A-E before he carried out the survey.
PW2 testified as an expert and the respondents did not join issue on exhibits A, A1 and E. The respondent did not call a qualified surveyor to challenge exhibits A, Al and E. The learned trial Judge failed to give any reasons for not accepting the appellants’ case and the area trespassed upon, as the respondents failed to properly join issues on the situs of the land in dispute being the area of trespass. The court is urged to resolve the third issue in favour of the appellants. The appellants in their reply brief contended that where there is a defective pleading, judgment ought to be entered for the plaintiffs – Adimora v. Ajufo (1988) 3 NWLR (Pt.80) page 1.
Any objection to exhibits B, C having been duly admitted is belated. These exhibits being evidence of terms of judgment have special protection under the Law – Section 132(1) of the Evidence Act. The judgments before the trial court are final judgments they cannot be declared a nullity by the trial court except through proper legal procedure or appeal. A fresh action ought to be filed to nullify – exhibits B, C and D. – U.B.N. Ltd. v. Penny Mart Ltd. (1992) 5 NWLR (Pt.240-242); Sanusi v. Ayoola (1992) 9 NWLR (Pt.265-275) 275; Ajao v. Alao (1986) 5 NWLR (Pt. 45) page 802; Iweka v. Analogu (1991) 4 NWLR (Pt. 185) 305. The respondent by way of reply to all the issues submitted that the appellant by the nature of the reliefs claimed in court for trespass and injunction have put the title and the exclusive possession of the land in dispute in issue. The onus was on the appellants to prove their title to and exclusive possession of the land in dispute. The respondents fully joined issues with the plaintiffs on every aspect of their pleadings. The existence and validity of the alleged suit No.60/42, appeals 44/48 and 18/49 as well as plan No. EC/3/50 were in dispute. The respondents have been in exclusive possession of the land in dispute, from time beyond living memory. The findings of fact of the trial court are under fire by the appellants. It was the trial Judge who saw and heard the witnesses gave evidence and watched their demeanor. It is the summary duty of the trial court to evaluate the evidence and make findings of facts thereon and that unless the findings of fact are perverse and unreasonable and cannot be supported by the evidence the Court of Appeal cannot embark on a fresh evaluation of the evidence and interfere with the findings Enang v. Adu (1981) 11-12 SC 25 at 38; Asani Balogun & Ors. v. Agboola (1974) 1All NLR (Pt.2) 66; lriri & Ors. v. Erhurhobara & Anor. (1991) 2 NWLR (Pt.173) 252 at 265; Ogbu v. Ani (1994) 7 NWLR (Pt. 355) at page 128. The findings of the learned trial Judge are fully supported by the evidence.
The latitude given to the proceedings and judgments of Native Courts and Customary Court is to do justice and does not warrant or condone injustice. In administering justice, a Native Court was required to accord the parties in a case equal opportunity to be heard.
It was a fundamental breach of the cardinal principle of justice for the Native Court to hear and determine the dispute, the subject of exhibit B on the case of one of the parties –
Disher v. Disher (1965) p.31 at 36; Shadrack Orji Ukpai v. Udo Oji Okoro & Ors. (1983) 11 SC. 231 at page 235; Prince Yahaya Adigun & Ors. v. The Attorney-General of Oyo State & Ors. (1987) 1 NWLR (Pt.53) 678 at 707.
Exhibit B, and C were heard contrary to the rules of natural justice. The signature on exhibit D was irregular and it did not satisfy the provisions of section 111(1) of the Evidence Act, 1990. Exhibit E, a plan No. EC/3/50 was not certified by any officer of court as part of the proceedings in exhibit D and there was no evidence of that, it was attached and detached from any court judgment book or record book. Exhibit E did not avail the plaintiffs. PW1 gave evidence and tendered exh. E as one of the plans he collected from the National Archives, Enugu – vide page 173 line 36 and page 174 line 5 of the record of appeal. Certification of exhibits D and E by the National Archives did not make them evidence in the case. Section 31 National Archives Decree 1992 – Patrick Ogbu & Ors. v. Fidelis Ani & Ors. (1994) 7 NWLR (Pt. 355) 128 at page 152.
Exhibits B, C and D were tendered by the plaintiffs in proof of their purported title to the land in dispute. As exhibits B, C and D were tendered as court proceedings the court before which they were tendered on finding that they were null and void was bound to declare them so and could not shut its eyes and give effect to them. The respondents are not contesting the jurisdiction of the Native Court to hear the case. Their attack is that the proceedings in the court was conducted contrary to natural justice and the judgment thus delivered is null and void, consequently did not confer title on the plaintiff vide page 277 lines 14 to 18 – Ude & Ors. v. Josiah Agu & Ors (1961) 1 All NLR (Pt.1) P.65 and 68-69; Anisminic Ltd. v. Foreign Compensation Commission & Anor. (1969) 2 AC 147 at 171; Salu v. Egeibon (1994) 6 NWLR (Pt.348) p. 23 at page 44.
By section 53 of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990 – the judgments in exhs. ‘B’, ‘C’ and ‘D’ are unenforceable – S. M. Timitimi & Ors. v. Chief Amabebe & Anor. 14 WACA 374 at 377.
The respondents however maintained that the learned trial Judge reviewed the evidence in this case, evaluated same before making the necessary and correct findings of fact. The trial court found that the plaintiffs at the trial did not call any person who lived, farmed or reaped economic trees on the land in dispute or worshipped any juju on the said land or personally exercised or witnessed the exercise of any other acts of ownership of possession on the land in dispute to testify for them. On the testimony of PW1, the learned trial Judge concluded that PW1 created a doubt as to his credibility and veracity.
The appellants could only succeed on the strength of their own case, but as they failed to lend any satisfactory evidence in proof of their case the learned trial Judge had no option but to dismiss their case, whereas the respondents are and have at all material times been in exclusive possession of the land in dispute. The court is urged to dismiss the appellants appeal and affirm the judgment of the learned trial Judge.
I have given a painstaking consideration to the copious arguments and submissions of the counsels to the appellants and respondents.
The major complaint against the trial court in the issues for determination before the court in this appeal is principally on the evaluation of evidence of the parties before the trial court reached its conclusion. There must be a constant reminder to the appellate courts that the function of evaluating evidence is essentially that of the trial courts, as it had the opportunity of hearing witnesses at the trial court, watching their demean our in the witness box. It is entitled to select witnesses to believe and facts established and an appellate court should not ordinarily interfere with such findings except in certain circumstances:
(a) Where the trial court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial.
(b) Where the trial court has drawn wrong conclusion from accepted credible evidence.
(c) Where the trial court has taken an erroneous view of the evidence adduced before it.
(d) Where the trial court’s findings are perverse in the sense that they are unsupported by evidence or do not flow from the evidence accepted by it.
A decision is said to be perverse –
(a) Where it runs contrary to the evidence or
(b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious or
(c) Where it has occasioned a miscarriage of justice Ebba v. Ogodo (1984) 1 SCNLR 372; Odofin v. Ayoola (1984) 11SC 72; Fabunmi v. Agbe (1985) 1NWLR (pt.2) 299; Bunyan v. Akingboye (1999) 7 NWLR (pt.609) 31; Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410.
In a judgment on appeal in a civil case in which the finding or non-finding of facts is questioned the court will seek to know the following:
(a) The evidence before the court
(b) Whether the trial court accepted or rejected any evidence upon the correct perception?
(c) Whether the trial court correctly approached the assessment of the evidence before it and placed the right probative value on it?
(d) Whether the trial court used the imaginary scale to weigh the evidence on either side?
(e) Whether the trial court appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof? – Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325; MISR (Nig.) Ltd. v. Ibrahim (1974) 5 SC 53 at 62; Egonu v. Egonu (1978) 11-12 SC 111.
I shall consider the three issues serially. Generally speaking, because the reliefs before the trial court are for damages for trespass coupled with injunction in the defence pleadings, the respondents claimed ownership of the disputed land and title became the primary issue at the trial. In the further amended statement of claim vide pages 4-8 of the records, the appellants pitched their case on three methods of proof namely –
(1) Previous documents of title
(2) Acts of possession
(3) Ownership of Adjoining land.
It is the contention of the appellants that the defendants failed to meet squarely the case of the appellants with regards to the previous Native Court proceedings and related colonial government correspondence already admitted in evidence as exhibit B, C, D, F, G, and S1, L, L1, O, O1, P, P1 and S. These were pleaded in paragraphs 4, 9, 10, 11 12, 13, 14, 15, 16, 18, 19, 20 of the further amended statement of claim. The judicial proceedings are Ogidi Native Court No. 60/42; Anekwe & Anor. v. Abosi & Ors., survey plan No. EC/3/50; Appeal No. 44/48; Appeal No. 18/49, Ogidi District Court Grade A, suit No. 33/60, Onitsha County Court, suit No.CC/10A/60, Onitsha Magistrates Court, suit No.MO/26A/61. This court has to consider the relevance of these Native Court proceedings to this case. The respondents held that the appellants cannot rely on any earlier judgments between the parties in respect of the same subject matter. The judgment in suit No. 33/60 was the last in time and it is settled law that where there are series of judgments between the same parties in respect of the same subject matter and the same issues the last in time prevails – Soyemi Salami v. Taiwo Seriki (1962) 2 All NLR (Pt. 1) 180 at 183.
The respondents contended that it is only suit No. 33/60 which constitutes issue of estoppel against the plaintiffs.
I shall discuss the attitude of appellate courts to native court proceedings and whether they constitute estoppel in the matter before the trial court in suit No. 0/114/78.
As regards attitude of appellate courts to and how to treat the proceedings of Native Courts, the superior courts held the opinion that:
In those courts another fundamental law has been worked out, over the years in respect of cases determined therein. The guidelines have been settled in the following principles-
(1) That in respect of claims before those claims, it is necessary to look at the substance rather than at the form of the writ. The writs should not be examined microscopically or with the finery of a tooth-comb.
(2) On the question of procedure adopted by those courts in arriving at their decision subject, we must add to the overriding principle that they must not be allowed to so fundamentally depart from accepted procedure in deciding their cases that they occasion injustice to either party to a case, an appeal court must not be too strict in regard to matters of procedure adopted in those courts.
(3) Generally, great latitude must be given to and broad interpretation placed upon Native Court cases, and customary court cases, so that the entire proceedings, the evidence of the parties and the judgment must be examined in order to determine what the Native and customary court cases were all about. The whole conception and result of the proceedings will show what the parties were fighting for, the matters upon which issues were joined, even if technically framed in an appropriate language from the standpoint of legal technocrats, and the decision of the Native Courts or customary courts on those issues.”
Ikpang v. Edolo (1978) 6-7 SC 221 at 238.
Boadu v. Fosu (1942) 8 WACA 187; Olaana v. Tsutsu (1944) 10 WACA 89; Udofia v. Afia (1940) 6 WACA 216 at 218; Dinsey v. Ossei (1939) 5 WACA 177; Ajayi v. Aina 16 NLR 67; Iledare v. Ajagbonna (1997) 6 NWLR (pt.507) 1; Opawole v. Tunbi (2004) 11NWLR (Pt.884) 290.
As I have mentioned earlier on in this judgment the appellants pleaded and relied upon previous judgments of the Native Courts between the parties in respect of the land in dispute referred to as Agu Isiogwugwu by the appellants, and as Agu Akpu/Agu Ehaleh by the respondents. The appellants had clearly set up estoppel in their pleadings, and that was their intention when they pleaded all the previous proceedings in the Native Courts and Magistrate court between the parties and their privies, so as to prevent the respondents from claiming the disputed land in the face of legal and subsisting judgments of court between the same parties on the same subject matter. This is a procedure or even rule of evidence whereby a party and his privies are not allowed to dispute in any subsequent proceedings a matter which had been adjudicated upon previously by a court of competent jurisdiction. The appellants are by those previous judgments asking for the enforcement of the earlier judgments of a court of competent jurisdiction –
Opawole v. Tunbi (2004) 11 NWLR (Pt.884) 290;
Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127;
Chinwendu v. Mbamali (1980) 3-4 SC 21.
By virtue of section 54 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 every judgment is conclusive proof as against parties and privies of facts directly in issue in the case actually decided by the court, and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which the judgment is intended to be proved.
Akoma v. Osenwokwu (2004) 11 NWLR (Pt.883) 98.
It is settled law that where there are series of judgments between parties in respect of same subject matter and the same issues, the last in time prevails. The decision relied upon must be valid, subsisting and conclusive and final.
Ebba v. Ogodo (2000) 10 NWLR (Pt. 675) 387.
Oshodi v. Eyifunmi (2000) 13 NWLR (Pt. 684) 298.
Oke v. Atoloye (1986) 1 NWLR (PU5) 241; Yoye v. Olubode (1974) 1 All NLR (Pt.II) 118.
Maya v. Oshuntokun (2001) 11 NWLR (Pt. 723) 62.
In the earlier cases between the parties therefore the Native Court of Ogidi and the district officers Court of Appeal, District Court grade A, the respondents maintained that the procedure adopted by the court offended against the provision of section 36(ii) of the Constitution of the Federal Republic of Nigeria, 1999. In Nigeria fair hearing is not only a common law right but also a Constitutional Right. In the determination of his civil rights and obligations, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. The standard of fair hearing requires the observance of the twin pillars of the rule of natural justice at the other side, audi alteram partem, and nemo judex in causa sua, that is one should not be a Judge in his own course. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses.
Military Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675.
A breach of the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria and a breach of it particularly in trials vitiates such proceedings rendering same null and void.Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 270; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221.
The respondents pleaded that they were not parties to proceedings in suit No. 60/42, No. 44/48 and 18/49 the decisions in them were consequently null and void as the court had no jurisdiction to entertain them and deli ver judgments in them. The appellants held that the respondents should have adopted the proper procedure to declare the judgments null and void either through an appeal or any other relevant legal process. I observe that the relief sought by the appellants before the court did not include this. The cause of action is determined by the statement of claim of the parties. The learned trial Judge held that the defendants are not contesting the jurisdiction of the native court to hear the case. Their attack is that the proceedings in the court was conducted contrary to natural justice, and consequently did not confer title on the plaintiffs. If the court proposed to make an order different from the one claimed, the court must hear the views of the parties before making the order. The nullity or otherwise of the suit No 60/42 and appeal No. 18/49 is not a matter for adjudication before the court below. The learned trial Judge could only have declared the judgments exhs. B, C and D irrelevant in the circumstance of the case before the court being trespass committed in 1978. The process to declare the suits a nullity should have been initiated by the respondents and not the appellants.
On the second issue which dealt with these exercise of possessing right on the land, both appellants and respondents gave a catalogue of the acts of possession performed on the land in dispute which included living and farming on the land.
(1) Reaping of economic trees.
(2) Ownership of juju shrine on the land.
(3) Grant of land to members of the opposing families.
It is the duty of learned trial Judge to review the evidence adduced by either side, and proceed to appraise them before making findings of facts. If the findings in favour of the appellants having put them on the imaginary scale, are more preponderant in terms of quality and probable value he wins, otherwise he loses.
Karibo v. Grend (1992) 3 NWLR (Pt.230) 426;
Egonu v. Egonu (1978) 11 – 12 SC 111; Mogaji v. Cadbury Nig Ltd. (1985) 2 NWLR (Pt.7) 393; Mogaji v. Odofin (1974) 45 SC 91; Tinubu v. Khalil-Dibbo Transport Ltd. (2001) 11 NWLR (Pt.677) 171; Bello v. Eweka (198 1) 1 SC 101.
In the instant case, part of what the learned trial Judge had to determine was who as between the appellants and respondents were in exclusive possession of the land in dispute at the time of the trespass complained of.
Trespass itself is a violation of a possessory right and an action therein is maintenable at the instance of the person in possession or a person with a right to possession. A claim of damages for trespass to land is rooted in exclusive possession of the land. The standard of proof required to establish possession in an action for damages for trespass is minimum standard of proof as required in a civil wrong of trespass. A person can be in possession through a third party, such as a servant, an agent or a tenant. Also possession of a predecessor in title is in law deemed to be continued by his successor.
Adewole v. Dada (2003) 4 NWLR (Pt.810) 369; Oluwole v. Abubakare (2004) 10 NWLR (Pt.882) 549; Amakor v. Obiefuna (1974) 3 SC 67; Bamgbade v. Balogun (1994) 1 NWLR (Pt.323) 718.
It is note worthy that in this appeal the two parties are on land claiming possession, at least from the evidence adduced by the parties, and the survey plan tendered, the possession being disputed can only be at the suit of that party who can show that title of the land is in him. Umeobi v. Otukoya (1978) 4 SC 33; Mogaji v. Cadbury (Nig.) Ltd. (1985) 7 SC 5; Onwuka v. Ediala (1989) 1 NWLR (Pt.96) 182.
When the issue is as to which of the two claimants has a better right to possession or occupation of a piece of land in dispute, the law ascribe such possession and/or occupation to the persons who prove a better title thereto –
Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562;
Aromire v.Awoyemi (1972) 1 All NLR (Pt. 1) 101;
Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263.
Where a claim for trespass is coupled with a claim for an injunction, the title of the parties to the land in dispute is automatically put in issue.Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) 562.
The appellants did not specifically plead estoppel but tendered judgments between the parties in respect of trespass committed at various times, when the respondents were sued to court, in the Native Court as in exh. B, in the Ogidi Court of Appeal as exh. C, another proceedings before the district officer on the 30th of December, 1949 as 18/49. The court examined the certification of the documents tendered under sections 110 and 111 of the Evidence Act of the Federal Republic of Nigeria, 1990. The learned trial Judge enumerated factors, which rendered them invalid as estoppel on pages 283 of the records. The court declined to give effect to exh. D as constituting estoppel. The plaintiffs did not tender exh. D as res judicata, thus consequently failing the purpose for which it was tendered. The court after an appraisal of the documentary evidence relied upon by the appellants the court had ample evidence to conclude that they were untidy, unsatisfactory and inconclusive. The court also examined the plan ECAS/214/78 – exh. A. the court adequately considered the competing claims of the parties according to their further amended statement of claim and further amended statement of defence. After considering the claim for title the court considered the claim for trespass, damages and injunction.
The court found that there has been a protracted battle over the land in dispute, which the appellants referred to as Agu-Isiogwugwu and the respondents Agu-Akpu/Agu Ehgheli lands respectively. Besides the suits exhs. B, C, suit No. 60/42, suit 44/48, and exh. C, the suit in the district officer’s court, there was another action filed at the Ogidi district court grade A in suit No. 33/60 instituted by the plaintiffs people against the defendants people. Proceedings in the Onitsha County Court in suit No.CC/10A/60 was on appeal. The victory of the appellants in the County Court case CC/10A/60 was short-lived, and as the Magistrate Court reversed the decision on appeal in suit No. M0/26A/61, and ordered a rehearing of the case. The victory recorded in the litigations brought by the appellants in the cases pleaded as evidence of title were cancelled out by appeals, like exhs. Band exh. C, and suit No. 60/42 by suit No. 44/48, suit No. CC/10A/60 by suit No.MO/26A/61. The respondents held that the suit No. 33/60 was dismissed, and it is the judgment still subsisting between the parties. In suit MO/26A/61, the suit was remitted back to the Ogidi County Court to be heard and determined with all available documents. The case was never heard by that court. In the suit No. 60/42 the plan No.EC/3/50was relied upon. The appellants brought this case on appeal in 1978, and attached the plan No.ECAS/214/78. The plan was not produced by PW2 surveyor Odumodu, his evidence was not beneficial to court as indicated by the learned trial Judge, while the plan tendered ECAS/214/78 exh A is unreliable. The court observed that any judgment of title in favour of the appellants based on their plan will encompass land in physical possession of Magbona and Ezinimo Eziowelle people, who are not parties to the suit.
The learned trial Judge reviewed the activities of the parties on the land. The respondents tendered the plan exh. M. On page 295, the learned trial Judge examined all other evidence of the parties based on their pleadings, and concluded that:
“Having placed the evidence of the parties on both sides of the imaginary scale the court is satisfied that the defendants adduced enough evidence in support of their case on overt acts of ownership positive and long enjoyment numerous enough as well as exclusive possession of the land in dispute within living memory. They have shown a better title to the land in dispute than the plaintiffs and are entitled to remain in exclusive possession and undisturbed enjoyment of it. I therefore hold on the evidence before me that the plaintiffs have failed to show superior title and consequently failed to prove their claim for trespass to the land in dispute against the defendants.”
He consequently went ahead to dismiss the plaintiff’s claim.
Litigation at various times in respect of the land in dispute gave it a unique feature. The claim of the appellants and their privies against the respondents and their privies were all along predicated on damages for trespass and injunction to prevent further trespass. Both parties alleged pockets of trespass into their land either Agu-Isiogwugwu as claimed by the appellants or Agu Akpu/Agu Ehgheli, supposed to be in exclusive possession of the respondents. The appellants backed up their claim with the survey-plan ECAS/214/78 and the respondents with the plan PO/E108/78. It can readily be concluded that the trespass here was continuous. A continuous trespass was considered in the case of Onagoruwa v. Akinremi (2001) 13 NWLR (Pt.729) 38 and defined by the Supreme Court as follows:
“It is a continuing trespass for a person to remain in another’s land without that other’s authority or consent so that barring defences properly raised and sustained which defeat the right of the owner of such land to complain of the continuing trespass, the land is always entitled to protection as appropriate.”
It is the feature of a continuing trespass that successive actions can be instituted from time to time as shown in these cases at different periods between 1942, 1948, 1949, 1960, and 1961 to 1978 from Native Court to County Court to District Court, Magistrate Court and finally the High Court. A case instituted and judgment delivered in 1942 may not be relevant to establish a similar case filed in 1978, except to establish that such trespass is a continuous act on the part of the trespasser. However, the issue of ownership has to be settled at a single litigation as it cannot possibly be an issue for consideration at every continuous trespass charged to court. The learned trial Judge commenced the evaluation of the evidence adduced by the parties from pages 274 to 295 of the record of proceedings. He considered meticulously the documentary evidence of the appellants’ previous title which are exhibits B, C, D, D, E, F, G, G1, O, O1, P, P1 and E, and assessed the evidential value of each judgment and plan to this case.
Evaluation of evidence involves reviewing and criticizing the evidence given and estimating it. Any decision arrived at without a proper or adequate evaluation of the evidence cannot stand. Evaluation does not stop with assessing the credibility of the witnesses although that in appropriate cases is part of the exercise. It extends to a consideration of the totality of the evidence on any issue of fact in the circumstance of each case in order to determine whether the totality of the evidence supports a finding of fact which the party adducing the evidence seeks that the trial court should make. After giving due concession to the advantageous position in which the trial Judge is in regard to credibility of witnesses, the appellate court will only be in position to consider the findings of fact and ensure that it is arrived at after an adequate consideration of the totality of the evidence, where the findings of fact are challenged in circumstances already enumerated earlier on in this judgment. In the final analysis, the learned trial Judge gave a full and compassionate consideration to the case of the appellants. In the circumstance, this court has no reason to interfere with the finding of fact of the lower court. The appeal succeeds in part. The judgment of the lower court on the claim of trespass and injunction is affirmed. The order of nullification of the judgments of the Native Courts tendered, suit No. 60/42; Appeal Nos. 44/48 and 18/48 is set aside. N5,000 costs is awarded in favour of the respondents.
Other Citations: (2004)LCN/1638(CA)