Ikyereve Iordye V. Tor Ihyambe (2000)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C. 

The appellant who was the plaintiff in Grade II Area Court of Tor -Danga Benue State, claimed against the respondent for a declaration of title to a piece of land situate at Udam Utange. After due hearing the trial court entered judgment for the plaintiff/appellant. The defendant/respondent appealed to the High Court which set aside the judgment of the Area Court on the ground that the court gave no consideration to the defendant/appellant’s evidence and his witnesses and that the only reason for which the elders asked that the plaintiff/appellant be left on the land was that his mother was their daughter.

The plaintiff/appellant appealed to the Court of Appeal which after due hearing affirmed the judgment of the High Court. He has now appealed to this court against the Court of Appeal judgment.

In compliance with Order 6 rule 5(1)(a) of the Supreme Court Rules, 1985 (as amended) learned counsel for the appellant filed brief of argument in which he formulated the following three issues for the determination of this court:-

1. Did the appellant lead evidence in the court of trial in relation to his root of title to entitle him to judgment.
2. Did the appellant establish identity of the land with certainty as required by law.
3. Was the Court of Appeal right to hold as it did that: “The appellate High Court had in my opinion acted rightly in re-evaluating the evidence and coming to the conclusion which it did by dismissing the case of the appellant”.

On issue 1, learned counsel referred to the evidence of PW1 on page 1 of the record, lines 20-25 and submitted that the appellant in that evidence had proved root of title and Court of Appeal ought to have affirmed the holding of the trial court. On second issue learned counsel argued that the appellant at the court of trial complained of an encroachment on his land by the respondent and it was as a result of that he adduced evidence in which the issue of boundary between him and the respondent’s people was settled. He submitted that the respondent as well as the appellant knew the boundary and when the trial court visited the locus in quo, the appellant in the presence of respondent identified the said boundary.

On issue three, learned counsel submitted that the High Court did not review the evidence and that even if it did it was wrong since the exercise touched on the credibility of the witnesses. He further submitted that the High Court as an appellate court would only re-evaluate evidence where issue of witness credibility is not involved and cited Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372 (1984) 4 SC at 98, and that once that course is taken it should make an order of retrial.

He urged the court to allow the appeal and restore the judgment of the trial court.

Learned counsel appearing for the respondent did not file respondents brief nor did he make oral application for leave of the court to make oral submissions. As such no arguments were presented as an answer to the appellants brief on respondent’s behalf. I shall proceed to consider the three issues together as they relate to the facts in this case.

In his evidence at the trial, the plaintiff/appellant deposed as follows:-

Sometime ago I was farming this area and the defendants late brother called Danum was troubling me and I sued him before the clan head Ngokem. Then Ngokem came with the elders and kindred heads and they sued him to stop at this locus bean tree. I was asked by the district head to stop at this locus bean tree and go back to Iki stream and the defendant brother to go back to Agradijo stream. After this I started to make sign on the tree as I was asked to stop. I cut some chamegh trees and on it I wrote my name on. Later the defendant left the demarcation area and entered into my area.

This is the description of the land or boundary for which the appellant sued the respondent.

This evidence cannot be said to have stated with clarity and certainty before the trial court what the appellant was complaining about. Is it the boundary encroachment as learned counsel stated in his brief or is it for trespass and occupation by the respondent of the undefined piece of land as complained of by the appellant The appellant cannot by any stretch of imagination be said to have stated his complaint with clarity and certainty required in this type of action. The evidence of PW2 did not help matters either as it did not improve the situation. He deposed as follows:-

I know the plaintiff and the Defendant. All the disputed area was virgin land there was no body living on it.

Tor-Donga was farming this land, his brother Amagbe was also farming with him. Also, Wende Ayatsav was also farming with him on this area. When Wende died he left his son Iordye father of plaintiff farming this area alone. The father of the defendant was down there also farming. One day the brother of the defendant came and started to work here and plaintiff’s father refused. Plaintiff’s father sued defendant brother called Danum at Ngokem. The kindred Head of Udam and of Mbacher came and they told the parties each to stop at this locus bean tree towards his side. From there they made mark on the trees.